The post-grant review process is the only way patents get a serious review of their validity. The PTO actually takes printed references found by accused infringers that pay a five-digit fee as reviews the patent. It's essential because the original pre-grant review only allows a few hours of research and examiners are rewarded only for issuing patents so it's hard for one to be bad enough to be rejected.
This bill would make it much harder to revoke patent claims by prohibiting the reasonable interpretation standard. It would also entitle trolls to demand new claims by making trivial adjustments in wording without any serious review so that winners who get bad patents revoked have to immediately face new bad patents.
Meanwhile the loser pays provision is so weak that it provides no hope to small businesses and little to large ones. East Texas judges have already shown it won't apply in their courts.
The pleading requirements have already been enacted by the Supreme Court this month.
This bill has been so watered down that it's worse than the status quo. EFF should oppose it.
This is incorrect. They are "rewarded" for any kind of action on a pending patent, whether it's an allowance or a rejection. Last I checked, a majority of them gets rejected at least once. In some art units (i.e. field of technology) the rejection rates are actually pretty high.
They've already shown that something that isn't yet the law won't apply? How have they managed to do that?
The bill does nothing of substance. That's the problem. It's a waste of resources for the EFF and frankly makes me wonder how they're spending my (and others') money.
A lot of these problems come from two clear areas, software and business methods implemented in software. It was not until recently that patents were allowed in these areas. I have never felt that there was any justification for that change, and I would not mind if all patents in those areas are thrown out.
I do not support HR 9 it weakens protection for invention in all areas, tipping the balance to the big boys, since they repeatedly attack a small entities patents, without risking being found in infringement.
I think if you exclude the software and business method patents, you might find that a lot of the so called "non practicing entities" are not trolls, but are small businesses that actually are developing technology.
While I admit that they are lots of such valid entities, by volume of lawsuits, most seem to be trolls who are developing nothing. Either they did so once upon a time (ie before the internet) or they have purchased some seemingly worthless patents for pennies and now wield them as if they were actual innovators rather than professional plaintiffs.
However, they may make a comeback, because the Trans-Pacific Partnership treaty requires signatory countries to allow them.
What HR 9 does is to make it possible to sue patent holders over and over until they're worn down and broke. It empowers rich infringing companies and lets them infringe patents at low risk. Worst case, they end up paying royalties, not being shut down.
You want more innovation? Abolishing patents altogether is probably best. It won't "save the inventor", but it will certainly save the invention.
There is very little evidence of that.
Also, for using a system that's allegedly broken, the US is the country that has been the most innovative in terms of software for decades in a row now.
Realistically, you'll just (a) not get into that market at all or (b) ignore the patents then fight with or pay whoever comes after you. Apple vs Samsung is a nice example of where (b) can go but most choose (a).
If he's right about motivation, we should see all kinds of innovation in the mobile space with goal of licensing or selling resulting patents. That group is such a small percentage of overall activity in that sector so as to be nearly non-existent.
So, we have motivation for innovation (i.e. sell stuff) plus tons of innovators without people relying on patents or filing lots of them. The patent system isn't helping here. However, suits like Apple vs Samsung, Oracle vs Google, and so on show patent holders do use it to try to eliminate competition and ensure stagnation for profits. So, we have no provable need for patent system for innovation, proof that innovation happens anyway, and proof patents are used to remove competition in a way that harms consumers. Whether fully or not, his model of patent system = innovation boost is tested enough to reject it for mobile software. Similar arguments apply to software in general.
My idea has already been put to the test and proven correct: the US is the most innovative country in the software area. And has been for decades.
The scenario you are proposing is unrealistic because that's not how the system works. Otherwise, we would never have had the iPhone, Android nor the BlackBerry.
Now try to understand why the system works despite your understanding of it.
That doesn't prove your idea correct; it's likely the case we're innovative despite patents, not because of them, because developers largely ignore them and just code whatever they want anyway.
> The scenario you are proposing is unrealistic because that's not how the system works.
The system doesn't work, that's rather the point; the entire software industry, which you're going on about, largely ignores them, or collects them as weapons of defense against other companies.
No. My claim is simply: "The US is the most innovative country in the world in terms of software, and has been for the past decades".
This is a fact.
Your claim is: "This has happened DESPITE patents".
There is little to no evidence for your claim and the burden of proof is on you.
> The system doesn't work, that's rather the point
It it didn't work, the US would not be the most innovative software country in the world. It is, therefore your claim is wrong. The system works.
Could it work better? Sure. Propose a solution and show some evidence that your solution will be better than the current situation. Then we can talk.
False, you're claiming we're this innovative because of patents; the burden of proof is upon you to link our success to patents. In the software industry in particular, your claim is just absurd and programmers know it.
> It is, therefore your claim is wrong. The system works.
Incorrect, our lead in innovation does not logically lead to the conclusion that our patent system works well. That you think it does indicates a failure of logic on your part. Innovation happens with or without patents, patents by their very nature slow it down by preventing others from innovating. Patents have never increased innovation, that isn't their purpose; their purpose is to prevent innovation from disappearing into trade secrets and add it to the collective human knowledge. They do this by hampering innovation in favor of the original innovator in exchange for disclosure of the innovation.
> Your claim is: "This has happened DESPITE patents". There is little to no evidence for your claim and the burden of proof is on you.
There's mountains of evidence, it's found in how companies now use patents, as legal weapons to defend themselves from other companies and their hoards of patents. That's not what the system was designed to do. And now patent trolls, the existence of which are quite literal prove the system is broken.
Lets be clear, because someone else's argument fails isn't proof that yours is correct; your arguments have to stand on their own and so far you're not making your own case at all. If you want to defend patents, then defend them, you're not just right because someone else is wrong nor is our lead in innovation proof that patents work. Logic doesn't work that way.
And take note, you're talking to multiple people here.
I never made that claim.
All I said is that the US is the most innovative country in terms of software.
That's my claim and it's fact.
People who say that the system is broken need to first reconcile their claim with my statement of fact. And they're doing a terrible job at providing proof of their claims besides saying "the system is broken".
> That's not what the system was designed to do. And now patent trolls, the existence of which are quite literal prove the system is broken.
That's absurd exaggeration. The system is not broken, it has flaws. Fix the flaw that enabled patent trolls and the system will get even better than it is today.
> you're not just right because someone else is wrong nor is our lead in innovation proof that patents work. Logic doesn't work that way.
Totally agree. Good thing I did none of that.
No they don't. The system can be broken without conflicting with your statement of fact that we lead in software innovation. You think those things are conflicting, they are not.
> Totally agree. Good thing I did none of that.
It's all you've done, and you just did it again by claiming they need to reconcile with your fact; no they don't, another fallacy the false choice.
So your claim is that the US is innovative because of its patent system.
Same thing that saying you don't believe in god does not mean you believe there is no god.
In both cases, I'm just saying not enough evidence has been brought to support the claim (that the system is broken and that god exists).
A paper (Bessen, Maskin - 1999) that argues patents may hinder innovation. Abstract:
"How could such industries as software, semiconductors, and computers have been so innovative despite historically weak patent protection? We argue that if innovation is both sequential and complementary—as it certainly has been in those industries—competition can increase firms’ future profits thus offsetting short-term dissipation of rents. A simple model also shows that in such a dynamic industry, patent protection may reduce overall innovation and social welfare. The natural experiment that occurred when patent protection was extended to software in the 1980's provides a test of this model. Standard arguments would predict that R&D intensity and productivity should have increased among patenting firms.
Consistent with our model, however, these increases did not occur. Other evidence supporting our model includes a distinctive pattern of cross-licensing in these industries and a positive relationship between rates of innovation and firm entry."
Here's another paper on the same topic (Bessen, Hunt - 2004). Abstract:
"U.S. legal changes have made it easier to obtain patents on inventions that use software.
Software patents have grown rapidly and now comprise 15 percent of all patents. They
are acquired primarily by large manufacturing firms in industries known for strategic
patenting; only 5 percent belong to software publishers. The very large increase in
software patent propensity over time is not adequately explained by changes in R&D
investments, employment of computer programmers, or productivity growth. The residual
increase in patent propensity is consistent with a sizeable rise in the cost effectiveness of
software patents during the 1990s. We find evidence that software patents substitute for
R&D at the firm level; they are associated with lower R&D intensity. This result occurs
primarily in industries known for strategic patenting and is difficult to reconcile with the
traditional incentive theory of patents."
An abstract from another paper (Bessen, Meuer, Ford - 2011) showing that lawsuits by non-practicing entities have cost the tech industry $500 billion over a 20 year period (from 1990 to 2010), with almost none of it going to the inventors:
"In the past, non-practicing entities (NPEs) - firms that license patents without producing goods - have facilitated technology markets and increased rents for small inventors. Is this also true for today’s NPEs? Or are they “patent trolls” who opportunistically litigate over software patents with unpredictable boundaries? Using stock market event studies around patent lawsuit filings, we find that NPE lawsuits are associated with half a trillion dollars of lost wealth to defendants from 1990 through 2010, mostly from technology companies. Moreover, very little of this loss represents a transfer to small inventors. Instead, it implies reduced innovation incentives."
And an abstract from yet another paper (Feldman, Lemley - 2015) showing that patent licenses do not drive innovation:
"A commonly offered justification for patent trolls or non-practicing entities (NPEs) is that they serve as a middleman, facilitating innovation and bringing new technology from inventors to those who can implement it. We survey those involved in patent licensing to see how often patent license demands actually led to innovation or technology transfer. We find that very few patent license demands actually lead to new innovation; most simply involve payment for the freedom to keep doing what the licensee was already doing. Surprisingly, this is true not only of NPE licenses but even of licenses from product-producing companies and universities. Our results cast significant doubt on one common justification for patent trolls."
And finally, a paper (Johnson - 2011) that argues, using recent advances in relevant fields, that the fundamental belief that external incentives such as copyrights and patents are necessary for innovation is fundamentally wrong:
"The enterprise of intellectual property law has long been based on the premise that external incentives – such as copyrights and patents – are necessary to get people to produce artistic works and technological innovations. This article argues that this foundational belief is wrong. Using recent advances in behavioral economics, psychology, and business-management studies, along with empirical investigations of industry, it is now possible to construct a compelling case that the incentive theory, as a general matter, is mistaken, and that natural and intrinsic motivations will cause technology and the arts to flourish even in the absence of externally supplied rewards. The result is that intellectual property law itself needs a fundamental rethinking."
In fact, the only real evidence we have that patents may be a net positive is in biotech, and that's due to the extremely time-consuming and massively expensive process of R&D in that field. In every other field, we either have no evidence that patents drive innovation, or we have evidence that they hinder it.
Some examples include arithmetic coding, elliptic curve cryptography, and LZW/GIF. Apple dropped ZFS because of licencing concerns (dooming us all to listen to John Siracusa complain about HFS+ and lamenting the absence of ZFS for the last 6 years). Many of these have since expired and have had a burst of activity around them afterwards.
It is undeniable that the US is successful and innovative. The burden of proof is on the people claiming the system is broken, because the end result does not support that claim. If you want to say that the US is succeeding despite a broken system, you have to prove that the system is broken because the success is already self-evident.
Now try to understand why innovation existed outside patent motivations. Then look up what big companies do with all those patents. Only then will you see the real effect of the patent system.
Now you might say that a lot of those open source research projects are funded by big companies, so they don't count. But most development on popular open source projects is funded by big or medium-size companies. Research isn't any different in this regard.
I think it's no accident that most of your examples are hardware, not software. The problem there is that open source hardware is difficult to make work, not that open source research is difficult to make work. The other main example you gave is Unix, but FOSS didn't exist in 1973--of course it wasn't open source by the modern definition. Its research successor, Plan 9, was open source.
Disclaimer: I work on one of those open source research projects.
Not sure you can lump 3 very different types of entities into one group.
I agree with your 1st type (startups) but what about #2 (academics) and #3 (FOSS volunteers) - what are some examples that "most innovations" come from them?
Those companies built their phones then spent tens/hundreds of millions of dollars in lawsuits fighting each other's basic patents and infringements thereof. That would appear to be option b in the parent's scenario.
Big companies can afford to take that risk. Small companies end up having to sell to bigger companies or close down when core tech is threatened by patent challenges.
Apple's patents and position led them to make insane profits close to $100 billion. Yet, their innovation isn't significantly greater than the more open alternative. The money goes goes into their pocket, mostly, plus some R&D and lots of lawsuits. The true result of the U.S. patent system: making owners money.
I'd say that's despite our patent system, not because of it. I suspect we could be even more innovative -- and indeed, recover some of the edge we've lost in recent years -- by at least killing software and business-method patents... and frankly I wouldn't be opposed to throwing out the entirety of the US patent system. (Which is of course impossible, even if there was US political will to do so, given foreign treaties and obligations in that area.)
You're not just saying that the system can be improved (which is kind of self evident and applicable to pretty much everything) but you're saying that software patents are holding back innovation.
How would you go about proving that?
I prefer to stick to a more reasonable claim: the system is not broken, it has a few flaws, such as those that enable the existence of non-practicing entities. Fix that flaw and everyone will finally realize that the concept of software patents is sound. We just need to improve its current implementation.
That's not a tough claim that needs proven, it's an obvious observable fact to every programmer in the industry. We can't write software without violating tons of patents these days, idiotic patents issued by ignorant people who don't understand the absurdity of the claims being made. Patent trolls, of which we are overflowing with, hold back innovation and they are a direct byproduct of an obviously broken badly designed patent system.
> I prefer to stick to a more reasonable claim: the system is not broken, it has a few flaws, such as those that enable the existence of non-practicing entities.
Let's look at it from the opposite perspective: ignoring harm completely, I assert that software patents do absolutely nothing to further innovation. There is no algorithm that would not get developed, no software that would not get written, if there was a lack of patent protection. I cannot imagine any person or company choosing not to build something simply because they it could not be patented and therefore could be "stolen".
So from that perspective, at the very least software patents are unnecessary and provide no real benefit in terms of providing an incentive to innovate. Maybe that's a "tough claim" as well, but that's just the way I see it from both personal experience and from watching the industry in general, and, frankly, I'd say it'd take some pretty strong evidence to convince me otherwise.
So if we -- bear with me on this -- take that as correct, then it becomes pretty brain-dead simple to assert that software patents are a huge net negative on innovation, creating a drain on time, brainpower, and money, to name a few things.
I've been on the receiving end of a patent-troll suit, and it was a huge waste of time for me (and my colleagues), as well as a huge waste of money for my company to pay for lawyers to deal with and settle the matter. And for what? Some greedy rent-seeking bastards to line their pockets for doing nothing that benefits anyone but them.
>There is very little evidence of that.
Given the abundant and widely-publicized examples of specific patents that obviously slow down innovation, I'm beginning to think a downvote is inadequate for comments that claim "little evidence". They should probably be flagged.
Amazon's 1-click patent, GIF patent, JEPG2000, the RSA patent come quickly to mind right off the top of my head, and there are numerous more examples that I'm sure a little googling could find quickly.
The part about US being most innovative...now that's just the basic scientific error of failing to isolate variables. A downvote suffices for that.
If I had to guess, I'd say the scale of the US software and creative works market is the dominant reason for the observation you made, and patents simply didn't play much of a factor, either to help or to harm.
I believe we may have had this exchange before, but they is no empirical evidence of that. At most there have been apocryphal examples that have mostly been debunked.
There are a ton of empirical studies showing the benefits (increased r&d spending, vc investments, etc.) and costs (potential for patent holdup, thickets, etc) of patent systems, but nobody has ever been able to show that innovation itself is harmed or spurred. I'd guess this is mainly because it is almost impossible to define "innovation" precisely enough to measure it.
They cite examples of industries that have prospered without patent protection.
Outside of pharma, the pro-patent position seems quite weak. And even for pharma there may be better models (lotteries, bounties for drugs, public funding)
Another example of similar shenanigans from the same authors:
As much as I hate to defend big pharma, I can at least understand their need to patent things: billions of dollars in research scuttled in an instant after a new drug comes on the market and everyone and their mother copies it. But for many fields (such as software) that argument just doesn't apply.
And on top of that, when I think about the money wasted on defending patent suits (and often settling because it's more costly to win), and the money wasted on filing for patents in the first place (both in legal fees, and lost productivity tying up people's time documenting things for patent lawyers and reviewing findings)... I really can't see how our patent system actually makes us more innovative.
Many of these studies do attempt to support their conclusions as rigorously as possible. This is unfortunately not enough because of the lack of sufficient data or contextual information. But as an example, some studies take specific events in history, such as the introduction of patent laws (or strengthening thereof for a specific field) in a certain country, and compare various metrics (e.g. derived from industrial data) before and after these events. As you can imagine, it is almost impossible to show direct causation, but these studies do find strong correlations.
Note that this is true for studies showing positive as well as negative effects of patent systems.
By comparison, the tech industry has zero compliance costs and it's essentially a wild west.
Business method patents are pretty much gone, after the last revision of patent law. Uber can't patent their version of a taxi service. There are still old business method patents, but nobody is winning infringement cases with them.
There was a more narrowly focused bill intended to prevent sending out demand letters in bulk. Not sure what happened to that one.
If they're secretive despite having patents (and not having this law), how is that an argument against weakening them?
Apple is very secretive, but they are more and more in the minority and I don't think this policy of theirs has anything to do with patents (more like controlling the entire product marketing and PR process as much as possible).
The idea of the lone genius inventor is no longer true (if it ever was) and needs to go away. These days, these are often the people doing the worst science--the ones with some algorithm that no one else has thought of. Big technological shifts are the result of millions and millions of tiny little innovations, none of them in themselves worthy of monopoly guarantees.
I think innovation would actually increase if the entire patent system simply did not exist (but I admit this is a very extreme stance and therefore would be more in favor of making patents easier to invalidate via a public peer review jury kind of thing. Patent office needs help and volunteer experts could lend a hand, particularly with the internet and better search tools to uncover overly broad patents and prior art automatically.)
If you've got a great product and can't figure out how to make money off of it without patents, it's not a great product.
The age of the lone genius has long since passed.
What's truly evil is if I invent something and then I am robbed by a corporation who was able to spend millions to push some over-broad patent through the system. Nobody here believes you when you pretend that innovation is scarce.
OK...so as you say, on the EFF website they have a sample of 50 or 60 of these types of letters. Only one law firm sent more than three of the letters in this small sample they exhibit.
So? What's your point? God knows how many dozens or hundreds or thousands of patent troll letters were sent out for patent #7986426 alone ( http://arstechnica.com/tech-policy/2013/01/patent-trolls-wan... ).
The letters told random companies (the article in the link I posted mentions just ones that were in Atlanta) that they had to pay up to the tune of $1000 a head for a license if the company had employees that scanned documents to e-mail. Not $1000 a company, $1000 a head at a company. One of the companies figured out that the patent trolls had probably just mass-mailed every company on the Atlanta Journal-Constitution's yearly "Atlanta's Best Workplaces" list.
Smaller targets often sign NDA's over the terms of the licensing settlement, too. That by itself probably reduces what's in the media.
Usually they go after medium sized fish and ask for ~100-200k. It's cheaper than a suit or an post grant review.
But even the medium fish are hundreds of millions / billion dollar companies.
The patent trolling going after the little guy is mostly exaggeration. Most trolls aim for deep pockets.
Plus you can lowball the shit out of trolls who send letters. Since you know they aren't serious. If they were, they'd never risk a declaratory judgement suit in a defendant favorable district. They'd just hit you in E.D. Tex or DE.
This looks kinda troubling. I'm no lawyer, but it looks like this section makes it impossible to declare a patent dispute invalid due to innovation, i.e., you can be sued for infringement if you make a better mousetrap, even though you have demonstrably improved the design.
"Keith McNally - Inventor, Online Ordering Software"
If you click on the lower left link on the video, it takes you to a web page where they ask you to send a letter to your congressional representative urging them to kill House Resolution 9.
We need to fix the election finance system. That is the first problem before we can think that anything can really be effected through congress, as it is supposed to be.
That's attacking the symptoms without looking at the real problem. All of this political gridlock is baked into the system. Separation of powers, first-past-the-post, non-proportional representation, electoral redistricting carried out by the party in power (can you say conflict of interest?).
Also, once you fix campaign finance, you'll have people who will vote to representatives who will fix redistricting issues. Probably not a representative sample, but the recent Ohio elections showed that partisan gerrymandering is not popular. Once the electorate has representatives that need not worry about appeasing special interests, their will will be done.
The separation of powers means you will often get a president whose party does not control congress. This leads to extreme gridlock. Where I live (Canada) people were tired of Stephen Harper so they tossed him and his party out of office; no gridlock to worry about at all!
Also, once you fix campaign finance
I'm not convinced. Jeb Bush has hundreds of millions in finances and what has that gotten him? 5th place. He can't even crack double digit percentages.
Meanwhile you a guy like Bernie Sanders who, despite lacking a Super PAC, manages to draw huge crowds and build support. Too bad the separation of powers + first-past-the-post system means it would be utterly impossible for him to start his own political party so that people would have a real alternative to the Democrats.
This sounds suspiciously like something software companies would argue, to retain the right to protect their turf with patents, while reducing their exposure to professional patent enforcers.
That would definitely be a cause to support.
This would completely kill the patent troll business while adding value to startups that file innovative patents.
You should only be allowed to acquire an existing patent if you acquire the company that owns it.