Reforming the Patent System Toward a Minimalist System • Hacker News Board

Re: Reforming the Patent System Toward a Minimalist System

#11

Post by rayiner » Mon, Oct 01, 2012, 6:04 AM UTC

jaekwon wrote: post #7

rayiner wrote: post #4

From the blog post: "Although ending the patent system is a clean solution to all the problems induced by modern patenting, it clearly is not desirable given the importance of industries like the pharmaceutical industry. Since this industry spends on average hundreds of millions of dollars bringing to market a successful drug, pharmaceutical companies would not invest such large sums without the protection of patents…

We'd probably have better and cheaper drugs without the patent system. If more companies can make and sell the same drug, more companies can also fund research. Patents should be categorically banned.

Think of this in more precise economic terms. Say it takes $X to develop an invention that produces $Y of social benefit. If the invention is cheaply and easily copyable, people won't invest the $X unless they can recoup at least $X + some profit out of the $Y of social benefit. It's a classic free-rider problem. It's the economic reason why we have government-funded defense instead of private defense.

Re: Reforming the Patent System Toward a Minimalist System

#12

Post by InclinedPlane » Mon, Oct 01, 2012, 6:06 AM UTC

jaekwon wrote: post #7

rayiner wrote: post #4

From the blog post: "Although ending the patent system is a clean solution to all the problems induced by modern patenting, it clearly is not desirable given the importance of industries like the pharmaceutical industry. Since this industry spends on average hundreds of millions of dollars bringing to market a successful drug, pharmaceutical companies would not invest such large sums without the protection of patents…

We'd probably have better and cheaper drugs without the patent system. If more companies can make and sell the same drug, more companies can also fund research. Patents should be categorically banned.

This is borne out of a massive incorrect assessment of the pharmaceutical industry. It takes a tremendous amount of money to bring a drug to market, billions. More if you count all of the drugs that are tried but fail to meet expectations (of efficacy or safety). If you don't allow drug makers a window of time in which to make back their R&D costs through high profit margins then you simply will not see as many new drugs developed.

Re: Reforming the Patent System Toward a Minimalist System

#13

Post by rayiner » Mon, Oct 01, 2012, 6:07 AM UTC

gojomo wrote: post #10

Reform could also take the form of tightening the 'novelty' and 'nonobvious' requirements. For example: • independent invention should be an absolute defense for infringement, and within a certain timeframe, evidence of obviousness as well • allow a review process (perhaps when a patent is challenged) where a jury of skilled practitioners is given the same motivating problem brief and a few days to outline possible s…

I think proof of independent invention should at the very least establish a presumption that the invention is not novel. The probability of a truly novel invention being independently invented within some time frame is small enough that we can assume for the purposes of a civil case that it negates novelty.

Re: Reforming the Patent System Toward a Minimalist System

#14

Post by rayiner » Mon, Oct 01, 2012, 6:09 AM UTC

jaekwon wrote: post #8

eurleif wrote: post #6

Earlier quoted context omitted.

"expensive to innovate and cheap to copy" sounds like eligibility criteria to me.

Any big company can pour any large amount of money to "innovate", which will probably help them bring the product to market sooner, but that isn't justification for a temporary monopoly grant. "Cheap to copy" sounds like something to be embraced.

The issue is that in economic terms, the amount of money required to innovate is absolutely relevant. There is no need for any incentive if the company can recoup that figure before competitors copy the invention.

Re: Reforming the Patent System Toward a Minimalist System

#15

Post by ajb » Mon, Oct 01, 2012, 6:10 AM UTC

Becker and Posner tend to make pairs of posts on the same subject. The OP is from Becker, here is the corresponding post from Posner: http://www.becker-posner-blog.com/2012/09/do-patent-and-copy...

Re: Reforming the Patent System Toward a Minimalist System

#16

Post by gojomo » Mon, Oct 01, 2012, 6:17 AM UTC

rayiner wrote: post #13

gojomo wrote: post #10

Reform could also take the form of tightening the 'novelty' and 'nonobvious' requirements. For example: • independent invention should be an absolute defense for infringement, and within a certain timeframe, evidence of obviousness as well • allow a review process (perhaps when a patent is challenged) where a jury of skilled practitioners is given the same motivating problem brief and a few days to outline possible s…

I think proof of independent invention should at the very least establish a presumption that the invention is not novel. The probability of a truly novel invention being independently invented within some time frame is small enough that we can assume for the purposes of a civil case that it negates novelty.

I think independent invention speaks more to obviousness. Let's say facing a new problem in a new market, five different teams all come up with something unprecedented in the same year or two.

Such an invention was definitely 'novel' to the first group, and was also 'novel' (as far as they knew) to the other four teams. But given the state of industry development, it was also 'obvious', because many of the teams that needed it all came up with it in short order.

There's no "progress of the science and arts" benefit from giving an extra monopolistic reward to a team that's just a little bit early (perhaps even earlier than the invention can be deployed). There might be a social benefit from rewarding inventions that can only happen with the promise of the reward.

Re: Reforming the Patent System Toward a Minimalist System

#17

Post by justincpollard » Mon, Oct 01, 2012, 6:22 AM UTC

True innovation protects itself in most cases, depending upon the ease with which a third party can copy it. In general, the threshold for what constitutes innovation in software is much to low. The certain of Apple's patents in its case against Samsung provide relatively good examples of this. The "bounce-back" feature, while a nice addition to iOS, is not an innovation that warrants patent protection. Nor is the "tap to zoom" patent.

Re: Reforming the Patent System Toward a Minimalist System

#18

Post by sliverstorm » Mon, Oct 01, 2012, 6:23 AM UTC

justincpollard wrote: post #17

True innovation protects itself in most cases, depending upon the ease with which a third party can copy it. In general, the threshold for what constitutes innovation in software is much to low. The certain of Apple's patents in its case against Samsung provide relatively good examples of this. The "bounce-back" feature, while a nice addition to iOS, is not an innovation that warrants patent protection. Nor is the "t…

True innovation protects itself in most cases

I feel like this needs some substantiation before you springboard off into your argument.

Re: Reforming the Patent System Toward a Minimalist System

#19

Post by rayiner » Mon, Oct 01, 2012, 6:43 AM UTC

justincpollard wrote: post #17

True innovation protects itself in most cases, depending upon the ease with which a third party can copy it. In general, the threshold for what constitutes innovation in software is much to low. The certain of Apple's patents in its case against Samsung provide relatively good examples of this. The "bounce-back" feature, while a nice addition to iOS, is not an innovation that warrants patent protection. Nor is the "t…

So there are two kinds of patents we're talking about here. One is a utility patent, the other is a design patent. Most of the patents in Apple's suit against Samsung are design patents. See: http://en.wikipedia.org/wiki/Design_patent#Comparison_to_uti...

The purpose of a design patent isn't to protect a novel invention that took tons of R&D to develop. Rather it straddles the gap between patent law and trademark law. The purpose is to protect the functional aesthetic of a product.

They are two very different things. A a feature protected by a design patent is supposed to have no functional utility. If e.g. research showed that the "bounce back" feature had the optimal visual feedback in clinical testing, that would actually go to invalidating the patent. The reason they are protected is precisely because they are so arbitrary. There is no need to use something like the "bounce back" feature other than to copy your competitor.

Re: Reforming the Patent System Toward a Minimalist System

#20

Post by tzs » Mon, Oct 01, 2012, 8:05 AM UTC

gojomo wrote: post #16

rayiner wrote: post #13

Earlier quoted context omitted.

I think proof of independent invention should at the very least establish a presumption that the invention is not novel. The probability of a truly novel invention being independently invented within some time frame is small enough that we can assume for the purposes of a civil case that it negates novelty.

I think independent invention speaks more to obviousness. Let's say facing a new problem in a new market, five different teams all come up with something unprecedented in the same year or two. Such an invention was definitely 'novel' to the first group, and was also 'novel' (as far as they knew) to the other four teams. But given the state of industry development, it was also 'obvious', because many of the teams that…

Keep in mind, though, that the requirement is non-obviousness to one of ordinary skill in the art. Even if more than one team comes up with the same thing in the same time frame, it might still be non-obvious if those teams were geniuses and dozens of ordinary teams had also tried to solve the problem and failed.