Perens new crusade is patent law

Perens new crusade is patent law

Summary: Can we have a system which protects medical inventions while discouraging patent trolls, and what would it look like?

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TOPICS: Legal
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Greg Kinnear in the movbie “Flash of Genius”Bruce Perens, whose own flash of genius has done more to protect the GPL than most of us ever will, has a new crusade. (That's not Bruce. It's Greg Kinnear in Flash of Genius, in theaters Friday.)

Patent law.

Perens said in a recent interview that the current system makes it too easy for patent trolls to sue, even when their patents may be bogus.

We need to restore justice to the patent system, and we also need to take a good look at the motivation for software patents, which many economists and others feel do more to hurt innovation than to promote it.

Past attempts to reform patent law have floundered because the medical industry depends upon patents.

Drug patents and device patents are often highly specific, and the protection the law affords assures creators the funding needed to reach the market.

Software patents were not created by Congress, but by courts, at the same time as business method patents. These are often very broadly drawn, and holders use their power to tax real innovation.

What courts give, however, other courts can take away. The Blackberry case has caused even the U.S. Patent Office to protest.

Perens will not be Don Quixote this time.

But the conflict with the medical industry remains, and next year someone needs to answer this key question.

Can we have a system which protects medical inventions while discouraging patent trolls, and what would it look like?

Topic: Legal

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  • Bull, there is no lack of innovation.

    True, open source is not free to take others ideas but that is how it should be. Face it, open source is nothing but knock off copies of propriatary. Sorry but thats just how it is.

    As to holding back innovation... Horse Hockey. You can't read a tech site or magazine without being indunuated with "new" or innovative products.
    No_Ax_to_Grind
    • "new" or innovative products

      New software products are always a variation of a theme that has already been invented. e.g. a PC based word processor came from the dedicated electronic word processor which in turn came from the electric typewriter which in turn came from the manual typewriter which in turn has its roots in the printing press. So the patent belongs to the printing press.
      Anyone who has a patent on an invention (not an idea) should only be allowed to defend it if they have a product that is being sold.
      deaf_e_kate
    • Bull, proprietary has always copied others

      "[i]True, open source is not free to take others ideas but that is how it should be. Face it, open source is nothing but knock off copies of propriatary. Sorry but thats just how it is.[/i]"

      A claim that I have often bumped into but lacks the facts to make it any more true than making the same claim about closed source software. Yes, it holds true up to certain point but in the end is invalid.

      More important is to notice that if software developers had not always been copying an enfancing ideas of others, which would be true if software patents had been around from 1970, the development would have completely stalled and, for example, GUI desktops ever existed could be counted with one hand and would be somewhere close to GEOS in features.

      Besides, who were the ones to copy ideas if you look at Compiz/Beryl & Aero of Windows? And which one is more innovative?

      "[i]As to holding back innovation... Horse Hockey. You can't read a tech site or magazine without being indunuated with "new" or innovative products.[/i]"

      "New", written inside quotes, is exactly how it should be written. Innovative, yes. And this is how it should be.
      robsku
  • Professional representation

    Let's say you thought of a new idea for software that would save $100's of millions for all the companies that use it.

    I expect that you would feel entitled to some portion of the money gained by those who use your idea.

    But you'd have a problem: how to bill all those making a fortune from your idea, obtaining an appropriate amount and writing in provisions that would be reasonably advantageous. You'd also not want to make a career of negotiations.

    So would you welcome an offer from an organization that for a share of the proceeds would advance you cash and handle the legal aspects of collecting on your contribution? I think many people would.

    In this sense, a patent troll - another name for your agent - would be peforming a service you'd find valuable. Though abuse is possible, the advantages are sufficient not to eliminate all the organizations involved.
    Anton Philidor
    • Patenting Math

      The problem is you're patenting a mathematical algorithm. If you define your rights too narrowly it's easy to do another math problem. If you define it too broadly you kill innovation.

      Software patents are like school prayer in that way.

      Copyright protection is much more certain, and lasts longer.
      DanaBlankenhorn
      • Copyright protects specifics.

        If you copyright the code for your idea worth $100's of millions, someone else could do the same thing with different code and pay you $0. That deprives you of a fair return.

        Interesting that you see the duration of copyright as an advantage. Would you advocate extending the duration of a software patent - which does protect the idea - to 100 years, say?

        And because math cannot be patented, it's implicit that Courts have (entirely appropriately) held that software is not math. If you've seen the math skills demonstrated by some good programmers, you probably agree enthusiastically with that distinction.
        Anton Philidor
    • Complete government enforced monopoly

      "I expect that you would feel entitled to some portion of the money gained by those who use your idea."

      How about if you gain your profits from a product that uses the idea?

      You needn't have a complete monopoly in order to gain a profit.

      The problem I have isn't really that the patent system exists, but rather:

      -It grants a temporary complete monopoly, enforced by the government. No chance for any competition while the idea lasts. If you don't want to license it, you don't have to. There is nothing preventing you from ignoring free market economics and leveraging the monopoly to its fullest.

      -In copyright, independent formulations of the same material isn't considered copying.
      --If I can prove I came up with something completely independently and never saw the original material or copies of the original material, I am not violating copyright.
      --In patent law, however, if I accidentally come up with the same idea as somebody else, I'm violating patent law. Even if I never, ever saw the original patent or talked to anybody who knew about the original idea, I am violating it.

      -This creates a "minefield effect," especially in software patents, where a lot of obvious things are currently patented, and where large companies have HUGE portfolios of them. They can practically kill any small business with it.

      -Patent laws last a long time. This is fine for an automobile maker. It's a reasonable length of time for an automobile inventor to gain a reasonable profit and still allow competition to come in later. It doesn't work so well for software, where ideas live and die much faster. By the time a patent expires, the idea is likely already outdated and useless. There is no reasonable chance for competition to come in afterwards.

      -Not all patents are actually used. Many simply exist as ammunition for legal cases. There are no products made using the idea.

      IMHO, patents are a fine idea, but we have a very poor implementation. I'd like to see something other than enforcing a complete monopoly. We need something a bit more friendly to competitive economics.

      Here's what I think should happen:

      -I think that a patent should not exist simply as a good idea, never to be implemented. I say there should be "use it or lose it" laws. If you (or somebody you are licensing to) don't use a patent to create an actual product for some period of time, you lose the patent, even if it hasn't expired yet.

      -I think there should be penalties for filing patent complaints that are quickly thrown out by the court, and the penalties should increase exponentially with the number of complaints found to be false. A company taking a "shotgun approach" and throwing an entire portfolio at another business, hoping something will stick, should be punished.

      Patents are not ammunition. They should not be used as "legal bullets" to take down some small business you don't like. They should [b]only[/b] be used if you think there is a legitimate patent infringement.

      -I think patent expiration should depend somewhat on the type of product. A tech product should have a shorter expiration time than an automotive product.

      -I think some consideration should be made about how independent the idea is. I don't think a person that came up with an idea completely independently should be punished as much (if at all?) as a person who blatantly copied the idea.
      CobraA1
      • Small companies benefit...

        ... from government enforcement. A small company would never be able to prevent theft on its own. Even so, the violator of the patent could respond by offering the patentholder the chance to sue itself into bankruptcy, but that's another argument in favor of organizations with the resources and time to oppose the large company.

        Admittedly, a company like IBM can - and has - threatened a smaller company with a patent infringement suit which would be too costly for the smaller company to defend. But no approach to protecting IP is safe from being gamed.


        As Bill Gates observed in a memo written in the early 90's, patents can be expensive. But his answer was to accumulate patents in order to have something to trade with other companies. Though Microsoft didn't begin a major effort to gather patents until comparatively recently.

        Large companies are thus safe from damaging payout for patents to other large companies. It's the small companies most at risk. Until they license or sell their ideas to large companies.

        But you're right that because IP is a company resource like any other, strategic planning can cause an idea to be included in products less quickly than might otherwise be true.

        However, any inventor has the choice of using, holding, or selling the idea. The purpose of the patent system is to assure financial gain to the inventor, and not to mandate that the inventor follow an approach which would be less profitable than other available options. In return for its support, government has caused ideas to be fully described, made available, even donated at expiration. That's not a disadvantageous agreement for either side.


        On intent to violate, Linus Torvalds had an appropriate idea. Forget patents, and do the best you can. An oddity of patent law is that ignorance is an excuse: you're not violating until you're told.

        Given the great difficulty in proving intent, this too can be an appropriate arrangement. All violations can be penalized, even the uinintentional, but in return you have violated no law until you're told you have done so.

        And the law, as Judges like to point out, does not advocate for fairness in these cases. (Or others, argfuably.) Instead, the issue is money. Money gained and lost. A money-losing company is unlikely to suffer much from patent infringement.

        The current system does require change. But bringing in proof of intent universally is probably a waste of resources.
        Anton Philidor
      • Independent vs. blatant copying

        "-I think some consideration should be made about how independent the idea is. I don't think a person that came up with an idea completely independently should be punished as much (if at all?) as a person who blatantly copied the idea."

        I think this is already covered under "treble damages", though that's more of a general rule than specifically being tied to patents. (basically, willful infringement as an aggravating circumstance)
        Third of Five
    • re: Professional representation

      [i]Let's say you thought of a new idea for software that would save $100's of millions for all the companies that use it.[/i]

      Let's say we fashion public policy based on how the real world works. Most companies don't have expenditures remotely close to that.


      [i]In this sense, a patent troll - another name for your agent - would be peforming a service you'd find valuable.[/i]

      Again, if your imaginary software product could "save $100's of millions for all the companies that use it" it'd be hard to imagine no one would ever have heard of it until they got a C&D letter from your... agent.

      Let's keep things real. Thank you.








      :)
      none none
      • Many companies; little motive

        My phrasing was "a new idea for software that would save $100's of millions for all the companies that use it" in order to show that the savings were a total for all companies, large and small. Sorry to have confused you.


        Companies are not violating a patent until they are notified. There's an advantage to waiting to be notified of a violation, which may never come.


        The considerations discussed in my post are real, though admittedly inventions worth $100's of millions are not commonplace.
        Anton Philidor
  • RE: Bull, there is no lack of innovation.

    Check your definition of innovative, is it really or is it marketing talk? Are you just seeing a new twist on existing tech or is it something truly unique?

    As an example, the typewriter keyboard was innovative, the computer keyboard, not so much, even the ones that light up or glow in the dark, with the extra multimedia or gaming keys ... those are just rehash. A fuel efficient jet engine? just refinement of existing design, the original engine .. innovative, what GE o Boeing have done since, twists on existing tech and refinement of design.
    Azerthoth
    • But those twists could be patented

      The difference between software and hardware patents is that software patents are often drawn very broadly. You invent the idea of a keyboard, not a particular keyboard.
      DanaBlankenhorn
      • Broad patents are ubiquitous

        Francis Sears held one of the three key patents behind the GM automatic transmission. He earned a royalty on automatic transmission made by GM. Period.

        The inventor of the strain gauge held a patent on all gauges using the same principle. He earned a royalty on each such gauge for seventeen years

        I could go on, but there's no reason. Software patents are largely the bugaboo of "free" software types, who don't like the idea that they can't clone any feature for free.
        Pseudo Nym
        • eh?

          "Software patents are largely the bugaboo of "free" software types, who don't like the idea that they can't clone any feature for free."

          Check how many times proprietory companies have been sued for patent violation before you make a statemrn like that. If there are ZERO then you can say that.
          deaf_e_kate
        • if only real world would work as "the idea"

          "[i]I could go on, but there's no reason. Software patents are largely the bugaboo of "free" software types, who don't like the idea that they can't clone any feature for free.[/i]"

          The little ones could not, were software patents effective on global scale, but large companies can (and will) copy their ideas while little ones get very tiny, if any, amount of protection against it. This is one of several reasons why software patents have very little on common with the original purpose of patent system.

          Software industry is, and has always been, of such nature that patent laws would have to be very different from regular patent laws to not fail catastrophically. Also it is quite clear that software business has never been dependent on protection with software patents to be successfull - this is easy to understand even for those who cant quite seem to understand why software patents work against the industry and do not succeed on what patents were created to do.
          robsku
      • re: But those twists could be patented

        Indeed, however when challenged in court they have to meet the higher standard of traditional patents, specificity.
        Azerthoth
        • And therein lies part of the problem...

          That is, the cost of challenging them in court. Also, there's the bit about the US Patent Office seemingly being in the business of handing out patents with as much care as the banks seem to have used when approving mortgages.

          Those two trends make for fun times for those who think life is too sensible.
          zkiwi
  • How much protection does the medical industry need?

    Seems to me that the ease of obtaining patents is part of why medical care is so expensive.
    John L. Ries
  • RE: Perens new crusade is patent law

    Patents are weak protection at best. Small business owners who have a patent can be tied up in the courts and driven to poor house by large corporations who want to contest the patent. You can read some great examples of that in the new book GADGET NATION. Check it out at www.gadgetnation.net Inventors need to be protected--they are backbone of innovation and the future of this country.
    MegaPro