What Do Pot And Software Have In Common? Stupid Patent Thickets Based On A Lack Of Patented Prior Art

from the stupid-patent-rules dept

Thu, Dec 6th 2018 12:04pm — Mike Masnick

Recently Reuters had a fascinating article all about the new patent thicket in pot that is appearing, thanks to legalization efforts in the US and around the globe.

With marijuana now fully legal in Canada and at least partially legalized in the majority of U.S. states, companies are rushing to patent new formulations of the age-old botanical. This year, the U.S. Patent and Trademark Office has issued 39 patents containing the words cannabis or marijuana in their summaries, up from 29 in 2017 and 14 in 2016.

And, of course, with patents come the inevitable lawsuits:

The first U.S. case is now winding its way through the courts. In a July lawsuit, Colorado-based United Cannabis Corp accused Pure Hemp Collective Inc of infringing its patent covering a liquid formulation with a high concentration of CBD, a non-psychoactive cannabis ingredient touted for its health benefits.

One of the key issues in this case and others, experts say, is whether the patent is overly broad or obvious in light of “prior art,” the existing level of science or technology against which an invention’s novelty can be judged.

Basically, there hasn't been that much official prior art because pot was considered illegal for so many years, and no one was rushing to patent anything. And, of course, patent examiners are somewhat limited in what they're set up to research regarding prior art, and they often rely on earlier patents and scientific articles as the basis for prior art searches. And, with pot, there aren't so many of those.

Of course, this is actually quite reminiscent of the mess that came with software patents. For a long time, most people didn't consider most software to be patentable (this is not entirely accurate, as there are software patents going back many decades, but many people considered it limited to a few special cases of software). However, in 1998, we got the State St. Bank case, in which the Court of Appeals for the Federal Circuit basically threw open the doors on patenting almost any software. And those doors remained completely wide open until the Alice v. CLS Bank decision in 2014 (which hasn't totally cleaned up the mess of the State Street ruling, but has certainly helped dial back the insanity).

But, for nearly two decades after the State Street ruling, the US Patent Office was patenting software willy nilly -- often despite much of it having tons of prior art or being completely obvious. A big part of the problem was that examiners, again, focused on mainly looking at earlier patents and scientific journals for evidence of prior art. But because so many people didn't think that most software was patentable, there were very few patents to look at, and it's pretty rare for anyone to write up the details of software in scientific journals (they just make the damn software).

That resulted in tons of broad software patents that covered things that had been done for decades or that were entirely obvious. And thus, we had huge patent thickets and massive patent fights that cost billions of dollars, caused innovative companies to go out of business, and generally were a massive tax on innovation, where almost all of the proceeds went into a few patent lawyers' pockets. To this day it is a huge black mark on how the patent system works, and how it actually did significantly more to harm innovation than to help it.

I'm reminded of this mess in reading about the situation with patents around pot. While the situations are not entirely the same -- the reasons for a lack of earlier patents are quite different -- the overall impact is similar. The lack of earlier patents is creating an open field where things that have been done for years, or that are considered obvious, are still getting through the patent office with a stamp of approval. And it's only going to create a pretty big mess with lawsuits. You would have hoped that the USPTO would have caught on by now, but apparently not.

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Filed Under: patents, pot, prior art, software

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Mason Wheeler (profile), 6 Dec 2018 @ 10:49am

What Do Pot And Software Have In Common?

They both call their customers "users."
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Anonymous Coward, 6 Dec 2018 @ 12:46pm

What an innovative way to solve the drug problem: legalize it, then sue the users/victims for patent infringement.

As a bonus, this heaps karma on pushers and (one way or another) solves the superfluity-of-lawyers social problem.

I can imagine the notices now, with a carefully-calculated monetary shakedown sum, amounting to just less than the going price for a drive-by lawyer shooting.
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the biggest dope dealer, 6 Dec 2018 @ 12:52pm

I PROTEST and CLAIM PRIOR ART
puff puff , i got proof ....i say i created it all the 1st weed plants and strains to do it all man...puff pufff
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NeghVar (profile), 6 Dec 2018 @ 12:55pm

I bet most of all this patented information has been known for decades but no one went to patent it because that could potentially become self-incrimination.
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Anonymous Coward, 6 Dec 2018 @ 4:19pm

Patent lawyers now cost “billions”?
“And thus, we had huge patent thickets and massive patent fights that cost billions of dollars...”

Really? Billions? Exaggerate much?

I have one of the best patent attorneys on the planet, and he charges me only $20 per minute. A billion dollars would take him 100 years to burn, even if he charged me for 24 hours a day seven days a week.

The truth is that sites like this are PAID to denounce the patent system on behalf of huge corporations. Huge corporations that have large economic risks because legitimate inventors are empowered by the patent system, and they don’t like it. So, instead of competing with better ideas, they PAY to denounce the system itself and the inventors who benefit from it.

Corporatists, in other words, are doing their best to grind their heels into American Inventors and to crush the most talented and innovative among us to preserve their profits and break the law.

Yes, I know the inevitable backlash will now appear to defend the ridiculous exaggerations and unwarranted attacks, all of you mouthing the same talking points as a large synchronized mob of anti-patent trolls. No one will dare to consider the benefits the patent system has brought to the world for hundreds of years.

Have at it.

The truth remains.
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Anonymous Coward, 6 Dec 2018 @ 4:24pm

>A billion dollars would take him 100 years to burn.

So ... a mere 100 of these lawyers could burn a billion dollars each year. How many patent lawyers are there?
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Anonymous Coward, 6 Dec 2018 @ 4:45pm

Re:
You seem like a bright fellow - here’s a simple question: How much value do you think the US patent system has brought to the world? Do you use Zippers? Paperclips? Ever heard of Velcro? Google much? Eat sliced bread?
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Anonymous Coward, 6 Dec 2018 @ 5:02pm

Re: Re:
Wow, that would be something, wouldn’t it? Being known as the inventor of sliced bread. I can only imagine how proud the inventor was.
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Mike Masnick (profile), 6 Dec 2018 @ 5:55pm

Re: Patent lawyers now cost “billions”?
I have one of the best patent attorneys on the planet, and he charges me only $20 per minute. A billion dollars would take him 100 years to burn, even if he charged me for 24 hours a day seven days a week.

I'm talking about adding up all the deadweight loss from bogus patent fights, and its easily billions of dollars.

The truth is that sites like this are PAID to denounce the patent system on behalf of huge corporations.

This is laughably false. If it's true, then someone has misplaced my check. We've never been paid for any such thing and the fact that the best you can come up with is a flat out lie suggests how ignorant you are.
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Anonymous Coward, 6 Dec 2018 @ 5:56pm

I'm a programmer. In my own field of expertise, software patents have created no value for anyone who develops or uses software. There has not ever been anyone who learned anything about how to create any kind of software from any patent.

My own industry has, however, many different ways of promoting the art of programming--CACM goes back to the earliest days; today, Open Source is probably the best way of disseminating the useful arts. It's used by everything from single-coder projects to projects involving thousands of programmers and tens of millions of lines of code.

Again, we can promote the progress of our useful art without the patent office, and the patent office is utterly incapable of assisting us in any way.

Software patent litigation has caused enormous direct expenses and loss of opportunities--harming developers and users alike. So the patent "system" is (in my experience) a completely-unmitigated evil.

I'm not an expert on the history of technology, but most of the significant inventions I do know something about, the inventors either (1) did not patent, or (2) ruined themselves suing potential customers or arguing about the priority of independent development, or (3) ruined the industry in the whole country by suppressing other people's development.

The simple example of (1) might be the Franklin stove, which wasn't patented because Ben thought it would be better for society if he didn't ( http://www.ushistory.org/franklin/science/stove.htm ) (2) might be Eli Whitney's cotton gin--Eli died broke trying futilely to get much more money than the market would bear; (3) might be the airplane, which was invented in the U.S., but the Wrights so suppressed the U.S. market with their patents that the U.S. had to use French airplanes in World War I.

Important electronic inventions, like radio transmission, microphones, and teletype machines were entangled in all sorts of patent disputes which did nothing to promote their art, science, or use--let alone, of course, the actual design or production of them. Other inventions (floppy disk drives) benefited greatly in the early days because patents either weren't being taken out or enforced.

I don't know whether this is a universal pattern: I'm not an expert on the history of technology at large. I just find it curious that there's hand-waving and claims of "great value", none of that value is actually produced anywhere that I've seen any actual historical records.

Google's value is not that it is patented. Google's value is that people are always making it better--hundreds of changes to the search algorithm every day, last time I read. Other search engines--not making those minute-by-minute changes, were overwhelmed by spam. Google's value is that they produce something well, and efficiently. You could use all Google's patents to build your own competing search engine, and Google probably would think it wasn't worth suing you out of existence because the cost of litigation and the value to you of the publicity would cause more harm to Google than your pathetic failure of a search engine would cause. One begins to suspect another situation (4), described by the poet Kipling a century ago: "They copied all they could follow/but they couldn't copy my mind/so I left them sweating and stealing/a year and a half behind."

I manage to button my shirt and tie my shoes nicely, thanks for caring. However, I suspect that both velcro and zippers fit into case (4): what matters is not the "idea" but the "engineering execution". I don't care who had the idea: it matters who can do it quickly, well, and cheaply. If you can't do, then you'll exit stage left, broke, pursued by angry customers. If you can do, then it doesn't matter who else is trying to do.

I might mention Vice-grip pliers, which was a genuinely useful invention: and even as a Vice-grip user I remember how happy I was when THAT patent expired, and much-improved designs appeared from other tool companies. This counts, I suppose, as case (3).

I'm extremely dubious about the economic value of "sliced bread". I can still find unsliced bread in my grocery store, and it's generally more expensive that the sliced stuff. Does that mean slicing bread actually destroys its value?
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Anonymous Coward, 6 Dec 2018 @ 6:15pm

Re:
I like you, you are expressive, more than most of the others in this liberal lair.

How about Interval Windshield Wipers? That single invention has saved hundreds of millions of people the aggravation of turning their wipers on and off, and and off, in a light rain.

The point about “sliced bread” was meant to be a touch ironic. There is such an invention, a “Bread Slicing Machine”, innovative in it’s day, but that was not really my point.

Actually innovation is really valuable. Tilting the playing field in favor of actual innovators is good for society as a whole. Who would want to go back to the world prior to the invention of the toaster?

The question is not who can build it the cheapest or who can market it the best. The answer to both is that the big corporations, with access to large capital resources, can do both effectively. What they can’t do, and won’t do, is innovate. They have no reason to. They would all rather “sell what we got” than upset their own apple cart.

Even MM would agree with that.

Why would people spend years and years of research and development if anyone else could just immediately copy the fruit of their labors?

I believe if you thought this through a little, you might see the wisdom behind the US patent system. There is a lot of history to consider.
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Gary (profile), 6 Dec 2018 @ 7:33pm

Re:
That *is* what the article says.
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Gary (profile), 6 Dec 2018 @ 7:38pm

Re: Re:
You do know that the Interval Windshield Wipers were stolen from the inventor and patented by an automotive company that fought him in court until he died?
The only effect that patent did was to stifle competition. Seriously, that is about as good as your sliced bread example.

https://en.wikipedia.org/wiki/Robert_Kearns

Patents are just a drag on innovation, used as a club against competitors.
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Anonymous Anonymous Coward (profile), 6 Dec 2018 @ 7:48pm

Re: Re:
The things that are wrong with the US patent system are the way patents get approved (due in part to the limited ability of patent examiners to research outside of the patent system or published papers) and the ability to patent things that should not be patentable, if for no other reason that they are already covered by copyright. There are probably others.

Ideas are not patentable, products are. There are a whole lot of ideas that have patents, but no products to go along with them. There is also the problem with how one goes about voiding bad patents. The time and expense when one has good evidence is horrendous. Things should be favorable to good patents, not all patents.

There are naturally occurring flora that have been patented by those that want control of such things simply because no one else applied for such a patent, and they have gotten away with splicing two plants together to make a new plant and claimed patentablility. Does patenting naturally occurring things seem right to you?

Innovation is valuable, but it is not an isolated thing. First the innovation must take place, then a way to use that innovation, then some product development, and then some marketing. None of those things by themselves create value. All of them together create value. And, as history shows, some do some of those things well, and others not so much.

An idea conceived by disparate parties both follow the same path. Who wins? The organization that does all of those things better, inclusively. One organization might doe one or two of those things better, but not all of them. The other organization might do the other things better and win. So who should get the patent? Our system is first to file, but the first to file might not be the one that has the first product. Such a quagmire.

So it isn’t just innovation that is valuable, it is the ability to bring a product to market, and then to listen to the marketplace and make adjustments as necessary. Then, one must differentiate their product from followon’s, which will happen, and not necessarily violate the precious patent. How does one differentiate? By telling the market how they are different and better. Oh, and more importantly, by being so.

So, now we consider followon’s that don’t violate the patent. What makes that patent so valuable?
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Anonymous Coward, 6 Dec 2018 @ 8:03pm

Re: Re: Re:
Just try to work through the business logistics of entering a market with a new idea that competes with existing big corporations. Who will invest if their new ideas are unprotected? The efficiency of the system argument smacks of a socialist precept. No toaster or interval windshield wipers without the patent system. Efficiency does not trump Edison and his light bulb.
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Anonymous Coward, 6 Dec 2018 @ 8:19pm

Re: Re: Re:
So you are pointing out that big corporations are evil doers and that they often win. Yes, I would agree with that. Even the poor inventor you mentioned, who lost everything in the face of corporate evil, serves as an example of how corporate amorality is the rule and not the exception. Patents are here to protect inventors and encourage them to invent. (And as I remember, even that poor fellow won a few of his suits).
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Anonymous Coward, 6 Dec 2018 @ 9:00pm

Re: Patent lawyers now cost “billions”?
Jesus. You bitches just can’t stop lying about this website. It’s almost pathological. Or do you really expect us the believe one random jaghole can afford “one of the best patent attorneys in the planet”?

Put up or shut up partner.

In case you are as dumb as I think you are that means; let’s see an invoice or shut the fuck up.
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mhajicek (profile), 6 Dec 2018 @ 9:32pm

Re: Re:
And I'm sure no one would ever have invented anything if they couldn't patent it.
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Mike Masnick (profile), 6 Dec 2018 @ 10:27pm

Re:
I manage to button my shirt and tie my shoes nicely, thanks for caring. However, I suspect that both velcro and zippers fit into case (4): what matters is not the "idea" but the "engineering execution". I don't care who had the idea: it matters who can do it quickly, well, and cheaply. If you can't do, then you'll exit stage left, broke, pursued by angry customers. If you can do, then it doesn't matter who else is trying to do.

By the way, an excellent book is Robert Friedel's "Zipper," which is literally the history of the development of the zipper. There were lots of patents taken out in the early days, but as the book makes clear, it's just as you said. The patents were not what mattered. It was entirely about execution. (The book is a fun read).
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Anonymous Coward, 6 Dec 2018 @ 11:54pm

Re: Re:
Personally, I liked “The Evolution of Useful Things” and “To Engineer is Human” by Henry Petrovski. Enjoyable with a lot of historical context.
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Anonymous Coward, 6 Dec 2018 @ 11:55pm

Re: Re: Re:
I think there is a case to be made that many would have invested much less in inventions if there was no legal protection against copying the results of their R&D.
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Anonymous Coward, 7 Dec 2018 @ 4:53am

Re:
This is totally and utterly brilliant.
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Michael, 7 Dec 2018 @ 5:32am

Re: Re: Re: Re:
The is the only case to be made as the patent system (in the US) was only even allowed to exist to promote science / useful arts.

The problem with the argument (as outlined a lot on this site) is two fold:
1) People invented lots of things before the patent system existed, so there must have been other reasons to invent things (like, you know, needing something that didn't exist).
2) The artificial monopoly created by a patent discourages rapid innovation on the invention by eliminating the need to stay ahead of competition.

I am onboard with rewarding inventors for doing great things and encouraging them to be creative and invent new things. I just do not think our patent system actually does that very well.
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Michael, 7 Dec 2018 @ 5:39am

Re: Re: Re: Re:
"Patents are here to protect inventors and encourage them to invent. (And as I remember, even that poor fellow won a few of his suits)."

Wait, what?! So because the inventor of intermittent windshield wipers, who had to fight a corporation that patented his invention won some of his lawsuits, patents protect inventors?

The most important part of that story (which did not end well for the inventor) was that because of patents, he spent his time litigating instead of inventing something else. In his time he was brilliant. He might have been the guy that got me my flying car, but instead his time and energy went into paying attorney's fees.
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Anonymous Coward, 7 Dec 2018 @ 6:02am

Re: Re: Re: Re: Re:
It is a rather epic tale, isn't it? I especially liked the part about where he litigated in front of a judge while serving as his own attorney. You can bet the judge didn't like that, lawyers have a kind of club, and representing yourself does not serve any of their club goals.

But he went ahead for years, even after winning a $30M lawsuit, even against (I am sure) the advice of his wife, family and friends. I have to admire that level of passion, though I do not share it. Well, you never know, I'm still relatively young, maybe this kind of passion will spring into life in my 70's. I kind of doubt it, though.

You could also interpret the damage to his life as originating from large corporations, that never really gave him the recognition he wanted, and by all accounts, actually deserved.

What do you think, Techdirt Crowd? Was this guy a patent troll? Was he a villain or a victim? No doubt he was passionate, you have to agree with that.
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Anonymous Coward, 7 Dec 2018 @ 6:06am

Re: Re: Re: Re: Re:
Well, when you say "actually does that very well", I would agree the patent system has flaws. Certainly, that's true. It's too expensive, for one thing. If we want to help legitimate inventors own their own inventions, it should be a LOT cheaper to do so. $20 a minute for a patent attorney, are you kidding me? For $20 a minute, my patent attorney isn't even personally likeable, but I pay his fee anyway. That's just crazy.
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Wendy Cockcroft, 7 Dec 2018 @ 6:09am

Re: Re: Re: Re: Re: Re:
"This guy" was the victim of patent trolls. Did the patent system protect him? No, it screwed him, QED.
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Anonymous Coward, 7 Dec 2018 @ 6:59am

Re:
The Drug Problem - which one?

The wealthy have been winning the drug wars for some time now, they keep saying it is bad out there because that is how they line their pockets with your dollars.
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Anonymous Coward, 7 Dec 2018 @ 7:03am

Re: Patent lawyers now cost “billions”?
"A billion dollars would take him 100 years to burn"

And this proves what?
If you have 100 lawyers it would only take one year - so what?

You seem very confused, is it intentional?
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Anonymous Coward, 7 Dec 2018 @ 7:05am

Re: Re: Re: Re:
"I think there is a case to be made that many would have invested much less in inventions if there was no legal protection against copying the results of their R&D."

And what does this "investment" do for society in general .. is it good or is it bad?
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Anonymous Coward, 7 Dec 2018 @ 7:07am

Re: Re: Re: Re: Re: Re:
Your argument is weak to the point of silliness.
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Anonymous Anonymous Coward (profile), 7 Dec 2018 @ 7:11am

Re: Re: Re: Re:
I am not arguing against patents, but the system we have devised for their implementation, and the value placed in the protection a patent provides rather than efforts to compete. Many companies like to bask in the protection of the patent and fight via lawyers rather than the marketplace. Once a product is created, doesn't mean that one should stop development, not listen to the marketplace, not pay attention to what competitors are doing, and look for new and different ways to differentiate proving how they are different and better.

First to market only lasts a short time. Better quality, new actually useful features (that consumers want and you know about because you listen to them), better customer service, etc. are better ways to earn a place in the market. But these things are viewed as harmful to short term profits, which is yet another issue that needs addressing. Could we show that buy and hold has better prospects than churning stock for micro profits? Possibly not, at least in individual cases, but if we look at the market as a whole?
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Anonymous Coward, 7 Dec 2018 @ 7:34am

Re: Re: Re: Re: Re:
Well, take the light bulb - is society better or worse off with those results of R&D? Without patent protection, maybe Edison would have never made the investment to identify the components of long lived electric lighting.
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ShadowNinja (profile), 7 Dec 2018 @ 7:39am

... Isn't it illegal to patent illegal things?
... Isn't it illegal to patent illegal things? If so, then NONE of these patents have ANY legal standing in the first place.

Despite what you may think, Marijuana is STILL illegal in ALL of the US because it's illegal at the Federal level, and Federal law trumps State law when the conflict. There's NOTHING stopping from the feds from prosecuting you for using/possessing marijuana in any of the states where it's 'legal'.

Hence all these patents on marijuana related things are patents on illegal goods, so they really shouldn't have any legal protections if you can't patent illegal things.
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Anonymous Coward, 7 Dec 2018 @ 12:12pm

Re: ... Isn't it illegal to patent illegal things?
... Isn't it illegal to patent illegal things?

Nope, there is no exception in patent law for illegal products. Particularly as almost no product is universally illegal. Marijuana is perfectly legal for many types of research uses, for example.

Now, filing a patent for an illegal product may be useful evidence if the government wants to charge you with crimes related to said illegal product, but the patent itself remains perfectly valid.
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Anonymous Coward, 7 Dec 2018 @ 12:19pm

The patent example you used "patent covering a liquid formulation with a high concentration of CBD, a non-psychoactive cannabis ingredient touted for its health benefits."

Sooo is it a formulation trade secret thing here? Or do the inventers of turning a coffee bean into a liquid or the genius that infused garlic in olive oil have a case here?
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Anonymous Coward, 8 Dec 2018 @ 11:43am

Obviousness...
Pretty much everything being done with Cannabis is simply using techniques that already exist for working with other compounds (consider essential oil extraction as well as basic pharma tech), so this feels like folks are simply adding 'with cannabis' to existing processes... so to me none of this is new and it's just a bunch of folks trying to get rich via patent trolling.

In case you need a refresher:
One of the main requirements of patentability in the U.S. is that the invention being patented is not obvious, meaning that a "person having ordinary skill in the art" (PHOSITA) would not know how to solve the problem at which the invention is directed by using exactly the same mechanism.
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Anonymous Coward, 9 Dec 2018 @ 5:36am

Re: Patent lawyers now cost “billions”?
And a judge decided that the truth is whoever invented email could not be defined. Whoops!
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Ralph, 10 Dec 2018 @ 5:32am

Re: Re: Re:Kearns
You have your "facts" wrong, Bob Kearns, the inventor, was copied by Ford and the other 7 car companies, who refused to license the intermittent windshield wiper until they were sued. This was not an example of a drag on the economy, but rather an example of taking from the inventor, forcing that inventor to have little choice but to sue.
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TerrenseJ, 11 Aug 2019 @ 6:56am

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DavidD, 4 Dec 2019 @ 3:43pm

Most people use [https://hempworx750.com] (CBD oil) from industrial hemp
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