Myths and patent reform | Opensource.com

Myths and patent reform

Posted 09 Mar 2011 by 

Rob Tiller (Red Hat)
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Yesterday a patent reform bill passed in the Senate, but the sound and fury don't seem to signify much. The legislation as it evolved has shed most of the features that could have been controversial, or could have significantly improved the current patent system. The press around this legislation, and most recently the New York Times, continues to perpetuate ancient myths of innovation.

One of the hardiest myths of the patent system is that it drives innovation by inspiring lonely geniuses laboring in their garages. Like other durable myths, it contains a small grain of truth and a huge dollop of fancy. Few if any significant technology innovations come from isolated individuals. Individual inventors may hope that a patent will produce great riches, but for the most part patents cost the inventor many more dollars than they yield. The percentage of patents that become profitable products is tiny. The myth of the lone inventor is not just wrong, but also pernicious, since it creates a rosy glow around the patent system that makes it difficult to see and address the real problems.

So it's disheartening to see a source as respected as the New York Times perpetuating the myth. In an editorial yesterday, the Times led the cheerleading for the patent reform bill now pending in the Senate. Its primary argument was that patent reform would better protect small inventors. That's almost certainly wrong, since most small inventors will lose under either system. But worse, it ignores, and encourages others to ignore, the real issue. The point of the patent system is to benefit society through innovation. It makes no sense to grant patent monopolies unless we're confident that such grants encourage innovation.

Gradually it's becoming more widely understood that in some situations, including with software, patents hinder innovation, rather than encouraging it. There are now thousands upon thousands of software patents written in vague terms that may be used to threaten innovators who have never seen the patents. For a new software product of any complexity, there's no practical way of searching such patents to rule out with certainty the possibility of an infringement claim. An increasing number of companies, sometimes called Non-Practicing Entities (or, less politely, trolls), are entering the business of exploiting the system by acquiring patents and asserting them against innovative companies. Simply defending a claim of patent infringement may cost several millions of dollars – an expense for a small, innovative company that may be ruinous.

As my colleague Erick Robinson pointed out last week, the reforms in the new bill passed by the Senate don't do much to address the serious problems with the U.S. patent system. The really fundamental problems with the system for software innovation are not being discussed in the current debate. It would be a shame if anyone thought this was real reform and a greater shame if the legislation delayed efforts to achieve meaningful reform.

 

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7 Comments

Unidentified

I find it very interesting that the NYT article touts the biggest advantage of the bill to be the move to a "first-to-file" system, even though it later says that "[o]f the last three million applications filed, only 113 were granted to entities who filed second but proved they had invented first."

Although I agree a first-to-file system would be simpler, I wouldn't call that meaningful patent reform.

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stites
Open Source Champion

Rob Tiller has made several valid points that need to be presented to the U.S. Congress. From my efforts at lobbying Congress I came to the conclusion that to lobby effectively you must either mount mass demonstrations or hire a lobbyist. I think that the open source movement should hire a lobbyist to get our views in front of the House and Senate committees that create patent law. I suggest that the commercial open source companies fund the Free Software Foundation to hire a professional lobbyist.

I also think that it is in the best interest of the proprietary software companies to abolish software patents. Convincing the proprietary software companies to abolish software patents is a harder sell than convincing the open source companies but still its worth a try. Maybe some of them will see the light and contribute to a FSF lobbying effort.

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Steve Stites

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Open Source Champion

From Nice Post: "[o]f the last three million applications filed, only 113 were granted to entities who filed second but proved they had invented first."

Another meaningful statistic, especially for software patents, would be how many patents were granted for inventions which have prior art where the prior inventor has no intention of ever filing for a patent.

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Steve Stites

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Shawn

"An increasing number of companies, sometimes called Non-Practicing Entities (or, less politely, trolls), are entering the business of exploiting the system by acquiring patents and asserting them against innovative companies. "

That's the fault of your judicial system. How can a judge grant damages to a company that is not selling a product? In order for damages to be rewarded, the company must be selling a product that uses the patent or there are no loses, and hence, no damages.

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Unidentified

Many people believe that the current U.S. patent system is outdated and inefficient. This is the reason for the new patent reform bill proposed by congress in 2011. Hopefully, it will eliminate the oudated and inefficient practices that contribute to the current backlog of patent wait time of an estimated average of 3 years.

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Ken in Washington State

Though this is months after the first posting, I will mention something anyway. I happen to be a solo inventor and lived in the Portland Metro Area, where dozens of individual inventors met up in either the Vancouver Inventors group, or the Portland Inventors Group. One of the guests was Lawrence "Buzz" Siler with I believe over four hundred patents to his name. There was even a display of many individual patents at OMSI (Oregon Museum of Science and Industry). Stephen was showing his patent pending idea on storing wasted energy when braking or going up or down hills. The father and son inventors were displaying a new design in wheel chairs (a steel prototype was clocked at 55 mph). I have met dozens more myself outside of these groups. There aren't many known small inventors because few are ever given the right instructions on how to obtain a U.S. Patent.

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Unidentified

Mr Siler owns 14 patents not 400

PAT. NO. Title
1 D546,890 Automated vending kiosk
2 6,405,861 Handgun storage case and method for safe and quick access
3 D426,059 Handgun storage case
4 6,042,001 Deposit retrieval and transport security apparatus
5 5,915,802 Automatic teller machine (ATM) cassette security system
6 5,850,966 Deposit retrieval and transport security apparatus
7 D394,198 Automated teller machine cassette lock
8 D385,673 Security bag for night deposit safe
9 D363,582 Flexible curling dustpan
10 5,408,721 Automatic dustpan member for central vacuum cleaning system
11 D352,963 Retaining clip for writing instruments
12 5,346,311 Sealable open-mouth bag
13 4,827,557 Goggle wiper
14 D297,276 Goggle wiper

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Rob Tiller is vice president and assistant general counsel for Red Hat, where he manages patent, trademark, and copyright matters. He is a frequent speaker and writer on open source legal issues. Before coming to Red Hat, he was a partner with the law firm of Helms, Mulliss & Wicker, PLLC, where he specialized in commercial and IP litigation. He is a graduate of the University of Virginia School of Law, and a former clerk for Justice Antonin Scalia of the U.S. Supreme Court, and Judge

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