Patent Madness demands shorter patents

Patent Madness demands shorter patents

Summary: The growing popularity of business process patents, and the fact that it will be hard to ban them entirely, shows why shorter patent lengths may be the best way to fix the system.

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TOPICS: Patents
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Courts seem to take a sensible approach with respect to ideas used in literary works. Dan Brown, author of the bestselling novel "The Da Vinci Code" which is the subject of a summer movie starring Tom Hanks, successfully defended himself recently against claims that he stole ideas from "The Holy Blood and the Holy Grail" by Michael Baigent and Richard Leigh. Copyright does not cover ideas, and thus a plaintiff cannot claim infringement even if the defendant lifted ideas wholesale from their work. Twenty years is madness, and clearly not the intent of patent law. From a copyright standpoint, what matters is the implementation, not the idea.

Unfortunately, such good sense gets tangled beyond recognition in the patent world. Ideas are considered protected property from a patent standpoint. The motivation for such protections is that it creates an incentive for people to spend the big bucks to discover new things which benefit humanity, such as a cure for AIDS or a drug that stops the spread of malaria.

That seems reasonable, and though some question whether such incentives are really necessary, the consensus is currently that patents do serve a purpose. The consensus gets fuzzier, however, as patents are increasingly used to build monopoly walls around ideas that are so simple that they serve more as roadblocks than incentives to innovate.

Business process patents are the most egregious example. Amazon has a patent on its "one-click" purchasing process that, at 20 years, is almost an eternity from a software standpoint. Add to that list Netflix patents "on the concept of the automatic queue, which customers add to from the company's library and then receive movies in a customizable order of preference," or covers the method that allows Netflix subscribers to "keep the DVDs for an unlimited amount of time, and "to obtain new DVDs without incurring additional charges and to prioritize and reprioritize their own personal dynamic queue--of DVDs to be rented."

When I read about this patent, I started to think of patents that would be in a similar style to the ones held by Netflix.  For instance, can I have a patent on a promotional campaign that offers the tenth cake purchased for free?  Would the concept of an all-you-can-eat buffet at the local Golden Corral be patentable?  What about a patent on a social networking site that makes it easy to add music links and images to you profile (MySpace)?  Doesn't this start to sound like an arbitrary grant of monopoly, and not an incentive to create new ideas?

Netflix is using these patents in a lawsuit it hopes will shut down competition from Blockbuster. What's particularly crazy about the suit, however, is that if these patents are upheld, Netflix would have a lock on the DVD rental by mail market for 20 years.

Personally, I question whether such "business model" (which is what they really are) patents are patentable. That, however, is an argument I'm not likely to win.

That's why I still think the best compromise from a patent standpont is much shorter patent protection periods. I proposed five years for software patents in a previous post, which to my mind is an upper limit. Business process patents, however, really shouldn't be longer than two years. That's enough time for a company with an innovative business model (as Netflix clearly has) to create a stable business before facing the full press of larger competitors (like Blockbuster) angling to enter their market.

Twenty years is madness, and clearly not the intent of patent law.

Topic: Patents

John Carroll

About John Carroll

John Carroll has delivered his opinion on ZDNet since the last millennium. Since May 2008, he is no longer a Microsoft employee. He is currently working at a unified messaging-related startup.

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29 comments
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  • Madness

    [i]Twenty years is madness, and clearly not the intent of patent law.[/i]

    The real madness is not the longevity of patents, it's that just about anything, no matter how obvious a concept may be, can be patented apparently. How long until someone manages to patent things everybody uses, like the heapsort algorithm?
    Ridiculous.
    Anti_Zealot
    • I agree...

      ...but everything is obvious from hindsight. Netflix really did inaugurate an innovative approach to DVD rentals. My problem is that they should have the right to an exclusive lock on that business model for 20 years.
      John Carroll
      • Needed reform

        A reform on the whole process is much needed for most industries. I don't think that minimizing the effects of bad patents by making all patents valid for a shorter period is the best solution, or a sufficient one, at least.

        It feels to most of us as a reactive rather than a proactive approach.

        Wrong patents will unfortunately always exist, but that is no reason not to work at making less slip through a faulty net.

        The criteria should also become much more strict, and research of prior art properly performed by specialists on each field any candidate is applying to. I'm not sure if this principle is as strictly practiced as it should today.
        Anti_Zealot
        • Reform how examiners are paid

          Reform can be as simple as how patent examiners are paid. From what I know, currently in the USA, they are paid by the number of patent applications they get through. If this were changed to an hourly wage or some other type of pay structure (maybe a bonus for the number of claims they can strike down), then they will more closely examine the applications.
          gforrest
          • Examiner Bonuses

            Examiners are paid by how many applications they "close", either through a rejection of an approval.

            At first glance, this seems to be a neutral incentive. But it belies the truth; a rejection almost always results in a 'reopening', through rewording of claims, removal of some claims, rewriting parts of the application, etc. So the only way for an examiner to truly close out an application is to eventually approve it.
            garyjefferson
      • Ridiculous Patents

        Patent quality is one of the biggest issues. Shortening patent terms is a great idea, and does help to alleviate some of this (by making the pain last for a shorter time), but it would be nice to raise the bar a bit on what can be patented. For example, can you find a good patent among this list:
        http://righttocreate.blogspot.com/2006/04/ridiculous-patent-string-phone.html
        garyjefferson
        • Funny link

          There's a couple of nice patents Microsoft is apllying for there, namely of things they obviously did not create...
          Anti_Zealot
  • I would have to agree

    as PAINFUL as that act is ;)

    Shorter time periods take some of the sting out of "stupid" patents - as you could outlast them. And it would be easier to implement than retraining patent inspectors with new criteria. I would even bet that you could get 50% of big patent companies to agree (even your employer would be tempted).

    But HOW LONG should they be? 10 years (too long)? 5 years (too short)? How about 7.5 years? Not too long, not too short . . .
    Roger Ramjet
    • The Goldilocks principle...

      ...Not too hot, not too cold...

      I know, the debate over the length of patents could be just as fierce, but it may get more companies who benefit from patents to sign on, knowing as they do the costs of facing someone with a 20 year lock on an idea.

      Give them just enough time to get a return, but not so much time that it becomes a bottleneck to progress. My preferences are for shorter timeframes for software patents (5 years and down), but that obviously would be a hotly debated point.
      John Carroll
      • What "bottleneck"?

        A company making a profit can easily pay a share of the profit to the originator of the idea on which the successful product is built. That's not a "bottleneck", that's elementary fairness and a basic idea for a successful economy.

        You wrote...

        "Give them [inventors] just enough time to get a return, but not so much time that it [the patent] becomes a bottleneck to progress."

        ... but I'm sure that as a good capitalist you'll take it back.
        Anton Philidor
    • Depends on technology

      Is 7.5 years too long for a system that takes billions of dollars to research? It may take the whole 20 years to pay off the research and development.
      gforrest
  • No, the current methodology is madness.

    Ask me if I think patents are handed out far to easily and I will answer yes. Ask me if the patent office is underfunded to do proper researh BEFORE granting a patent and again I will say yes. Ask me if the duration is too long and the answer is yes.

    However if you ask me if we should throw the baby out with the bath water and the answer is a resounding NO!

    I fully agree the patent process needs to be completely overhauled to meet today's needs and to reflect the changes in technology, but I also am of the opinion that patents have worked well in the past and can continue to do so if we apply a bit of common sense to them...
    No_Ax_to_Grind
    • Keep babies in their bath...

      I'm not suggesting we throw out the patent system. That wouldn't be feasible, for one, but I don't think it would be a good thing, either.

      My proposal merely recognizes that however much money we throw at the problem, bad patents WILL be granted. The best policy is to mitigate the effect by leaving sufficient room for the good patents to benefit the inventor while taking the "sting" out of patents which shouldn't have been granted in the first place.
      John Carroll
    • Sometimes you do need to start over.

      Some things just can't be salvaged for overhaul. IMHO, software patents and business process patents are just such things.
      Patrick Jones
  • You cannot put lipstick onto a pig and transform into a supermodel

    If you had a high level of patenting and enforcement, and life of software patents were shortened to as little 6 months, the industry would still never be able to survive. Why? Because over the course of the development and sale of the product, plaintiffs would be coming out of the woodwork, demanding patenting fees or legal deals. Companies would be hemorrhaging significant income due to all the incessant legal challenges made to them. Like I?ve suggested before, no amount of dressing up the protection of ideas will make them all right. The only reason the software industry manages to survive, is because patents are not enforced nearly as much as they could. However, it is just a matter of time before this situation gets worse, and worse.
    P. Douglas
  • Twenty years is too short

    Consider this: one of the few areas where patents are conceded to actually promote innovation is in drug research. That cure for AIDS isn't going to happen without a [b]boatload[/b] of money headed downstream with no guarantee of success.

    As it is, 20 years is barely break-even for the pharmaceutical companies, because more than half of that time is consumed just getting the drug approved for market. The approval time is getting, if anything, longer.

    Therefore, you're in a baby/bathwater situation. Shortening patent terms will be as bad as ditching them altogether for the one case where they're clearly beneficial, leaving the harmful effects mostly unchanged [1] for fields like software.

    On the other hand, if you don't plan to treat software the same as medical research, why not just do the right thing in the first place and declare (as a British court recently upheld) that anything doable by a human being is by definition not patentable?

    [1] after five years, how many software patents are even worth worrying about?
    Yagotta B. Kidding
    • The Elephant In The Room

      Is that Software was not considered, in general to be patentable, until the 1990's. Before this Trade Secrecy and Copyright were enough protection without patents.

      Two things;

      1. Business methods that are worth anything are not getting patents. The purpose of the patent system is that the patent application is suppose to include enough detial so that someone skilled in the arts can implement it. Therefore most business methods that are not obvious are being kept trade secret instead of patented.

      2. In the case of software the software companies are still claiming trade secret on top of patents- the two should be mutually exclusive but due to very lax reviewers they are not. In addition several countries do not honor software patents- but yet software is sold in these countries.

      Toss out patents for software and it would not greatly effect the software industry negatively as copyright and trade secret would still exist.
      Edward Meyers
    • In strict terms of profits....

      ---That cure for AIDS isn't going to happen without a boatload of money headed downstream with no guarantee of success.---

      If you want to get into strict discussions of profit and motivation, there's no motivation whatsoever to generate a cure for AIDS. Why cure something when instead, you can create a medicine that alleviates the symptoms but requires maintenance? That's where the real money lies, not in a preventitive vaccine or a one time cure.
      tic swayback
    • Drug Companies Don't Need Patents

      The historical, statistical, and anecdotal evidence is quite compelling: Pharmaceuticals <b>don't</b> need patents in order to create theses drugs. A few facts:

      - 55% of the top-selling drugs in 1995 were researched entirely with your tax dollars (public, not private, funded).

      - 90% of the top-selling drugs from 1992-1997 received government funding for some phase of development.

      - The most prolific innovators in the pharmaceutical industry during the period from about 1950-1980 were <b>precisely and consistently those countries with the weakest patent monopoly protection</b> (after 1980, most pharm countries standardized on similar patent protectionism schemes).

      There are many more reasons why the deception that "without patents, drug development would cease" is false. You can find them at the following links:

      http://righttocreate.blogspot.com/2005/12/why-drug-companies-dont-need-patents.html
      http://righttocreate.blogspot.com/2005/11/biotech-patent-absurdity.html
      http://righttocreate.blogspot.com/2006/01/on-necessity-of-drug-patents.html
      garyjefferson
    • Patents should be determined by type

      Drug patents maybe longer than software patents. Where as mechanical patents may be in the middle somewhere. 5 years is a life time in software. 5 years doesn't even get you to market in pharmacuticals.

      Still when it comes to drugs I doubt a cure to aids will ever be found. It's more lucrative to treat the symptoms than to cure a disease. That's why still have the common cold and flus. Why make a vacinne that you give once to people that makes them immune to the flu when you can produce a limited vaccine that need to administered on yearly basis.

      Also think of all the cold remedies that treat the symptom of coughing and running noses. They keep you sick. The reason you're coughing and have running nose is to get rid of the sickness. Suppressing these symptoms means you're taking the drugh longer and staying sick longer. Better to take a day or two off work to rest and recover with no drugs and be more productinve for the next 3 weeks vs someone that spend 3 weeks sick and being less productive. Of course that means less money for the drug companies.
      voska