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Reforming the Patent System Toward a Minimalist System

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Re: Reforming the Patent System Toward a Minimalist System

#21

Post by rayiner »

tzs wrote: post #20
gojomo wrote: post #16

Earlier quoted context omitted.

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.

It's possible, but I think in a civil case where the burden of proof is "more (or less) likely than not" I think concurrent invention should create a strong presumption of obviousness.

Re: Reforming the Patent System Toward a Minimalist System

#22

Post by nitrogen »

rayiner wrote: post #19
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…

I believe the bounce-back patent used against Samsung was a utility patent.

Re: Reforming the Patent System Toward a Minimalist System

#23

Post by mtgx »

eurleif wrote: post #6
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…

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

I wish the Patent Office would approve patents only on that criteria. Is slide to unlock "expensive" to innovate? No? Then rejected.

Re: Reforming the Patent System Toward a Minimalist System

#24

Post by gojomo »

tzs wrote: post #20
gojomo wrote: post #16

Earlier quoted context omitted.

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.

In the context of standards that could or should be changed to reform things, the traditional 'person of ordinary skill' standard need not be held as a constant.

For example, 'obviousness' could be more expansively construed as being from the perspective the kinds of people "skilled enough they are professionally tasked with inventing new approaches".

The relative preponderance of teams finding a particular solution, versus trying and failing, does seem relevant. (If 2-out-of-2-teams succeed, maybe they are geniuses, but the 100% success rate cannot disprove the hypothesis that the solution is obvious. If only 2-out-of-30 succeed, maybe there's rewardable inventiveness there.)

Still, when there are 2 or more cases of independent invention, that should be economically/legally relevant. This is especially true if one of the inventors didn't pursue a patent. While not be proof of traditional 'obviousness', it is evidence that the invention was "evident enough to be discovered as needed without patent incentives"... which sounds to me like the economically-ideal standard.

(And wouldn't that be a nice counterbalance to the 'patent everything defensively' scramble? That is: by inventing and using something without patenting it, not only would you have an absolute immunity from infringement, but also establish a presumption that specific practice was never deserving of patent protection in the first place.)

Re: Reforming the Patent System Toward a Minimalist System

#25

Post by rayiner »

nitrogen wrote: post #22
rayiner wrote: post #19

Earlier quoted context omitted.

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…

I believe the bounce-back patent used against Samsung was a utility patent.

That's what I get for quick googling instead of reading the court docs. It doesn't really help that most of the sites reporting the suit use "design patent" and "utility patent" interchangeably. :(

Re: Reforming the Patent System Toward a Minimalist System

#26

Post by pg7 »

Oh, I can't wait to see how lobbyists and lawyers allow to dismantle the patent system ;-) I'd like to give some constructive critic, however. So, I propose the opposite approach. Let's make the whole system even more complex and expensive for patent holders.

Maybe every patent application should be provided with a formal proof of how much specific innovation has cost. Declared cost would be verified and accepted by patent office. Consequently, the upper bound of possible damages awarded during a litigation should be set to that amount of money.

Such approach should repel patent trolls twofold. First, since costs of innovation in the software industry tend to revolve around 0, litigations would not be profitable. Second, more troublesome patent application process would decrease the number of issued patents and, statistically, increase their quality, making patents less accessible and useful for patent trolls.

Re: Reforming the Patent System Toward a Minimalist System

#27

Post by jkn »

InclinedPlane wrote: post #12
jaekwon wrote: post #7

Earlier quoted context omitted.

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 d…

That's a rather one sided view of the problem. Just because patents presently allow the pharmaceutical industry to fund R&D costs (estimates of which might be inflated[1]) does not mean they are the only way. If the cost of patents outweigh this one benefit, we should get rid of them.

First, not all research is done by the pharmaceutical industry. In the US, they account for about 36% of research spending[2], behind the government (38%, federal plus state plus local). Note that total funding by the industry (not limited to pharma but including biotech and medical devices) represented 58% in 2007 but the role of patents in those industries is a different debate. The remaining 4% are from foundations and charities.

Next, considering that pharmaceutical companies spend far more on marketing than research and development (typically 25% vs 15% of revenues respectively)[3] and considering that a large part of their revenues comes from public healthcare anyway, one can wonder how hard it would be to replace their R&D spendings with public funds, and get the money back thanks to cheaper drugs,since generics are typically 20% of the brand price.

(BTW I wonder what part of these 15% of revenues spent on R&D is for important research and what part is spent on looking for the next Botox)

Also patents could be replaced with public funding in ways that minimize the impact on the industry, for example by granting prizes for the discovery of important drugs.

[1] http://news.ycombinator.com/item?id=4591766

[2] http://www.ncbi.nlm.nih.gov/pmc/articles/PMC3118092/

[3] http://www.plosmedicine.org/article/info:doi/10.1371/journal...

Re: Reforming the Patent System Toward a Minimalist System

#28

Post by rayiner »

jkn wrote: post #27
InclinedPlane wrote: post #12

Earlier quoted context omitted.

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 d…

That's a rather one sided view of the problem. Just because patents presently allow the pharmaceutical industry to fund R&D costs (estimates of which might be inflated[1]) does not mean they are the only way. If the cost of patents outweigh this one benefit, we should get rid of them. First, not all research is done by the pharmaceutical industry. In the US, they account for about 36% of research spending[2], behind…

I don't think InclinedPlane was arguing that there aren't other ways to do drug research. Patents are just one solution to the free rider problem, and pretty much every free rider problem lends itself to the same small set of solutions: propertization, regulation, or subsidization. We address the free rider problem in drug development by giving temporary property rights in drug formulas, but we could just as easily regulate the industry and guarantee a rate of return or publicly fund development.

Re: Reforming the Patent System Toward a Minimalist System

#29

Post by InclinedPlane »

jkn wrote: post #27
InclinedPlane wrote: post #12

Earlier quoted context omitted.

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 d…

That's a rather one sided view of the problem. Just because patents presently allow the pharmaceutical industry to fund R&D costs (estimates of which might be inflated[1]) does not mean they are the only way. If the cost of patents outweigh this one benefit, we should get rid of them. First, not all research is done by the pharmaceutical industry. In the US, they account for about 36% of research spending[2], behind…

Sure, there might be many ways to fix the problem, but just getting rid of pharmaceutical patents and doing nothing else is unlikely to help.

Also, be careful about misusing the statistic of "drug companies spending more on marketing". A huge part of "marketing" is giving away free samples, which are often used by doctors to help reduce the cost of drugs for low income patients.

Re: Reforming the Patent System Toward a Minimalist System

#30

Post by dctoedt »

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 proof of independent invention should at the very least establish a presumption that the invention is not novel.

Proof of independent invention might not establish a presumption of lack of novelty, but it can help with proof of obviousness. As one author noted a few years ago, "The Federal Circuit has stated that, '[T]he possibility of near simultaneous invention by two or more equally talented inventors working independently,… may or may not be an indication of obviousness when considered in light of all the circumstances.' [Citations omitted] In other words, the fact that another person simultaneously and independently created the same invention claimed in the patent-in-suit can serve as an indication that the invention was obvious." \1

\1 Brent Yamashita [of DLA Piper], Secondary Considerations of Obviousness in a Patent Case: The Seldom-Used "Simultaneous Invention" Factor, at http://www.patentlyo.com/patent/2008/07/secondary-consi.html (omissions in original).

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