TCS Daily

Fair or Foul?

By Arnold Kling - March 2, 2006 12:00 AM

" everything else the legal system touches nowadays, U.S. patent law has been hijacked so that it now operates nearly in reverse, deterring research and penalizing innovation...

"RIM faces a possible injunction barring it from providing BlackBerry service in the U.S., as well as $450 million or more in payments to the plaintiff, NTP, whose only significant assets are the patents it claims RIM has infringed.

"In the RIM case, NTP offers no product that competes with BlackBerrys. It sells nothing at all."
-- an editorial in the Wall Street Journal

Intellectual property law is increasingly important. In this essay, I am going to propose that the patent law be changed to incorporate something analogous to the "fair use doctrine" in copyright. Bear in mind that I am an economist, not a lawyer, so my treatment of legal issues will have an amateur character.

My understanding of "fair use" is that it puts some flexibility into copyright law. For example, it would be illegal for me to copy an entire editorial from the Wall Street Journal, but the excerpt that I quoted above constitutes fair use. Another fair use might be copying the music I bought on a CD onto a hard disk so that I can listen to it in a different location. Unfair use would be making copies on CD's and selling them to strangers.

Some of the problems with patent laws could be fixed by developing standards for "fair use." Under a "fair use" standard, there would be circumstances where one company could use another company's patented ideas in a way that constitutes limited infringement (with a low ceiling on damages) or no infringement at all. For example, a patent adjudicator could take into account the fact that the patent holder has not made an effort within a reasonable time period to market a product incorporating the patent.

A "fair use" doctrine for patents could take into account the difficulty of developing the idea for the patent. For example, I think that most of the ideas that I have seen for stopping spam -- Bayesian filters, forcing senders to manually enter codes, schemes to charge senders, etc. -- could have been arrived at ten years ago by a group of geeks sitting in a one-hour brainstorming session. On the other hand, Visicalc, the original spreadsheet software, was a truly creative leap.

The "fair use" doctrine also should take into account the difficulty of implementing an idea. If an idea is very difficult to execute successfully, then it should be "fair use" for someone other than the originator to try to implement the idea. It is on this issue that I believe that "fair use" would support RIM, the creators of the Blackberry. Coming up with the technical concepts involved in creating a mobile communication device is only a small part of the business problem. The challenge is in making correct decisions about many subtle characteristics of implementation and design. The fact that the patent-holder has no product further demonstrates that the value of the Blackberry is in the implementation, not in the intellectual property that was patented.

A "fair use" doctrine would allow a patent adjudicator to ask the following questions:

  • How much research and creativity were required to develop the idea that was patented?

If it is an idea that any number of people could have come up with in a matter of a few hours, then there should be wide latitude for fair use. A Bayesian spam filter would be an example. On the other hand, if it is an idea that has required years of testing and refinement, such as a video game platform, then the latitude for fair use would be narrower.

  • Once one has the idea, how difficult is it to incorporate into a marketable product? If the product is complex and addresses a highly competitive market, as is the case with the Blackberry, the latitude for fair use ought to be wide. On the other hand, once the formula for a drug compound has been published and its efficacy and safety established, manufacturing and distribution are relatively easy. On this basis, fair use for drug patents would be rather limited.

The "fair use doctrine" would continue to protect ideas that are difficult to develop and easy to execute. However, it would provide less protection to concepts that are not embedded in working products.

The "fair use doctrine" would reduce the incentive for companies to file for patents on ideas solely for the purpose of staking claim to an idea. Instead, patents would have value only as protection for actual marketable products.

The "fair use doctrine" would protect innovative companies from having to defend themselves against patents of which they were not even aware. It would reward engineers and marketers, rather than patent attorneys.

Arnold Kling is author of Learning Economics.



Sounds too complex
Isn't this extra layers of decision making and complexity?

Seems like the patent system might be improved by an honest look at the few criteria patents are supposed to fit - in mind of costs and benifits to the public.

Closer questioning or examination of obviousness may not hurt. Why should the public use its police power to hand someone an obvious patent - one whose idea would be available to the public for free?

Or, software patents could use models. The original purpose of patents was to get the ideas out there and useable to others. So, why can you file a software patent without providing fully documented, buildable source code?

The Answer is Obvious(ness)
Much as I appreciate Arnold's analyses (usually), I think he is askew on this one -- not in his assessment of the problem, but in his solution. The fundamental problem in the examples he uses is that the inventions should not have received patents in the first place, under an appropriate application of the non-obviousness requirement, as argued in the certiorari petitions (including the one by PFF) in the KSR case. []

In short, we agree with Arnold's view that there is a problem, but think that the answer is in a better application of the patentability tests, a view reinforced by the fact that the fair use doctrine in the copyright context is a thorough mess that should not be imported into patent law. []

missing the problem
I think you miss the problem.

The problem isn't that patents don't allow for 'fair use' in certain cases.

The problem is that patents are being handed out for things that should never be allowed to be patented. Among the things now being pateneted include business models, business processes, technological concepts (without implementation), combinations of existing items, and the list goes on.

You wrote "If it is an idea that any number of people could have come up with in a matter of a few hours, then there should be wide latitude for fair use."

NO! If any number of people could have come up with it in a matter of a few hours it has no business having a patent. This is a big part of the problem. The obvious test for patents has basically fallen to the courts rather than the USPTO.

Software patents are another serious problem that shouldn't exist (and I say this as a software developer). Software should fall under copyright law, not patent law.

IP LAW -the new Pharisees
Anybody who follows the history of IP law knows that the legislatures and courts have (especially recently) have, in response to vigorously lobbying of producers of intangible expanded the nature, scope and duration of IP laws-sometimes with obvious benefactors. Does anybody remember how Congress met its public responsibilities a few years ago by extending the length of copyrights-just in time to preserve Disney's legal ownership of the earliest Disney Cartoons?

Of course the Bar is a great beneficiary of this increasing proliferation and extension of these laws. Hence, the Union Pacific Railroad hires lawyers to send threatening letters to MODEL TRAIN MANUFACTURERS, in part so it is not perceived to not asserting its rights. In the old days, that was understood as free publicity.

Or patent rights could be eliminated all together
Or patent rights could be eliminated all together. They have never worked as advertised except in drugs and they create a great distraction. The drug exception is mostly due the heavy hand of the FDA. Eliminate the FDA and even in drugs patents are not needed. Patent are not natural law and where first used to provide income to royalty (thus the word royalties). We do not know if they provide net benefit to humanity. I think that they do not. In patent one man’s loss is another man’s gain. Universities would still do basic research and companies would do technical research but in a more secretive way. One of the worst aspects of patent is that one can create something after a patent without looking at the other patented work and be disallowed from user your work.

Solution To Problem - Not Arnold's
You are absolutely correct. The solution is a change in the standard of obviousness. Too many applications get filed and must issue because the standard is too low. Not only would inventions which have the smallest modicum of improvement be prevented, but also the backlog in the PTO would drop over time.

I am reminded of the adage that “It is much easier to suggest solutions when you don't know too much about the problem.” Arnold are you listening?

No Problem - Just Amend the Constitution and You can eliminate Patents alttogether

You write as if the politicans let the constitution hold them back from doing anything now.

software people are almost unanimous
I don't personally know a single software professional or researcher who is in favor of patents involving software. While theoretically software patents can be effective, in practice they are only used as destrictive weapons between companies. I have *heard* of Microsoft claiming they need patents, but I cannot figure out why they would claim this.

I have an ongoing challenge to myself to find software patents that actually seem reasonable. I have only run into two examples: RSA, and MPEG. Two is awefully skimpy, and even in these cases, I don't believe the patent was particularly helpful for humanity. Alternatives exist for both of these, and both of these would probably have been created anyway even without patent protection.

Every other software patent I have heard of is routine programming. Software is just that easy to work with: that's why it's called "soft", after all.

I'll leave it there. For more, please go read the following great page with well-written articles about the issue.

Software patents should go. Completely.

Doesn't Make Sense....
I typically agree with Mr. Kling's comments, but in this case he clearly is out of his league.

First, fair use is a product of the first amendment, which does not apply to patent law. In addition, copyrights are for much longer terms than are patents.

Second, the concept of how long it will take to come up with an idea misses the point. Whether it would take an hour, a day, or ten years, the point under patent law is that nobody else came up with that particular idea! For now, I will ignore the "submarine patent" issue that is the case of the Blackberry case, and address the issues raised by Kling more generally. Many ideas appear obvious in hindsight, but not in foresight. After a patent is obtained on an invention, there are two primary possibilities:

1) It does not become a success (nobody wants it), and thus it does not really matter how simple the idea was, the patent has no impact.

2) The idea becomes a success. In that case, how could the idea have been obvious? If there was money to be made, and it was obvious, than somebody would have obtained a patent earlier! In this case, the idea is truly novel, and the patentee deserves the right to patent it.

Thus, how long it would take somebody to invent a similar idea is a non-issue. If the idea is a good one, the inventor deserves his limited monopoly and all resulting profits, because he has filled a needed niche. If the idea is not good, no niche is filled, and the patent is meaningless. A market economist should see the truth in this. Never forget the patent term is relatively SHORT (20 years), and after that time, the invention is public domain.

Furthermore, Kling's argument that, if marketing the invention is hard, it deserves weaker patent protection flies in the face of one of the major purposes of patent protection. If marketing costs a lot, who will invest WITHOUT patent protection. Once the market is formed, it is much easier for competitors to enter. This is not fair.

In addition, Kling decries the act of filing "patents on ideas solely for the purpose of staking claim to an idea", but he ignores the fact that the patent makes the idea public! Yes, nobody can use it for 20 years without a license, but they can improve upon it, and thus move the art technically forward. Furthermore, they can design around it, and still further advance the technology (RIM is trying to do this). Take away patenting these ideas, and there will be little incentive to make them public.

Finally, addressing the issue of submarine patents, Congress could instead provide a reduced term, say 8 years, for a patent that is not marketed or licensed. This would provide an incentive to produce the product, without all the problems associated with Kling's "solutions".

Note that there is nothing inherently wrong with the concept of the inventor not marketing an invention himself. An inventor may have a great idea, but prefer to license the idea to another company, rather than produce the product itself. What is not productive is to sit on a patent without tying it to any product at all, and wait until an infringer comes along.

Congress can address that by manipulating the term, rather than the more difficult to implement ideas that Kling proposes. After all, who decides how long it would take another AFTER the fact? Who determines how much marketing $$ is enough? These are not practical solutions at all.


Patents have never worked as advertised? If that is so, why are the nations with the strongest IP laws (Including patents), the ones that are most technologically advanced? The evidence is CLEAR that they provide net benefits, as those nations that protect their IP also CREATE the most IP. The correlation is a clear as it gets.

Furthermore, one of the benefits of patents is that they force PUBLIC disclosure of information (they expire after a relatively short time, too, and then EVERYBODY gets to use it).

And the issue that "one can create something after a patent without looking at the other patented work and be disallowed from user your work" is just the consequence of a patent. If you can't stop others from marketing your invention, what, exactly, is the point?


Back before 1960 the USA did not enforce patents other than drug patents very well China does not no

Nothing like a little Marxism in the eveing.
Stating that an idea should be protected on a level matching it's difficulty in conception or implementation is applying the long discredited "labor theory of value" to patent law. This argument has two major flaws: First, great ideas are often simple ones (somehow, self-evident ideas seem to occur to people who spend years working in the relevant field...some people have all the luck). Second, do we really want some empty suit from the state deciding what efforts have real value?

Kelo v New London of patent law
Mr. Kling seems to suggest that as in Kelo v New London, the government should arbitrate who is making best use of personal property and give it to those it deems worthy. (read: offer the best kickbacks or hires the best lobbiests)

This is not just a case of one conglomerate sitting on a patented product to maximize profit on a previously patented product while keeping other conglomerates out of the market. This is about small entities trying to profit from hard won innovation and overcome capital requirements and regulation hurdles which are often encouraged by large corporations as a barrier to entry.

Just because a patent is not being used to it's fullest potential is no excuse for someone to fair use it. If blackberry wanted to use the patents they should have come to an agreement with the patent owners and then created the product... it was good enough for Bill Gates.

The more I think of what Mr. Kling suggests, the more disgusted I am by his column. It all seems very wrong headed, on multiple levels, particularly from someone who claims to be libertarian.

response to various critics
I think my starting position, based on my experience in business, is that pure inspiration is rarely very important. I believe it was Thomas Edison who said that invention is 1 percent inspiration and 99 percent perspiration. I strongly agree with that.

The notion that "I came up with a brilliant idea, so I deserve to be rich," strikes me as wrong. Ideas are rarely that brilliant. Maybe I'm uncreative, but I cannot think of a single idea that I've had that was not close to something that somebody else in the field had thought about.

Lots of people want to be rewarded for creativity. Rock musicians, writers, and so on. My view is that if you want to be creative, do it for your own satisfaction. If you happen to make money, consider yourself lucky, but don't expect society to arrange it so that you get rich.

There is a really long, complex value chain involved in creating a marketable product. If you are a pure inventor, and other companies control most of the value chain, you can **** and moan all you want, but you have to deal with reality. Part of the job of being an inventor is finding partnerships that will enable you to turn your concept into a product.

If we don't have patents to protect extensive research, then we will lose out on important innovations. But if your flash of inspiration does not earn a patent, that's no loss.

John Locke said that the right to property came from "mixing the fruits of your labor." If you don't try to implement your inspiration, you don't have much of an ownership claim.

Read patent law...
Arnold Kling has some wonderful ideas about how to make the patent system better. The problem is that they are not new--they have been part of patent law for over two centuries.

The first, of 'fair use' is embodied in the patent system from the beginning. It is definitely fair use of a patent to build whatever the patent covers for your own use--perhaps to study it and produce something better. What you can't do is produce products embodying the patentable concept, or in the case of process patents, products made using the patented process without a license.

The second major patent issue is covered by the concept of 'reduction to practice'. According to patent law, you cannot patent an idea without reducing it to practice. I was discussing this issue with respect to the ENIAC patents. In many of those patent applications who first had the idea, even if among the ENIAC team, was a major issue. (Originally the University of Pennsylvania, and then the US Government claimed to own the patents. Some of the members of the ENIAC team had clauses entitling the University to rights in any patents they were granted--but not Pres Eckert, John Mauchley, or for that matter my father, who testified at length during some of the case.)

For most, if not all of the patent applications, it was clear that Pres had been the one to produce the first actual instance of the circut, and documented its behavior in his lab notebooks. The courts finally got that part right, then fouled up completely in the later Honeywell challenge. The Atanasoff Berry Computer at Iowa State, did predate the ENIAC. However the differences between ABC and ENIAC should have been obvious.

The ABC used serial circuts to minimize cost, the ENIAC used parallel circuts for speed. I could go into details on how to handle carries, but see any introductory text on digital circuts. The circuts, which is what the patents were about, are entirely different. The patent fight was essentially abandoned after the Honeywell decision, not because the decision was right, but if the patents had been reinstated, they would have expired. As I recall the Honeywell decision was within a few months of the twentieth anniversary of the filing of the final ENIAC patent in 1947.

The decision in the Honeywell case was correct in giving credit for reduction to practice the idea of an electronic digital computer to Atanasoff and Berry. But what Eckard and Mauchley did by creating a parallel computer made the whole idea practical. That reflected the slipperly slope the whole patent process had started down. Technology was changing much faster than the patent office was hiring new examiners. There are now millions of patents which were obvious to anyone 'skilled in the art', already in wide use in some industry, or which were not reduced to practice when the patent was filed. Solving this in the courts once the patents are granted is not a solution. The idea that a judge, whose expertise must be concentrated in understanding the law can make any sense out of the issues is worse than leaving it to patent examiners who may have been technically competant twenty years or more ago.

Incidently, I remember when the ban on software patents was a bad idea. It really was--in 1960. Ideas like the Fast Fourier transform, Quicksort, and the simplex method for solving linear programming problems should have been patentable. However, today after thirty or more years of software ideas not being patentable, we have the constant situation of patent applications for non-novel software ideas being granted because the patent examiners can find no prior art. Of course, they look for prior art in the patent database, where none of the original software ideas appear.

Today, even without that problem software patents are a bad idea--the field is too vast for anyone to be "sufficiently knowledgeable in the art." As a result the same ideas are invented over and over. If I had to worry about software royalties, it would probably cut my production of code by a factor of ten or more. So this is more than sour grapes that I couldn't file software patents back when I was younger. ;-)

True Colors
Arnold shows his true colors when he states that

"Lots of people want to be rewarded for creativity. Rock musicians, writers, and so on. My view is that if you want to be creative, do it for your own satisfaction. If you happen to make money, consider yourself lucky, but don't expect society to arrange it so that you get rich."

What he misses is that, if we want truly creative people to keep creating, and to encourage others to create, we need to ensure that they are justly rewarded. That is what IP protection is all about. Do you really think that the Stones would have written all those songs if they had to hold day jobs? And would we get to see them perform live here in Cleveland? No way!

Furthermore, Arnold misses the point that yes, ideally, it would be nice if people created just for the joy of creating. But people see getting "rich" as a pretty strong incentive, and if that causes them to create more, and thus make us a richer society, so what? What is wrong with expecting to make a financial return on one's sweat and creativity? Nothing at all!

IP rewards the creative process. What could be more FAIR??


First, the USA does not enforce patents, individuals do. And yes, it is true that, for some period of time, the courts did not see a patent that they liked, and it did a lot of invalidating. But because few patents ever get litigated (and litigation is so expensive), the IP laws still had a strong impact, and Congress reacted by strengthening patent laws.

By the way, Edison enforced many of his patents, and won some and lost some. So did Bell. So saying "before 1960" is clearly not proper.


BTW Benjamin Fraklin
Benjamin Fraklin did not believe in patents and for that reason he did not patent the Franklin stove.

Hire more examiners
The solution is to hire people down at the Trademark & Patent office, then train them. Right now we have a bunch of overworked junior attorneys approving patents that are so obvious its crazy. The NTP/RIM case is a great example of Patent office stupidity.

I still have a BIG problem with patients software. As I right code am I expected to constently check the pateint web site to make sure my form of search or a way to access a database has been protected?

Its crazy.

There was no United States when Franklin invented the stove. Patenting in England was very different than the system provided for by the US once Congress implemented patent law.

Besides, it is a very differen world today.


Software Patents
Your "problem" is no different than that every engineer faces when designing a new product. Why should software engineers be different?


No Subject
"Eliminate the FDA and even in drugs patents are not needed."
Are you insane?! You want me to invest millions of dollars on developing an unproven technology and if and when it ever pans out into a product you want someone else to be able to manufacture and sell without my ever recouping my research investment.

You don't write software do you?
There is a few factors of 10 of fare more complicated and arcane patients out there.

There realy are patients for very simple algorythms.

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This has to be the most innovative talk that I have ever listened to. Very engaging, lots of details.

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Wow! do y'all miss the point.
An inventor invents a new widget and files a patent. He then goes out to investors and potential partnering companies to find a way to produce it. Neither will invest in a pending patent because most don't get approved and it takes 6 or more years find that out. Some, or better stated, most of those folks who he revealed it to will steal the idea and produce it... and why not steal it? It takes 6 years to get approved and 5 or 6 years to litigate and get an injunction. Careers are made in that time and there's a lot of money to rake in. Most inventors can't last that long or pay the cost of getting the patent approved or of litigation. Most of the time the infringing company gets away with it scott free. When they don't... somehow the inventor becomes a "patent troll".

If patent reform gets passed, you better hope that you don't invent anything and think you'll ever get it off the ground or recognize anything from the invention. It'll all go to a big company who could care less if they stole it.

any reform at all??
"If patent reform gets passed, you better hope that you don't invent anything..."

Umm, don't you think it depends on what the precise refrom is? Or do you think the U.S. patent system has achieved the pinnacle of perfection, such that any change must make it worse?

Sure, but it's not in HR2795
I know a little bit about what's in that HR2795.

Just the fact that the patent office takes 6 or more years to process a patent creates patent trolls. Most inventors invent things to start companies, but can't get investment until the patent is approved. Fixing that is not in HR2795. In fact HR2795 effectively adds a year or more of litigation thru a challenge period before an approved patent can be enforced. And then everything that was brought up in the challenge period can be brought up again in an infringement action. It justs adds time and cost so the infringer can continue to make money a little longer and hopefully run the inventor out of money.

The vetting process within the patent office can be improved to eliminate junk. Some of this is in HR2795, but the real problem is that the Fed's siphon money from the patent office for other things leaving them short of staff. This is not addressed in HR2795.

HR2795 makes it virtually impossible for an inventor to get an injunction against an infringing company. They must prove that the company stole it and they must have a product. The loss of a potential injunction is why most infringement cases get settled out of court. Injunctions will all but be eliminated providing more incentive to steal. Further, and seldom discussed, is an injunction is the right to exclude others and it's a constitutional right spelled out specifically.

HR2795 wants infringement cases filed in a town where the infringer has a major presence. Sue Microsoft in Redmond, Wal-mart in Benton or Dell in Round Rock and try to find a jury not economically tied to the infringer. Try to find a fair jury. Also if you don't live there and you're broke, how can you afford it? Lastly, a whole new industry of highly expensive lawyers will spring up who only sue specific companies in specific towns.

If you want to eliminate patent trolls, which the process has made me, fix the speed of the USPTO. If patents are approved in months instead of years, infringing companies will not have the incentive to steal. Patent holders will get investment to build thier products and large companies can get the ideas the old fashioned way... they can buy them at fair market value.

ah, you meant this specific bill
I see, you meant specifically HR2795. I confess I don't know anything about it.

Out of curiousity, can you mention what kind of patents you work with? It seems to make a difference -- drug patents, chip design patents, and software patents are all different beasts.

I fully agree, bxy the way, that prosecuting patents takes substantial expense. However, I see no practical way around that problem. Surely it is best to default to lack of litigation and only involve the government if there is a problem. But that means that fundamentally patent holders must take the initiative themselves to sue any infringer. Suing takes cash, law expertise, and time.

"Lastly, a whole new industry of highly expensive lawyers will spring up who only sue specific companies in specific towns."

Heheh, I suppose that does seem likely. I am not sure it is bad -- it is specialization at work!

Thought that was the only one going...
...I guess there are some more negative changes afoot inside the patent office as well.

My "still" pending patents are a series of utility patents in the domain of software, however these are not code patents and are very non-obvious. They are (or were in Feb 2000 when I filed for them) a completely new industry managing a matrix organization within large companies that involves three new data structures and two algorythms holding them together along with a complex nested state workflow engine to transact data. It enables role-based access and approval management without very much administration at all. It also enables an overarching system to manage multiple enterprise applications from a single user interface.

I went out to find funding after I filed the patent applications and since then virtually every company that I talked to has created products based on them. They're betting that I go away. And, they have another 5 to 10 years of legal manuevering before they need to reconcile. If HR2795 passes, they won't every have to reconcile.

Had I been able to get approval for the patents within two years of filing, I would have been able to get investment. No investor in their right mind would invest now. The market is established by the top enterprise software players. A little guy with or without patents can no longer compete.

My last resort to recoup the several hundred thousand dollars of my own and of course friends, fools and family money, my career and a lot of personal pain is litigation.

I am the guy that the legislation and changes in the USPTO are aimed directly toward. They guy who noodles something until he finds a better way do do it and applies for a patent, tries to build a company but can't and then get's ripped off by major corporations who create the product and establish the market.

Most companies actually set up legal defenses to protect against infringement from the onset with things like policies precluding anyone from even looking at patents. They then send their people to all the cutting edge trade shows to garner ideas and build products from them. Often these new technologies are patent pending or already patented. They are set up to deliberately steal and establish a defense.

What amazes me is how well their PR engines spins what really happens and how effective their lobbying groups are at getting changes or legislation.

that's a software patent
"They are (or were in Feb 2000 when I filed for them) a completely new industry managing a matrix organization within large companies that involves three new data structures and two algorythms holding them together along with a complex nested state workflow engine to transact data."

With all due respect, this is precisely the kind that many people mean by "software patent". I do not think it should be patentable. If the above is the standard for "non-obvious" in software, then everyone can develop a new patented program in a matter of months. If the above becomes unpatentable due to current legislation, then I confess I am glad to hear of it.

To put it philosophically: if it takes longer to get the patent, than it did to develop the idea, then this is not the place for a patent. We should not get to the state where we spend more time litigating patents than we do developing the ideas. Patents are good for protecting ideas that several years or more to develop, not something that is noodled up over a course of months.

For yourself, I would guess your best strategies are: try and sell the software directly, using copyright, and offer your services as a consultant. Leverage your expertise! After all, a company that dumbly copies your idea is not going to have nearly as good of a system as if they had you personally working on it!

That's pretty amazing logic
You're saying that an idea that saves millions of dollars should only be protected if it takes years to make. How long did it take to figure out barbed wire? He simply had the idea to twist two wires around a barb and then he built the machine to do it in a few days. That invention changed the world because it could be mass produced. I'll bet it took about half a second to think of it. Perhaps in your mind there should be no patents at all, so let's take a look at that world.

Currently, the vast majority of new inventions come from individuals and small businesses. The simple fact is that it only takes an epiphany moment to discover a new idea, however to refine that idea and produce a product requires much more. If that idea is not legally protected the inventor cannot get investment to bring the idea into fruition. Anyone with more money, established market or other assets could produce it without the inventor, but would not know of it.

Why would an invetor spend time developing the idea when he could be out fishing? I suspect it is because he may be able to better himself finacially, or in some other way - challenge accomplishment, etc. In your world, why would he risk pretty much everything (money, career, family and health) to make it into something if it can't be protected? Would it not be a pretty high risk bet if a big company could simply take it from him and leverage their existing distribution network and customer base. The inventor would end up with nothing and, of course, lose everything he had put into it. Wouldn't he just go fishing and forget about it?

I would expect that a society such as you espouse would pretty much stop all innovation. Ideas would just be fleeting thoughts in creative minds. A world would exist where the only power is money. A world where investors and corporate executive call all the shots. A world where nobody gets ahead except those folks. If someone else innovates, squish them and take their stuff.

I don't think you think outside your box well enough to be a corporate executive, but you have enough time to respond to this string, so I'll bet you're an investor. I'll also bet that you know yourself well; the most creative idea that you've ever had is how to cook your eggs for breakfast. Perhaps you're a short order cook.

why be a jerk?
"You're saying that an idea that saves millions of dollars should only be protected if it takes years to make."

Yes. I do not think that a patent should be given if the patent is more expensive to process than the development of the idea. Like it or not, processing patents and especially litigating patents are expensive , time-consuming affairs. I have no interest in seeing creative fields become dominated by legal activity.

"How long did it take to figure out barbed wire? He simply had the idea to twist two wires around a barb and then he built the machine to do it in a few days. That invention changed the world because it could be mass produced. I'll bet it took about half a second to think of it."

I seriously doubt that. But if it did, then in fact I do not think that such a thing is in the spirit of the patents system.

The reason I doubt it was fast to develop is from reading The Design of Everyday Things by Don Norman. It's a great read about the long story behind various "simple" technologies we take for granted.

"Perhaps in your mind there should be no patents at all, so let's take a look at that world.

Currently, the vast majority of new inventions come from individuals and small businesses"

You assume too much. The killer example for me is drug patents. The vast majority of new drugs come from (a) huge companies in (b) countries with good patent protection. (a) fits my theoretical desrciption of where patents work, and I do not think (b) is an accident.

I want patents for things like drugs. I want them gone for software.

As for a *software* world without patents, you should reread my post. I posted a couple of business plans that are already successfully and widely used. For example, Microsoft does pretty well even though their operating system is not patented.

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