We must fix the deplorable tech patent situation, and soon

We must fix the deplorable tech patent situation, and soon

Summary: The patent situation in the technology sector is terrible, and we must fix it. Let business get back to making tech people can use, and not going to court to defend the natural evolution of tech.

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TOPICS: Legal
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We are getting used to hearing about new lawsuits claiming tech patent infringement almost every day. Courts all over the world are incurring huge costs and tying up thousands of people who could be doing something that actually makes a difference. There are too many tech patents to allow this mess to continue. We need to change the system, and pretty darn quickly.

The latest word today that shipments of HTC phones are being held up in customs just to make sure they don't infringe on an injunction issued by some court is the straw that broke the camel's back. We have the legal system bending over backwards just in case an infringement might occur. Business comes to a screeching halt, and consumers are the ones who lose.

The patent situation has sunk to such a low point because it is no longer serving the function it needs to serve. It has changed over time to allow minor changes and improvements in existing technology to become protected by patents. While patents should be granted for profound new technology, it's now largely serving to recognize minor improvements in existing technology. What is the natural evolution of technology, and what everyone should want to occur, is now being patented.

Patents should be restricted to new technology that does things nothing has done before. They shouldn't be awarded to evolution of existing technology that simply allows things to be done differently than before. It should only recognize new things that do totally new functions in completely new ways.

This business of granting patents for things like how the user touches a screen, or slightly different ways of interacting with existing technology is just insane. Protecting investment in technology is important I admit, but there will always be a natural evolution of existing technology that must happen. Courts should not play a role in that evolution.

If we change the patent system to only reward profound new technology, everything will be better off. The incentive will remain for investing in such new technology. Critics might claim that restricting patents to profound new technology will hamper investment for improvement to existing technology. I say poppycock, that is standard business practice and companies will do it to survive.

Companies must continue to improve existing technology to stay in business and retain customers. That is the incentive that ensures investment will happen. That is a much better incentive than awarding a patent for minor improvement and then letting courts determine the reward for that natural investment.

I am not a lawyer and cannot address all the legal implications of changing the patent system as I suggest. But after years of following the tech sector, I am convinced this change is needed and soon. Stop giving patents for minor improvements of existing technology, and only give them for profound new tech. Let companies get back to the business of making tech people can use, not defending what is natural evolution of the tech.

Image credit: CNET

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16 comments
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  • we must abolish the patents

    or at least make an exception for the OSS software.
    The Linux Geek
  • The old Unintended Consequences trick

    [ul][i]Patents should be restricted to new technology that does things nothing has done before.... It should only recognize new things that do totally new functions in completely new ways.[/i][/ul]That's kind of restrictive, don'cha think? By those rules, tape recorders could not have been patented because vinyl (and before them, bakelite) platters performed the same function. Ditto the tape cassette, the CD, and the DVD. Cell phone technology? Nope. No patent for you... landlines do the same thing. Cars? Nope. Horses work just fine.

    One can get too attached to the idea that these issues can be simplified. Sometimes simple rules are just dumb.
    Robert Hahn
    • Uhh, read the quote you yourself included!

      You quoted "totally new functions in completely new ways." All your examples were completely new ways. Tape is different in many ways to vinyl or bakelite. Cassette tape is a new storage method for magnetic tape - that would allow a patent. CD and DVD both were major changes in both method and capacity. Cell phone - no wires, that's a new way.

      Is James being overly simple? Perhaps, but at least cite examples that refute his point. (Or defend the swipe-to-unlock patent, cause I think that is just crap.)
      jglopic
    • Changes are needed for sure

      The current system is not restrictive enough, but I think that James quote is too restrictive. Under James suggestion, would Sony got a patent for DAT tapes as it achieves the same function as older 4-track tapes but in digital form instead of analog and using an inclined head like video tapes did? Would VHS get a patent as Beta was very similar before it?

      Changes are needed because patents like swipe to unlock and a black rectangle with rounded corners are ridiculous...
      lepoete73
  • Why is Apple going after HTC?

    My question about the current HTC/Apple kerfuffle is, "Why HTC?" Why not Blackberry (which has had this function for years). Why not Samsung (my Galaxy Nexus does this). Even Microsoft Office does something very similar (type an e-mail address in Word and see what happens!) Seems that Apple is just going out and picking individual fights based on something that isn't that original anyway.
    jglopic
    • Why HTC

      HTC is a newer, smaller company , therefore having a smaller patent portfolio, and less money to fight with, in theory. Sad but true.
      Daughain
      • True, patents are an anticompetitive weapon

        Unlike abusing monopolies, patents can be used legally to restrict competition.

        Inventiveness is a human trait, it existed before patent protection. Dump the whole system.
        Richard Flude
  • totally new functions in completely new ways ?

    Try to define this... This is very subjective.
    Why not abolish software patents as a start? Most engineers who filed one don't even understand their own patent after the legal team went through.

    A sensible solution IMHO would be to vote that all patents will expire in x years, so that those who invested recently don't feel too bad.
    pweltz
  • You have a snowball's chance in hell

    [i]I am not a lawyer... [/i]*ding dong*

    STOP RIGHT THERE. /GAME OVER PEASANTS

    In this lawyer-sucking, multi-nationalistic fraternity sewage pit we call modern capitali$m, NOTHING IS GOING TO CHANGE.

    Get used to being porked from every direction, from the government pricks we "elect" to the corporate pricks who finance them, to the quasi-legal pricks who defend them. It's a veritable army one will have to take on, and there's no damn end in sight. It'll be the death of America yet.

    The peasantry doesn't have the power. They're left to waving the flag, while subsisting on chump change.
    klumper
  • you can't fix it. it has to go

    Mr. Kendrick complains about some applications of the patent system, but then concedes: "patents should be granted for profound new technology". This is why we still have a patent system: because even its "opponents" concede its basic legitimacy. If you say that we need patents for some things, then you have basically no principled or clearcut argument against patents for incremental improvements, as it's all a matter of degree.

    The truth is patents have always been contrary to the free market and property rights. They are explicitly anti-competitive, and they impose huge costs on the economy, property rights, and individual liberty. They always have, and always will. this is in the nature of patents. They are anti-competitive state grants of monopoly privilege. The problem is not junk patents, patent trolls, software patents, or too-low patentability standards. The problem is the patent system itself. The entire idea is horrible, and abomination. We need to abolish patents (and copyright). Don't pretend you are a reformer if you still favor retaining the patent system.

    I'm a practicing patent lawyer, by the way.
    nskinsella
    • It can be fix

      Well, I agree with you to a certain point.

      Patent is good if it meets:
      Person can provide a working product and no prior art is existing.
      The patent can not sit by over 1 years in idle (non use).
      It can not be transfer over to another entity (unless family member).
      It's only good for 7 years.
      Marty Kaan
  • New vs Expensive

    The purpose of patents is to pay for the cost of development of new technology, not to reward people for doing new things. There are some new things that took a little creative thinking but were very low cost to develop such as central air, heating rooms individually, programmerable thermostats, or windshield wipers. There are also improvements to technology that cost a lot to develop or other wise do not pay for themselves quickly such as drugs and hard drives. Ideally whether a patent is given should be determined by how much it cost to develop the technology.
    sdmitch16
  • Great article...

    The patent system is beyond broken and shareholders should be furious. There's millions of dollars of their money being spent on ridiculous claims.

    http://www.tech-thoughts.net/
    sameer_singh17
  • You're missing the point.

    The real problem with the patent system is that patents are being granted for things that aren't patentable in the first place -- obvious, trivial things. The patent examiners don't seem to understand what is and isn't patentable.
    GrizzledGeezer
  • to nskinsella...

    Without the exclusivity granted by patents and copyrights... what would be the motivation to spend time and money coming up with something new?
    GrizzledGeezer
  • Patent Law in Canada

    I'm not an expert, and I'm not holding Canada's Patent Laws as being the best, but Canada's laws were modelled from the British, same as U.S. law, so there should be some similarities.

    A device or methodology is patentable if it is new, and not the result of natural progression within a lab or work environment.

    While Thomas Edison would say that a new invention involves a lot of natural progression within a lab or work environment, the principle is that the idea is NEW, that is, it is an INVENTION, not merely an innovation that is the natural progression of the technology.
    mheartwood