Why Hardware Patent Trolls May Be The Next Big Problem
from the they're-coming... dept
There's been plenty of talk about software patents, and tons of discussions from people suggesting that perhaps the "solution" to problems with the patent system are to simply carve out software (and business method) patents, and make those unpatentable. There are plenty of reasonable arguments for why "software" should not be patentable (I tend to find the arguments that you can't patent math, and that software is really math, the most compelling). However, I'd like to argue that while software patents are a large part of the problem, focusing solely on carving out software patents does not address the real problems of the patent system -- and, in fact, could serve to paper over the real problem by solving for a "symptom" (i.e., an awful lot of "software" patent trolling cases).I do think that the problems with patents may appear to be more pronounced with software, in part because today's software patents really are broadly claiming functions, when they're supposed to be claiming specific methods. Also, given the fact that most people in the software world didn't even believe you could really patent software (until the State Street case), it meant you had very few "software" patents on the books for common things. This allowed people to get patents on things and claim, incorrectly, that there was no prior art, even if these things had been done for years. Add all of this together and you have the perfect recipe for a lot of trolling.
However, there are reasons to be worried that patent trolling is likely to increase on the hardware side as well. And, if we're serious about fixing the patent system, focusing solely on software patents is a dangerous path. It's a way to fight the symptoms, not the disease -- and, in doing so, it would allow policymakers to claim that they had fixed the problem, leaving significant problems in the underlying system in place.
We recently noted that economics Nobel Prize winner, Eric Maskin, told the NY Times that in industries that have "highly sequential innovation," that it "may be better for society to scrap patents altogether." And that applies increasingly to hardware inventions as well. While, traditionally, hardware inventions involved significantly more R&D and capital expenditure to make them possible, that's less and less the case today. Hardware production is becoming increasingly lean as well. There are a growing number of fabrication facilities that will help you make pretty much whatever you want, and prices are getting more reasonable while speed and quality are improving. Combine that with the rise of 3D printing and many (though certainly not all) types of hardware projects can become "lean" like a typical software company's projects.
Add to that one other key component: the rise of crowdfunding. One thing that we've noticed about patent trolling in the software field is that the lawsuits seems to come right after your company gets a lot of attention. And... there's been an influx of high profile "hardware startups" that have made their debut via things like Kickstarter. Many of the most successful crowdfunding projects have come from design/hardware firms -- opening them up to accusations by trolls. And, just like software startups who ignore trying to patent their own work, these design/hardware firms often do the same.
In a recent interview on Jerry Brito's Surprisingly Free podcast, Dan Provost, the guy behind two very successful design/hardware Kickstarter campaigns, talks about why his "accidental" startup didn't bother to file for patents, noting that it was just too expensive and the benefit of a patent on their products was minimal. At the same time, however, he did admit that they had already seen copycats of their two key products (the Glif iPhone mounting system and the Cosmonaut tablet stylus -- which I have and use all the time), but that it hadn't really impacted their business. I'd actually argue that Provost downplays some of the reasoning here. People who bought into Studio Neat's successful Kickstarter projects didn't just do so because they wanted to get the products in question (though that is a part of it), but also because they wanted to support Dan and his partner, Tom Gerhardt, in coming up with more awesome design products. When you see a copycat to a product you support via crowdfunding, people seem to rally around the original, rather than rush to the copycat.
It seems like basic social mores support the originator, rather than the pure copycat.
But that won't stop patent trolls from entering the space, and looking for "weapons" that they can use to effectively set up a patent tax on hardware innovations as well. Especially as we see more of these kinds of lean hardware startups, it seems inevitable that patent trolls will increasingly enter the space with broad patents designed to let lawyers cash in on the success of true innovators. So instead of just papering over the problems by carving out "software patents," how about we look closely at the real problems with the patent system and look to come up with real solutions that apply across the board. That means things like an independent invention defense, a better system for determining obviousness, actually getting input from those skilled in the art and (finally) stop all patent appeals cases from going through a single court that is subject to judicial capture by the patent bar.
Otherwise, we're just going to have to go back in a few years and deal with another bunch of patent trolling problems in hardware as well.
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Filed Under: 3d printing, crowdfunding, hardware patents, patent trolls, patents, software patents
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The entire system is broken beyond repair, and we really shouldn't have the State interfering anyway.
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Another take
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Peer review
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It's sort of the Dunning-Kruger effect of the patent system: in order to recognise that a patent is truly valid and worth granting, you have to be in a position to be affected by the monopoly you are handing out.
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Re: Peer review
It's not working.
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But who will fund the fight?
Most big companies, by the time they have the money to pay for expensive lobbyists, are more concerned with issues that protect their turf than to make patent reform their primary cause.
Organizations that represent the interests of companies and individuals having to deal with trolls could mount a campaign. But again, it becomes a matter of having these organizations deciding this is one of the areas that they will focus on.
I think what is more likely to happen before the laws get changed is for courts to not to bother to hear or prosecute patent violations.
I just watched this yesterday and it talks about how states have been ignoring federal marijuana laws. It's still illegal to sell marijuana, but prosecutors aren't bothering to go after clinics and their customers.
Medical Marijuana: Will Colorado's "green rush" last? - 60 Minutes - CBS News
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Re: But who will fund the fight?... to Suzanne Lainson, #5
http://en.wikipedia.org/wiki/Leahy-Smith_America_Invents_Act
The most effective immediate measure is for big companies to file large numbers of Requests for Reexamination, thousands of them, within existing law, against patents which they think might affect them. The lawyers do the work of locating prior art, and working out chains of inference for immediate obviousness, and all the patent examiners have to do is to look at the instances cited. Not surprisingly, the outcome is different from that in initial examination, where potential defendants are not represented.
As I've said previously, I have some difficulty seeing how patents on physical objects made by 3-D printers would be a real problem. You can make plastic figurines easily enough-- if you like to collect plastic figurines-- but objects for actual use tend to have important properties at the molecular level.
http://www.techdirt.com/articles/20121012/01535020687/just-as-key-3d-printing-patents-get- closer-to-expiring-intellectual-ventures-patents-3d-printing-drm.shtml#c336
People talk casually about making their own automobiles-- as if steel was just another kind of plastic. It is very unlikely that one could produce a street-legal home-brew automobile from raw materials for less than $500,000, or the equivalent in skilled labor.
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That's a narrow niche: wait until China copies 'em.
In response, many Pen Type-A supporters quickly came out in support of CW&T and against Torr Pens. Fab.com pulled down their sale, and other sites started to pick up on the story. I don't know if CW&T have any legal recourse, or if they should even bother, but they realized that just by talking about the situation with the large group of fans they had connected with, they could have an effective response."
Well, that's a MORAL response, not a legalistic one. All hail out_of_the_blue for harping on morality despite rabid opposition to it from regulars on Techdirt.
But less seriously, how do -- well, first, patenting a pen design is NOT what the system is for -- but for a pen, how do you prevent knock-offs from China? -- You can't without complexities that I agree are entirely bad. That again isn't what the patent system is for: no reason why a physical (fashion) gadget can't be copied. [Inner question: Wait a sec. Have I reversed myself? ... No, always been against "fashion", and that's all this "design" is, not any fundamental mechanism, just a case.]
Anyhoo... Holy cow! At last Mike is focusing on morality! And that those who didn't create it don't have a right to use it!-- NOW, if you could just replace "pen" with "movie data", you're ALMOST round to my position!
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Re: That's a narrow niche: wait until China copies 'em.
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Re: That's a narrow niche: wait until China copies 'em.
You seem to be courting controversy, Trying to claim that you have worked techdirt around to your POV, despite that fact that this article is nothing but applying the current legal/moral stance around patents to potential future problems.
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Re: That's a narrow niche: wait until China copies 'em.
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Rounded edges patents anyone?
Just because Apple actually builds products doesn't mean they haven't become a patent troll.
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US: Apple can patent rounded edges and rectangular display, because only Steve Jobs could ever think of such amazingly original concepts.
Rest of World: Apple are taking the p***. Get tae f***.
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Especially as software is increasingly used in the design and fabrication of hardware.
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Micronations?
Getting to the point. Auto-fed CNC machines, pulling instructions from the 'Net and replicating tech patented everywhere but where it's ignored, with enough public hype to make it matter to those whose careers still live and die by votes that they won't dare martyr people for making tools. Then selling things priced at their marginal production cost. Then let seven billion brains freely figure out how to make things more efficiently, that should work slightly better than a rigged market that spends all its resources to figure out how to screw the other parts of itself.
Then we'll buy ALL OF THE MONEY in Bitcoins. Yeah, that'll happen.
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