Talkback: Are patents killing innovation?

Quite the contrary. Invention comes from the little guy. The little guy knows he's protected by the USPO.

Innovation comes from the big guy. The big guy, when he see's the opportunity, regardless of the minefield of existing patents, will take the action to innovate the small guy's invention.

rayted: BS. The little guy usually can't afford to file on anything and everything under the sun like the big guys do, nor can the littel guy afford the cross licensing of patents that the big guys do. While it's true that it is the little guys that do most of the real inventing (which is the same as innovation), it's only the big guys that really profit from patents. The big guys rarely invent/innovate, other than more ridiculous patent applications.

Yeah, it's plain BS when people point to the little guy in patent issues. The number of patents filed by a little guy is massively overshadowed by those filed by big guys.

Only a big guy can afford the price tag of even hoping to prosecute a patent infringement case. A patent is worthless if you cannot protect it, and that "protection" means massive legal fees. And the big guy simply needs to file an infringement suit back at you and now you'll spend tens or hundreds of thousands defending yourself. The real world is not kind when it comes to U.S. patent law and our unreasonable legal system. Patents are fought in court by judges and juries who have no real technical knowledge, so confusion is the order of the day, and confusion usually means the deeper pocket will win.

Heck, even big guys suffer like we saw with RIM who paid millions to defend itself against NTP patents that the patent office now says are not valid, but did the courts care? No, RIM still had to pay hundreds of millions to license patents that won't even be valid once the USPTO fixes its errors. But is there any recourse when the USPTO issues a bad patent? Not unless you have deep pockets again, and even then, there's no accountability for such mistakes.

Software patents in particular stiffle innovation. The industry grew to its heights without them, but patents are the #1 mechanism being used against open source and small busineses. The little guy is the last to win from patent protection. Besides, it's simply amoral to think that a patent can be given for so much lack of innovation found in so many patents. Software is a writing and should be protected by copyrights and trade secrets.

It's no longer typical to have a patent on a particular innovation as they now encompass business processes that are very general. If such patents were allowed before, there would be only one patent for a method of opening a can, or having a cup lid, etc., yet those have many patents that cover the variety of real solutions created. Today, the patent would simply cover a container, a lid and a process for opening the lid to gain access to the container's content.

The one click patent was a good example as it didn't just own a particular way to do it, but a general way to do it. The NTP patents were the same. Good thing there's no patent for basic operating systems, file systems, sort routines, database, or the idea behind encryption as we'd have stopped at just one incarnation before everyone else would either have to pay royalties or wait 20 years before the second generation could come out.

There's no question, that patent system is used more for abusive then legitimate reasons.

That hurts us all.

Charles R. Whealton
Chuck Whealton @ pleasedontspam.com

Certainly patents are good in that they protect inventors for a time, against the theft of their inventions. The whole concept of Free Software, to me begins with the word Free. Anyone who develops same must decide whether he wants his creation to be free, or for remuneration. He can't have both. No one will blame him if he wants to liscense his product, or market it himself. But if he does, don't call it free!

I agree, the patent system is broken, and it's definitely NOT for the little guy.

One problem is the renewal process and the lack of ability to claim prior art for obvious unpatentable patents when someone preemptively patents something that was both obvious, and prior art.

In my contract it says that the patent for any invention I make while I work where I work belongs to the company.
So much for the little guy.

The really interesting question: How can open-source DRM work? Won't someone take the sources and just remove the DRM?

The frequency with which the USPO reverses itself tells me that it is not compentent to give out software patents. Because USPO is unable to discriminate what is or is not uniquely innovative, too many patent issues end up in court where millions are given away to lawyers who win or lose the case not based on technical merit, but on legalistic criteria. (How about the RIM case?) It is a horrid system that had some merit when patent evaluators did not have to deal with abstract concepts such as the software patent, but could evaluate submissions that could be modeled as a solid object.

The solution is to either stop or severely limit the granting of software licenses. Congress is at fault for not realizing the extreme waste caused by the broken patent system.

Patent regime stiffles innovation. Especially obvious patents already issued by oversight are major hindrances for faster innovation especially for SMEs.

Here is another such case of innovation being affected by US Obvious Patent http://www.samooha.com which I hope would be resolved at the earliest in the interest of Small Enterpises in the US.

Any problem once solved is simple. If a company (big or small) goes through the effort and expense to solve that problem why shouldn't they receive the reward? And now, that the solution is out in the public why shouldn't they expect to be protected from others leeching off of their hard work?

Several years ago I had a job which required me to review hundreds of software patents. Not one of them described a true invention. The best of these documented minor tricks or gestures that any programmer might have used when presented with a similar problem. The devices described, though sometimes clever, had probably been coded many times before by programmers who did not think they coded anything special. They had been patented because of the competitive desire of large firms for large patent portfolios with which to bludgeon each other.

The remaining patents were mostly muddled tangles of words produced by patent lawyers who had no idea what they were describing. I have one of those patents courtesy of Sun Microsystems.

I believe that the core problem is that writing a program is more like writing a novel than lawyer and executive understand. They think it is like building a bridge. Sometimes it is and sometime there are real software inventions which take weeks or months to workout, but these are rare. Most of programming is keeping the plot straight and coming up with elegant turns of phrase which should be appreciated but not patented.

I agree with those that say business processes and software should be protected under copyright and corp. secret laws. Patents have been issued for items that are so general that no one can afford to continue to build upon them. In addition, all too often the patent holder does not continue to build upon them either!

Also to John G and others that refer to "Free" software and renumeration. Free in this context does not mean no cost -- it means open as in "Free Speech." In other words, others are *free* to build upon previous work to continue to develop the innovation.

Looking at old patents I'm left with the impression that inventors had to have a working model in order to have their invention considered by the patent office. Is that correct?

That requirement would greatly reduce the number applications and keep "idea-ware" out of the system. In my patentable system, we did build a working prototype, mostly to get funding. When searching for competing patents and talking to the inventors about licensing I found that most of them had no actual working prototype, it was their "neat idea". So they were getting in the way while not contributing anything to the innovation process.