Mark Cuban Agrees: Independent Invention Is A Sign Of Obviousness; And Should Kill Patents
from the excellent dept
For years, we've talked about the idea of an independent inventor defense for those accused of patent infringement -- which, contrary to the claims of some patent attorneys, is totally feasible -- and that idea has received some traction. However, we've also argued that things should go even further, and that if there is evidence of multiple independent inventions of the same concepts that it is a sign of obviousness, and all such patents should be rejected -- since patents are not allowed on inventions that are considered "obvious" to those who are "skilled in the art." Unfortunately, we've seen less support for that specific idea -- but perhaps that's changing.Mark Cuban recently gave an interview to TechCrunch in which he discusses his rationale for giving EFF $250,000 to create the "Mark Cuban Chair to Eliminate Stupid Patents." When asked about how he would fix the patent system, he names a few popular ideas, like getting rid of software patents, requiring that the invention be put into practice, but he also (repeatedly) talks up how independent invention should be a sign of obviousness. A few snippets:
I would also like to see a "cold room" exception. If you can show you invented the idea using completely independent thought, you don't violate the patent and the patent is invalidated.It's great to see that this idea may finally be getting some traction, as it could have a big impact on fixing many of the most significant problems with today's patent system.
Remember back in the 80s when AMD/Intel and others would clone each other and it was permissible because they came up with the features and functions completely independently? The same should apply to patents. If you didn't copy an idea, you came up with it on your own, then the idea should not have been patented in the first place. If multiple people come up with the same idea independently, that is the definition of obvious.
You should be given the right to your idea if you come up with it independently and any patents in place for that idea should be invalidated.
[...]
Independently derived ideas that are turned into products and can prove they are independently derived (Again, if multiple people come up with the same idea independent of each other, that should be as definite as it is obvious, and obvious cannot be patented), then it can not be patented, and all patents for those ideas are declared invalid.
Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Filed Under: independent invention, mark cuban, obviousness, patents
Reader Comments
Subscribe: RSS
View by: Time | Thread
This idea has been around for a long time. It's cute how excited you get about it.
[ link to this | view in chronology ]
Re:
If this idea was actually applied to software patents, it would mitigate most of the things about software patents that are doing the most damage. It would also immediately invalidate the majority of software patents.
That's exciting.
[ link to this | view in chronology ]
Re:
No kidding, it's been discussed at TD many, many times. Any publicity it can get is a good thing.
"It's cute how excited you get about it."
It's cute that you think your condescending attitude is amusing to anyone other than yourself.
[ link to this | view in chronology ]
Re: Re:
[ link to this | view in chronology ]
Re:
Anyways, the beauty of it is that arguing against this idea is arguing in favour of obvious patents OR if the other side says that it's totally normal for companies to come up with the same idea but they shouldn't be punished for it then there you have an argument at least for an independent invention defense.
Of course lobbying trumps logic everyday, but it's nice to logic dream.
[ link to this | view in chronology ]
I mean, it's possible that, out of 7 billion people, there are 2 geniuses who come up with the same brilliant invention within a couple months of each other.
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re: Re:
Anyway, the weight given to evidence in any case would probably vary.
[ link to this | view in chronology ]
Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re:
No, I think foreign prior art can invalidate a U.S. patent.
I think maybe you overestimate the importance of non-U.S. patent systems in a discussion of how foreign prior art might invalidate a U.S. patent.
[ link to this | view in chronology ]
Re: Re: Re:
The number of geniuses at any given time was never above 0% of the population.
Further, if anybody can handle a bad decision or an unfair decision this would be a genius, which by definition is a person that can solve difficult problems with easy.
Those are not the type of people who need "protection" for their inventions, they can and often prove without any help that they can be in any market no matter what the condition are in that market.
[ link to this | view in chronology ]
Re: Re: Re: Re:
[ link to this | view in chronology ]
Re:
But surely both geniuses should get a share ...
[ link to this | view in chronology ]
Re: Re:
[ link to this | view in chronology ]
Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re: Re:
I don't pay Dodge, Ford, and Chrysler for making good cars after I've already paid for a Buick.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re:
Why would it be stupid not to publish in that scenario?
[ link to this | view in chronology ]
The myth versus the reality.
As a means of improving the state of the art, they're pretty abysmal.
[ link to this | view in chronology ]
Re: The myth versus the reality.
I mean, if you think there is no benefit to the patent system, that doesn't mean you give two people a patent interest.
[ link to this | view in chronology ]
Re:
The other choice is to allow abuse to run rampant which will affect a lot more than just 2 geniuses.
Like people say in sports, they would have to take one for the team.
[ link to this | view in chronology ]
Re: Re:
[ link to this | view in chronology ]
Re: Re: Re:
Geniuses are rare and so will be their problems, they also are smart people capable of solving complex problems thus making the legal system an option not the only means by which they can solve any troubles.
All roads leads to Rome, not all roads are legal roads.
[ link to this | view in chronology ]
Re: Re: Re: Re:
That said, I'm not sure why an inflexible rule (any independent invention is always an immediate obviousness finding) is better at curbing abuses than a flexible rule that can account for the actual facts of a particular situation.
[ link to this | view in chronology ]
Re:
There is no other way to consider it. That is the purpose of the obviousness requirement. It is not to measure whether a moron in a hurry would come up with the same idea, it is to measure if a software engineer would be able to write the same "software" a patent would cover or any other field of expertise..
[ link to this | view in chronology ]
Re: Re:
So if there are only 2 people working on a problem, it's nearly guaranteed they'll both solve the problem the same way!
I think there is, in fact, another way to consider it.
[ link to this | view in chronology ]
Re: Re: Re:
Patents that are so broad as to not actually define a specific solution make matters even worse. Were both people to patent their independent solutions in the broadest language possible, the likelihood of those patents overlapping would be so high to be a certainty.
[ link to this | view in chronology ]
Re: Re: Re:
[ link to this | view in chronology ]
Re: Re:
Solutions are written to meet a requirement, and that requirement is defined by the problem(s). If someone can demonstrate the workflow that posed the problem and the outputs required to identify the problem as solved, then the actual solution itself could be considered obvious.
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re:
I'm not talking about 2 people coming up with the same idea out of a population in the lowly millions, but something like 7 different people within months of each other.
Just because something is new and unique does not make it non-obvious to someone skilled in the art.
[ link to this | view in chronology ]
One problem...
[ link to this | view in chronology ]
Re: One problem...
Now if you want to argue that the fact that an invention can be successfully copied via clean room design should ALSO be an argument for obviousness in that the invention isn't sufficiently complex enough warrant a patent, ok sure but that isn't the same thing as independent invention.
[ link to this | view in chronology ]
Re: Re: One problem...
[ link to this | view in chronology ]
Re: Re: Re: One problem...
[ link to this | view in chronology ]
Re: Re: Re: One problem...
[ link to this | view in chronology ]
What A Coincidence
[ link to this | view in chronology ]
AMD Cloning in the 80s
[ link to this | view in chronology ]
Re: AMD Cloning in the 80s
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re: Re:
People patting web-buttons is like people patenting written language and trying to go after anyone who use it, doesn't matter if you use a pen, a pencil, a typewritter or a computer, if it used written language you are infringing, that is not only silly is dangerous.
How can anyone patent "transactions"?
The patent system was silly, but never this silly.
[ link to this | view in chronology ]
The nature of invention...
That doesn't make them inventors. It makes them engineers.
The fact that they know how to do their own job should not prevent everyone else from doing the same.
The ability to come up with something that genuinely moves the state of the art forward is typically what you expect of PhD candidates rather than mediocre schmucks working out in industry.
You are probably not a precious and unique snowflake, nor I.
[ link to this | view in chronology ]
Re: Re:
- Patent Act (R.S.C., 1985, c. P-4)
[ link to this | view in chronology ]