If Two People Invent The Same Thing At The Same Time, Should One Get A Patent?
from the obviousnous dept
For quite a long time, we've argued that one of the problems with the patent system is that it goes way overboard in providing rights to whoever came up with an idea first, even if others independently developed the same idea. That's lead some to suggest that patents should have an "independent invention" defense. After all, the patent system is designed specifically to encourage innovation where it might not occur otherwise (basically, assuming that there's market failure for innovation). If multiple people are coming up with the product simultaneously, that suggests (1) that there's demand in the market providing plenty of incentive for innovation and (2) the idea is not particularly non-obvious (as a patented concept must be).Noel Le points us to some recent research on the topic including one by Mark Lemley and another by Samson Vermont (warning: pdf). The good news is that it's clear that more than a few people are thinking about this very issue. Vermont's piece also has a compelling response to the claim (usually from patent attorneys) that adding in an "independent invention" defense would simply lead to lies from people claiming to have invented a product independently. Vermont explains why there's little evidence to support that, given that with the system today, someone would get even greater benefit in falsifying a claim of "first to invent," and yet it's rarely seen. There are tremendous penalties associated with fraud and perjury (which lying about an invention would amount to), and that (plus moral issues) seem to make that argument less of an issue.
Unfortunately, it appears that Le completely misreads Lemley's article in his writeup about it. He positions Lemley's piece to be arguing against the "independent invention" defense, when if you read the paper, that's not the case at all. Lemley is clearly compelled by it, but just notes that rushing to put it in place without some limitations could create problems -- mainly due to legacy issues. His argument isn't (as Le claims) that adding such a defense would "reduce incentives to innovate and impose inefficiency on the market for patents." Rather, Lemley points out that Vermont's push for an independent invention defense is based on a few assumptions, and if they are wrong, then it could present problems. However, Lemley doesn't seem to be saying that those assumptions are wrong -- just that if an independent invention defense is implemented, it should be done in a way that carefully watches to see if the assumptions hold up (in fact, Lemley seems to agree that Vermont's assumptions may be true). Also, there is an important point that Lemley makes, that we've been suggesting for years. You may not even need an independent invention defense, if you had a better "obviousness" test for patents. The fact that two totally separate entities came up with the same idea, that certainly suggests that the idea had some element of obviousness to it, and was the general progression in the space. In that case, there's no real policy reason to support that patents be given, since the incentives are already put in place by the market. It's good to see that these issues are getting a serious discussion in some areas -- though, whether or not these discussions will ever actually influence policy is another question completely.
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show your working
There's a logical problem in that if a patent is published then how can you prove that the latecomer didn't just read it and copy?
Possibly the best way to deal with this is demonstration of method. Like a teacher who is trying to stop his students cheating it is necessary to show working. Merely presenting the patent as a conclusion should not be sufficient, the claimant must show (in true scientific style) an aim, a methodology, a set of results (including full statistical analysis), and a conclusion that defines a product.
Two truly independent researchers will never arrive by exactly the same path even if they arrive at the same place.
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Re: show your working
It is not that much of a logical problem. A good inventor would keep a record of all notes, correspondence, etc. with proper dates. If the inventor who filed first has an issue, then let a judge decide, provided that both patents are held in abeyance while the case is heard.
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A tough issue
At a first glance the independent invention defense would help defend against pantent hoarders (who I think should be put in the same section of hell as people that talk in theaters). But in the long run I think it would just open the door to problems like new forms of corporate espionage.
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reply to Masnick
Lemley argues that an independent invention defense would be valuable in some ways, but should be approached carefully due to possible effects on innovation incentives and the market for patents. Lemley proposes a "policy lever" approach rather than an outright independent invention provision.
A summary glance at the article will tell you that, as he spends a majority of his time warning against an independent invention defense.
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Re: reply to Masnick
Are we not reading the same paper? The one that you link to, and that we link to above, does not argue against the independent invention defense at all. It just notes that there are some risks involved if Vermont's assumptions prove false. However, other than that, he appears interested in the idea. I don't see how you can read it as being against the concept.
A summary glance at the article will tell you that, as he spends a majority of his time warning against an independent invention defense.
I read the whole thing through 3 times, and I didn't get that. I got the opposite of what you got out of it. He seems rather interested in Vermont's position, but worried that there are risks involved if Vermont is wrong. However, he does not appear to be wholly against the concept.
Let's take a few quotes:
"Vermont’s idea may be one whose time has come."
"Independent invention has much to recommend it."
"In the information technology industries, it seems to those of us who litigate patent cases that the overwhelming majority of patent suits are not brought against people who copied a technology, but against those who developed it independently."
"An independent invention defense would eliminate the troll problem in one fell swoop."
"Vermont’s contribution is to analyze and dissect a number of common objections to an independent invention scheme. He responds persuasively, for example, to the concern...."
"In short, Vermont offers generally persuasive justifications for an independent invention defense, and there are good reasons to think that such a defense would eliminate one of the biggest problems with the patent system today."
Those don't sound like someone against Vermont's point of view. He then goes on to temper those statements with concerns about the risks involved, but his argument is just that if Vermont's assumptions prove false, there *could* be some problems. However, even there, he does still seem to be leaning towards Vermont's view:
"Nonetheless, I have concerns. I am not sure those concerns are debilitating..."
He doesn't say don't make the change, but just that things should be looked at "very carefully" before making the change.
He talks about how he agrees with many of Vermont's points, but then that he's worried an independent invention defense might have some unintended consequences in a few industries (pharma in particular). He's not wholly against the idea at all.
"Vermont’s analysis implicitly rejects prospect theory. As a general matter I don’t think that’s a problem, because I think the economic evidence is quite strong that it should be rejected—that the market is better than central planning by the inventor in determining how to make use of inventions once they are made."
There are plenty of quotes along those lines. He seems to like the general concept, but is worried that some of Vermont's assumptions don't apply to all industries, and thus he comes up with policy recommendations that basically move us slightly closer to the defense, without making a complete shift.
I don't see how that's against the idea at all. He's just taking a cautious approach.
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"The fact that two totally separate entities came up with the same idea, that certainly suggests that the idea had some element of obviousness to it, and was the general progression in the space. In that case, there's no real policy reason to support that patents be given, since the incentives are already put in place by the market"
Ignorant BS.
The incentive for a little guy to invent is provided by the existence of a working patent system.
Just ask any independent inventor - US Patent system is the ONLY incentive we have.
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Re:
The incentive for a little guy to invent is provided by the existence of a working patent system.
I feel safe in saying that there would be much debate over the fact that the patent system works. I agree wholeheartedly that independent inventors need a working patent system-- what I'd like to know is that if you and some other guy invent something independently, and Mr. Other Guy files the patent 1 week earlier, are you still fine with Mr. Other Guy getting a patent instead of you-- even though you just as much work as he did? Would you, then, be in favor of an 'independent invention' defense?
From context clues I assume you consider yourself an independent inventor, so I'm asking you.
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Re: Re:
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Re:
The incentive for a little guy to invent is provided by the existence of a working patent system.
That's both false and not the intended purpose of the system. The system is designed to encourage innovation overall, and if the market can do that effectively, what use is the patent system?
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Re: Re:
Mike wrote:
"That's both false and not the intended purpose of the system"
Hey Mike, if you don't believe me, just ask any independent inventor out there..
I mean the real one, somebody who can put his money where his mouth is, not a techdirt prick like Misantropic Onanist.. oops, sorry, Humanist whatever..
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Re: Re: Re:
I mean the real one, somebody who can put his money where his mouth is, not a techdirt prick like Misantropic Onanist.. oops, sorry, Humanist whatever..
Two things. First, we're not concerned with independent inventors, we're concerned with innovation. The system isn't supposed to be a subsidy for independent inventors, it's supposed to be a system for encouraging innovation.
I'm not sure how many times we need to repeat that.
Second, we talk to independent inventors all the time who are completely FRUSTRATED by the patent system, because it blocks them in their work. They discover that what they've come up with on their own can't be offered in the market without paying a huge toll fee to companies who claimed broad inventions in related spaces. That's what the complaints are about. It's often a tremendous impediment.
Angry dude, I really don't understand why you refuse to ever support a single argument you make. We have explained the *reasons* why the patent system doesn't work. All you have ever come back with is (a) calling us idiots or (b) insisting that the patent system really really really is important, but never explaining why what we've said is wrong. We'd take you a lot more seriously if you actually had any reasoning to your argument.
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Re: Re: Re: Re:
never attack the person, you may attack thier ideas and give counter arguements..but if you attack the person ie. namecalling etc. it just shows lack of a compelling statement to back up your point of view..
~ always more than one way to skin a cat~
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The fact that two totally separate entities came up with the same idea, that certainly suggests that the idea had some element of obviousness to it, and was the general progression in the space.
When I read this, I was reminded Alfred Russel Wallace, the guy who independently thought of the theory of natural selection before Charles Darwin published The Origin of Species. Not that it applies to patents, but it does shed some doubt on the link between obviousness and independent invention. In other words, I don't think that natural selection is proved obvious because two people came up with it at about the same time.
Sure, Darwin and Wallace stood on the shoulders if giants by using knowledge available at the time. But just because someone creates something new in a given environment doesn't mean the environment i.e. "the space" is responsible for the creation.
Independent invention may suggest that an idea has an element of obviousness to it, but the Darwin/Wallace example, as well as other examples of simultaneous invention, I think shows that it's not a reliable exclusion criteria for obviousness.
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Re:
I should clarify. By obvious, I mean (as the patent system demands) obvious to people skilled in the art. If two people in the same field are coming to the same conclusion, it suggests that's the obvious direction of progress in the space, rather than some sort of breakthrough that deserves special protection. It suggests that that's where those leading the field were looking anyway *because* that's what the market demanded.
In other words, there's no need for an artificial gov't granted incentive when the market is doing its job.
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Claim about Lemley
Masnick, where did you gather this about Lemley. I'm not trying to be confrontational, just asking what article so I can read up on him.
Lemley does not propose the rigid obviousness standard that PFF, as well as EFF, propose in their siding with KSR. Rather, Lemley argues that patents should be easier to obtain, as occurs under the current oobviousness standards, but should be issued with narrow scope. I actually argued against Lemley on the issue of obviousness here: http://weblog.ipcentral.info/archives/2006/09/too_obvious_to.html
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Re: Claim about Lemley
"If Vermont is right that simultaneous invention is evidence that patent protection may be unnecessary, perhaps we should give this factor more significance in the obviousness analysis."
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Re:
What does the early worm get?
Actions speak louder than the sword but the pen is mightier than the sword.
A witty saying proves nothing.
All that is off-topic, though. So, judging by your words, you think that if someone invents something first, but patents it second, he's SOL. The point of the patent system is to spur innovation, not timely paperwork processing.
I say, if two people come up with the same thing, no one gets a patent-- go improve on your idea and patent that.
Of course, what I say is next to worthless. :-)
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Re: Re:
I would say, yes, he's SOL. The overall goal of the patent system may be to spur innovation, but it's still a system. Specifically, the patent system exists in the real world at the level where paperwork and timeliness lives.
In a perfect world, the patent would go to the person who developed the invention first. But in the real world, it would be too impractical to require an investigation into all of the areas that could confirm primacy. It's much more practical to just award to patent on a first come, first served basis.
This necessarilly means that if two people happen to develop the same thing at about the same time, the patent will go to the one who gets there first. (It doesn't mean the idea was obvoius. Just that the current conditions led up to a situation where someone could make an insightful discovery.) Some may think it's not fair that the true first inventor doesn't get the patent, but the rules of the system are known. They haven't changed. It's just life. It my be trite, but in this case, the early bird really does get the worm.
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Re: Re: Re:
This necessarilly means that if two people happen to develop the same thing at about the same time, the patent will go to the one who gets there first
That's false in the US. Outside of the US it's (mostly) true. But in the US, we do not have a first to file system.
But the more important question is whether or not that makes sense from a policy standpoint. If that policy harms the pace of innovation, when it's whole purpose is supposed to be to encourage innovation, then we have a problem.
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Synchronicity
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Re:
That's not just wrong, it's woefully wrong. Almost every major invention had very similar competition. That helped drive inventors to make better versions.
Whoever applies for the patent first (even if only by 1 second) gets it.
This is also false legally. The US is a "first to invent" system, and even if you file first, if someone else proves they invented it first, they get the patent over you. So, you are wrong.
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Everytime I come up with an original idea on my own, based on my own thoughts, I find out someone else has a patent - not only that, but they got the patent 50 years before I was born, so I didn't even have a fair shot at getting it, even though I had the idea on my own originally without outside input. Even if I had outside input, that input is not going to be identical to the first persons.
Patents only benefit corporations. It is time to put an end to that.
If patents must still be allowed to exist, then they must be owned by people, as per my above notes, and must have expiration dates and then become part of the public domain.
Inventions are not really inventions anyways. An invention is nothing more than applying the laws of science, nature, physics and mathematics to something to give it meaning.
I have always disagreed with the idea that the first person to register their idea is the only valid owner of that idea, there are billions of people on this Rock, and to deny anyone the right to discover and invent anything on their own, whether someone else did it before them or not, is one of the greatest things we can do as human beings. That should never be squashed by a patent system that is now truly bought and paid for by big business, big corporations and corrupt politicians.
To me, ideas who ever has them, and who can ever claim they can make what ever at a certain cost and profit, in order to get financing, should have nothing to do with whether someone else "owns" a patent to that idea or thing. That is just so against what it means to be a human and a lamb of God.
The entire patent process and intellectual property rights issues are an invention of the devil, because the sole reason for them is born out of greed.
If two people have the same idea (whether someone has the idea 50 years before the next person has it independently on their own or at the same time), they should be allowed to duke it out to see who can actually be best at bringing their idea or product to market.
Do away with all of this. The average person no longer has chance in hell of ever getting a patent. It has become like hitting the lottery which is nearly impossible.
We must put an end to all patents and intellectual property rights laws, so that every person on this planet can invent away without worrying that they wasted their life striving for something that someone else already laid claim to.
What about all of these corporations, or individuals for that matter, who apply for patents for things that with current technology we have no way of either actually making or bringing to market in an economical way. To me, patents should not be granted for that stuff, but just look at apple, they filed for patents 30 years ago for things that never could have actually been produced 30 years ago. In fact, many large corporations own thousands upon thousands of patents that they never use, probably for things they filed for 50-100 years ago. What about the rest of us born after that? Do we not also have a right to discover the same thing on our own?
Sorry, I will never buy into any thinking that patents are right or are needed. They are nothing more than a way to keep the average person down.
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Re:
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Re: by The infamous Joe
Keep your date and time of conception well documented
(e.g. notarize your writings) and you can get your patent later even if somebody files first.
Example - Gordon Gould, the inventor of laser.
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I did it
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Re: I did it
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Reply to Masnick again...
Anyways, I agree that the way Masnick opened this post suggested that he may be interested in the first to file vs file to invent debate, but his main point is the connection between a first to invent defense and the non-obvious doctrine. Although there is little grounding in Masnick's thesis from Lemley, who is skeptical of an independent invention defense and does not propose a raised non-obviousness standard, the issue is still important.
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follow-up to Mike
Mike, can you answer my question about where Lemley advocates raising the non-obvious bar?
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The problem may be obvious to all, e.g. our electronics need much better battery life. But if it takes five years to solve it then the solution certainly wasn't.
Only goes to show that the patent system is a complex problem that isn't going to be solved by simplistic solutions. Like most things, actually.
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Lemley on obviousness
Oh, OK, I see, however, one line compared to a whole article he wrote on software patents and obviousness doesn't really say much about Lemley's position on the non-obvious doctrine. Further, look at how Lemley makes the claim you cite. If there was any evidence, not just simultaneous invention, that patents are not necessary, then the non-obviousness doctrine would be affected.
I'm somewhat frustrated that Lemley does not give more basis for why he believes software patents help innovation; he certainly does not say they are unnecessary (in any article you've cited), but seems amenable to considering that prospect's implications on patent doctrine.
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Thanks Mike. The clarification helps put the term "obvious" in the context of the patent system. But because I'm no expert in patent law, I'm looking at the issue in broader terms.
I would agree that there has to be a line drawn somewhere between something that is so obvious it does not deserve a patent and something that is a breakthrough which does. But where to draw the line? I can't help but think about the breakthroughs that were deemed obvious after they were discovered/invented. Spapping his forehead, the scientist said, "Of course! Why didn't I think of that?!"
There's a great quote by Arthur Schopenhauer...
"All truth passes through three stages. First, it is ridiculed. Second, it is violently opposed. Third, it is accepted as being self-evident."
Not that the patent system seems to be in any danger becoming too restrictive (i.e. excluding too many "obvious" things ), but I still find myself being skeptical of too heavy a reliance on the concept of obviousness. I understand it has a specific meaning in the context of patent law, but I keep on coming back to how easy it is to say something is obvious after it's been explained to you. Anyone at the time could have come up with the idea of natrual selection. All the information was there. But anyone didn't; Darwin did.
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shocker
I stopped paying any attention to most of what Noel Le says a long time ago.
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I don't believe Masnick understand's Lemley's argument (either in the reviewed article or his general writings); he went from calling my write-up a complete misreading, but then moves on to actually support it by saying that 1)Lemley has reservations about an indepdendent invention defense, 2)Lemley cites reasons why, 3)Lemley opts for other ways to improving patent policy.
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Re:
You positioned Lemley's argument to be that an independent invention defense would be harmful to innovation. That's flat out wrong. He has some worries that it *could* cause problems *if* implemented incorrectly and *if* Vermont's assumptions are false, but he doesn't present much to say that Vermont's assumptions absolutely are false. Just that we should be careful about it.
Your positioning of his paper was simply wrong.
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Patents, Simultaneous Invention, and Blogs
Traditionally, technical art was published in refereed journals. Refereed journals had much higher standards than the patent office, and as a result, the patent office was able to crank out spurious patents faster than the refereed journals could publish good articles. Now, however, we have blogs, listservs, etc. Every open-source project of any size has its own blog. Blogs are freely available to the public, rather than being behind a "paywall." Further, there are "archiving engines," which record the contents of the blogs, along with the rest of the internet, and can eventually prove date of publication. Over a period of years, blogs can outrun the patent office. They will create paper trails of ideas two or three or four years before the patentees even realize that the ideas are worth money. A fourteen-year-old kid, playing with ideas, will always discover things long before a businessman does. It may take a while for the pre-blog patents to expire, of course, but the balance will gradually shift. You will eventually get the Commissioner of Patents on the stand before a Senate Sub-Committee, trying to explain why he does not allow patent examiners to do web searches, the real reason being that doing so would allow the patent examiner to definitively reject too many patent applications in a few minutes each.
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Re: Patents, Simultaneous Invention, and Blogs
Patent examiners already do Google and Yahoo searches to find prior art and also to dig up more info about inventor.
At least, in my case, this was the first thing he did: searched the Internet and included first 2 pages of Yahoo hits in his official search report (couldn't find any relevant prior art though...)
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Over the course of several articles, it seems like Lemley is not so much trying to answer the question of whether software benefits from patent protection, but whether improved patent disclosure and patent scope are the culprits of bad patents; perhaps due to the market uncertainty of many technological innovations. Also, check out his articles with Julie Cohen on patent scope and Dan Burk on policy levers. I would provide the cites, but am jammed at the moment.
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