[HN Gopher] Patents are out of control, and they're hurting inno...
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Patents are out of control, and they're hurting innovation (2017)
Author : alexrustic
Score : 181 points
Date : 2022-01-20 14:22 UTC (8 hours ago)
(HTM) web link (www.learnliberty.org)
(TXT) w3m dump (www.learnliberty.org)
| nhumrich wrote:
| Patents encourage this idea of, "it's the idea, not the execution
| that matters". You see this propagate in start up land where new
| founders want you to sign an NDA just to pitch to you. The whole
| thing is silly. I don't think ideas are nearly as original as we
| would like to believe. Pretty sure every one of us has seen some
| thing come out that we replied, "hey, that's my idea!". I think
| we tell ourselves that the big guys with the money just want to
| steal our idea, and patents protect the little guy. But it would
| take more money to patent something (legal fees) than just go out
| and build it. Investing and manufacturing companies have pivoted
| to a "prove to me your idea is useful by making a small business
| first" model, which, essentially invalidates the theoretical
| purpose of patents.
| mips_avatar wrote:
| One positive thing I found about the work I patented, was that
| because the work was patented (and thus public), we were able to
| speak a little more openly about the innovation we made. The
| alternative is that every innovation is a trade secret, which is
| also not ideal.
| lordnacho wrote:
| I have a patent, so I've touched the system a bit.
|
| It doesn't make any sense. There's no way reading a patent helps
| anyone understand anything, because the whole thing is done by
| lawyers, not engineers. Even reading the patent I applied for
| does not explain to me, the person who came up with the idea, of
| how it works. (Long story, not willing to get into it.)
|
| The whole idea needs some kind of evidence that it works. We can
| all imagine that maybe if there weren't patents, certain things
| wouldn't get invented. But that experiment happens in people's
| heads, and the outcome depends on how they are invested. And it's
| not easy to come up with reasonable evidence, there would be a
| lot of confounding issues, such as whether patents themselves
| stop certain beneficial things from happening.
|
| From what I can see a huge amount of innovation is called off due
| to patent uncertainty. I have a friend who is an inventor in the
| medical field, and quite a lot of the ideas he comes up with are
| junked because he's found some patent in a database that sounds
| too similar. At the same time he has to pay a tax to the lawyers
| on a bunch of low probability inventions.
|
| It should just be a free-for-all. You see someone with a better
| mousetrap, you make a better mousetrap. You compete on actually
| bringing it to market, which is not the same thing as whatever
| you think the innovation is. Surely that creates the most value
| for society, or at least should be the default until the quite
| high hurdle of evidence for patents is cleared.
|
| Won't that mean nobody thinks about better mousetraps? No, people
| will just think of better mousetrap production-and-marketing
| ideas compatible with this legal environment instead of what we
| have now.
| FL410 wrote:
| >It should just be a free-for-all. You see someone with a
| better mousetrap, you make a better mousetrap. You compete on
| actually bringing it to market, which is not the same thing as
| whatever you think the innovation is. Surely that creates the
| most value for society, or at least should be the default until
| the quite high hurdle of evidence for patents is cleared.
|
| As I understand it, this is how IP is valued in China - not the
| idea, but the execution.
|
| Yes, ultimately it means better mousetraps for the consumer.
| Maybe even cheaper, better mousetraps. But it sucks for the guy
| who actually designed and engineered the better, cheaper
| mousetrap if he doesn't have the knowledge or capital required
| to actually produce it better/cheaper.
|
| So, it seems like neither the idea nor the execution alone
| carries the full value. There must be some happy medium.
| pfraze wrote:
| That's legitimate, but I have two questions in response:
|
| 1, How effective are patents at protecting an under-funded
| inventor? (As I've been told by my lawyer) They cost tens of
| thousands to file and much more to enforce. It seems way more
| likely that a rich company will railroad you and eat the
| legal costs later.
|
| 2, As execution _does_ matter, don't patents leave the
| potential for a concept to be poorly executed and its value
| wasted during the period it might matter most? The lifetime
| of a patent is huge in the span of tech.
|
| Given those questions and the other negatives, including
| patent trolls and the really broad assignment of patents, I
| really have to wonder what benefit we're getting here.
| ChrisLomont wrote:
| > How effective are patents at protecting an under-funded
| inventor?
|
| Also, how effective is not having a patent at protecting an
| under-funded inventor?
|
| There are ample cases of smaller inventors getting decent
| payouts from bigger companies stealing the invention, often
| after having been shown it be the small guy trying to find
| a way to bring to market.
|
| And, if the patent is really valuable, small guys can often
| find bigger guys to fund patent suits for a cut of the
| return, just like any business.
|
| Not having a patent is not a gain for a small time
| inventor. When I have done startup style things, I was
| constantly asked if I have patents. It enables investors to
| have more leverage to protect the startup from outright
| copying from bigger, better funded companies.
| SuoDuanDao wrote:
| > How effective are patents at protecting an under-funded
| inventor?
|
| My own impression, "less than they used to be". I read
| patents from time to time, and there's a huge difference
| between, say, one of Tesla's patents for which he clearly
| wrote the application himself and a present-day patent,
| where the writing was clearly done by a professional
| unrelated to the technical field.
|
| That said, I wonder how out of reach the self-filing route
| really is. My own patent cost me 2000 Canadian in
| consultant's fees, essentially to have them proofread my
| draft and make suggestions. I still had to have a bit of
| back-and-forth with the examiner, but none of it felt out
| of reach even today.
|
| To my way of thinking, the whole idea of a patent hearkens
| back to a time when kings granted monopolies and the people
| getting them took care of the rest. It doesn't make much
| sense for an inventor today, who would ideally want
| everyone competing to execute on their idea. There are
| probably a lot of better alternatives to the patenting
| system that properly harness the tendency of data to be
| copied. Maybe some form of a value-added tax for getting
| into new business segments that automatically get remitted
| to the inventor? To no one's surprise, coming up with a
| better idea than the patent system isn't the hard part!
| [deleted]
| grp000 wrote:
| I think in an oddly perverse way, it's worked out with
| Western countries innovating on the idea/patent side, and
| China optimizing production sides.
| amelius wrote:
| Inventor should publish it in a peer-reviewed journal of
| inventions.
|
| At the end of the year, government decides which inventions
| were most valuable to society. Then these inventions are
| rewarded from an innovation budget.
|
| (Related question: why are patents treated so differently
| from fundamental research?)
| voxic11 wrote:
| A similar scheme is called "retroactive public goods
| funding" and its a great idea.
| https://astralcodexten.substack.com/p/lewis-carroll-
| invented...
| abfan1127 wrote:
| I have 4-5 patents owned by my companies. It doesn't suck for
| the guy who originally thought of it because while his
| competitors are busy trying to duplicate the work, (s)he is
| out working on the next thing. What it means is we can't
| invent, then sit back on our laurels and milk a cash cow.
| Personally, I'd rather continue innovating.
| maaaaattttt wrote:
| IMO, as a sibling comment mentioned, time is key here.
| Patents should be strictly enforced for 2-3 years, after that
| they're made obsolete. This gives you the benefit of being
| ahead for a while, or someone else to be ahead for a while if
| you want to directly sell the process. After that it's free
| for all.
|
| Current situation is free for nobody but China.
| dqpb wrote:
| > We can all imagine that maybe if there weren't patents,
| certain things wouldn't get invented. But that experiment
| happens in people's heads, and the outcome depends on how they
| are invested.
|
| Well put!
| amelius wrote:
| The whole idea behind patents is that it opens up trade secrets
| and makes them available to society.
|
| So what we should have is a system where some inventor sells
| their idea to society (a government institution), which then
| determines what price they are willing to pay for that
| invention.
|
| So, we should have no more monopolies on a technology for
| certain periods (what a stupid, stupid idea). Just pay for the
| invention if you want it to be opened up.
|
| Everything else in our society works with dollars, so why not
| this thing?
| lordnacho wrote:
| How is the buyer going to know what they are buying?
| ItsMonkk wrote:
| It should be a rental, more like how TV show residuals, not
| a one time purchase. So long as the invention keeps
| providing value to the citizens, the inventor should keep
| getting paid for it.
|
| You could determine the value provided by auctioning off
| these patents through a Vickrey Auction, an auction that
| incentivizes people to always bid their true value. I'm
| fairly sure you could properly set this up such that very
| few people lost access, the inventor got more money than
| they could have made, and no one has to ever deal with the
| bureaucracy that the current system brings.
| amelius wrote:
| Working prototype. Or look at how research is funded.
| jimmydddd wrote:
| Re: "It should be a free for all." Currently, if you invent an
| innovative new mechanical device like a better can opener, and
| it sells well on Amazon, within a few weeks, low cost Chinese
| copy cats will flood the market, and you will not be able to
| make a profit. So, a free-for-all strategy seems to reward low
| cost copiers over innovators. It just depends on what we want
| to reward.
| lordnacho wrote:
| If your product can simply be copied and then delivered in a
| few weeks, the innovation is not really all that innovative,
| you've merely discovered a variant of the item that people
| want that is already within the space of currently
| manufacturable items. The capability to make the thing
| already existed.
|
| A lot of "low-cost copying" is actually just tuning an
| existing apparatus to what the market wants. Suppose you
| discover that people want to buy triangle-shaped plates.
| Either there's something special about your particular take
| on it that naturally protects your business, or existing
| makers of round plates can retool and make triangles and get
| value out to the customers sooner and in more volume than
| you. Why not let them have that reward?
|
| Also keep in mind that a lot of these low cost manufacturers
| are actually testing the market themselves with new variants,
| so it's not like they're not doing anything innovative.
| jmole wrote:
| You can copy a song in milliseconds and distribute it
| instantly - that doesn't mean it's not innovative.
|
| There is no alternative system for remuneration, we use
| intellectual property rights to ensure that people are
| rewarded for the results of their creative work.
|
| Without that right of ownership, the balance of power
| between capital and labor becomes even more tilted toward
| capital.
| [deleted]
| btrettel wrote:
| Former USPTO patent examiner here. As the article suggests, the
| main problem with overly broad patents comes down to a lack of
| time given to examiners. Can't find it in the time given? You'll
| often be told to allow the application (that is, grant a patent).
| Other "solutions" like punishing examiners for making bad
| allowances (which seems to be the current focus at the USPTO) are
| just band aids on the problem. The amount of time examiners get
| was basically set in the late 1970s based on some IBM study from
| the 1960s as far as I'm aware. There have been some increases in
| time since then but if the number of documents to search is
| increasing exponentially in time, a modest increase in time is
| not enough, period, even accounting for the fact that searches
| are computerized now.
|
| I wouldn't have minded staying at the USPTO for longer if I was
| given more time. The lack of time was the main reason I quit.
|
| My understanding is that the time issue would be more easily
| solved by better funding the USPTO. Right now the USPTO is funded
| only by fees they charge, and the Department of Commerce diverts
| some of that funding outside of the USPTO. Fund the USPTO via
| taxation in addition to allowing the USPTO to keep the funds it
| brings in and I think we'll start to see improvements in the time
| given to examiners.
|
| (There are other issues, like the fact that examiners barely get
| any more time for having more claims. Typical patent applications
| are 20 claims, but I only got an _hour_ more for examining a
| particularly annoying application with over 40 claims. That 's
| over twice the work with barely any more time! By the way, the
| USPTO charges the applicant extra for these extra claims.)
|
| There are other patent quality problems that I think come down to
| the incentives of attorneys. Too many patents are written in
| vague legalese that no "person having ordinary skill in the art"
| would understand. As an examiner I was told that I could not do
| 112(a) rejections for those sorts of things (this is the sort of
| rejection it would fall under) and that seems to be typical USPTO
| policy.
| dpark wrote:
| > _Too many patents are written in vague legalese that no
| "person having ordinary skill in the art" would understand._
|
| It's generous to say that it's just a problem for someone with
| "ordinary skill in the art". I fully expect that patents
| written in confusing legalese are more likely to get granted,
| because this makes it hard for examiners, too.
|
| I think that if a patent _isn't_ understandable to an ordinary
| practitioner, it should be deemed invalid. Reading through
| software patents, 90% of the effort is understanding what the
| hell it says. (The other 10% is trying not to scream about the
| fact this obvious garbage was granted.)
| btrettel wrote:
| For more on some of the incentives attorneys face to write
| vaguely, see this blog post (written for mechanical inventions
| but you'll get the point): https://krajec.com/dont-write-
| patents-that-hide-the-ball/
| 692 wrote:
| I'm no where near an expert and I'm not a big fan of software
| patents,
|
| on the subject of prior work, and just thinking out loud, but I
| wonder if USPTO could set up some rules whereby the person asking
| for a patent has to do some sort of search for prior art, in
| order to get the patent
|
| and if they don't or do it badly/ not to the rules, then a
| penalty is applied, financial or immediate ban on patients?
| IdoRA wrote:
| > In nonprovisional applications, applicants and other
| individuals substantively involved with the preparation and/or
| prosecution of the application have a duty to submit to the
| Office information which is material to patentability as
| defined in 37 CFR 1.56.
|
| See https://www.uspto.gov/web/offices/pac/mpep/s609.html
| jcranmer wrote:
| > but I wonder if USPTO could set up some rules whereby the
| person asking for a patent has to do some sort of search for
| prior art, in order to get the patent
|
| Disclosing prior art, and how your patent builds on and is
| different from it, is part of the patent application process.
|
| > and if they don't or do it badly/ not to the rules, then a
| penalty is applied
|
| That penalty is the patent is completely invalidated.
| jandrese wrote:
| In theory, but in practice getting a patent invalided is a
| fraught and unreliable process. The courts have been
| generally deferential to the the USPTO decision, which may be
| a problem if some examiners have allowed patents to go
| through on the assumption that the courts can fix it later if
| they get it wrong.
| harikb wrote:
| I believe this is already the case. One is supposed to look for
| prior art. In fact, most patents build on something else and do
| list prior art.
|
| The problem with proving something is an exact copy is just the
| nature of our field - anything can be argued as a copy or
| innovation.
|
| Most ideas that get patented are reasonable next steps from an
| existing idea anybody in the profession with half a brain will
| take.
| greensoap wrote:
| Slight correction on your first point.
|
| There is no requirement that one looks for prior art. 37 CFR
| 1.56 requires that an applicant disclose pertinent prior art
| that is already known to the applicant or his lawyer and
| disclose prior art that the applicant becomes aware of during
| the application process.
| bell-cot wrote:
| A friend of mine is retired from pharmaceutical research. Where
| he did a lot of computer work. His wisdom is that the ease of
| patent granting should vary _enormously_ by the type of invention
| being patented, and difficulty of being a credible would-be
| inventor in the field. And the thing patented must exist, and
| actually work. (So no "if we use some unobtainium..." patents.)
|
| So - invent a new drug (for humans), where safety regulations
| guarantee that actual approval to sell the drug will cost many,
| _many_ millions of dollars? Patentable. (Yes, there are other
| issues with modern drug companies & patents - Not. The. Point.)
| If somebody comes up with a _working_ , practical fusion reactor?
| Very patentable - that can't have been cheap to do, and
| "thousands of experts have been trying for decades" is proof that
| _this_ inventor really is something special.
|
| Vs. software, abstract ideas, waterbeds, scanning to e-mail, a
| clever new way to peel potatoes, etc. - _sorry_ , but patents
| should simply not exist for such stuff. You can only copyright
| your code, trademark your brand, etc.
| bzaidan wrote:
| I watched a mini-documentary (FSF supported) on patent absurdity
| many years ago, which still rings true.
| (http://patentabsurdity.com/watch.html)
|
| Granted, in the meantime, we've had some SCOTUS rulings which are
| more or less anti-software patents, but it's all too common for
| them to reverse circuit court rulings which are almost always pro
| patents.
| efitz wrote:
| It's time to get rid of patents and reduce copyright to a couple
| of years. They've become ridiculous vehicles for crony
| capitalism, rent seeking and anti-competitive behavior.
| reureu wrote:
| A few months after I left a company, I got an email from their
| attorney telling me to sign an invention assignment form. No
| other information, so I asked to see the provisional patent that
| I was asked to assign to the employer -- after some back and
| forth they forwarded it to me. The provisional broadly described
| an entire academic domain with no specifics whatsoever. Imagine
| something like "you can use data to recommend things to medical
| patients." No specifics about what the "data" or "recommend" or
| further defining which patients.
|
| A long time ago, a former employer sued me for stealing their
| trade secrets but wouldn't tell me what trade secrets I stole
| were. After a few rounds of litigation, the employer admitted the
| "trade secret" was a literally a section of HIPAA. Shortly
| thereafter, the case was dismissed with prejudice and the former
| employer paid my legal fees (and then some for the trouble). It
| seemed clear they knew there was no merit to their accusations,
| but it was more about a vindictive smear campaign. (also, belated
| thanks to HN... my plea for help to this forum was met with a
| referral to an attorney that ended up successfully sorting this
| issue out for me)
|
| That experience scarred me enough to basically refuse to sign the
| ambiguous invention assignment agreement from the first
| paragraph. You don't know how the companies will use these
| patents, and even if a patent isn't granted you're often still
| asked to assign any rights to the invention. An overly broad
| invention assignment form opens the possibility for organizations
| to come after you with meritless lawsuits claiming you're using
| the company's property in your future work... which, even if you
| know you'll eventually prevail, it's still a total disruption to
| your life.
|
| This whole system is broken.
| riskable wrote:
| Patents were never about "encouraging innovation". Originally
| they were a money-making scheme _for the Crown_ and quickly
| evolved into a pay-to-play scheme whereby patents were granted on
| things like salt (See:
| https://en.wikipedia.org/wiki/History_of_patent_law).
|
| Eventually they evolved into what we now know as "intellectual
| property law" in the 18th century and that system was all about
| _disclosure_. It had nothing to do with "encouraging
| innovation". What's most interesting is that _even back then_
| patents were being abused and hindering innovation. See the info
| in that Wikipedia article about Boulton & Watt preventing
| improvements to the steam engine.
|
| The simple truth is that patents are not required for innovation
| and they were never intended to protect individual inventors;
| they were designed to protect business interests. To allow
| established players to keep the up-and-comings out of their
| markets.
| dnautics wrote:
| A couple of edits:
|
| > all about disclosure
|
| was post-hoc justified using disclosure.
|
| > It had nothing to do with "encouraging innovation"
|
| Technically disclosure is _supposed_ to encourage innovation by
| allowing people to see what 's up and then either choose to
| iterate on it (and wait till expiry to deploy the iteration) or
| "find a better way", either inspired by disclosed patent, or
| knowing that you have to skirt the bounds of the disclosed
| patent.
|
| Open question about whether that actually works (I personally
| think the answer is no).
| tremon wrote:
| _Technically disclosure is supposed to encourage innovation
| by allowing people to see what 's up and then [..] "find a
| better way"_
|
| Except that if you acknowledge the existence of the patent
| (for example in an internal paper trail), you will then be
| found liable for willful infringement and will face triple
| damages, even if you honestly believe you found a way to
| avoid using the method covered by the patent.
|
| At least that's the legal advice I've seen coming from the
| USA:
|
| - never talk to cops
|
| - never read a patent
|
| - never read proprietary source code
| dandotway wrote:
| - never talk to cops - never read a patent
| - never read proprietary source code
|
| I need a nice printable version of this to post on my wall.
| CalChris wrote:
| > Patents were never about "encouraging innovation".
|
| The US Constitution disagrees: Article I,
| Section 8, Clause 8 [The Congress shall have power] "To promote
| the progress of science and useful arts, by securing for
| limited times to authors and inventors the exclusive right to
| their respective writings and discoveries."
| rta5 wrote:
| This is why I've heard the argument (presumably from Stephan
| Kinsella, who wrote a book against intellectual property)
| that the patent system is unconstitutional - it is dubious
| that patents "promote the progress of science and useful
| arts."
|
| The economist Fritz Machlup did a study in the 1950s on the
| economics of the patent system in the US and in his
| conclusion came to: "If we did not have a patent system, it
| would be irresponsible, on the basis of our present knowledge
| of its economic consequences, to recommend instituting one."
| CalChris wrote:
| That is a dubious argument in its own right. Inventors
| undertake the considerable effort of inventing and then pay
| the expense of filing a patent application while disclosing
| their invention to the public for the reward of a limited
| monopoly which they would then have to defend in court,
| again at their expense. Your argument says they are not
| motivated _To promote the progress of science and useful
| arts_ but they seem pretty motivated to me.
| derbOac wrote:
| I haven't read this literature in awhile but there was a
| time when I was looking into it and it seemed that there
| was empirical evidence that if you really want to promote
| innovation via governmental means the way to do it is
| through competitions, basically like grant applications
| or xprize-type things.
|
| The benefits from a patent-type system have to be
| compared to the alternative, which is where people
| innovate solely to stay ahead of market competitors and
| protect trade secrets. In that scenario, one might argue
| that there's a natural measure of innovation, the ease
| and speed with which a competitor can copy something or
| implement a competing product.
|
| I'm not inherently opposed to patents but I do think
| their implementation today is extremely dysfunctional.
| supperburg wrote:
| People don't get it. The sole purpose of patents and intellectual
| property is to give a reward function to large capital
| allocators. Capital is heart and sole of any society, it is what
| builds skyscrapers, cars, toothbrushes, shopping centers,
| internet backbones and everything you can think of. If that
| capital does not have a reward function, it will build the wrong
| shit. It would be like a cell making the wrong proteins -- you
| don't want that.
|
| Like everything, it's only as good as it's implementation. I
| think it would be better if a patent was awarded only after a
| profitable demonstration was built and running maybe with a pre-
| patent filed beforehand. It's insane that a guy can sit at his
| desk and patent things arbitrarily -- how is that providing
| guidance to capital? And I think the patent should withstand
| ongoing demonstrations of actual implementation.
|
| And also, we need to get rid of arbitrary litigation because that
| just makes everyone afraid of other peoples patents. It would be
| easy to get rid of that.
| automatoney wrote:
| The article is interesting, and while I do generally agree with
| loosening intellectual property restrictions, the tone makes this
| feel like it's preaching to the choir, instead of making a claim
| and trying to get more broad agreement. I suppose given the
| source there are some assumptions that can be made about the
| audience, but at the same time starting off the article with
| "every one of these claims is like a new federal regulation
| governing private conduct." kind of tips their hand on their
| perspective.
| beardyw wrote:
| It would help if we could enforce a requirement that the holder
| is actively using or at least further developing whatever it is.
| riskable wrote:
| Another requirement would be that the current owner of the
| patent be kept on file and up-to-date otherwise the patent gets
| automatically invalidated.
|
| As it stands right now it can be _literally impossible_ to find
| the current owner of a patent. The "inventor" is irrelevant
| metadata in a patent filing. What matters is who _owns_ it and
| what happens a lot of the time is some business owned a patent
| and it folded. Or the patent was secretly sold to some other
| entity and that sale was never disclosed to anyone (and even if
| the previous owner can be found they have no obligation to tell
| you who they sold it to).
|
| So even if you wanted to negotiate a license for an existing
| patent it's an uphill battle a lot of the time to even figure
| out who you need to talk to. It's an incredibly impractical
| system.
| beardyw wrote:
| Didn't know that, sounds terrible.
| josaka wrote:
| There are gaps, but in almost all cases in the US in my
| experience, non-inventor owners record their interest in
| pubic records at the USPTO assignment database to perfect
| title: https://assignment.uspto.gov/patent/index.html#/patent
| /searc.... If they fail to do this, the previous owner could
| re-sell the asset to someone else who records and could have
| superior title. 35 USC 261, para. 4. In practice, gaps arise
| when patent assets are transferred between entities
| controlled by the same party, who doesn't need to worry about
| the prior owner trying to re-sell the same asset they already
| transferred. But event then, the public records get you
| pretty close to the owner.
| 99_00 wrote:
| Wouldn't patents protect a small software development company
| from having their product ripped off by one of the giants?
| Essentially force the giant to buy out the smaller developer?
| paxys wrote:
| Assuming the small company can even file a patent. To do that
| you need capital, lawyers, developers with free time. Meanwhile
| your larger competitor has already filed a dozen of them and
| has used a few vague ones in your domain to sue you out of
| existence.
| 99_00 wrote:
| Private citizens hire lawyers to file patents on their
| crackpot inventions. So I don't see cost and time being a
| being a barrier.
| stonemetal12 wrote:
| Patents are one of those things that seem like a good idea, and
| probably was for a while. Then people started playing by the
| letter of the law instead of the sprit of the law and it all went
| to hell.
|
| You know the phrase "best thing since sliced bread", well the
| sliced bread machine was patented and now we all have sliced
| bread. That is the way it should work.
| jandrese wrote:
| I'm a bit torn because one of the alternative systems to
| patents is the medieval system where secretive guilds jealously
| guard their techniques and tools from the public. Things can
| turn ugly with industrial espionage between companies and
| countries getting a lot of people killed because there is no
| legal recourse.
| dpark wrote:
| But we also provide legal protection for trade secrets!
|
| The whole thing is a mess.
| amelius wrote:
| And nothing changed since.
| ta245435356 wrote:
| paulgb wrote:
| Not entirely; there's been a SCOTUS decision (TC Heartland v.
| Kraft Food Brands Group) that has had an impact on forum
| shopping by patent litigants.
|
| https://www.abajournal.com/news/article/patent_lawsuits_drop...
| nisegami wrote:
| In my adult life, I have seen two small niches completely explode
| the instant the underlying patents expired: mechanical keyboards
| and 3D-printing. In the former, companies like Kailh started off
| producing copies of existing Cherry designs, but they've since
| expanded to their own original designs which in my opinion are
| vastly superior. At the same time, the original Cherry design's
| monopoly allowed the community to center on their shape and
| mounting mechanisms as a standard (despite the fact that they're
| not great and can be improved). If it were a free-for-all, I feel
| like there would be a lot less consensus on the form factor.
|
| I think the world has outgrown our current approach to IP, but as
| long as it continues to suit the needs of those who already hold
| resources, nothing will change.
| Shorel wrote:
| Patents are like a brake that society applies to itself, only to
| enrich lawyers.
|
| And there are certain countries that are not dissuaded by
| patents, where innovation will not stop. For a while at least.
| cjbgkagh wrote:
| I see patents as a mechanism for extracting tributes for the US
| Empire / sphere of influence. So while patents hurt innovation
| they are probably less hurtful than alternative methods of
| extracting tribute.
| AlbertCory wrote:
| This comes up every month or so.
|
| If you'd like to get rid of software patents, the lawyers,
| company management, and professional societies are not going to
| help. Band together, get a Congressman to introduce a bill, and
| then start pressuring candidates to support it.
|
| If you write an op-ed about this, your opponents will cite
| medical and biological patents to defend "patents as an abstract
| idea." They will muddy the issue. The only way to defeat that is
| to separate out "software patents as a bad idea" from "worthwhile
| inventions that deserve patenting." You, yourself, might want to
| abolish _all_ patents, but that proposal will face a blizzard of
| opposition.
|
| _The court has demanded that patent examiners who make a finding
| of obviousness cite documentary evidence for each feature in a
| claim, no matter how mundane or obvious the feature is. But what
| if the feature is so mundane no one would write about it? The
| paradoxical result is that the more obvious a feature, the harder
| it can be to prove obvious._
|
| This is nonsense. Things are "generally known to ones ordinarily
| skilled in the art" can be ruled obvious and are all the time.
|
| _One researcher estimated that, for software-related inventions,
| about 50 percent of patents are likely invalid, even under the
| existing permissive standards for validity._
|
| It's more like 90%, and I've read hundreds of them.
| rta5 wrote:
| One of the best discussions I ever heard was from Stephan
| Kinsella when he discussed the patent system as a system of
| negative servitudes or negative easements
| (https://www.stephankinsella.com/paf-podcast/kol365-guest-
| lec...). Essentially IP is similar to joining an HOA, which might
| give you negative rights in your property such as the inability
| to use it as a dump, the inability to paint it bright pink, etc.
| but with IP your potential competitors are petitioning the USPTO
| to create negative rights in property you already own.
|
| In general, for anyone with a general interest in the anti-IP
| position, the following resources are good:
|
| * C4SIF - Center for the study of innovative freedom - c4sif.org
|
| * The Case Against Intellectual Monopoly by Michele Boldrin and
| David K. Levine -
| http://www.dklevine.com/general/intellectual/against.htm
| ketcomp wrote:
| I am very disillusioned about the vast majority of patents and
| patent holders.
|
| I was part of a group working on getting patents. That is right -
| we weren't necessarily trying to solve anything but literally
| just brainstorming possible things we could realistically patent.
| The rest of the process then devolved into, "how this will look
| and sound to the committee or the board" rather than being about
| the functionality. I couldn't stand it and politely excused
| myself from the group.
|
| The whole experience left a very bad taste with me about the
| patent system in general.
|
| I can't think of how the process should be improved because I can
| see how a stricter vetting can stifle _real_ creativity but the
| current process is not good.
| Mower99 wrote:
| Patents actually _incentivize_ innovation - not hurt it.
|
| Useful innovations are those which help society. Things that
| enable "standing on the shoulder of giants". Society values those
| innovations.
|
| Often, the simple innovations are the best ones - yet, the simple
| innovations are also the ones most easily copy-able.
|
| But, if something is easily copy-able, then one hesitates making
| those ideas public - for fear of copying and undercutting by
| competitors. Studies have shown that typically ~80% of R&D ends
| up as wasted effort (those 23 forks embarked on to realize #21
| was the best).
|
| So how can society encourage innovations to be made public? By
| providing _incentives_ - such as patents - which are a limited
| time monopoly in exchange for fully describing the idea. Once the
| limited time monopoly expires, it is free for all - but in the
| meantime, others can read and understand the innovation - and
| either workaround (and provide society ANOTHER idea) or improve
| upon further or simply spark another idea.
|
| Open societies out-proposer closed societies.
| Mower99 wrote:
| -2 points?
|
| Did I say something incorrect or did I simply illuminate some
| unspeakable truth that strikes against the narrative what
| ycombinator editors are trying to convince readers of?
| dandotway wrote:
| Clearly you've never been sued by a patent troll.
|
| The patent system only benefits (1.) rich corporations that
| can afford the millions of dollars in lawyer fees to litigate
| patent claims, (2.) the lawyers that receive said fees.
| Mower99 wrote:
| There have been significant changes to the U.S. patent
| system the past ~10 years. One of which is the ease,
| effectiveness, and costs of invalidating a patent.
|
| First, spend a couple of hours analyzing the Patent Claims.
| Often you'll discover that you most likely do NOT infringe
| at all - or least highly unlikely.
|
| Other times (albeit after having developed a bit more
| knowledge one-time), you'll assess with decent probability
| of the likeliness of being able to invalidate the patent -
| then the tables turn - use this as a threat against the
| troll. They greatly fear having their $costly patent
| potentially wiped out. They too are playing the odds, and
| even a 10-20% probability of having their patent
| invalidated can go a long ways to dropping the suit against
| you.
|
| At the end of the day, engineers are overly afraid of
| patents. If they spent a little time understanding them,
| they could greatly reduce this exaggerated fear. It's not
| an insurmountable hurdle - engineers&scientists have more
| innate abilities then they give themselves credit for. It's
| more of a matter that this exaggerated fear has been
| drilled into them. Lawyers are incentivized to perpetuate
| these fears.
| dandotway wrote:
| Individuals and small business owners don't have time to
| learn patent law, nor do they have money to have
| dedicated legal departments like rich corporations. If I
| was sued I would not listen to some anonymous stranger on
| HN. I would get a lawyer. And I would be charged
| $300-$800/hr by said lawyer. In the patent ecosystem the
| patent-holding apex whales and lawyer-sharks hunt smaller
| creatures to eat, and devour whole.
| psyc wrote:
| I didn't downvote you, but I really wanted to. It reads like
| it was written for middle schoolers by a pro-patent think
| tank. I resented having to spend the time to read to the end
| to see if there was anything besides "The Electric Company
| version of Why Do We Have Patents?" I think it's bad form to
| post like this on a forum of people whose average
| understanding of the patent issue is pretty sophisticated.
| jandrese wrote:
| > Often, the simple innovations are the best ones - yet, the
| simple innovations are also the ones most easily copy-able.
|
| Simple innovations are also the ones that are most easy to
| accidentally create yourself. "The most obvious way to do it".
| In cases like this patents are frequently a hindrance as a
| company needs to find a less efficient and more complex way to
| solve a problem because the obvious solutions is being squatted
| by a patent troll that demands far too much for the small but
| critical piece of infrastructure.
|
| Or worse, the patent troll uses various tricks to delay award
| of the patent until the industry has implemented the technology
| on millions of platforms and then surprises everybody with mass
| infringement lawsuits.
|
| The patent process would probably be improved if before
| awarding a patent they asked a panel of experts how they would
| solve the problem that the patent solves. If the experts come
| up with the same solution in a short period of time then the
| patent is not awarded. Something has to be truly novel to be
| worthy of patent protection. Unfortunately this is not
| practical with the current volume of patents working through
| the system.
| paxys wrote:
| These are all generic, idealistic arguments which ignore the
| fact that things don't work this way in the real world, at
| least not how they did a couple hundred years ago.
|
| Patenting something today doesn't require innovation, but money
| and a large team of lawyers. Patents don't encourage innovation
| but hamper it. Try and start a company today, and a large chunk
| of your capital will need to be kept aside for legal defense
| and paying off patent trolls and larger competitors who will
| bury you in lawsuits for vague, meaningless infringements.
| opportune wrote:
| Patents incentivize filing and owning patents. The disconnect
| is whether a patent actually represents innovation. IME the
| most innovative things in the software world are not patentable
| or never patented (algorithms, free software that sets a
| standard de facto). The things which are patented are stupid "X
| for Y" where someone tries to either block competitors or
| extract a tax from an obvious application of technology to a
| domain.
| jeffreygoesto wrote:
| iratewizard wrote:
| I was still reading it as parents until you said something
| cblconfederate wrote:
| Me too what s going on
| netizen-936824 wrote:
| Same. Do we know how to read?
| SuoDuanDao wrote:
| It seems like the inversion of a Freudian slip, people
| see "out of control" and "Hurting Innovation" and assume
| the article _must_ be about parents. Not really bad
| pattern recognition, given what is written about parents
| these days.
| netizen-936824 wrote:
| Or just a pattern recognition error. t can look like r at
| first glance, especially with some fonts
| djyaz1200 wrote:
| Patent applications should be published online right away so they
| can get roasted by the whole internet. This follows the principal
| of Cunningham's Law "the best way to get the right answer on the
| internet is not to ask a question; it's to post the wrong
| answer."
|
| Generally strong IP rules tend to favor the less wealthy, weaker
| IP rules tend to favor those with the most capital. That's why
| billionaire Mark Cuban is funding things like this article. When
| people say things like "just out execute in the marketplace" what
| they are really saying is just pour millions into the project.
| Not everyone has millions and one of the foundational principals
| of US society is that a poor person with a good idea should be
| able to get rich. How rich and what they should do to qualify for
| the patent is worthy of debate. For example patent holders should
| have to be a "practicing entity" (aka a real business) working to
| deliver the innovation to the market.
|
| The patent system should be better not gone.
| opportune wrote:
| Really disagree with this. The existence of patents is a
| significant hamper on entrepreneurship. There are a lot of
| business spaces where you simply cannot touch because billion
| and trillion dollar companies have deep patent portfolios
| they'll fight with. Think things like hardware and devices.
| Even garbage like using a fingerprint to authenticate with you
| bank.
|
| As a small timer, the patent system is just a way to extract a
| tax from other people or sell your patent to a big business
| that'll use it to bully people like I mentioned.
|
| Plenty of businesses have been founded on out executing giants,
| and won. Sure they had to maybe carve out a niche or have an
| edge at first (nothing says you cannot have trade secrets
| without patents).
| mschuster91 wrote:
| > Generally strong IP rules tend to favor the less wealthy,
| weaker IP rules tend to favor those with the most capital.
|
| No. If you as a startup need to account for a _significant_
| amount of money to validate your entire company 's activities
| for patent violations - including basic UI/UX improvements such
| as "one-click shopping" [1] - the situation becomes ridiculous
| and oppressive in itself.
|
| Not to mention that a patent holder unwilling to license their
| patent can keep progress from society, such as in the infamous
| Qualcomm saga. Or, assuming you want to build an innovative,
| high-performant set-top box (which is _incredibly easy_ to do
| so using something like a Raspberry Pi)... you need to deal
| with buying licenses for a bunch of video standard patents for
| that.
|
| All of this is utter bullshit that only benefits the _very_
| rich and powerful, and stifles competition (and no, "free
| usage" exemptions don't count because you still have the fear
| of lawsuits above your head should your product be more
| successful than expected).
|
| IMHO: As soon as you want _anything_ to become a standard
| recognized by major international bodies, you should have to
| give up all the patents. Everything that is required to follow
| a government-mandated standard (which especially anything
| involving RF communication is) should be freely available to
| read and implement for _everyone_ - looking at you, DIN.
|
| [1]: https://en.wikipedia.org/wiki/1-Click
|
| [2]: https://en.wikipedia.org/wiki/FTC_v_Qualcomm
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