Planet Money Explores 'How To Fix The Patent Mess'

from the in-case-of-emergency,-call-mark-lemley dept

Thu, Oct 25th 2012 3:12am — Mike Masnick

In something of a follow up to This American Life's famous episode about the horrors of software patents, the Planet Money team brought on Mark Lemley to talk about how to fix the patent system. If you're aware of Lemley (or read Techdirt) what he talks about isn't all that surprising. He does note that, even if software patents are particularly silly, he doesn't agree with trying to carve them out specifically. Instead, he's still mostly focused on fixing the patent system by properly enforcing the laws already on the books. That means having the USPTO and the courts actually recognize that too many software patents are on general ideas ("functional claiming") when that's not allowed.

Next, the courts and the USPTO need to get much better at rejecting patents for obviousness. He doesn't quite get into how to do this, though I'm still a big fan of using independent invention as a sign of obviousness. He does note that the KSR case (which isn't named in the story) helped move the needle just slightly in the right direction. In that case, the court noted that merely combining two existing inventions is obvious. From there, he suggests recognizing how many patents stack up into an existing innovation -- and what that means. So, using the 250,000 patents in a smartphone as an example, he notes that it's ridiculous for any one patent to hold up innovation in such a scenario, pointing to the MercExchange ruling (again, not named) that said the courts shouldn't issue automatic injunctions for infringement. In other words, when you have 250,000 patents in a smartphone, infringing on one shouldn't hold up the entire device.

The last bit, which still needs work, is fixing damages. Again, using the smartphone example, he points out that when you have 250,000 patents, you can't claim that each patent deserves 5% of the revenue. Otherwise, you don't have smartphones anymore. Of course, fixing damages is still a work in progress. Congress tried to do it with the patent reform bill that was debated for about seven years -- and patent system supporters hit back hard on damages reform, such that the real fixes didn't make it into the final bill. The hope is that the courts will take care of it, but that still seems like a crapshoot.

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Filed Under: damages, fixes, functional claiming, injunctions, mark lemley, patents, software patents

24 Comments

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Anonymous Coward, 25 Oct 2012 @ 4:41am

I'm still a big fan of using independent invention as a sign of obviousness

It is a sign of obviousness. It's a secondary consideration of the type identified in Graham v. John Deere, which is cited in KSR v. Teleflex.
Under � 103, the scope and content of the prior art are to be determined; differences between the prior art and the claims at issue are to be ascertained; and the level of ordinary skill in the pertinent art resolved. Against this background, the obviousness or nonobviousness of the subject matter is determined. Such secondary considerations as commercial success, long felt but unsolved needs, failure of others, etc., might be utilized to give light to the circumstances surrounding the origin of the subject matter sought to be patented.
Graham v. John Deere, 383 U.S. 1, 17-18 (1966).

The fact that others have tried and failed is a secondary consideration that points to nonobviousness. The flip side of that is that if others have tried and succeeded, then that points to obviousness. So I think the thing you're saying is already a consideration. It's but one factor out of many to be considered, but it's already a factor nonetheless.
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Bengie, 25 Oct 2012 @ 5:27am

Programming
Get rid of software patents. In the 50+ years of programming history, I am still not aware of anything non-obvious being created.

Programming is purely evolutionary. Lots of little steps from the community at large. The last person to make that one little step should not get to reap all of the benefits.
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The eejit (profile), 25 Oct 2012 @ 5:47am

Re:
I appreciate that, but here's the thing: Why does the law not permit this as an obstacle to overcome BEFORE a suit can be made?
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out_of_the_blue, 25 Oct 2012 @ 6:00am

You can't fix a broken Byzantine system.
Especially not while it's operating. If your car is making a funny noise, you don't lean out the window to listen while at speed on the freeway.*

Any reform must be to radically simplify, not least so that stupid bureaucrats can handle it, and then after the inevitable flaws are found, you MIGHT be able to apply some tweaks, but it'd be better to just leave known flaws in a simple system and let work-arounds develop "naturally".

* Bad analogy, as all are; don't waste time pointing that out.
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Anonymous Coward, 25 Oct 2012 @ 6:18am

Simple, abolish IP. When we have candidates like Romney wanting to expand IP enforcement for the sake of artificially making prices higher (because we can't 'compete' with lower prices), he practically even admits this during the debates that the prices should be higher, given how absurd our current IP system currently is and how overinflated prices are, something is wrong.

Candidates need to know that not campaigning against IP is political suicide and we need to make them know it. You must aggressively campaign against IP in order to get our votes.
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Anonymous Coward, 25 Oct 2012 @ 6:25am

Re:
The fact that others have tried and failed is a secondary consideration that points to nonobviousness.

A failure can often make the solution obvious to an outsider. The person/people failing can be too close to their approach to make the last step to a successful solution. An outsider can often have the broader view required to solve the problem. However their actual contribution may be minor compared with the contribution of the failing effort but successful effort is the one that can gain the patent at the cost of those that did most of the work.
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Anonymous Coward, 25 Oct 2012 @ 6:26am

Re: Re:
I don't see how that's possible. How could you show that the other person's patent was invalid for obviousness unless there were a proceeding of some kind?
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That One Guy (profile), 25 Oct 2012 @ 6:27am

Re: Programming
I would think that simply enforcing the 'no patents for obvious things' bit would take care of that little problem quite nicely, with the bonus of being helpful for all fields where patents are applied for, instead of just one.
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Anonymous Coward, 25 Oct 2012 @ 6:28am

Re: Re:
Good point. I suppose the contributors could claim joint inventorship if they really did the heavy lifting. Surely this issue must come up frequently already.
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out_of_the_blue, 25 Oct 2012 @ 6:44am

The "MP3 player on washing machine" test:
"Next, the courts and the USPTO need to get much better at rejecting patents for obviousness. He doesn't quite get into how to do this, though I'm still a big fan of using independent invention as a sign of obviousness."

First, Mike, your method of "obvious" is easily gamed (and will be): a patent examiner can't verify such, it'd take field investigators, a lengthy judging (court) process, and still be just a guess.

So just require a working physical model.

2nd, my notion is to give patent examiners some authority to summon "inventors" for questioning and to punish them for false claims or even clear stupidity. If we can't quickly draw a line for an "MP3 player on washing machine", and have that idiot "inventor" summarily tossed into jail, and the backing comporation heavily fined if not put out of business, then there's really no hope; the system wil continue to be flooded with complex claims, mostly phony, too complex to sort out. -- The system currently has NO checks on it except for gambling a little money. Needs some degree of quick and brutal enforcement.

You (and the people you write about) are just plain conceited: believe that you know how to tweak the system when in fact you don't. -- It's beyond tweaking. Incrementalism never works: you need a revolution.

"Hopeless" ought to be the final word here on the patent system, but I just know you're going to produce an endless series of pieces similar to this one, doing the same thing over and over again, never even noticing that your "advice" not only isn't taken but wouldn't work.
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Anonymous Coward, 25 Oct 2012 @ 6:48am

When you have 250,000 patents as in the smartphone example, the usefulness of patents has largely been reduced to a numbers game for cross licensing purposes. It also provides a massive barrier to new entrants to the market.
Note if patents could be read and understood by a person at one a day, then it will take approximately 1000 man years in just reading these patents.
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Josh in CharlotteNC (profile), 25 Oct 2012 @ 6:59am

250,000 patents in a smartphone
Again, using the smartphone example, he points out that when you have 250,000 patents, you can't claim that each patent deserves 5% of the revenue.

That brings to mind one way to use the insanity of the patent system against the lawyers who are making it insane.

Any patent which can apply to a product may be included to reduce any damages won in a patent suit. This would water down the power of every patent out there by using all the broad patents against themselves.

Apple wins a $1 billion dollar award from Samsung over a dozen patents? Well, 12/250,000 = 0.000048. * 1 billion = $48,000 awards.
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Bengie, 25 Oct 2012 @ 7:12am

Re: Re: Programming
But software is nothing more than math and facts, which neither are patent-able. Why waste resources even looking at it?
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The eejit (profile), 25 Oct 2012 @ 7:17am

Re: Re: Re:
What my intent is, is to lower the number of bogus lawsuits being used as a tactic to extort people.
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Lonyo, 25 Oct 2012 @ 7:26am

Re: 250,000 patents in a smartphone
Samsung made that argument in their appeal against the case.
They said that the damages had been calculated in a way which makes little sense given the actual value of the patent when it came to purchasing decisions.

Their eventual figure was something like $50 million, although this also included removing damages for patents they considered obvious and therefore invalid, as well as reductions based on the actual contribution the patent made to the purchasing decision.

E.g. they said that 5% (or something) decided to buy a Samsung phone based on the physical design, and therefore damages should be calculated based on 5% of sales, rather than on all sales, since the design patent wasn't relevant to the rest of the sales.

What will happen in regards to that remains to be seen.
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Anonymous Coward, 25 Oct 2012 @ 7:35am

Patents probably inhibit development of new ideas as there is a requirement for secrecy in carrying out development work. Technically prior publication invalidates a patent application. Also patents have been used to block new innovations from reaching the market where the holder of a key patent refuse to license their patent.
Rapid development in any field is best served by the sharing of ideas, successes and failures, and this is discouraged by the patent system.
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Anonymous Coward, 25 Oct 2012 @ 7:54am

Re: Programming
But then what would micro$oft use when Linus starts to eat their lunch on the desktop?
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That One Guy (profile), 25 Oct 2012 @ 7:57am

Re: Re: Re: Programming
Again, you're focusing on it too narrowly. Enforcing the 'no patents for obvious stuff' solves both the software patents problem, as well as similar problems in other fields.

I'm not disagreeing with your point, from everything I've read the idea of software patents is completely ridiculous, it's just if you only focus on the software side of it, instead of focusing on the core problem, you'll at best solve the software side of the problem, while leaving the same problem in other fields intact.

Better by far to go after the core problem, patents being granted when they clearly shouldn't be, and deal with it in one fell swoop, rather than try and do it field by field.
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Joakim, 25 Oct 2012 @ 8:06am

Re: Programming
When thinking historically about Software patents, 3 come to mind that were non-obvious (at the time).

RSA - Patent 4,405,829
GIF - Patent 4,558,302 (actually a LZW patent)
MP3 - Patent 5,812,672

I view those 3 as the only legit software patents.
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Anonymous Coward, 25 Oct 2012 @ 8:19am

Re: Re: Re: Re: Programming
It is VERY heavily dependent on interpretation. What is obvious to some, is not obvious to others and computer-code is pretty complex for the uninvited.

You are completely correct about the one sweep being better, but I reserve my right to scepticism untill someone with influence on it has gone that far in interpreting "obvious".
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Anonymous Coward, 25 Oct 2012 @ 8:30am

Re:
Secrecy would seem to be worse if every invention was a trade secret. In that case some informations would never reach the scientific community.

While I agree that development can be inhibited by prior to publication patenting work, the complete lack of patents would likely be worse in some situations!
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Ed C., 25 Oct 2012 @ 9:11am

Re: Re: Programming
The same as Apple, as Google is already eating their lunch.
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Ed C., 25 Oct 2012 @ 9:52am

Re: The "MP3 player on washing machine" test:
So just require a working physical model.

That used to be a requirement, but it was considered too cumbersome and was ditched. The requirement to actually send a working model to the patent office was cumbersome, and should have been ditched, but the requirement to have a model first was the whole point of the system for defining innovations in the first place. Yes, that obviously has been forgotten.

As for the second point, throwing people in jail for stupid patents is just as stupid. The point of the penal system should never have been to punish others merely for the sake of being annoying. Obviously that has been forgotten as well.

As for your final point, I think Mike as all but given up on revolution in the patent system. The moneyed interest invest heavily to prevent any meaningful reform in congress.

I think the one big step that needs to be taken is to bar venue shopping, which Mike has argued for. That would fix issues even bigger than patents.
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Get off my cyber-lawn! (profile), 26 Oct 2012 @ 1:53pm

Obviousness Rule
It's easy! I'll have my 70 year old father read the applications & if he says "Well Duh!" it's rejected.
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