

RedMonk's Stephen O'Grady: Why I Am Against Software Patents - bensummers
http://redmonk.com/sogrady/2010/03/19/software-patents/

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fnid2
While reading all the examples of arguments he _wasn't_ going to make, I was
really expecting something new to be added to the debate, instead, he recycles
this argument:

    
    
      it is not reasonable to expect that the current patent
      system, nor even one designed to improve or replace it,
      will ever be able to accurately determine what might be 
      considered legitimately patentable from the overwhelming 
      volume of innovations in software.
    

Unfortunately, he's wrong -- again -- and has failed to convince me that
discrimination against software engineers is the solution to the software
patent problems.

The simple solution would be to charge more for software patents and use the
money to hire more people. Patents, if you aren't aware are under $1,000.
That's ridiculously cheap compared to the attorneys, writers, and engineers
who invent the code. As a comparison, attorney's in California charge about
$20,000 to write a software patent.

For $850 (the basic filing fee) how can anyone expect the office to afford to
review such patents? Someone capable of understanding them would easily cost
$100,000 a year outside the USPTO. If it takes 10 hours to read one of the
patents, then each patent would cost the USPTO $500 to review and that's not
counting all the bureaucrats involved.

The answer is, the USPTO cannot afford to review software patents. Plain and
simple. Instead, they just stamp "Approved" on them and let the litigators
argue it out in the courts -- adding more millions to the cost, which of
course go straight into the attorneys' pockets. If there is anything stifling
innovation, it's the _attorneys_ , not the patents.

My suggestion: Raise the basic filing fee from $850 to $8,500 or $85,000 Or
0.01% of filer revenue for the previous year.

Obviously we have a supply and demand problem. The price is simply too low.
Solution: raise the price. Use the additional revenue to hire more software
engineers who can better judge the validity of the claims.

~~~
sogrady
We'll have to agree to disagree, I think.

Proposed remedies to the existing patent system - from the economic to the
temporal - fail to recognize the basic issue: the inability to scale the grant
process. Your solution, for example, merely injects more capital. Besides
massively significantly disadvantaging individual inventors (developers in
this context) vs larger entities, itself a potentially fatal limitation, it is
guaranteed to do little to solve that problem. Even an $85K filing fee would
be insufficient to throttle the process such that it would become workable.

Of the types of inventions likely to be patented under your revamped system,
there will still be - even throttled by a higher patent fee - an extremely
small number of individuals worldwide capable of accurately determining
whether a given invention is legitimately innovative or merely derivative.

The problem is not merely, as implied, supply and demand. It is a multi-
dimensional problem that involves, yes, a deficit in talent that is not
practically solvable, but also real issues in terms of the vetting process for
individual patents themselves.

Many "solutions" to the patent system have been proposed over the years; none
have found widespread traction. As is to be expected, because the system is
fundamentally misaligned with the rate and pace of innovation in this
industry.

~~~
fnid2
The patent system now accepts different filing fees for the size of the
organization. That's why the percent revenue. And to say that raising the
price will do nothing is not true. Raising the price always does something. We
won't know what will happen until they are raised. It can be a progressive fee
system to protect individual developers who don't have the money of the big
corps.

~~~
sogrady
My argument was not that raising the price will do nothing. "Even throttled by
a higher patent fee" implies that the elevated costs would have a negative
impact on patent volume. My point is that merely lowering the volume of
submitted patents is insufficient to effect the necessary change, because the
elements that cause the system to scale poorly are not purely volume based.
And that's without even getting into the reality that dramatically higher
patent submission costs would heavily advantage larger players at the expense
of small innovators, which is likely to make the situation worse, not better
given that it is the former who cause most o the problems with software
patents at the present time.

