The myth of patents is that some inventor working in their garage comes up with a genius invention, patents it, and then can leverage that patent-granted period of exclusivity into a thriving business. Hard work and smarts translating directly into rewards!
This is, of course, a myth.
It's not impossible for that to happen, theoretically, but the way the patent system actually works these days is that large companies patent anything they ever think of regardless of actual novelty, holding on to vast piles of patents as weapons of strategic deterrence. The megacorps exist in a state of patent detente -- unless someone is particularly blatant about a violation, it's better not to sue another corp because they'll just countersue with their own patent hoard. Then you'll both be stuck in years of litigation, working to get each other's patents invalidated, unsure of who is going to come out of it with a remaining claim.
When the tiny independent inventor appears, however, they don't have any of that patent-hoard protection. So it's easy for a big company in a vaguely related industry to squash them if they want to. Or wait until there's enough money being made that it's worth showing up and demanding fees. Sure, the company's patents may well be bogus and unrelated, but the tiny inventor can't afford to spend the next five years litigating that.
> A company headed by a Colorado professor who invented a strategy board game has won a $1.6 million patent infringement verdict.
> ...
> Innovention prevailed in a patent infringement against MGA, Wal-Mart Stores and Toys R Us. A federal court in New Orleans found that MGA’s Laser Battle game, sold through the two retailers, infringed on Innovention’s patent for Khet.
Please supply evidence. All links in your comment relate to a patent to an invention where lasers are an essential part of the claims. I'm not convinced that rules alone would be patentable subject matter.
> THE FILES OF PATENTS that have been granted are a fruitful hunting ground for forgotten games, although going through these files, as anyone who has ever been involved in a patent search well knows, is a time consuming job. Often the patented games are downright silly, such as a set of dominos made of rubber so that they can double as ink erasers (No. 729,489) or a sliding block puzzle with edible pieces so that a player who despairs of a solution can find consolation in gratifying his stomach (No. 1,274,294). Often the patents are repetitious: There are over a hundred variations of the well-known checkerboard and over a thousand different baseball games.
> But often the patented games are a fascinating reflection of their time: races to the North Pole, war games to capture the Kaiser, automobile games, in the infancy of the automobile, and radio games for the crystal-set fanatic.
Thank you. I concede, this one is proof that an application that's essentially board game rules can be accepted. Whether rules not tied to a particular machine should be accepted is debatable. https://en.wikipedia.org/wiki/Machine-or-transformation_test...?
The example was not given to argue about the types of patents granted, but rather that the patent system does have the occasional win by the little guy against large companies...
... and that this is so infrequent that it is news.
My uncle is such a garage inventor, and has made a comfortable living for himself by licensing a number of different inventions.
One of the things he invented was the Zipit drain cleaner. It's a long piece of plastic with barbs on it. You shove it down your drain, pull it back out, and it pulls out a gigantic disgusting hairball that you had no idea was down there!
It's really quite remarkable, it works so much better than what people were using to unclog their drains before. It seems obvious in retrospect, so why weren't such products already on the market?
Unfortunately after seeing the success a competitor decided to copy it and, when my uncle tried to sue, the competitor got the patent invalided. Meanwhile my uncle lost much of his savings in legal fees.
In my (biased) opinion, this was a case of a legitimate, deserving patent. But all the junk patents and patent trolls, and the arms race you describe, have shifted expectations so much that the patent review board now tends to invalidate everything brought before them. So now the patent system doesn't even work for the people it's supposed to work for, since when a small inventor makes something actually worth patenting, a big company can just invalidate the patent.
With all that said, I do agree that software patents are pretty broken. If nothing else, the 20-year time limit is way too long, as technology moves much faster than that. We are constantly building the next layer on top of whatever was invented last decade, so last decade's inventions have either become foundational or have been discarded. Patenting an idea means it has to end up in the later category, as a proprietary idea cannot be made foundational; the industry must work around it. Meanwhile, the upfront investment cost in software ideas is much lower than other kinds of inventions, so there's no need for 20 years of royalties to incentivize it. I think software patents could make a lot more sense with something like a 3-year time limit. But I'm not really sure it's needed at all, as first-mover advantage seems sufficient to reward many software inventions.
(Disclosure/disclaimer: I work for Cloudflare, but obviously the above is personal opinions. I am proud of what Cloudflare has done with Project Jengo -- which I had no personal role in, I'm just an enigneer.)
Lawyers are expensive. If your business model required suing someone to enforce your claim, you better hope you have money, and you better hope you win your case fast.
Otherwise, you will spend more time and energy on that lawsuit than your work on invention. It's what economists termed "deadweight loss".
It has at time proven to be a business mirage, especially if inventors start suing other inventors and pioneers rather than getting on with copying and improving upon each other's work. Invention and engineering is a collaborative process, even if at time, adversarial. Can't really let a few folks has their monopolies at the expense of everyone else.
But most software patents aren't inventions; they're just brain farts with money behind them. They might not be trolls, but they went to the toilet, had some random idea I had 20000 times in my life already, but they patent it genuinely thinking it's anything original.
There are many none trolls, like the famous Amazon one-click buy one; everyone in web dev invented that in the 90s by themselves; they patented it. How is it worth protecting?
If you did invent and put the time and effort, how about selling your products; if someone else does it better, that's life. Especially in software; the pain is in the development and finishing, not the invention. The idea is absolutely worthless, outside this broken patent system.
>had some random idea I had 20000 times in my life already,
Aren't patent systems already supposed to reject "inventions" that are common sense? Perhaps the problem is not the system itself but rather the humans who are approving these.
That’s definitely part of it: in the 90s you saw a ton of “on the internet” patents which looked a lot like the examiners not having had enough experience to say that something was either an obvious adaptation of an existing concept to the web or that the two systems had almost nothing in common other than using a computer (I remember a patent troll hitting a customer with a 1980s patent for cash registers connected to a minicomputer using a phone line, claiming it covered their web store). A younger generation of patent clerks hired with more experience seems to have helped there.
The other problem is funding: look at the patent examiner listings right now and think about how many people they’re going to be able to get with the federal pay scale having been prevented from keeping pace with the market for years:
It is not reasonable to expect humans to assess the novelty or obviousness of software "inventions". Too many of them can be created too fast for any conceivable patent office to handle. The only solution is for Congress to write a law saying algorithms can't be patented. SCOTUS tentatively said it already, but nobody listens to them.
The parent system will accept pretty much anything if your lawyers ask them enough times. I've seen algorithms from the 80s patented today, with no real changes. The patent examiners have no idea what's novel or common sense, and just accept everything.
> If we take the position that an inventor should be able to try and get profit from their invention
The premise is flawed, the conclusion can only be wrong.
Patents are an invention by the bourgeoisie to extend their control of the production of anything and extract as much money from it, but to make it acceptable they have the play the image of the "lone inventor in their garage". This inventor doesn't exist. No invention ever came out of nowhere, based on nothing more than hard work and selfless involvement. Nothing would be achievable without the help of society, past and present, without cooperation, and to close that off is to go against the very reason we as a species survive. We need shared creation of art, of technologies, of ideas, because this helps everyone. Look at Volvo giving away their rights on the 3-point security belt, or the penicillin being openly distributed; to favor individual wealth over collective well-being is borderline criminal.
Patents do not serve individuals, the individuals are not business people. Patents only serve companies which by definition steal the production of its workers for private profits.
Patents do not allow creation; patents prevent creation. Look at the history of steam machines and how many people were involved in all the subtle, incremental improvements. It's not just one guy suddenly finding out everything from scratch. One of them put a patent on his invention and froze the development of the steam machine for decades before allowing it to continue.
To continue your point, here is my proposal to replace intellectual property: Pay the inventor for their work, not the result of that work.
This has several advantages:
1. Inventors get paid to fail. Failure is a critical step in the process of invention.
2. Inventors get paid immediately. How can an inventor be expected to have time to invent something if their only means of income happens after the work of invention? Any person who is working should earn a living.
3. An inventor can quit. If you aren't getting anywhere on a project, then you can go do something else!
4. Another inventor can pick up where they left off. Fresh eyes bring new perspective.
You're proposing that the state pay a good wage to anyone who chooses to be a full time inventor, regardless of the results? Does that include paying for whatever facilities might be required?
All of these things are already paid for. Either that continues to happen, or invention just stops happening altogether. Obviously there is profit to be made from new ideas, so there should be plenty of incentive to invest in inventors.
Inventors could also collaborate and unionize. Many already do.
>here is my proposal to replace intellectual property
Property rights, intellectual or otherwise, are granted and enforced by the state. So too, it would seem, might be their replacements. But it sounds like you're actually proposing simply eliminating all current IP law rather than replacing it with anything.
And yet that's exactly what the patent model claims: The invention is the fruit of a single mind who must get the entirety of money ever produced by the commercialization of the product. It is a glorification of individualism
Clearly not. At the trite level, you can have a patent with multiple authors. But more generally, many patents are small incremental improvements on existing device. In this case, the patent only covers that incremental improvements. Overly broad claims in patents tend to lead to them getting invalidated.
Industrial secrets. WD40 was not patented, they did good anyway.
Wright brothers or James Watt were notoriously hard defending their patents, hindering progress and getting next to no significant profits. 3D printers only took off after key patents expired.
I have an invention that I think could change the world (a better toilet). I went to a patent attorney.
His advice: File a submarine patent, wait til someone else has the idea but is stupid enough to manufacture, sue him for low enough that he wants to settle.
Why not manufacture? He explained that the patent system is designed to help the incumbents. If you manufacture, the big players will make some minor change, file for a patent as an improvement to the original, and ignore you. If you go to court - who has more lawyers on call?
At some point, you may iterate on your original product. At that point they will sue you with the patent they have obtained for their improvement. It doesn't matter if you infringe, it doesn't matter anything. Guess who has more lawyers? If you are lucky, you can settle for just giving them your IP plus your legal fees.
Many many inventions and improvements have been created by small guys, but they don't go to market. Because if it will disrupt an existing big player they will be sued. For any reason under the sun. Because the legal system favors the side with the funds.
And that is even without considering the companies in China et all that will just copy your idea wholesale, at a fraction of the price, and are untouchable.
The patent system helps the incumbents, but does nothing for the little guy.
A better system would be to use the money currently spent on the patent system to give grants to anyone who comes up with a new idea. [And you can even perhaps have some way for the general public to weigh in.] The smaller the company, the more the grant available. With funds, you could actually try to develop a brand, and the competition across the board would help everyone.
I'm not an expert on patetnts, but that seems backwards to me. If I get a patent for something, someone else can make a trivial change they call an improvement, admit their work is derivative, and get a patent for that without any cooperation or licensing from me?
And then if I iterate and get sued, even though I can show I hold the original patent it's not a slam dunk win for me in court?
Limiting the time of the protection would go a long way towards its acceptance. With the speed of technology today, 3-5 years seems reasonable. Anything beyond this is an overkill. This also discourages early filing (which now causes to mostly stifle related exploration) and encourages filing when the technology is ready for commercialization.
I also view the goal of the patent system as benefiting a society by encouraging the people to innovate. While somewhat similar to the current goals (rewarding the inventors) it is subtly different because its success and failure is determined not by the fairness to each inventor but by its statistical impact on innovation. If it tends to encourage innovation, even if in a few corner cases the time limits are too short for the inventor to reap the full reward, so be it. If it tends to stifle innovation by focusing on fully defending every inventor it needs to be repealed. My 2c.
Software authors, like other authors, can protect their creations through copyright. That's as it should be.
Allowing patents on software is about as sensible as allowing JK Rowling to patent the concept of a storyline about a boy who was cursed at birth by an evil wizard, and must defeat said wizard in order to fulfil his destiny.
> an inventor should be able to try and get profit from their invention
Well then, let the inventor try and get profit from their invention. An idea is never enough: it's the execution that matters, so let the inventor go forth and execute.
Software patents are bogus. Under the law, algorithms cannot be patented but clever lawyers figured out ways of getting the USPTO to issue software patents despite the intent of the law.
patents were intended to protect the little-guy, the inventor (meaning a person), with an artificial monopoly so he could make money.
they weren't intended to be used by huge companies to help further their already impressive monopolistic empires. they collect them and use them as a kind of insurance or mutual-assued-destruction policy. microsoft won't sue ibm (and so on) because both have such a vast portfolio of garbage patents that they know they could tie each other up in litigation for 100 years, and they don't feel like paying for it.
then you get to the trolls. our government is actually enabling and encouraging a semi-legal form of extortion. the big companies can pay or pay to fight. it's a tax on everyone in the business though, even when winning. only the attorneys really win here.
it's obvious that the time and place for patents has come and gone.
- they don't do what they are intended, do much more harm than good.
- other comments are 100% correct, "software" (algorithms) and other similar areas like the one in TFA should never have existed in the first place.
- the pursuit of patent portfolios has created a surge of really bad patents. it's really been the entire life of the internet and modern computing. "one-click-patent", etc. and far worse. so why actually encourage more and lower quality patents?
- it does no good for an inventor to go get a patent, because even if the spiffy device is successful at market, the chinese will steal it with or without the little patent number engraving on the bottom. hell, they'll copy that too. if you find out who they are and sue them, they'll pop up as another company. if that's who you are competing against, why waste time and energy on anachronistic non-functioning armor.
- better option for an advantage from a unique software algorithm is to: be to market first and, if desired, keep it a trade secret.
- i think it'd be relatively easy to fix. first, allow the patent-holder to pick or easily challenge the venue (to kill east-texas) and second, allow awarding of attorney costs for the defendant, and force the plaintif to post a bond to prove they can pay them.
- but why bother? just abandon the whole system. it literally helps nobody.
patents were intended to protect the little-guy, the inventor (meaning a person), with an artificial monopoly so he could make money.
Did that actually broadly happened over the history of patents? It sounds intuitive enough that patent protect the little guys, it's another if it actually happened for any period of time.
I remember reading that the Wright brothers spending time and money suing other inventors and pioneers over their patents. Ultimately, they weren't very successful at building a business and fell behind. That capital spent on a lawyer could be spent on their business or improving their machines.
As I recall, the entire US aviation industry was locked up for decades in patent conflicts, and were as a result way behind the rest of the world (where US patents were not valid). The only thing which could fix this quagmire was a miracle, which actually did occur in the form of WW2, causing the US government to nationalize the entire thing, allowing people to actually innovate again, which the US air force desperately needed.
i think it did in the US in the 18th and 19th centuries. Colt for example. many old-west certainly had lots of individual or small companies patent gadgets. i think by the 20th century, it was already a big-business only thing. or was that just the economy in general? doesn't matter.
the Wrights are kind of a sad story, but one that HN readers should be familiar with. technical excellence and just flopped at the business side. they got far too wrapped up in secrecy, almost paranoia, and like you pointed out, it just delayed and eventually ruined them. strain from fighting basically killed Wilbur at 45 years old.
> it's obvious that the time and place for patents has come and gone
This is a ridiculous (and incorrect) opinion being presented as fact, coupled with a lot of strawman arguments.
The fact that the implementation of the patent system has been massively abused over the past few decades does in no way imply that the theory is flawed and that
> just abandon the whole system. it literally helps nobody
This entire comment is as ridiculous as claiming that "kids keep graduating from high school with barely any education, we might as well abandon the public school model and have every parent teach their kid".
> it's obvious that the time and place for patents has come and gone
This, is an opinion. It is not a fact. You cannot prove it, nor does it have any grounding in reality.
Factually, your statement is an opinion, and claiming that
> you argue that my statement is a falacy using the same falacy
...is objectively false. Your complete lack of logic throughout your entire post shows that it doesn't deserve an answer, because there's nothing to answer to.
Granting intention over centuries-old institutions is a fools errand.
Whatever the people that created them intended, they were used at first to grant favors to well connected people (some times for good reasons, other times not), and then to enable industrial monopolies on planned economies.
That last one is the format that the modern version is based on.
i brought up intention because it's a) historically true and b) to contrast with the complete opposite that they developed into. you get rid of something without acknowledging what it was intended for and looking at whether it's still helping or not. i don't think any of that is foolish.
The easiest way to understand the issue is to consider cooking.
A chef can’t sit around and think up recipes and file thousands of patents. We explicitly agree in the law that it would be incredibly backwards negatively affect society if chefs got exclusivity on recipes and could sue home cooks for being creative. And chefs are still thinking up new recipes and using them in their restaurants because unique meals and flavors offer a competitive advantage. The reward is that you can keep your profits in our capitalist society. See Coca Cola and KFC. You have to use your knowledge in a novel invention to benefit.
In the same spirit, it’s not wanted to have people sit around and ideate about which instructions, and in what order, when fed to a processor machine, make it do useful things. Thousands of people program processors every day and we don’t want them getting sued because someone else figure out an efficient way to reverse a linked list. You have to run a software service that provides value and get people’s money that way.
Even if we concede that patents are useful in their intended purpose to protect actual manifest inventions, not just ideas (patent office is supposed to require a prototype invention to be registered with your patent), that’s certainly not what patent trolls are doing and that’s not how the majority of software patents work.
For the purpose of discussion, to get close conceptually to some sane type of sane SW patent scheme you’d have to 1. make a linked list reversing library, 2. register the complete prototype source code with the patent office, and 3. be actively maintaining and selling your linked list reversing library for your patent to even start to hold water. But even then you’re running up against problem that software is purely algorithms (just like recipes) and those aren’t even originally patent-able.
Apple can’t patent an “object oriented operating system” unless they’re offering that system in isolation and as a whole to consumers for use, which they’re not, but someone at the patent office got tricked into granting them a patent. Patents are supposed protect the inventors of complete products, not tiny building blocks of knowledge (algorithms). The “patent hate” is because despite the arguably good initial conditions, the patent system has been abused by greedy people who are not benefiting society in any way whatsoever. And you should be infuriated by that.
If we take the position that an inventor should be able to try and get profit from their invention how can we protect that without patent system?