Patently brilliant

Patently brilliant

Summary: The patent system is unfair, expensive and counterproductive. New thinking may save the day

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TOPICS: Legal, Piracy
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The Peer To Patent Project is getting off the ground, and it looks like one of the most encouraging developments in intellectual property this decade.

The problem with patents isn't their basic premise — that an inventor is granted a period of exclusive control over their invention in return for publishing the details. Nor is it in the limitations to what can be patented. To get legal protection, the invention must be a practical device that is non-obvious, non-trivial and novel.

The trouble lies in applying those limitations. With tens of thousands of patents granted every year, the various patent offices have neither the skill, manpower or time to check them adequately . The default is to grant the patent and rely on the courts to strike it down if subsequently it turns out to be unfair.

Even that would be okay were the courts themselves efficient, cheap and fair. They're not: court cases take a long time, cost a fortune and, since both parties have to pay costs in patent cases, heavily biased towards the richer party. If you're a big company, you can guarantee that you'll get 10 companies to pay a £1m licensing fee rather than have even one pay £2m in court costs to overturn your patent. Having seen this sort of licensed blackmail at first hand, we have no doubts about its abusive and iniquitous nature.

What we need is a huge pool of experts to examine patents and highlight problems before the patent office decides. As the open source community has shown, if you give people a chance to use their expertise for the common good they'll leap at the chance. Now, as the open source community has also shown, we have the technology to create exactly that chance.

And that's where the Peer to Patent Project comes in. By exposing new patent proposals to public debate among the informed, the existence of prior art — examples where the patent idea has been used before — can be demonstrated well before it's too late. With sponsors such as Microsoft, IBM and Red Hat, it's a rare example of the industry turning consciously away from insanity.

IT depends more than any other industry on innovation, and it is only fitting that everyone realises this. Yes, we need protection for new ideas, but it must be limited protection for geniunely new ideas, fairly applied. The Peer to Patent Project has every chance of achieving this balance. If it succeeds, it should show the way for non-IT industries to create their own forums for justice.

Law 2.0, here we come.

Topics: Legal, Piracy

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  • Whilst the idea is good, with Microsoft involved, there is the possibility of misuse of knowledge gained during the scrutiny process and the problem of the cost of challenging any abuse remains.
    anonymous
  • "The Peer To Patent Project is getting off the ground, and it looks like one of the most encouraging developments in intellectual property this decade."

    It only looks that way from the perspective of the economically illiterate lunacy that has brought the patent system into disrepute in recent years. The PTP project is not a bad idea given the dire situation (especially in the US) but it will be - assuming it works - a damage limitation exercise, not a cure, and a burden on those involved.

    "The problem with patents isn't their basic premise ... Nor is it in the limitations to what can be patented. To get legal protection, the invention must be a practical device that is non-obvious, non-trivial and novel."

    In fact the problems with patents are almost entirely to do with their basic premises and with the limitations (or the lack of them) on the scope of subject matter to which they may be applied. The patent system is economically and ethically justifiable if and only if its positive effects significantly outweigh its negative effects and it is not exactly difficult to see why the requirements of practicality, non-obviousness and novelty (there is no "non-triviality" requirement in patent law, and there cannot be) are weak filters at best - despite their obvious importance.

    "Yes, we need protection for new [software?] ideas"

    Really? Where is the economic evidence upon which you have based this assertion? The vast (and I mean /vast/) majority of the stuff I know of suggests exactly the opposite.

    "What we need is a huge pool of experts to examine patents and highlight problems before the patent office decides. As the open source community has shown, if you give people a chance to use their expertise for the common good they'll leap at the chance."

    These experts will certainly need to remember the noble purpose of this diversion of their time and energy if they wish to avoid premature baldness. While reading the long and mind-numbingly dreary circumlocutions laying claim to the mundane and incremental "inventions" to be found in almost all patents, it may help them to avoid too much psychological damage if they keep in mind the sound economic policies that made their pro bono work necessary in the first place:

    http://en.wikipedia.org/wiki/Parable_of_the_broken_window
    anonymous
  • Copyrights are good enough. Kill software patents and thus save a bundle of hurt. Until then, learn to life with their mistakes. Be sure to vote accoordingly as a way of saying thank you. So far software patents seem to be all about: if you scratch my back, I'll scratch yours. That's a happy few game. Deep pockets party only. Has nothing to do with innovation, optimizing markets, generating jobs, etc. It's only about greed, control and power. (Pocket) size does matter. Until courts (also read: politicians) learn to deal swiftly with such players it'll be like carrying water to the ocean.
    anonymous