

USPTO likely to adopt 'peer-to-patent' (Feb 2010) - chaostheory
http://www.sdtimes.com/content/article.aspx?ArticleID=34113&page=1&utm_source=Peer+To+Patent+Email+Announcements&utm_campaign=2090490afa-Email_Announcement_10_11_10&utm_medium=email

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JabavuAdams
I finally realized the other day what I think is the core miscommunication
between the pro-patent and anti-patent camps.

Patents stifle innovation when capital costs are low to 0.

If I can build something fun (and potentially commercializable) for $50
dollars + my time, then there's no way I'm going to spend multiple (ten)
thousands of dollars to license someone's patent. The innovation dies right
there.

Yeah, these monopolies make sense if I have to set up a plant, or do years of
research, but that's not true in software anymore.

There's another factor at work. Creative types can't help but make things.
They don't necessarily need a financial incentive to make stuff, nor would
they want to get bogged down in those details. They make stuff because it's
fun to do, and they have some (un)reasonable expectation of commercializing
some projects.

Great engineers make stuff even when no one is paying them. They can't help
it.

~~~
kiba
My reading of economic history, thus far, has suggested that patents cannot be
justified. Even steam engine patents could not stand the test of empirical
evidence.

I cannot yield to your economic reasoning, as I already reject it.

I will be happy though, to read more economic history and dig into it more, as
soon it somehow fit into my budget and time.

~~~
SkyMarshal
C'mon man throw us a bone here. What exactly did 'your reading of economic
history' teach you? Why can't patents, even the steam engine one, be
justified? What test of empirical evidence? Why do you already reject his
reasoning? Why do you need to read and dig more if you're already decided on
the issue?

~~~
kiba
_C'mon man throw us a bone here. What exactly did 'your reading of economic
history' teach you? Why can't patents, even the steam engine one, be
justified?_

Patents will not increase innovation, and they shift activities from secret
invention to invention whom designs are easily reverse engineered.

When the industrial revolution was in full swing in England, there were many
steam engine inventors that were working on it, but they keep getting in the
ways of each other. Instead, inventors, especially James Watt, ligate rather
than improve or manufacture their design. Since their work are built on each
other, steam engine tech proceed much more slowly. After the repeal of Watt's
patents, engine production increased dramatically.

 _Why do you already reject his reasoning?_

His reasoning is flawed based on the fact of taking into account only capital
cost, but the cost of using humans to develop it. The cost of development has
to exceed the cost of duplication. Therefore, it does make not sense that
patents are useful in more capital enterprises because the relative costs of
development versus production are similar.This is my economic reasoning.

On empirical evidence, his reasoning does not simply match. Moreover,
invention and inventing are not the begin and end process of innovation.
Innovation is much broader than that. It is also about marketing, finding out
people need certain products and so on. Inventions, by themselves are useless
without entrepreneurs turning it into a business. If there are only one
entrepreneur for one inventions, than it might just fail in the marketplace.
What if the inventions satisfy no needs? The process will simply be slower, be
plagued with ligation and so on.

Big companies do not alway win, nor are they able to copy everything with
efficiency, and nor do they recognize all business opportunities.

 _Why do you need to read and dig more if you're already decided on the
issue?_

As much as I am sure of what I believe in, I taken the maxim "When you meet
Buddha, you kill him" seriously. My position on intellectual property is very
strong, thus it will be a continuous target of refutation. If my arguments are
well supported, but in fact wrong, than there is no one to convince me that in
fact, I was wrong.

Though, the more I read, the more I am convinced on my positions that we
should go ahead and abolish the system altogether.

------
IgorPartola
Once again, prior art has nothing to do with it. Software patents are as
ridiculous as patents on different colors of shoe laces. Software algorithms
are mathematical expressions. I don't need to show prior art to prove that
having a patent on 46,456,456 + 235,566 = 46,692,022 is meaningless even if
nobody has done that particular calculation before me.

~~~
JabavuAdams
> Software algorithms are mathematical expressions. I don't need to show prior
> art to prove that having a patent on 46,456,456 + 235,566 = 46,692,022 is
> meaningless even if nobody has done that particular calculation before me.

Straw-man argument by over-generalization.

A better analogy would be that software systems are machines that can be fully
specified in some formal system.

But then, so are physical machines, for most useful levels of abstraction.

The distinction is simply not as clear-cut as you're making it. If a software
system can simulate a physical system, should there be a difference in
patentability?

If you're speaking narrowly of individual algorithms, then perhaps you have an
argument, but what's important is how you pull all the various algorithms you
need together.

~~~
IgorPartola
According to Donald Knuth[1]:

"[To a computer scientist] every algorithm is as mathematical as anything
could be... An algorithm is an abstract concept unrelated to physical laws of
the universe."

[1][http://www.pluto.it/files/meeting1999/atti/no-
patents/brevet...](http://www.pluto.it/files/meeting1999/atti/no-
patents/brevetti/docs/knuth_letter_en.html)

~~~
JabavuAdams
And this proves what? I can find quotes to support an arbitrary position too.
:P

~~~
IgorPartola
It proves nothing of course. I just think that Knuth makes a compelling
argument and I tend to agree with him. Mathematics by definition has no
relationship to the physical world. When we create these relationships they
fall outside of mathematics and become things like physics or chemistry.
Patenting mathematical formulas is kind of meaningless, but more importantly,
very harmful. If we were to patent them, we couldn't afford to teach them for
example.

Next, the question is whether algorithms fall under mathematic. Knuth argues
that they do and I agree.

~~~
JabavuAdams
Ok, this isn't an answer to your points, but have you read Tegmark's
Mathematical Universe Hypothesis?<http://arxiv.org/abs/0704.0646>

"I explore physics implications of the External Reality Hypothesis (ERH) that
there exists an external physical reality completely independent of us humans.
I argue that with a sufficiently broad definition of mathematics, it implies
the Mathematical Universe Hypothesis (MUH) that our physical world is an
abstract mathematical structure. I discuss various implications of the ERH and
MUH, ranging from standard physics topics like symmetries, irreducible
representations, units, free parameters, randomness and initial conditions to
broader issues like consciousness, parallel universes and Godel
incompleteness. I hypothesize that only computable and decidable (in Godel's
sense) structures exist, which alleviates the cosmological measure problem and
help explain why our physical laws appear so simple. I also comment on the
intimate relation between mathematical structures, computations, simulations
and physical systems."

~~~
IgorPartola
I have not. From a quick look this stuff feels like String theory, which we
conveniently cannot prove. Once again, only a mathematical concept with no
connection to the real world that we need to concern ourselves with. It's also
a "theory of everything" which I have learned not to trust (these theories
tend to overlook some big issues, like the fact that quantum effects only show
themselves at roughly atomic scales and just assume that the cumulative effect
at large scales does not cancel out).

------
tptacek
Isn't there some legal strategy reason why challenging patents is a bad idea?
Like, the due process involved is minimal, and having survived a challenge,
the facts behind the challenge strengthen the patent in court?

I bring this up because I remember this being one of the big complaints about
the current patent system, and "peer-to-patent" would appear to make that even
worse.

~~~
dctoedt
> _Isn't there some legal strategy reason why challenging patents is a bad
> idea? Like, the due process involved is minimal, and having survived a
> challenge, the facts behind the challenge strengthen the patent in court?_

At the margin that's indeed a concern.

Many patent attorneys think, however, that --

A) _On average_ you're likely to get a better take on patentability from an
examiner, who has at least some background in the technology and who doesn't
have a presumption of validity to overcome;

B) Suppose you have prior art that you think invalidates the claims of a
patent application, but you withhold it from the patent applicant in hopes of
using it later on as a defense in infringement litigation. The patent owner's
trial counsel is likely to argue to the jury that your actions then speak
louder than your words now. " _If the prior art was so great,_ " counsel will
argue, " _why didn't they give it to the patent applicant to be forwarded to
the patent examiner? They're just trying to pull the wool over your eyes, and
making you do extra work evaluating this supposedly-great prior art reference,
when they could have saved you the trouble by having the examiner look at it
in the first place._ "

~~~
tptacek
Does the latter argument actually work in court? Is it the expectation of
courts that people will continually monitor patent applications looking for
things to invalidate?

~~~
Vivtek
That's how I've always understood it. The examiner is supposed to check for
prior art, but (1) it's hard and (2) that cuts into revenue. The fallback
mechanism has always been the patent appeal - generally the appellant has an
interest in voiding the patent or some of its claims for business reasons, but
there's no reason you have to.

So yes, it's the expectation of the courts that people will continually
monitor _granted patents_ and appeal them as necessary. And I guess patent
applications as well.

~~~
dctoedt
> _So yes, it's the expectation of the courts that people will continually
> monitor granted patents and appeal them as necessary._

I dunno about that. My sense is that a patent owner's counsel would not try to
argue that the accused infringer had a general duty to monitor pending
applications or issued patents. The argument would be, instead, that the
circumstances suggest that the prior art in question wasn't so good after all.

Keep in mind that jurors are usually non-technical. Therefore, patent
litigators try hard to find understandable indirect- or circumstantial
evidence that can get the message across to the jurors. EXAMPLE: If someone
walks into the courtroom in a dripping-wet raincoat, that's indirect evidence
of rain. EXAMPLE: Widespread imitation of an invention, or praise for it, is
regarded as indirect evidence of nonobviousness.

In this hypothetical, the patent owner's counsel argues that the defendant's
failure to bring the supposedly-killer prior art to the attention of the
patent examiner is indirect evidence. Of what? That the prior art wasn't so
good after all, and that the defendant is trying to put one over on the
jurors.

~~~
Vivtek
Wow. This goes to show you how easy it is to overestimate what you know - my
patent experience is all about translating stuff from German (or French) into
English, so now that I think about it, all the appeal documentation I've ever
seen has been before the European patent appeals court. The thought of
defending a patent in front of a "jury of your peers" is frankly something I
never even thought of.

The insidiousness of ignorance...

------
SkyMarshal
I wrote the following as part of an email to the USPTO when it was requesting
comments for Bilski Guidance a few weeks ago. I threw it together on the last
day so it's not entirely well thought out, but I'm curious what's the HN take
on the general idea of such a framework like this:

 _"One framework for thinking about software patents is the Edison Criteria -
inspiration vs perspiration. Thomas Edison said:

'None of my inventions came by accident. I see a worthwhile need to be met and
I make trial after trial until it comes. What it boils down to is one per cent
inspiration and ninety-nine per cent perspiration.'

This statement illuminates the fact that there are several domains under which
inventions can be categorized:

1\. Easy/inexpensive to derive, and easy/inexpensive to implement or produce
(ex: Amazon 1-click check out)

2\. Easy/inexpensive to derive, and difficult/costly to implement or produce
(Google Search)

3\. Difficult/costly to derive, easy/inexpensive to implement or produce
(pharmaceuticals)

4\. Difficult/costly to derive, difficult/costly to implement or produce
(Saturn V rocket, Large Hadron Collider)

Easy and difficult are, of course, relative values, and there are certainly
grey areas in between, not every invention or innovation falls neatly within
one of these criteria. However, if the objective of the patent system is to
promote the progress of science and useful arts, then I suggest the PTO allow
patents only for #3 and #4, but not for #1 and #2."_

The idea is that #1 is obvious and easy - others would likely come up with the
idea independently and implement it, creating competition, improvement, and
falling prices. Patenting inventions in this area would hence harm progress in
the 'useful arts'.

#2 has a natural moat (cost of implementation) and hence does not need
additional protection from patents, and may fail the obviousness test anyway.

#3 is costly to derive and has no natural moat (as demonstrated by the generic
drug industry) and hence needs additional patent protection to preserve the
incentive to make the large investments required for progress in this domain.

#4 is both costly and has a natural moat, and I'm not entirely sure how
patents should apply here, but it's not relevant to issue of software patents
and Bilski.

What do you guys think of categorizing inventions/knowledge like this for
purposes of deciding what can be patented or not?

~~~
Vivtek
If it's difficult to derive _and_ produce, you're not likely to need patent
protection. Patenting a large hadron collider would be money and thought
wasted - it's a unique undertaking and people will come to you to use it
anyway.

The bleeping 1-click patent, though, God, it's enough to make my head explode
if I think too much about that being patented. An utter perversion of the
original intent of the patent system.

~~~
SkyMarshal
Yeah, Amazon 1-click was the public start of the insanity. Peer-to-Patent
formalization just can't come fast enough, it's a great idea.

And under this framework, difficult to derive implies a need for patent
protection, in order to prevent one entity from piggybacking off the
derivation work and investment of another. But difficult to implement implies
a lack of need for patent protection due to an implementation moat/barrier.
Combine the two, and it gets into gray areas.

I used the LHC as an extreme example, but I can imagine other less extreme
examples of #4 where the patentability is not so clear. Say, quantum
processors - lots of time and research is going into deriving them, and they
certainly won't be easy or cheap to produce, but the payoff may mitigate the
implementation/production cost and be particularly attractive to some company
looking to piggyback off the derivation work/expense of another.

------
alok-g
There are three requirements on an invention to be patentable -- It "must be
new, non-obvious, and useful". All three clauses are important there.

The proposal handles the "new" part only, and as IgorPartola suggests, it has
issues. IgorPartola's argument "prior art has nothing to do with it" is still
incorrect though since the "new" is still important. If the "new" part has
difficulties, they can be more readily handled via litigation, provided both
parties are given balanced opportunity to litigate
([http://www.readwriteweb.com/archives/eff_apache_software_fou...](http://www.readwriteweb.com/archives/eff_apache_software_foundation_and_microsoft_urge.php))

A lot more difficult is to judge the "non-obvious" part. Many patents that
should not have been issued fall in this category and would remain hard to
handle even with litigation.

Anyone has ideas on how to handle non-obvious part?

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cybernytrix
Quick! file an app for 'peer-to-patent' and we'll be riiiiich!

------
tkeller
... eight months ago.

