as would anyone who has spent any nontrivial amount of time dealing with the absurdities of our IP system...these people would understand, for example, there are entire "think tanks" that sit around doing nothing all day but cranking out white papers wherein some open standard is extended by a trivial 1%. then they wait for anyone using that open standard, and they pounce based on the extra 1% of trivial and NEVER IMPLEMENTED "innovation".
the people suing here aren't garage innovators. they are law firms that buy IP from bankrupt companies. they are whitepaper mills whose only purpose is to publish a proposal for every conceivable use of technology. thats it. then they wait and watch for victims to appear. THEY DON'T BUILD ANYTHING.
i don't think the casual HN reader understands how bad it is. if you ever hit 5 million/year in revenues, you likely will. an envelope will show up at your office detailing the infingement for something trivial, so trivial you will think its april fool's day. what won't be trivial is the amount the law firm wants to charge you to "license" the patented "innovation". and to be sure, the law firm is not representing another innovator...oh no, the law firm owns the patent themselves. its a huge cash cow now for law firms. they buy patents or arrange to have patents issued from patent-mills. then they just shake down anyone they can. frankly most people who have dealt with this stuff just see it as a shake-down, and they either pay it just to move on, or they move their business to a country that is not so hostile to innovators. if you think US law favors small innovators, WAKE UP
Who gets to define what "use" means, or what acceptable "use" is?
If a company wants to use its patent, but can't arrange financing for manufacturing goods based on the patent, or can't find anyone to manufacture the goods for it, does the company lose its patent?
Is licensing a patent using it? Isn't that what patent trolls already do? If licensing is not considered using a patent, wouldn't that put an incredible dent in biotech research, where most companies license out their discoveries to other companies who actually manufacture the medicines?
Is the loss of patent automatic, or must it be litigated first? If automatic, how does that comport with due process (in the US, in regards to the taking of property rights)? If litigation is required, wouldn't that simply encourage the patentholder's primary competitors to do everything possible to prevent use of the patent?
Will notice be required? Will the company be able "redeem" its patent by "using" it within a set grace period after it receives notice that its patent will expire for non-use?
"use" means you bring SOME manifestation of the patentable innovation to bear. you have to be able to point at an implementation. that means 99% of the patent trolls will bugger off because none of them wants to do any real work anyway, and more to the point, they would have no idea how.
there's nothing saying you even have to have intentions of using, marketing or giving away the implementation...but you have to demonstrate that you are actually have the capacity to create an innovation, not just churn out whitepapers to tax others who actually will implement.
If your not actually using it in practice, how is that different from today? Do you really think making these trolls spend a bit of money to build a prototype fixes it?
If this is going to work, you HAVE to come up with a system that forces the patent to be reduced to practice within some context.
Maybe you create classifications of patents:
- protective: Anyone can use it, you just can't sue me for using it.
- commercial protection: I am the only one allowed to use it, and I will be using it for some commercial purpose
- licensing protection: Anyone can use it if they license it from me, with the caveat that the term of protection is greatly reduced.
We're not talking a little "bit of money to build a prototype" in all cases though. Often a prototype would be impossible to build in a short time - suppose my invention is a new more efficient engine, it requires a few million in funding which I don't have; I've spent 15years developing the idea ... shouldn't I be allowed to sell my idea for even a little bit of money? If I present the idea to the companies who can make it - won't they just say, "you're not making it now, we'll wait a year" (or however long you're enshrining in your law) and then make it free from my license.
If instead I'd spent that time coming up with a new cheaper way to make icecream, the machine takes me a couple of months and a few thousand $USD to make, then I sell my idea worldwide and become a billionaire; isn't that a bit of an unfortunate disparity?
As an artisan inventor I'd only ever be able to successfully patent things I can make at home without outside funding.
Actually, all patent trolls can point to some implementation; namely, those who they license the patent to.
More importantly, "some manifestation" still does not address the "use" definitional problem: it a computer simulation sufficient? If the product is purely software, is pseudo-code sufficient manifestation? Is a prototype adequate manifestation? Can a company hire another company to build its prototype to spec (b/c under your definition, they cannot)? Is a subsidiary too divergent from the parent company, such that the research subsidiary cannot ask the manufacturing subsidiary to construct a working prototype? (subsidiaries are separate companies).
Why do we require the inventor to have the capacity to create the invention? Some of the most remarkable breakthroughs of the past century were created by people who didn't have the means to build their own invention. (For example, the inventor of the most efficient oil derricks in use in America during the early 20th century.
The problems that your manifestation requirement impose do nothing to actually fix the problem of patent trolls, and merely impose additional burdens upon inventors, thereby discouraging invention.
For a first-hand discussion of the inventor's dilemma, read/watch Flash of Genius.
Maybe you could link the Economist so we could read that story and comment on it, rather than a single line statement (although you have piqued my interest).
There's another part to this: enforce the patent, or lose it (in the same way that trademark must be enforced or lost).
This stops, say, Fraunhofer Gesselschaft from waiting years as the MP3 community developed using the code it uploaded to ISO with no license attached, then retrospectively demanding $15,000 for every encoding project. Or Unisys failng to enforce the LZW patent while GIF became a standard, then retroactively asking for payment.
What if the patent holder doesn't know that their patent is being infringed.
Suppose I hold a WO(US+JP+EP) worldwide patent on ball-based vacuum cleaners. A Japanese factory produces a copy-cat and starts selling in Japan. I spend 2 years talking and negotiating with manufacturers in the US, whilst at the same time the infringing Japanese production is ramped up.
The US manufacturer spots a Japanese model on sale and tells me they won't license it as I've not protected my patent and so it's now [under your regime] invalid ...?
Even if you limit it by jurisdiction and only look at use of the patent in the specific area, then I'd have to know of the output of all US factories to be able to cease the production in a timely way. How long after a company starts use would I have to notice and send my C&D letter.
What if the patent covers a circuit arrangement in a TFT display, do I as patent holder have to purchase all displays and examine them to determine if one infringes my patent? What if the thing I have a patent on is being produced for business purposes, eg in house use (a rocket engine at NASA that will be used for satellite launches, say), using my patent spec but I can't examine the thing to check if it's infringing? I can't afford to sue NASA immediately, so that means now anyone can use my patent??
I also think licensing a patent to a company that actually uses it qualifies the owner not to lose the patent. Bottom line is that if the owner doesn't actually allow the public to benefit from the IP in some way then it should fall back into the public domain. I realize this is very much a layman's perspective but that's what I believe. -Bill
I don't think patents should apply to any product only to methods of creating products and internal practices.
The original point of patents were to get ideas into public knowledge. If you are selling a product it is public knowledge and we have no reason to offer a patent. If the idea isn't very novel it will be easily reverse engineered if it is novel then it won't be for some time.
