You Shouldn't Have To Hire A Patent Lawyer Before You Can Innovate
from the predictability dept
One of the persistent themes I noticed at Wednesday's patent conference at the Brookings Institution is that most of the lawyers seemed to assume that if the legal system ultimately reaches the right conclusion—invalidating a bad patent, say—that this means that the patent system is working well. Some panelists suggested that the Bilski decision, which struck down one particularly egregious "business method" patent, shows that there's not really a problem, because the courts are recognizing the problems with bad patents and correcting them. They seemed not to fully appreciate how slow and expensive the legal system is. One only has to think back to the great BlackBerry showdown to see that having the legal system eventually invalidate a bad patent may not be good enough. Even if the law is on the side of an accused patent infringer, the time, expense, and uncertainty of litigation can kill the firm before its rights can be vindicated in court.
I think the right way to think about patent reform is not whether the courts eventually reach the right result, but whether the system is predictable enough that you can tell in advance what the law requires, without hiring a patent lawyer. After all, this is how well-designed property rights systems work. I didn't need to hire a property lawyer to tell me who owns the apartment I'm living in—the rules of real property are predictable enough that I could figure it out on my own. The vast majority of property transactions are the same way—lawyers only get involved in exceptional cases that involve large sums of money or tricky legal issues. By the same token, if we're going to have patents on software (or in any other industry), they should be few enough and clear enough that a smart entrepreneur can figure out in advance, without the help of a lawyer, which patents he needs to license. If our current patent system isn't living up to that standard, the solution isn't to come up with ever-more-complex legal doctrines trying to separate the "good" vague patents from the bad ones. Rather, the solution is to restrict patenting to those fields where it's possible to make things clear and predictable. If that's not possible in some industry (and I suspect it's not in software), then that's a sign that patents aren't an effective way to promote innovation in that industry.
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Filed Under: innovation, patent lawyers, patents, property rights
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Is it even possible to obey patent law?
And even if you did magically look at all patents and all claims and know in your heart that you had a new idea, there's no way you could be sure the legal system would reach the same conclusion. It's not as if we are talking about something clear-cut like shooting someone. Without any idea what a judge will decide, you'd have to steer well clear of all the vague, broad patents to be safe.
In other words, don't even try!
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Re: Is it even possible to obey patent law?
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Re: Re: Is it even possible to obey patent law?
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Re:
It now seems to to be, "HE WHO HAS THE GOLD, MAKES THE RULES"
We let it happen then, and are continuing to let it happen.
One person standing alone, will be run over. Many people standing together, form a wall that can not be run over, or ignored.
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Re:
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Slight correction
I just thought I'd point out, though, that if you've bought property, you've dealt with a lawyer. That was the person handling your closing. They don't do a whole lot in front of you, but they are lawyers.
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Re: Slight correction
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A word from a lawyer
http://www.cathygellis.com/soi/2009/01/law-and-technology-the-disconn.html
(And personally I hope to do something about it.)
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Do You Want to Play a Game ?
The property would be uninhabitable if you had to be concerned about who owned the front door, who owned the hinges and who owned the door knob. Certainly every time you entered or exited the premises you would have to pay a fee for the use of their property. Imagine if everything were like that ..... maybe someone will create a game like monopoly but call it Intellectual Property.
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your a lawyer????
Software patents are bad period because not only are they all mathmatical formulae , but all software is made of an entirely limited set of commands which when used come out to be exactly the same set of logic ie commands used, to do one thing no matter how the program looks or what order the program executes.
take a memory swap algorithm for example,
mov eax, var1
mov ebx, var2
mov ecx, var1
mov eax, var2
mov ebx, eax
no matter if you move into a higher level programming language it comes down to this syntax for swapping memory variables. Even the newer processors have high level commands built in that do this in circuitry as well. So no innovations are possible so why can this be pateneted ?
make no mistake but this is the state of the software patenting sytem for about a million patents that patent some form of physical process.
You simply cannot program around this because that is the only way possible to do that process. Its not innovation its called blocking.
so you see thats why lawyers dont know when it comes to software patents.
Regards Kitkat.
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your a lawyer????
Software patents are bad period because not only are they all mathmatical formulae , but all software is made of an entirely limited set of commands which when used come out to be exactly the same set of logic ie commands used, to do one thing no matter how the program looks or what order the program executes.
take a memory swap algorithm for example,
mov eax, var1
mov ebx, var2
mov ecx, var1
mov eax, var2
mov ebx, eax
no matter if you move into a higher level programming language it comes down to this syntax for swapping memory variables. Even the newer processors have high level commands built in that do this in circuitry as well. So no innovations are possible so why can this be pateneted ?
make no mistake but this is the state of the software patenting sytem for about a million patents that patent some form of physical process.
You simply cannot program around this because that is the only way possible to do that process. Its not innovation its called blocking.
so you see thats why lawyers dont know when it comes to software patents.
Regards Kitkat.
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taking the other side for a moment
I still hate patents, but you could make this argument with a straight face.
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Re: taking the other side for a moment
No, I'm sure someone has thought of it.
The reason is referred to as Prior Art.
There was a story some time ago of a bloke down under who attempted a patent on the wheel. Predictibly, it failed due to prior art.
Also, why should anyone have to endure 30 yrs of bs ?
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Intellectual Property?
My current tennant of 12 years, who is intimately familiar with this property, and I reached an agreement 11 months ago regarding his purchase of this property, and signed a contract to this effect.
HOWEVER ...
We have since BOTH had to retain several lawyers each, pay them fees, and WAIT!!!
In order that we might consummate a business deal that both parties agreed to, that I might realize a profit from my intellectual property.
It seems to me that the main business of law, is to keep lawyers employed.
Cathy, I checked your link and homepage, this is not a personal attack, and I applaud your thoughts on this issue, as well as your efforts in this very murky area.
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Re: Intellectual Property?
Ok, so you develop some land and claim you own some IP.
1) Did you patent something related to the dev ?
2) Do you claim copyright on the way it was designed ?
3) Is there a trademark you would like to protect ?
I'm easily confused, but curious. What are you talking about ?
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Re: Re: Intellectual Property?
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Here's a hint...not even close. Just because the system isn't perfect doesn't mean that it should be tossed away. Wake up people.
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Re:
You are delusional, for many reasons
1) The physiological benefit of chemical compounds and their development does not depend upon the existence of a patent system. For example, the active chemical compound which gives asprin its pain relief qualities has a long history which precedes the introduction of patents, by a very long time.
2) The pharma industry attempts to extract maximum profits from their products at the expense of the livelihood of others. This has led to tensions between countries around the world. I don't think I need to provide any examples, it has been in the news, a lot. You talk of life saving drugs, but too bad if you don't have the cash.
3) Many of those life saving drugs to which you refer are actually less effective than their predecessor whose patent has expired. Pharma makes a small change and calls it something new just so that they can maintain the patent. They then convince the health orgs to apply pressure upon doctors to prescribe the new product over the old.
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Pharma patents ??? come on
Pharma is only now being credited with killing people and an awful loss of life that could have been saved if people hadnt been so greedy and moved into other medical areas because it now seems that to move forward in medical advances we have to restore the balance in medicine and get the entire field up to where only pharma is now.
This is how patents are killing people and slowly killing innovation in the medical field where we are directy being held for ransom in an out of control patent world where only money and monopolys count.
Bring back the balance and open up new opportunitys by outlawing all patents everywere. Its our only hope people.
Money is evil.
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Re: Pharma patents ??? come on
That's NONSENSE
If you do the research, and can prove that something is an effective treatment, I'll use it. Unfortunately, there are those who want to sell something "alternative", but not bother to make the effort to prove it works, or is safe. Pharma actually tries (or is required to try) to prove that what they sell is both safe and effective. Let's not forget however, that the goal of both Pharma and the folks hawking snake-oil "alternative" treatments is exactly the same -- PROFIT.
I don't agree with Pharma's priorities many times, and Pharma does have a record of aggressive protection of their patents. This can be exasperating and often not helpful for patient care. It doesn't mean however that Pharma hasn't made very useful contributions to quality of life, productivity and life-expectancy.
If you don't believe that, then it's obvious you don't have any first-hand knowledge of what goes on in medicine every day.
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Re: Pharma patents ??? come on
As opposed to what, the barter system? Because if I'm not mistaken, there are only three possibilities: 1) no trade of any kind - everyone produces all their own stuff*, 2) barter, 3) money. What's your favorite? Personally I like money.
* It's not clear what this would mean for land ownership. How would one come to own land? Then once owned it could never be traded or sold. Perhaps it could be passed on after death though.
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Different timelines
The legal system has a very long perspective on time. The fundamental concepts that govern legal systems are very old. Law students study cases that go back hundreds of years. Courts regularly cite cases and laws from the nineteenth century. Predictability implies *lack* of change, and is one of the fundamental precepts of the system. Yes, lawyers say "the system works" when courts correct mistakes after years because, from the long historical view, that's exactly what they see. A hundred years from now, a twenty year gap between a bad trend and its correction will be completely lost - the corrected precedent will be what lawyers learn, and only historians will even be aware that there was ever a controversy.
Yes, predictability in the patent system - or any other part of the law - is important. One thing to realize is that patent lawyers generally feel that the system *is* predictable - to *them*, on most matters they deal with. The father of a friend, an IP lawyer with many years of experience, jokingly commented - when the US modified its copyright system back in the late 1970's to match the Berne Convention - that for him, the "simplifications" made things much more complicated: All the things he just understood "in his bones" needed to be re-examined in light of the new law.
Don't take any of this as a *justification* for the sad state of patents and the software industry. Just realize that legal - and, more broadly, the political systems - are inherently unable to deal with fast-moving areas. Decisions made in haste in a changing world are rarely optimal - but its exactly in a changing world that they *have to be* made in haste - and then *changed* in haste. But then what happens to "predictability"?
The poster who wryly commented that the problems will solve themselves within 30 years or so as most of these patents simply age out of the system is right. Our children won't even be aware that these issues ever existed. The question is: Can we find a principled way to get there faster?
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Re: Different timelines
We're now seeing the courts realize how big of a mistake that is and walk it back. And I suppose it's probably true that 100 years from now non-historians won't remember that there was even a problem. But that doesn't change the fact that in the meantime, the patent system is doing a lot of damage.
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Hardly, but if you want to believe this go right ahead.
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Re: Re: Different timelines
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It seems to me that the main business of law, is to keep lawyers employed.
I agree that there's a lot of inertia against changing things once self-interest gets involved, but I'm not quite sure that's the problem.
There are people who truly believe that innovation doesn't happen without this sort of law to shelter it. And the thing is, they're probably right. At least to some extent. If you look at the history of IP law, it was developed as a means of stimulating innovation. But while a little bit of law may be good, a lot becomes a chokehold, and somehow we've missed the dividing line between the two. Of course it's hardly clear where to draw it, but I think we can and must do better.
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Mass Kill?
If all lawyers died today, it's like "who cares, back to work."
Any legal system so goddamned complex it requires an expert to do anything is TOO complex, and should be replaced.
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Re: Mass Kill?
I do not see why it should take an interpreter and hundreds, of "billable hours" just to say, "this new and there isn't another one just like it out there.
We should be able to go to the patent office and say "this new and there isn't another one just like it out there, and here is the research to back it up.
Let's just take it back to basics, and tell them all HEY ! You work for US ! Disband your secret code club, and do your job or you are fired. Quit trying to play the end around game, just so you and your fellow club members can make more money.
Something is either, NEW or it isn't. It is that simple.
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Re: Mass Kill?
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Dealing with Bad Patents
Let's use Michael's example - you don't need a "property lawyer". Well, in the simplest possible cases, true - but the experts; realtors, lenders, etc., universally recognize the need for "property lawyers", and only partly because of bad laws, many times the need comes from good laws that protect you from the unscrupulous!
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Bad Patents again
Our system depends on heavily on predictability, so we use "stare decisis". The previous opinions on what the laws mean clarifies (and sometimes arguably changes) what the black letter law says.
So, if you are willing to spend four years (as I did) or, if you DIY, 10-20 years learning WHAT the courts said, and HOW to find it, fine; you don't need a patent attorney - just hope you got it right! No one that I know of has, yet, but maybe you will be the first! Or you can hire a specialist to fix your car, help you buy a house, help you obtain a patent .....
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Pharmaceuticals vs Software
But in software, patents work very differently than in pharma. Phama patents protect end products (even if some companies are trying to game the system and extend protection by later patenting metabolic intermediates). In the phama sector patents don't cover the EFFECTS or FUNCTIONS of a drug, only the exact formula of the drug, leaving others free to develop competing drugs. I.E. they behave like copyright! They cover the equivalent of source code, but not the ideas/methods used in it.
The patent for Viagra covers only the specific compound used, not the idea of a pill for erectile dysfunction! A "software Viagra patent"� would!
Copyright already gives (free and much longer) protection to software similar to what pharmaceuticals and mechanics get by patents, and I don't see people in those fields claiming they need more protection.
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Re: Pharmaceuticals vs Software
I agree. Because there would be no need to slightly change your formula every twenty years.
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Bullocks
An algorithm should not be subject to patent, copyright, or trademark restrictions.
And yet, that is what is being done. They are very careful to not include the word "algorithm" in their application, instead it is called a "system and method".
Can I use Dijkstra's algorithm ? What about quicksort ? etc etc
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define the "legal system"
Law-makers who write bad law, including such steaming heaps like the DCMA, should become part of the solution when problems are apparent. The law needs to be revised. Those of use who hire the law-makers... yes that's YOU, citizen, need to prod them to do so, and vote accordingly.
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competent
As to the blackberry case, the NTP patents are still in limbo. Final determination has not been made. What makes you competent to assess it’s validity anyway?
It appears to me that your publication had more credibility problems than the patent system.
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Re: competent
Thank you for the most enlightening insight.
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Re: Re: competent
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I know you probably like to paint all things related to capitalism and industry as evil because you have this false belief that you can find a sense of purpose by doing so. Get real and get in touch with people in the industry - and I don't mean go read some politically/socially motivated journal with beliefs already in line with your own.
1. R&D in the pharmaceutical industry is a HUGE investment - patents are a very good means of protecting that investment. Regardless of compounds having their inherent physiological properties, these compounds first need to be discovered and this is done by people at a cost.
2. There are some examples of pharmaceutical exploits, however there are many many more examples of commercial interests being aligned with that of society. Do you have any idea how many more years on average a person suffering HIV can live today, and how much better the quality of life is than without patent protected drugs? It is up to governments and citizens world wide to assist others and make sure that we all get the medical care we need, not companies. Companies are here to make money. There can be harmony. Perhaps you should adopt a "think globally, act locally attitude" yourself.
3. Regarding your third "point," your are talking complete nonsense in an area you know extremely little about.
Oh, but maybe like another person who posted here you think that money is evil...if so, don't even bother reading what I wrote b/c it will not do you any good.
Have a nice day.
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Re:
Thank you for your thoughtful response, however your attempt to address the points of my prior post have fallen short.
1) The physiological benefits of acetylsalicylic acid have been known to the human race for thousands of years. But how could this have happened without patents to protect the "discovery" ?
2) At least you admit that there are cases where people have behaved poorly. I think you need to read more international news.
3) Nonsense ? Really. Your response just makes you look like an industry stooge. There have been many studies done in this area, I suggest you go read one.
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Re: Re:
First, at best, you provide more off-base comments than "points".
Aspirin? What is your point about patenting aspirin? You find it hard to believe that you can patent an "isolated form" of a natural product that is found in tree bark? Do you find it hard to believe that some years after the analgesic properties were known that one could patent its use for reducing heart attacks? You obviously know nada about scientific research.
You have no points! You just go blah blah blah evil capitalism blah blah blah i don't have skills that fit into a capitalistic society blah blah blah therefore let's screw it up for others blah blah blah.
Get a clue, and have a nice extended weekend.
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Re: Re: Re:
I said that? - evil capitalism - huh.
Let me review this for a sec ......
Ummm, I do not see where I made any such statement.
Please elucidate.
You think there is no point because you refuse to recognise it.
I do not have any skills ... please, lets try and be grownups here - ok? And just what am I screwing up?
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I say yea
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The fact is
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Re: The fact is
Are you serious? This statement is laughable at best.
Although it is in dispute, the U.S. Patent Commissioner in 1899 was supposed to have said something similar.
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Re: The fact is
Big Business and the MONEYMONGERS, have you just where they want you (as a puppet) by saying things like that.
You and your string pulling masters, are dead wrong !!!!!!
Even on the last day of earths death throws, there will still be a need for inventions and innovations. So despite what you and they think, WE WILL STILL continue to try and make things better through invention and innovation.
Case in point, the wheel was made better wasn't it?
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Re: The fact is
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Acetylsalicilic acid
The physiological benefits of acetylsalicylic acid have been known to the human race for thousands of years?
Erm, no. Not at all, really. The physiological benefits of a certain tree bark were known. It took a chemist's hard work to isolate salicylic acid from that tree bark, and identify its role. Trouble was, salicylic acid is quite hard on your stomach. So it took several chemists' hard work to develop an alternative (acetylsalicylic acid) that was more tolerable to human stomachs.
You know, it is perhaps a good thing to inform yourself before posting ignorant nonsense.
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Re: Acetylsalicilic acid
Ok, I agree - it is ignorant nonsense to over simplify.
I have been debunked.
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Here's the deal. You first raised the issue of not "having the cash" regarding my post to patents and pharma. Also, you make very little sense and you trash a fantastic aspect of our country that facilitates amazing innovation. You take certain instances where there are problems and paint a broader distorted picture of what the reality is. Instead of discussing solutions to certain problems within the big picture, you imply that patents are effectively a tool for improper operation by pharma. Therefore, one can only assume that you are a capitalism-be-damned sort of person. Maybe if you could detail a position a little better about the issue of patents I wouldn't have to assume so much.
And the reality is that hard working people in the pharma industry have produced monoclonal antibodies for fighting cancer, numbers of HIV therapies, vaccines, etc...that provide a quality of life experienced only by this generation. None of these treatments would have actually been delivered to the public if patent protection was not there. But then again, maybe you think that monoclonal antibodies specific for cancer antigens have been known for thousands of years too. Oh, but just to let you know, these antibodies don't come from tree bark or even occur naturally.
Have a nice day and get a healthy dose of vitamin C.
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Re:
What flavor is that Koolaid ?
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Acetylsalicylic acid
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Re: Acetylsalicylic acid
Your feable attempt has obvious flaws.
Reference to the layman term (acetylsalicylic acid) rather than a genus of plant is not even similar to that which you refer.
It is sad that you think this has caused you damage.
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Re: Re: Acetylsalicylic acid
Let me explain this a bit more in detail for you: the medicinal properties of the bark of the willow tree were indeed known for centuries. By the nineteen century, one chemical compound within it, salicylic acid (not a "layman's term", but a chemical term) was identified as responsible for many of these properties.
However, salicylic acid is very hard on people's stomachs, so quite a few chemists started researching what to do to this salicylic acid to make it more tolerable. Several chemists seem to have thought at more or less the same time to acetylate this salicylic acid, obtaining thus acetylsalicylic acid. Bayer company researchers found out that this *new compound* retained the medicinal properties of salicylic acid, while being more tolerable to human stomachs. They filed for and obtained patents worldwide for this use of acetylsalicylic acid. It must be noted, however, that the patents were disputed, and most of them invalidated, as there was some dispute as to who had first described the medical advantages of acetylated salicylic acid...
In short, this whole saga involved, beyond the willow tree bark, at least one discovery (salicylic acid) and one invention (acetylsalicylic acid). Hardly "trivial", thus.
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Re: Re: Re: Acetylsalicylic acid
Your wikipedia abilities are outstanding!!!
You get a gold star for the day !
How in the world was this bark discovered without the benefit of patents? Certainly it must be a fluke.
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