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Why Patent Reform Won't Happen Anytime Soon 110

Posted by Soulskill from the because-it-is-patented dept.
jfruhlinger writes "'If people had understood how patents would be granted when most of today's ideas were invented, and had taken out patents, the industry would be at a complete standstill today.' So said Bill Gates in the 1980s. Now, of course, Microsoft is one of the biggest software patent holders around. And that's the key to the problem of software patent reform: the companies that had the most incentive to face the problem found it cheaper and easier to buy up patent war chests instead. And Congress won't act unless big stakeholders (read: big companies) make a stink."
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Why Patent Reform Won't Happen Anytime Soon More

Why Patent Reform Won't Happen Anytime Soon

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  • "And Congress won't act unless big stakeholders (read: big companies) make a stink"

    (read: downsize or withold donations)

    • The downside of this is, that it's almost like we're forced to cheerlead patent trolls.... hard. The pure patent trolls after all have nothing to counter-sue over.

      Kinda sucks - it's like I'm stuck with hoping and praying that the entire Marshall, TX business directory pounds on the big boys often enough and hard enough to get them to finally start thinking that maybe this whole patent mess could use a little cleaning up. ...and this is in spite of the fact that I believe patent troll lawyers should replace

      • The downside of this is, that it's almost like we're forced to cheerlead patent trolls.... hard.

        I think he meant downsize Congress, with guns.

    • And Congress won't act unless big stakeholders (read: big companies) make a stink

      Such a pity that the public aren't considered a big stakeholder

  • Without silly software patents such as this one [patentgenius.com], we'd all enjoy simple, non CPU-intensive encryption that just works. DES, RSA, AES, RC4 and all the other overly-complicated encryption schemes we "enjoy" today were invented specifically to route around that single patent. Well thanks a buncharoony...

    • Re: (Score:2, Interesting)

      by Anonymous Coward

      What does "dynamically viewing images elements stored in a RAM array" have to do with encryption?

    • Re: (Score:2)

      by Desler ( 1608317 )

      How could DES have been a way to work around it when the publication of DES predates the filing of that patent by 3 years? RSA was also publicly published the same year as the filing date but clearly would have had to have been worked on for years before then. RC4 you could make a case for since it was published during the term of the patent but you'd make a hard case for AES since the patent expired before it was published.

    • Are you sure? That patent was issue in 1980, meaning it's long since expired.

      Software patents should be illegal but this particular one is long gone.

  • Guess we all know about how politics really works now, eh? I think its just filthy.

    • I don't really think this is the revelation that leads to that conclusion. It's been obvious how politics really works for a long while now.

      • It's been obvious how politics really works for a long while now.

        Perhaps even longer than you might think. Take for example In Verrem [wikipedia.org] (full text of oration [bartleby.com]), a series of speeches made by Cicero in 70 BC during the corruption and extortion trial of Gaius Verres; the former governor of Sicily. Organized government and corruption of those in power go together hand in glove; they are like action and reaction, cause and effect.

    • If 10% of the population wanted patent reform it would happen in a few years at the most.
      The issue is most people don't care or don't care enough about this.
      Democracy is the best alternative to political system. However a Democracy with lazy population is very little better than a dictatorship.
      Democracy with highly educated, enlightened people is something that doesn't quite exist in all but less than a dozen countries in the world. And most of those countries are small, like less than 20 million people.

  • Bilski (Score:3)

    by recoiledsnake ( 879048 ) on Tuesday September 06, 2011 @07:09PM (#37321628)

    Did they miss the Bilski case?

    Instead of a "clear and convincing" standard, Microsoft proposed instead using a "preponderance of the evidence" standard. This would have, in effect, weakened or reduced the value of all issued U.S. patents.

    Interesting to see the biggest company, Apple suing to keep competitors products off the the market, not being mentioned at all either in the article or summary.

    • That's because nearly all of Apple's lawsuits center around hardware patents, or physical design patents. In fact, I don't think they have sued anyone over software patents yet.

      Kind of hard to use them as a poster boy for Software patent reform when they don't go near it but rarely, if ever.

      • Re: (Score:2)

        by swalve ( 1980968 )
        Process is process, design is design. A computer (and thus the software that runs it) is a machine like any other.

      • Re: (Score:3)

        by artor3 ( 1344997 )

        Hasn't Apple patented gestures? That's software, and should be considered obvious by any sane person.

        • Everything is obvious! Give it away because the people demand it! FREE THE WORKERS (from getting paid for their work.)

          • And I know, I know.. it's only rich people benefitting and they shouldn't be allowed to have money because the noble poor deserve their nannies or some shit or another... I can never remember the whole screed.

      • In fact, I don't think they have sued anyone over software patents yet.

        They sued Samsung over the slide to unlock patent [appleinsider.com]. How trivial is that? Mind you, suing someone over rounded corners shows that they will stoop to the same level on the hardware side of things too.

        • Can't prior art be shown from Nature? I've found rounded corners on rocks by the river quite a few times...

          Hmm, I wonder if you can use Mother Nature in this way? Reduce the design to a Fibonacci series or based on the golden ratio somehow and you are set. I know most aspect ratios are at least loosely based on the golden ratio so it can't be too far fetched.

      • That's because nearly all of Apple's lawsuits center around hardware patents, or physical design patents. In fact, I don't think they have sued anyone over software patents yet.

        Kind of hard to use them as a poster boy for Software patent reform when they don't go near it but rarely, if ever.

        What!!??
        system or method to unlock phone by swiping to unlock. (sued Samsung)
        method of organizing pictures in a photo manager (sued Samsung)

        THen there is :- cartoon drawing of a square with rounded corners with a flat screen. (sued Samsung)

        Here is some more for you to chew on.

        #7,362,331: Time-based, non-constant translation of user interface objects between states. Filed in 2001, this patent covers basic animated movement of objects in graphics user interfaces; the core "innovation" seems to be that

    • Did they miss the Bilski case?

      Instead of a "clear and convincing" standard, Microsoft proposed instead using a "preponderance of the evidence" standard. This would have, in effect, weakened or reduced the value of all issued U.S. patents.

      Interesting to see the biggest company, Apple suing to keep competitors products off the the market, not being mentioned at all either in the article or summary.

      Not that I disagree with your post, but the first line should be "Did they miss the [Microsoft v.] i4i case?" Bilski was different - i4i was the one your quote refers to.

  • Er, the big tech companies are exactly the ones who are pushing hard for patent reform. Microsoft and Google are two of the biggest pushers for patent reform - they both spend a stupendously large amount of money on defensive patents and fighting lawsuits so it makes sense from a business perspective. Microsoft itself has gone before Congress and the Supreme Court a number of times, urging them to reform U.S. patent laws. I don't know what is preventing Congress from enacting patent reforms, but it certainl

    • A lot of Microsoft's concern over reform is in dealing with NPEs, since their war chests aren't at all useful against them.

    • I don't know what is preventing Congress from enacting patent reforms, but it certainly isn't the big tech companies.

      I believe I got this article [huffingtonpost.com] from slashdot, but I'll post it just in case. Essentially, they were caught in a battle that involves Big Pharma, Wall Street, and an underdog with delirium of grandeur. That's what is h

    • Maybe the fact that the US gets a LOT of money from the fees companies use to register those patents, and the defensive ones used to fight them? It's like asking why an arms dealer, who deals to both sides, wouldn't want to make ammunition harder to get...

    • There are two major industries fighting against patent reform: agriculture, and pharmaceuticals. Both make a killing on patenting what's essentially software. The largest tech companies that produce real products are for patent reform. The ones against it mainly do not sell actual software, but sells the services their software is able to perform.

      Actually, funny thing is, patent reform will also result in health care reform, as well as help fight obesity. Both Barack and Michelle's goals would be fulfilled

  • It's called the "America Invents Act" and it stands to make the patent system 100x worse: http://en.wikipedia.org/wiki/America_Invents_Act [wikipedia.org]

    Very few patents are for actual original innovations that warrant an up to 21 year monopoly (1 year from disclosure plus 20 from filing date). Let me give you an example .. the concept of a magnetic breakaway safety mechanism for power cords was invented in the 1990's for deep fryers (though it may actually have a longer history than that). In the early 2000s, Apple got a

    • The US currently awards patents on a first to invent basis. The rest of the world, plus the US if this bill passes, awards patents on a first to file basis. The opponents of first to file often make the erroneous argument that inventors get screwed under first to file. Nonsense, the first to invent is in the best position to be first to file. The "problem" is that in the US folks are used to gaming the patent system to get a few extra years of patent protection.

      Under a first to invent system a person beg
      • The first inventor can be screwed by a first-to-file system. Those with more resources can go from invention to filing faster. One concern is translating a useful invention into 'patentese', as well as doing a lot of searching for prior art. However, it's not really a point worth arguing deeply IMO. If two parties independently come up with the same invention in a short time period, then the invention is most likely obvious and no patent should have been granted ( a lot of the problems we have lie in ou

        • The first inventor can be screwed by a first-to-file system. Those with more resources can go from invention to filing faster.

          That seems exaggerated. A provisional patent can cost a few thousand dollars or less.
          http://ipwatchdog.com/2011/01/28/the-cost-of-obtaining-patent/id=14668/ [ipwatchdog.com]

          One concern is translating a useful invention into 'patentese', as well as doing a lot of searching for prior art.

          A provisional patent skips a lot of the formalities. This will need to be addressed eventually and a regular patent will need to be filed.

          • It can be a few thousand dollars or less, or it can be higher depending upon the circumstances. Even so, a few thousand dollars may be prohibitively expensive to a start-up on a small budget in some cases. Also, within a year, a nonprovisional patent would have to be filed, which makes it have a fair bit more of a cost. And all of this is assuming that there is only one 'invention', since filing more patents means the costs multiply, with the likelihood of this being the case depending greatly upon the f

            • Re: (Score:2)

              by psxndc ( 105904 )

              A provisional costs $110 if you are a small entity (e.g., a lone inventor).

              Go here: http://www.uspto.gov/web/offices/ac/qs/ope/fee2009september15.htm [uspto.gov]

              Search for "Provisional application filing fee"

              There are almost no requirements for a provisional other than listing who the inventors are, so you can file powerpoints, a thesis, hell probably a scan of a napkin.

              People say the bar is low to receive a patent. Bullshit. I spend all day, every day trying to get my clients patents and it is not easy. The PTO is no

            • Re: (Score:2)

              by Rob Y. ( 110975 )

              And what if you don't want to patent your software 'invention'? Like maybe you get that it's obvious, or don't believe in software patents, or just don't feel like it. But someone else can file for it and prevent you from using your own invention.

      • Re: (Score:2)

        by dgatwood ( 11270 )

        Under a first to file system someone who invents something and postpones filing until they are closer to having a marketable product is gambling that another inventor will not appear. If some other inventor appears the gamble is lost.

        The problem is that this solves one problem, but creates two bigger ones. So now, you've effectively shortened the duration of patents negligibly by pushing inventors to file them earlier. However:

        • Now, those inventors must file that patent because they can no longer count

        • Under a first to file system someone who invents something and postpones filing until they are closer to having a marketable product is gambling that another inventor will not appear. If some other inventor appears the gamble is lost.

          Now, those inventors must file that patent because they can no longer count on showing documentation to prove that they invented it first. Therefore, if they invented it, they have to file a patent to avoid getting screwed, where otherwise, they might well have decided that it wasn't worth patenting. The result is that the number of patent filings will almost inevitably explode.

          I can't help but think this is somewhat exaggerated. If an inventor were to abandon a project I would expect them to do so before they got something working, not afterwards. I think those who take something from idea to working invention are *highly* likely to follow through with filing a patent. Especially provisional patents which don't have the administrative overhead, both for the inventor and the patent office, nor the costs of a regular patent.

          • Re: (Score:2)

            by dgatwood ( 11270 )

            If an inventor were to abandon a project I would expect them to do so before they got something working, not afterwards.

            You're making the same two mistakes that lots of people make when talking about inventions in a patent context.

            First, an inventor is rarely working as an individual. Most inventors these days are working for a company. That company is building a product. The company as a collective comes up with a hundred cool inventions that will make their product better.

            Second, an invention is not

            • How are things going for the European patent office? If your hypothesis is correct and your scenario common we would be seeing problems over there.

              • Re: (Score:2)

                by dgatwood ( 11270 )

                By that same standard, doubling the cost of gasoline in the U.S. overnight can't possibly cause our economy to collapse because Europe has had such high gas prices all along.

                Also, European companies don't seem to have nearly the inclination to screw each other that U.S. companies are so well known for. Most European countries (with the exception of Germany) file half as many patents per capita or less when compared with the U.S. We're patent-crazy on this side of the pond.

                • And Germany tends to file such huge amounts, because, well, we have a shitload of internationally operating manufacturers here, which, mostly, are actually quite innovative. Daimler, Audi, BMW, Volkswagen, Siemens, Osram, Bosch, MTU, Thyssen - just to name a few of the big ones. In spite of the high filing numbers, though, we don't see much litigation - and if someone wants to question the validity of a patent in court, it is way cheaper than in the US.

    • Re:A patent "reform" bill is almost passed (Score:4, Insightful)

      by Dachannien ( 617929 ) on Tuesday September 06, 2011 @08:21PM (#37322080)

      Holy shit, people already tore your post to shreds the last time you posted it [slashdot.org] on account of you being wrong on numerous points. And you're repeating most of those wrong points in this thread, too. Why are you still here?

      • Re: (Score:2)

        by artor3 ( 1344997 )

        Repeat a lie often enough, and it becomes "true".

        Note: I've done zero research on this bill the OP is talking about, so I don't know if he's lying or not. I'm just responding to the question of why someone would repeatedly post an argument that had been debunked.

    • You posted this in this [slashdot.org] article, and people repeatedly pointed out your numerous errors. You didn't reply there, but instead posted the same comment here... Does this make you a troll?

  • You cannot expect any sort of reform whatsoever to occur anytime soon because essentially all of our agencies have been captured by industry.

  • Suppose humanity figures out most of what it needs to live in perpetual prosperity. Tesla's patents for polyphase AC system expired long ago, and all his notes and prior-art for next-generation energy systems was seized by the FBI when he died.

    Drug companies have a real patent problem on their hands: all their old "blockbusters" are losing patent protection, and nothing's coming up to replace them. Why? Because the chemicals we have are good enough.

    For the most part, true health is not produced in a chemist

    • Re: (Score:2)

      by 0123456 ( 636235 )

      For the most part, true health is not produced in a chemistry lab, it is produced from "right living"

      'True health' will be produced by genetic engineering. Of course US liability and patent laws will probably ensure it's produced in a more sensible country.

      • Re: (Score:2)

        by nido ( 102070 )

        I have a friend from high school who I caught up with on Facebook last year... They theorized that his kid's health problem was some kind of "de-novo" genetic mutation. They went to all the best doctors, and spent hundreds of thousands of dollars of their insurance company's money on genetic tests and MRIs and blood work and pills, etc etc ad infinitum.

        'Mom' is apparently a very smart cookie, and her research led her to experiment with ... Vitamin B-12, and Vitamin-A. And all the kid's symptoms started goin

        • Re: (Score:2)

          by dgatwood ( 11270 )

          Why didn't any of the swarm of doctors notice? Who knows.

          Because pharmaceutical companies don't give the doctors kickbacks for prescribing more over-the-counter vitamins, and hospitals don't make more profit by running fewer, cheaper tests.

          Medical care in the U.S. became purely driven by profit motives a long time ago, which is why the U.S. has one of the worst health care systems of almost any industrialized nation (according to several key indicators), and yet has a higher overall cost of service than alm

        • One of my exes had a prostate problem which resisted a number of attempts to clear via antibiotics. It was only when I tried giving him zinc supplements that the problem went away. I tend to look at the human body as a complex system with a spread of resource and maintenance needs. It's no panacea, but it does seem that the engineering/systems viewpoint is missing from the repertoire of tools provided by a medical education.

          • Re: (Score:2)

            by nido ( 102070 )

            There's a quite excellent article titled "100 Years of Medical Robbery"... 'twas posted over at mises.org about 7 years ago. Anyways, it covers how the drug trusts helped the American Medical Association weed out all the "subpar" medical schools. Now doctors just learn about how to pick drugs and perform surgery. Well, mostly just that.

            Wikipedia has a few good links on the "Flexner Report" page too.... "How the Cost-Plus System Evolved"

            Thanks for commenting. :)

    • Drug companies have a real patent problem on their hands: all their old "blockbusters" are losing patent protection

      oh, no, don't worry about them, they can twist a chemical bond and rename it to start their 21 years over again just like tacking mobile onto it for electronics.

      real question is.. what's next?

      "in a 3d space", "with your mind", or in an "augmented reality"?

  • Patent Reform is just the kind of thing that would be gridlocked in congress. Whomever brought it up, regardless of merit, would be opposed by the other side.
    However, in order to fill campaign coffers, I bet you will see stuff come up regularly, with a wink wink across the aisle, as a fund raising tool.

  • Patent Reform (Score:1)

    by Anonymous Coward

    I doubt our founding fathers had any idea that corporations would own patents rather than individual innovators. Corporations claim they are the ONLY reason a patent is created and, therefore, they own it. Is that true? Think about Dennis Ritchie, Ken Thompson, Steve Jobs and Bill Gates. Should not they own their patents directly?

    Should patents, once transfered have force? Patents are, indeed, property. But since they
    are also called out explicitly in the US Constitution, they can be subject to special rules

  • Umm...it's pretty much a done deal. (Score:1)

    by Anonymous Coward

    Since the Senate passed the cloture vote on a mirror image of HR 1249 by 93-5 about an hour ago, I'd say that someone is incredibly uninformed. It will probably be signed into law by the end of the week.

  • And Congress won't act unless big stakeholders (read: big companies) make a stink.

    Quotes like this highlight the true root of the problem. While Congress acts on behalf of corporations instead of the public, anything that favours the public is going to be incidental. There's no point in trying to reform the patent system, unless the political system which undergirds it is reformed first.

  • just making sure cause its not really fair to quote someone who is not in the office anymore and making it out like current policy was their decision

  • The only way to get rid of software patents is to make the system too expensive for companies to support the current system. One way to do this is to create a large growing patent pool that is not available to commercial companies. The organization holding the pool would have to vigorously defend the patents. Some issues would exist, none insurmountable. One is the money needed to pay for the new patents and to litigate against those violating the patents. (Not wanting to write a manifesto, I will touc

  • > And Congress won't act unless big stakeholders (read:
    > Big Campaign Finance Contributors) make a stink."

    There. I fixed it for you.

  • Melancholy Elephants (Score:3)

    by sabernet ( 751826 ) on Tuesday September 06, 2011 @09:39PM (#37322476) Homepage

    More and more, I keep remembering Spider Robinson's Melancholy Elephants.

    http://www.spiderrobinson.com/melancholyelephants.html [spiderrobinson.com]

    Yes, I know that deals mainly with copyright, but the points about the damaging effects of intellectual property protectionism is still relevant. Besides, these days, the main differences between patents and copyright are mainly that one costs more money and effort to file for while the other is implicit.

  • The reason now is "in for a penny, in for a pound." How much of a software company's worth is the value of their patent portfolio?

    Let's look at Google, and their project Android. Android was recently attacked by a series of patent infringement suits. [wired.com] These guys, Oracle [engadget.com], a few others. [venturebeat.com]

    How do they respond? They purchase Motorola Mobility, for $12.5 billion. [hollywoodreporter.com] Suddenly, bang! They have a gigantic war chest of mobile patents. Now the situation changes. Now it's like the guy who goes to see the dentist,

    • That's why you do things gradually, not cold turkey. What if we simply said that starting 1 year from now, no more patent filings would be accepted? Current patents would remain valid. People who had been working towards a patent would have 1 year to finish their work and submit it. About 22 years from now, the last patents would expire, and we'd be completely free of them.

      • That's a great idea for a fix. Seriously, no sarcasm - I like it. I think that would work.

        Only problem I see is that you'd still be asking companies to take a gigantic loss. And the market would still have some serious spasms on the announcement. And people with money tend to view things quarter-by-quarter. They don't really think long term.

      • I've thought along those lines with regards to gradually implementing shorter copyright terms. Seems like a similar process could work for patents and/or complete abolition.

        2011 patents would last for 20 years (expiration 2031)
        2012 patents would last for 19 years (expiration also 2031)
        One could take this process all the way to zero or stop at a reduced term. For example, if you wanted to reduce the patent term to 14 years, you'd reach that point in 2017 but you wouldn't further reduce to 13 years for 2018.

        I

  • LZ/LZW compression, RSA encryption, etc are excellent examples of software patents that were definitely not obvious, had no prior art, and were incredibly valuable.

    However, simply adding "on an electronic device", "on a computer", or "on a mobile device" to an established method of doing something should not qualify for a patent. There needs be something else that makes the method novel and non-obvious, for it to qualify for a patent (i.e. it's an "improvement" patent, not merely applying essentially the sa

  • It's a sign of the times, the percentage of the population capable of coming up with a new idea is shrinking, and the model employee(technical) is now too specialised to see the big picture dew to technical requirements, etc... Not to mention the fact that most things have already been done.

    Innovation is now something that is attained through acquisition of other companies. Recognise.

    For a small company to "make a splash", hold on to their "idea" and be the one to profit, a patent is the only option.

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