

A proposal on patent reform - btilly
http://bentilly.blogspot.com/2009/11/proposal-on-patent-reform.html

======
frig
Too vague to be helpful; only appeal is a seemingly-more-objective test for
non-obviousness (nonobvious iff prerequisites developed AND not solved in
previous 10 years), but vagueness of relevant terms negates any putative step
forward in "objectivity". Also provides incentives to slow down the rate of
innovation and has potential to be self-defeating.

I won't harass you about the vagueness as I think that's pretty obvious (do
you really want either federal judges or, god forbid, a jury of citizens to be
the judge of what is "commercially viable"?).

The incentive to slow down comes from your 10-year rule: if I have a good idea
that is economically useful, ceteris paribus the longer I wait to patent it
the likelier I am to actually get an enforceable patent (b/c the prerequisites
aren't getting any younger). Now obviously in some cases there will be concern
that rivals or competitors will jump in front and patent it instead, but in
many smallish fields there really aren't that many people working on the same
topic at the same time and what competitors there are will all be operating
under the same overall incentive (and thus will themselves have some incentive
to delay as long as possible).

So the incentive to file for a patent immediately is the same as under the
status quo -- make sure you get out ahead of competitors -- but you add in a
countervailing incentive to delay that the present system (for all its faults)
does not have.

This is particularly egregious wrt brand-new technologies (like, eg, a
transistor or the laser): anything making use of a laser or a transistor
wouldn't be patentable for ~10 years after the development of that technology.
This may help prevent some stupid patents -- land-grab stuff around doing
stuff with a laser -- but it _also_ means that any invention that's mostly-
done but missing something (like, eg, it'd work if only I had a source of
coherent light) now has a 10-year time out on it, also, as it won't have been
solvable for 10 years until 10 years have passed from the introduction of the
missing piece.

You could try patching your solvability criterion to work around the "missing
piece" phenomena but if you put a tiny loophole in next thing you know people
will be driving a caravan of 18-wheelers through it.

Your proposal's criteria is also at the margins somewhat self-defeating,
especially in the case of a trial in which a patent's validity is called into
question.

The person defending it basically has to defend the patent by minimizing its
novelty: all the constituents have to be old + well-understood and so on. So
the ideal patent is minimally-inventive: it takes solves a known problem using
well-known stuff in novel combination...but not _too_ novel, as something
_too_ novel runs the risk of exposing you to arguments that the problem you
solved wasn't solvable b/c solving it required too many of your own
innovations.

The person attacking it has to attack it by maximizing its novelty: claim that
the problem _wasn't_ solvable for as long as you're claiming b/c it depended
on sub-inventions and so forth; rather than being a minimally-non-obvious
recombination of existing technologies you're actually _inventing_ stuff, you
see, which works against your patent's validity.

The 10-year period + commercial viability argument cuts both ways: on the one
hand if it was solvable for awhile and was commercially viable you can use
that as evidence for non-obviousness, but on the other hand your attacker can
use the same facts to claim it either wasn't solvable before you went and
_invented_ stuff, wasn't actually commercially viable, or some other reason;
you're making an overbroad assumption about what seems like reasonable
assumptions for other people to hold about the invention process.

So you wind up with inventors forced to downplay the inventiveness of their
inventions -- and shy away from overly-novel areas of inquiry -- and attackers
overplaying the inventiveness of the inventions for which they hope to
invalidate the patents, which scenario is comical but unproductive.

~~~
btilly
What you see as deficiencies, I see as advantages.

The point of the patent system (at least in the USA) is to provide incentives
for people to come up with ideas that otherwise people wouldn't come up with.
If you are racing to the patent office for fear that someone else will come up
with the idea, then your actions demonstrate that you likely shouldn't be
granted the patent.

For instance take the "mostly done" issue. If you have it mostly done, until
that last piece arrives nobody has any idea how many other people had it
mostly done as well. Which means that it is impossible to figure out how
innovative your idea is, and therefore we don't have good evidence that you
really deserve a patent. Given that handing out patents causes real economic
harm to others, I don't think they should be handed out on such poor evidence
and therefore don't want to see those patents handed out so quickly.

I am strongly against allowing an exception because it opens up a common form
of patent abuse. The story is that a small company invents a new technology
and get a patent on it. A big company would like the patent, but can't get
access. Instead they get patents on all of the things the small company needs
to do to commercialize their invention. Effectively they build a "patent wall"
around the existing patent. And now the small company is forced to come to
terms with the big ones.

The one issue you raise that I agree with is that often people build on their
own ideas. The better mousetrap is often better in several ways, not all of
which you think of at one time. But in that case I see two possibilities. One
is that the subsequent innovations can be used without your other innovations.
In that case you can get a patent on them. The other is that the subsequent
innovations can't be used without your other innovations. In that case the
patent you can get on your previous innovations will protect your subsequent
as well. Either way things work out.

~~~
frig
I'd say you're slightly misreading the point of the patent system; I'd argue
the underlying "point" is what it says it is in the constitution -- to promote
the progress of the useful arts + sciences -- which isn't _exactly_ the same
thing as "come up with ideas that people wouldn't otherwise come up with".

EG: one aspect of the patent system is that it promotes invention of work-
around, "me-too" inventions to get around patent restrictions (eg: PNG vs.
GIF, for a computer example).

I'd argue that's more often a bug than a feature: worthwhile inventions would
happen anyways, and engineering-around-a-known-solution is far more often a
deadweight loss than a benefit to the economy as a whole; there many others
(mainly members of the patent bar) that'd argue that such work-arounds are a
_feature_ , as they promote "new invention" that otherwise wouldn't happen
(since you'd just use the known-good solution).

I'm sort of assuming you usually see this "my way" on this issue; if you do,
then framing it as "think of stuff that wouldn't be invented otherwise"
doesn't give you much to stand on (as clearly most workarounds wouldn't be
thought of without the patent system...).

Sticking with the promotion-of-progress language gives you a much firmer frame
for your arguments.

Your framing also is making you overlook the importance of _disclosure_ in the
patent system; it's not an accident that a patent not only describes _what it
does_ (separate alumina from bauxite) but also _how it works_ (supposedly in
enough detail that someone else could implement the invention by reading the
patent, though in practice there's a strong incentive to obfuscate that as
much as you can get away with).

The argument here is that this promotes the progress of the useful arts and
sciences as it makes the knowledge underlying a particular invention available
essentially _immediately_ \-- as soon as the filer rushes to the patent office
-- allowing work on derivative inventions to start _immediately_ , thereby
increasing the rate at which new ideas are come-up-with, etc.

So while on the one hand you're kind-of right -- patents that have lots of
simultaneous inventors probably are too obvious to be useful -- you've not
addressed the real thrust of the delay issue (which I admittedly could have
made clearer):

\- for "good" patents in your system there's an incentive to wait as long as
possible (as the longer you wait the greater the odds your patent is valid);
this'd be especially true for the ones that _don't_ have much to worry about
from co-filers b/c they're legit inventions

\- this means that the rate of _disclosure_ of the genuinely-novel inventions
would be expected to go down, as ceteris paribus there's more incentive to
delay filing and therefore delay disclosure of the underlying ideas

\- so the calculation what is the effect on the rate of progress of the useful
arts + sciences under your proposal is roughly ("increased progress due to
lack of bogus patents no longer gumming up the works") - ("reduced rate of
disclosure of truly novel inventions"), and imho the latter term would be
quite substantial and would need more arguments to justify it

The simpler hack to get what you want is removing the presumption of validity
(too lazy to check if I mentioned it already or not); this would change the
patent-infringement workflow from:

\- file lawsuit; patents assumed valid until (or if) defendant successfully
challenges every relevant claim in every relevant patent

to:

\- file lawsuit; filer must successfully "validate" each relevant claim in
every relevant patent, and only then will proof of infringement imply damages
are merited

...and this can be phased in in ways that'd not be crazily disruptive (eg:
phased introduction and/or the presumption of (in)validity is on a per-area
basis, so pharma is presumed valid but not software).

~~~
btilly
I accept your correction that there is a difference between "promoting
progress" and "coming up with ideas". (By coincidence I just reread
<http://arxiv.org/abs/math.HO/9404236> which argues, among other things, that
progress in mathematics can be helped by _not_ proving facts too quickly.)

I agree with you on the intent of the design of the patent system. However in
a world filled with overbroad junk patents, where accidental infringement is
much better than willful infringement, there are real incentives for
innovative people to _not_ read patents. Because reading them opens you up to
liability without teaching you anything you couldn't have thought of on your
own.

As for the cost of waiting, you are right that the incentive to wait is an
inefficiency in my proposal. However the aim here is to achieve a good trade-
off. Obviously more detailed analysis is required to find whether it achieves
as good a trade-off as I think it does.

However for many years we blindly accepted very large increases in how easy it
was to get a patent without substantive debate, and there is now substantial
evidence that this has been a bad thing. So it seems to me that it shouldn't
be hard to improve on the current state, and I think my proposal would be an
improvement.

Finally I have to say that I don't understand what you mean by "presumption of
validity". The way things work now is that if IBM wants me to enter into a
cross-licensing arrangements, we both know that they can threaten me with a
large stack of patents. We both know that most of those patents won't stand up
in court, but fighting it will impose serious costs on me and they are likely
to get me on something. So even though we both presume the patents are
invalid, the threat is still good.

How would you change that dynamic? If your idea is that they spend their money
to validate their patent before I spend a dime, how will we know it has been
validated to my satisfaction? In theory that kind of validation is the job of
the patent office. However regulatory capture has made that review a joke, and
would eventually eventually ruin any other level of review you could add. But
if I have to spend money in the process of getting the patent validated, then
IBM still can threaten me as they would today.

~~~
frig
I am agnostic on the platonic notion of patents but generally would agree that
what we have now is sufficiently far from optimal that the status quo ought
not be accorded much deference.

I think generally the little-guy versus big-conglomerate isn't a winnable
battle; if you "level the playing field" the elephant stomps the mouse, and if
you try and give the mouse a hand grenade you usually wind up giving the
elephant a nuke. Thus where I'm coming from there's a background assumption
that the little guy will always and everywhere be prone to get screwed, and
the only sensible discussion is "how many different ways?" and "what're the
systemic effects of such-and-such-policy".

Thus in that light switching to a presumption of invalidity isn't a panacea --
and has its own drawbacks, as any "solution" would have -- and is mainly
addressed at mitigating the effect of junk patents, which is what your
proposal is also aimed at.

In writing my response to your IBM scenario I found what seems to be one of
the ways the 18-wheeler would drive through your proposal so I've put it
below, before I get to explaining how the IBM scenario plays out under
reduced-presumption-of-validity.

Incidentally, one area where your proposal _would_ fail is that the IBM
scenario. So you invent something novel (patentable under your regime). For
this to be patentable it has to be a nonobvious combination of existing tech
that's been around and commercially viable for some duration of time.

Now IBM looks at it and figures out some other components you need to actually
implement it and files junk patents on those in order to force you to cross-
license. IBM argues:

\- the technology needed has been around for however long your proposal
requires (or else your patent wouldn't hold)

\- the overall product your invention enabled has been commercially viable for
as long as required (or else your patent wouldn't hold)

\- their patents are thus "nonobvious" (lol) combinations of preexisting
technology that solve problems related to bringing to market a technology that
for a long time has been commercially viable if brought to market

In theory you can patch this by tweaking the notion of commercially available
or solvable to be sufficiently narrow, but in practice that's very hard
language to draft in a loophole-minimized fashion; you'd think it ought to be
the case that you can set up criteria that'd make it such that "mechanism for
transforming lead to gold" ought to be easily recognizable as "unique" and
commercially viable and "mechanism for absorbing shock from spontaneous-
change-of-weight during transmutation from base metal to gold" isn't (eg: b/c
it is only viable as part of a device that itself is commercially viable only
due to your recent patent), but the more you start predicating your notion of
"commercial viability" on "independent of any other invention" the more you
undercut your likelihood of getting a patent at all.

In some ways your proposed criteria makes this worse: the kinda of stupid
patents they'd look for are going to be super generic and useless (like the
shock-absorber) and thus not sought after _until_ they're needed to try and
screw you out of your invention; thus their uselessness works in their favor
(they won't be invented yet b/c they're so dumb) and being generic they have a
pretty easy time proving commercial viability (b/c shock absorbers already
have a lot of uses, and ours is better than others in some way...).

So you wind up falling back on the same-old pretty-useless nonobvious criteria
to defend against IBM if they actively seek to encircle your patent with their
junk. In theory they would potentially have a much smaller of junk patents
laying around but without patches they'd have a much easier time rounding up
junk patents once you got your non-junk patent.

OK. The validity thing plays out like this. In the IBM-threat scenario the
threat is that IBM has a bunch of junk patents in technologies around whatever
it is you patented, so to actually produce a product using your patent you
need to get licenses from them or risk being sued into oblivion; they use the
threat of that outcome to compel a cross-licensing agreement, and then run off
and make the product you were going to make, leaving you in trouble.

Introducing the presumption of invalidity changes that negotiation slightly.

On the one hand, IBM's threats become a lot more empty; if you go ahead and
build your device -- IBM's patents notwithstanding -- then they might well sue
you but they'd have to prove their BS patents are not-BS before the trial gets
very far, and if they're actually BS then they probably can't get them proven
not-BS (judges self-select to take directions about stuff like "presumption"
very seriously).

On the other hand say IBM goes and makes a product incorporating your
invention, and leaves it up to you to go and sue them. Things here are a
little less clear, which is why it's not really a panacea (but what is?). It's
easy to say something like "if it's really a good patent it'd hold up in court
and you'd be fine", but with any change from the status quo predicting how
things actually turn out is a little tricky.

So at the margins the lone-wolf / little-guy inventor has a harder time
winning an infringement suit b/c they have to prove their patent is invalid;
it's thus a systemic tradeoff between far less "bite" for BS/junk patents in
exchange for at the margins having some patents wind up practically
unenforceable.

The compare/contrast wrt to your proposal is that your proposal leaves patents
harder to get -- thereby cutting back on the BS paten threat -- but doesn't
touch the strength of issued patents; the presumption of validity tweak is
intended to undermine the utility of issued patents and not have _too_
deleterious an effect on strength.

As far as validating your own patent -- if it held up in court already it's
known-good. Some variants of this proposal include a notion of patents-plus
(essentially, patents subject to extra scrutiny) available for patents
undergoing heavier scrutiny; I'm not a fan of that for a number of reasons,
but it's another option (essentially pay extra to get more research done and
have your patent enjoy stronger presumed strength).

It basically trades where we are now -- too easy to get junk patents and use
them to extort money from productive enterprises -- for a setup where the
junk-patent-extortioneering becomes much harder, but at the expense of leaving
some lone-wolf holders of valid patents less able to make use of their patents
then they are under the current situation.

There are some counterbalances you can throw in -- eg, jacking up the
infringement penalties => if you DO win against IBM it'll cost them a ton more
money, thereby keeping the expected outcome in the same ballpark despite the
reduced likelihood of the little guy winning -- but you can't get around the
marginal effect of pushing some patents into the unenforceable range.

I tend to think that's probably an improvement over the current situation, but
opinions can differ.

------
jacquesm
I have a much simpler proposal:

Let's abolish _all_ patents, both on software and 'regular' ones for a 50 year
period and then re-evaluate, if it led to more innovation then we'll keep it,
if not we will go back to the old system.

Simple A/B testing. I highly doubt that the lobby would go for it though...

~~~
noss
Isn't Iran free of immaterial rights laws?

~~~
jacquesm
Are you suggesting that a society without patents would immediately devolve
into something like Iran ?

~~~
noss
No, but the effects of not having immaterial property laws should give some
kind of indication on how it changes business strategies.

------
dan_the_welder
A patent is a privilege.

I have a right to make a living and there are finite ways to do so, if my
right to make a living is blocked by others privileges then we don't have much
of a free society.

Privileges are directly opposed to rights. Either we have all have rights or
some have privileges. The real argument is about what kind of society we want
to have.

