What I think is fundamentally wrong with the way the patent system is applied today is that in many instances it serves as nothing more than an artificial monopoly only benefitting the patent holder.
The idea of the patent system in itself is actually quite elegant. Government grants a temporary monopoly in exchange for the public disclosure of an invention. Everyone wins! The person issued the patent can more easily profit from their invention because they can work in the open. Society likewise benefits, no more secret guilds locking up knowledge, now everyone can see how it's done (and apply it once the monopoly expires).
As a social contract this really makes sense. The problem is that a lot of the patents being thrown around today only really satisfy half of that contract. A temporary monopoly is indeed granted, but the disclosure received in exchange is worthless information. I say it is worthless because no one actually needs to read that disclosure to figure out how to do it themselves with basically no effort.
Of the large companies, it seems to me that Apple is one of the worse offenders at exploiting the patent system in this way. Don't get me wrong, what they are doing is perfectly legal, but that doesn't make it OK. It does seem like Apple is following the legal rules and Samsung is thrashing around attempting to break them (perhaps feeling they have little alternative). But that doesn't mean that our legal system is perfect and cases like this will hopefully help us understand how it can be fixed to prevent this kind of exploitation in the future.
Even at the risk of sounding like a broken record...
Public disclosure is only part of the story. The other part is to allow protecting the cost of an invention. If there was no protection there would be less incentive to invest in r&d to come up with new idea.
This is where the problem lies with software patents (IMHO): A "software invention" does not cost anything.
I will lean out and say that there is no idea in software that is worth anything by itself.
Instead it is the expression of that idea that has value, and that is protected by copyright.
(I'm still waiting to be shown a software patent of an idea that would not have seen the light of day without a legally granted monopoly)
"I'm still waiting to be shown a software patent of an idea that would not have seen the light of day without a legally granted monopoly"
Are you saying that "software type people" will always release their ideas publicly cause they are just cool or are you saying that software is so intrinsically intuitive that any concepts unique to software will just come about?
What I am trying to say is that all software patents I've seen so far are for "epiphany" type ideas. Ideas that did not need an elaborate initial setup or have any cost associated with them. Ideas folks have in the shower, etc.
Hence society as a whole does not benefit from these monopolies because folks have these ideas anyway. The cost of software lies in the implementation, which is protected by copyright.
You are right, though, I glanced over the point that patents allow you to publish your idea without fear that somebody else will beat you at your own idea. That again is provided that the idea is actually unique and other folks could not just come up with it as well (in the shower :) ).
IMHO the bad of software patents far outweighs any good that can come from them and the only folks who benefit greatly are lawyers and companies that would like to prevent each other from competing.
"Ideas that did not need an elaborate initial setup or have any cost associated with them."
Ahh. I see. Ok. Ya. I had an "epiphany" idea in software. Invested quite a bit in R&D to see if it worked. It did not. A while later, had an epiphany on the epiphany and so on.
The final solution, which is patent pending, took me quite a few years and quite a bit of money (not including opportunity costs) to figure out. It could be I'm just not that smart and that is why it took me so long. However, I've never seen anyone implement this type of technology. No patent, startup, software that exists already. I've seen people over the last 20 years try to solve the problem I've solved, but without success.
Would this fall under something that should not be patented?
Yeah, that's an interesting case then.
Without knowing the idea it is hard to say.
The key question (IMHO) is whether a patent on this would be in the interest of society as a whole. I.e. would you still try to make the idea work even if there was no patent? Or would you not even try to development anything around this because of the fear of somebody stealing your idea and making money with it?
Initially, if I did not have some kind of IP protection, I would not have taken any risk of going forward with it. I would have chosen something a lot less risky.
However, after the fact, it really doesn't make much difference. Now, I would rather have the IP protection to assure openness and standards.
At least in the United States, the express purpose of all patents, copyrights, trademarks, and other IP protections is "To promote the Progress of Science and useful Arts", i.e. for the public good. The vehicle used to achieve this end is the granting of a temporary monopoly, but the monopoly itself is not the end.
Absolutely right. I was just trying to point out that the monopoly in this context isn't some sort of dysfunctional side-effect, but part of the intended mechanism.
As another poster indicated, it is to benefit society. This makes a lot of sense on a practical level. If society is going to expend energy protecting such monopolies, it should be getting something in return.
It seems that the letter of the law has failed to achieve this. I'm not saying this is an easy problem to solve, however it is becoming a bigger problem as big companies commit more money to use these laws in ways that miss the original intent.
As such there is an increasingly urgent need to address the issue and revise the old straining laws with the experience gained in order to protect the original intent.
Well, the patent holder is either the inventor or acquired the patent from the inventor. If we assume that the inventor is a consenting adult and didn't give the patent away under duress, I don't see any problem with that.
Where does the patent troll company get the patent? Either they invent something or buy the patent from an inventor or from someone who bought it from an inventor.
The problem with patent trolls is that they are too often working with patents that shouldn't have ever been granted in the first place, and that it's so expensive to defend against a lawsuit, it makes sense to just settle silently.
There are many things wrong with the current implementation that can be fixed without throwing out the whole notion of intellectual property protection for inventions.
Especially now that the US has moved to a first-to-file system, there's no guarantee that the patent holder is the inventor. Separately from that, some patent troll companies file obvious, overbroad patents without implementing them (e.g. the classic case being doing <X> on the Internet, of course) to build up their stockpile. Just because they might end up with some patents when their junk sticks doesn't make them an inventor.
If we reformed the system to force the patent holder to actually market a real product using the patent in order to be able to sue to defend the patent, making them more similar to trademarks, this would solve the pure patent troll problem. Unfortunately it wouldn't stop the mobile patent wars.
I disagree that it is an elegant solution. Ideas are something that have a resource cost to conceive, develop and disseminate, but which have no cost to the developer afterwards. The more people who use an idea, the better from an economic standpoint, because the use of an idea is not a finite resource like, say, water.
Therefore, the economic properties that you want are to, on the supply side, reward people who produce ideas - an the patent system does that - and on the demand side, to encourage as much appropriate use of the idea as possible, which is the opposite of what the patent system does.
A monopoly is therefore inappropriate. A system where product developers pay the same amount into a pool regardless of how many patents they use, and have to declare truthfully what patent documents they referred to for the purposes of distributing the pool would work far better. That way, products would have no reason not to use all the newest technologies, but people who file good quality patents would still get paid.
If things are sold beyond their marginal costs, something is broken. We need other funding mechanisms for research and development like the Stiglitz prize system, or Dean Baker's artistic freedom voucher.
If things are sold beyond their marginal costs, something is broken.
I think this is too simplistic and labor centric. At the very least, the number of people who can benefit from a particular kind of work should affect the value of that work, should it not?
> A temporary monopoly is indeed granted, but the disclosure received in exchange is worthless information.
Given some of the frivolous patents granted these days, and given the application process itself, I wonder how many companies spend more to obtain the patents than they do for the R&D on the technology that's being patented.
Apple $2.4 billion $R&D, $2.6 billion for their share of Rockstar Bidco (Nortel patents)
Google $5.2 billion R&D, $12.5 billion Motorola Mobility. Note that Google still qualifies even if you just count the Motorola "patent spend" at Google's recent $5.5 billion valuation of Motorola's patents and technology, rather than the cost of the whole acquisition.
You do know that Apple does most of what can be classed as R&D through its normal P/L operating units. So it's not like there is a separate iOS R&D team specifically churning out patents. Patents can and do come from ANY engineers across the company. It's the same at most companies.
The idea of the patent system in itself is actually quite elegant. Government grants a temporary monopoly in exchange for the public disclosure of an invention. Everyone wins! The person issued the patent can more easily profit from their invention because they can work in the open. Society likewise benefits, no more secret guilds locking up knowledge, now everyone can see how it's done (and apply it once the monopoly expires).
As a social contract this really makes sense. The problem is that a lot of the patents being thrown around today only really satisfy half of that contract. A temporary monopoly is indeed granted, but the disclosure received in exchange is worthless information. I say it is worthless because no one actually needs to read that disclosure to figure out how to do it themselves with basically no effort.
Of the large companies, it seems to me that Apple is one of the worse offenders at exploiting the patent system in this way. Don't get me wrong, what they are doing is perfectly legal, but that doesn't make it OK. It does seem like Apple is following the legal rules and Samsung is thrashing around attempting to break them (perhaps feeling they have little alternative). But that doesn't mean that our legal system is perfect and cases like this will hopefully help us understand how it can be fixed to prevent this kind of exploitation in the future.