

American law is patent nonsense - callum85
http://www.ft.com/cms/s/2/ea9503c2-f0f9-11e1-89b2-00144feabdc0.html

======
chrisacky
I don't understand why half of the current comments on this article are
currently bashing the Financial Times for such an underwhelming/"not very
enlightening"/"poor" article.

This article is akin to the lobbying that any interested party does when they
want to see change... To make a comparison... half of what Chris Dodds said
from the MPAA was utter balls and constantly full of inaccuracies and litter
picking his facts to suit him...

I don't particularly care if the Financial Times do the same here. Not every
FT reader will be clued in to the inadequacies of the patent system, and I
think this article does do a fantastic job of explaining in lay terms how much
of shambles technology patents are.

Back when I studied Law at University, I actually remember my first lecture on
IP and Patents; it was on "Justifications for Intellectual Property Rights".
We talked about Venetian/Florence Glass Blowers and the Pharmaceutical
Industry...

Comparing the different industries makes it easy to see how you can justify
patents for one use case. Providing a limited monopoly in pharmaceuticals (for
the most part) guarantees the incentive for the ridiculously high research and
development costs that goes along with bringing a product to market.

Providing a monopoly right for technology where you position your fingers over
a device to interact with it, is ridiculous and just shows how antiquated and
behind the times the Law is.

Yes, the article might be muddling up some things, but it does a great job of
bringing to attention how broken the patent system is for
technology/software/computer implemented inventions.

~~~
billswift
There are many problems with patents in drug development as well, as Derek
Lowe discusses in these essays,
<http://pipeline.corante.com/archives/patents_and_ip/> . It may be time to try
to develop something new, maybe based on patent law, maybe not, even for
pharma.

ADDED: One problem pharma shares with software is "patent thickets" where
there are many applicable patents, applying to different layers of technology,
that the current development relies on.

------
expaand
US patent laws derive directly from Clause 8 of the US Constitution, where it
says that Congress is empowered.. "..To promote the Progress of Science and
useful Arts, by securing for limited Times to Authors and Inventors the
exclusive Right to their respective Writings and Discoveries"

Note the words "To promote the Progress of Science and useful Arts..."

I would say that any necesary condition on a patent would be that it indeed
"promotes the progress of Science and the useful Arts". In other words, the
purpose of even sanctioning patents is so that people would have incentives to
go out and invent things. The assumption is, that absent a patent, folks will
sit on their bums and not invent anything. With a patent, the inventor can
profit, but so does society. If there is no benefit to society, why allow the
patent?

Until relatively recently (the 1980's?), software patents were virtually
nonexistant. Did that stop "inventions" in the world of software? That's
laughable, since that was the time of immense creativity, new companies,
products, inventions. To me that is PROOF that patents in software are hardly
needed to "promote the progress of Science and the useful Arts". Think of all
the software companies that came of age in the 1980's and 90's. WITHOUT patent
protection (for the most part). WHY allow software patents? For what purpose?
The only reason I can see is to benefit the legal profession. And large
companies.

In addition, software patents have a number of flaws, mostly due to
practicalities deriving from the _ease_ with which software designers can
conjure up new techniques, visual elements, user-interface designs, wire
protocols, languages,database designs, and the like. Software is a "soft"
science - it doesn't require expensive laboratories or extensive field trials.
It is playing in a virtual world. You can sit in your room and without
spending millions of dollars, come up with amazing things. But so can the
person across the street or around the globe! And they do! So MUCH of what is
"patented" are just "obvious" takes or re-takes of what already abounds, or
_would_ abound, should someone else in a room have to solve that same problem.
Many patents are _not_ novel, complicated, unusual. Clever, maybe. But someone
else in the same circumstance might come up with the same exact thing. Why
should the first person be granted 20 years of "protection"?

IF we were to allow software patents at all, say, for truly novel, complex
things (yet to be determined how you would define this), we should limit the
term - to say, 3 years. So yeah, go patent your "One Click" or your "Bouncy
Screen" - if approved (dubious for these), you would have only 3 years to
profit from your exclusive deal. Far fewer patents would be applied for. Far
less litigation.

And software designers and companies could create great things and compete on
what they are offering, and not who they are suing. And, believe me, tech
would flourish. Software patents are a TAX on everyone.

------
SoftwareMaven
Most people (whose business isn't propped up by it) seem to agree patent law
in the US is, to a greater or lesser extent, broken. How can we fix it? Short
of deep pockets to fund a _lot_ of lobbying (maybe a big Indiegogo
project...where's The Oatmeal? ;), I don't see how we overcome the lobbying of
large IP producers who don't want things to change.

~~~
stephengillie
At a minimum, I'd like to see Non-Practicing Entities be unable to sue for
infringement.

~~~
buro9
Define that.

Because surely all a patent troll would need to do is implement a product that
demonstrates a single patent in their pool.

Or are you suggesting that every patent must be implemented as a product for
it to be enforced?

And if so, as an example of similar things, the UCI (cycling body) state that
all Olympic track bikes must be available to the public, and this is true of
Team GB equipment that you can order, for a price in the region of GBP 100k
per bike.

So would it be enough for a patent troll to offer an implementation of a smart
phone for USD 5m?

------
czr80
This is a surprisingly poor article for the FT. It confuses different types of
IP legislation, and is full of unsupported assertions.

~~~
bartl
That may be to show how people in the USA are overly respectful for "IP".

Besides, if you can patent the look of icons (which is design, thus, art, and
not in any way an invention), who is conflating the types of IP, anyway?

~~~
nirvana
You just confused a design patent with a utility patent.

Frankly, I've personally not yet seen an anti-patent argument from someone who
actually understood what patents were, how they worked, etc. They constantly
confuse terms, misrepresents what the patents they are dogging actually say,
or rely solely on unsupported assertions.

Including hundreds of comments here on HN, all of which seem to be
ideologically driven repetitions of talking points, and none of which come
from people who have read the patents or which accurately represent what the
patents actually cover. (Eg: all the commentary on the Samsung trial, not one
criticizing the patents was accurate.)

Its not like patents are secret- they're published on the web for anyone to
read.

Near as I can tell-- google felt they needed to rip off the iPhone for android
in order to compete, and therefore, suddenly, patents are bad. Yet microsoft's
metro UI shows this isn't the case....

~~~
josephlord
Im going to make an anti-patent comment hopefully without mistakes.

Sticking to patents there are clearly real problems with the thicket of
patents where many things can be infringing without realising it (while
patents are public they are impractical to study or to get an idea of all the
patents in an area like touch UIs and even if you could it is hard to
correctly understand and interpret the claims to work around them).

The cost of the legal actions is a real problem (for small companies) in
itself partially caused by the weakness of the initial examination that means
that many of the existing patents will be found invalid if ever tested in
court.

The lack of certainty over validity also harms patent holders who cannot
really assume that really do have a valid patent and this will harm them in
negotiations.

If patents are to be kept (and the economic case isn't clear to me although it
may be there) then if the primary examination cannot be improved then there
should be a second and more in depth (and more expensive) examination that
should be required before legal action is brought (or optionally to strengthen
their negotiating position). After this phase it should weed out sufficient
invalid patents so that there is an 80-90% chance it will be found valid in
court.

------
adolph
This article is not very enlightening. It: doesn't address any of the claims;
views the jury decision as if it were the final adjudication rather than
something that will be appealed and likely modified; quotes Apple rumor
website commenters.

~~~
dohko
I don't understand. Do you disagree with the author's points of view? Why is
it not enlightening?

The way I am reading this article, and it can be wrong, is as a by-and-large
synthesis on the author's point of view on why US patent law is antiquated and
supposevily bad for the Tech Industry of this country.

I don't see any of his points as incorrect, in fact I agree with his
sentiment.

Therefore, do you disagree with he is saying? Or do you just think that he is
right, but fails to make any good suggestion on how to change the current
flawed system?

~~~
adolph
I found it not enlightening for the reasons I listed. I guess I am on the
lookout for something that makes sense of Apple v Samsung specifically and how
the verdict fits into an understanding of the challenges posed by patent law.
This wasn't it and I suppose I am too impatient, it will be written in long
form and take more time.

------
flexie
The article is mostly right, but I find it ironic that to access the article,
I had to accept their cookie policy - a result of nonsense European
legislation.

~~~
czr80
Why is that ironic?

~~~
flexie
Just shows that there are foolish laws everywhere. American IT companies may
have to deal with software patents. Europeans deal with - sometimes -
misguided and excessive consumer protection rules such as the cookie rules.

------
dumb123
A provocative title.

The issue really starts with the American culture (of litigation), not
American law, per se.

And of course the encouragement of litigation, the acceptance of it as a way
of life and a way of doing business, and the high amount of ensuing court
activity breeds a rather large body of case law, a complex legal landscape,
which gives way to a sort of feedback loop leading to more litigation.

"Can we sue our way to prosperity?"

This was a title of a Congressional study a year or two ago.

I think it captures the essence of the problem. Wealth is increasingly being
created _only_ through litigation. (Reminder: IP rights are often nothing more
than rights to sue alleged infringers.) Is that toxic? Is it sustainable? I
don't know. I don't think Congress knows either.

------
bhousel
Intellectual property law isn't nonsense. It evolved over hundreds of years
(and continues to do so) from other areas of property law in the common law
system.

~~~
baddox
Those two things are not mutually exclusive.

------
winter_blue
I really like the page's background color. Overall the non-white background is
gentle and soothing to the eye. Add to that the fact that the page is not too
littered with ads and other graphics, it's presentation is overall great! (The
real kicker is the background color through :)

------
expralitemonk
The U.S. patent office is allowed to keep all fees it collects for its own
budget, so it has an incentive to grant as many patents as possible, no matter
how silly they are.

------
npguy
Who came up with the idea that anyone deserves money for coming up with an
idea? :-) that is the concept that sits at the heart of this broken patent
system.

We should all just agree that execution is everything, and only fight when
someone copies actual code etc.

------
gbz
Too much ink has been spilled on this topic but most arguments against
software patents continue to be patently confused and unelightened about the
core matters. For one, patents do not exist purely to 'incentivize', but also
for reasons of fairness and justice. If software patents should be abolished,
why exactly do we need copyright laws? Why don't we allow any book/paper/poem
to be copied and resold by anyone under their own name? Why don't we allow
people to make derivative copies of say harry potter books and build their own
fortune? Im sure society wont be worse off for it.

Second, the problem with the patent system isn't that patents are given too
easily (trust me, its not that easy), or to obvious things -- as they say, all
beautiful solutions are obvious in hindsight -- but that companies that
infringe patents have convinced themselves that they are within their right to
do so. There's definitely a strong case for giving immunity to companies below
a certain size (revenue, employee base etc) from patent prosecution, but most
large companies can easily license patents but refuse to. Yes, there are still
abuses of the system, but those are bound to arise no matter what system you
put in place.. someone will always try to game it. And as software patents are
litigated, common law will settle down on standards and businesses will know
whats kosher and whats not. Much of the current excitement is because we are
currently in the midst of the first explosion in assertion of software patents
where common law is still evolving.

Last, many of the claims being made regarding the supposed absurdity of
apple's patent claims are so fundamentally (or willfully?) uninformed, that it
begs wonder (not very unlike the willful distortion of news from other
countries thats so common in major western news platforms). Apple never really
asserted a patent on a rectanle with round edges.. and as for its claims on UI
elements -- it was a trade dress claim primarily, not patent claim. The bounce
back and tap to zoom claims were patent claims -- but rest assured, micrsoft
would probably have implemented the same with no bounce back and context menus
to zoom. (no ms office app after 30+ yrs in mkt still has bounce back -- so
maybe its not that obvious). However, the prior art arguments are legitimate
and can only be settled in court.. which samsung simply failed to do.

~~~
expaand
What does abolishing software patents have to do with "copyright"? Two
completely different animals.

I am for abolishing software patents - for all the reasons everyone sites. But
"stealing" someone's actual code or implementation or book or music is another
story.

~~~
gbz
Not sure why they are completely different animals. Both protect property
rights in creative work which can be easily copied/replicated (without
attribution or compensation).

As for abolishing software patents -- would help if you can list the reasons
people cite -- I can't offer a counterargument otherwise.

~~~
fpgeek
Patents aren't supposed to be about property rights in creative work that is
easy to replicate, they're supposed to be about work that is _hard_ to
replicate.

Remember, the closest alternative to a patent is a trade secret. The patent
bargain is supposed to be: Tell us the secret (so it won't be lost and others
can build on it) and we'll give you a temporary monopoly on it.

Looking at how the bargain plays out in practice illustrates the big problems
with software patents:

1\. The inventions described are easy to independently invent. The public is
not getting much of anything when told the secret.

2\. Software patents don't have adequate disclosure. They're deliberately
written in opaque language that practitioners don't understand in order to
make the invention sound more significant and to make the claims as strong as
possible. They also don't include source code or any guidance on the software
engineering tradeoffs required (e.g. performance, flexibility, modularity,
etc.) required to practically realize the invention.

3\. Even if the disclosure were adequate, the incentives of the patent system
(in this case, willful infringement) mean that practitioners never look at
them. This is everything from the patent attorney coming to your office and
telling you to never, ever look at a patent to Groklaw posts that say that if
you're a software developer, you might not want to read posts that discuss
patents in detail.

