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The Patent, Used as a Sword

nytimes.com

11–20 of 76 posts

Re: The Patent, Used as a Sword

#11
post #4

So, if a person wants to start a company, how can he make sure it's not breaking any patent that could cost him money and a legal mess later?, I suppose a few hours of investigation previous starting up is not enough...

The current dance around the broken patent system look something like this :

- When you are small, nobody will come to get you because you are not interesting enough for troll of big compagnies (except maybe other direct competitor but it's unlikely)

- Then you become bigger and you will have to deal with licenses from other compagnies and trolls.

- At that point you become defensive, and start to patent things yourself.

- Then you are unwilling to fight against patents because it starts to be an asset for you. And you might even be tempted to go to the dark side and use them to attack other companies at this point.

The good news in all that is that when you are a small company in software, you should not worry too much about patent. I don't remember any startup failing because of that...

Re: The Patent, Used as a Sword

#12
This article briefly touches upon first to file. I think it's clear that the change to first to file will result in the greatest threat to open innovation we have ever seen in our lives.

Think about it -- suddenly you will have swarms of lawyers and executives at pharmaceutical companies paying visits to research labs, and you'll have people from large software companies forwarding ideas posted on open source developer mailing lists to their legal departments. It won't be safe to suggest ideas openly anymore. It won't be safe to talk about "what if" or "have you considered" or "someone should really." We are going to see a flood of really bad patents based on other people's ideas -- and that's exactly what our lawmakers have provided to their friends in large businesses.

Things are about to get a lot worse. But you know, maybe that's what it's going to take -- maybe we have to suffer economically, suffer culturally, before we as a society realize we are building ourselves an intellectual prison for which there is no justification.

Yes, I know that patents are a temporary thing, only lasting 18 years or so; but really, do you think people such as the guy cited in this article are going to say to themselves, "oh, you know, maybe I'll just return to coming up with innovative stuff in the voice recognition field in 18 years, after Nuance can't come after me anymore" -- do you really think that will happen? No, of course not. We're going to see a lot of brilliant people forced to abandon brilliant projects and ideas, and we'll never know what might have been, what could have been done.

I don't think anyone is fighting this in a particularly constructive way -- the whole "abolish all patents" camp is going to get about as much of a serious audience as the "abolish the Fed" and "abolish the labor union" camps -- and perhaps that is exactly what our large-scale adversaries want. We need to be more incremental, more nuanced; that's what they've done, and that's why they are getting everything they want. You think sneaking first to file was something that happened over a chain of emails somewhere? No -- if anything, I bet there is a protracted, multi-decade fight among a lot of very persistent corporate attorneys and executives that has lead to this "win."

In any case, I really hope people in our industry can stop the useless arguments of "end all patents!" for long enough to realize they should be rallying together to fight this simple yet very destructive change that is right over the horizon. You sure as hell won't hear/read my thoughts on future technologies once this first to file thing goes into effect; and I am sure that savvy legal counsels everywhere will be telling their star engineers and employees to remain similarly silent. This is not going to be fun.

Re: The Patent, Used as a Sword

#13
post #2

I understand that allowing patents for algorithms is bad for innovation. What I don't understand is that people say that and then in the same breath claim that allowing patents for chemical formulas is good for innovation. In both cases, the patent holder gets a monopoly and everyone else is stuck with them as their supplier. I feel a terrible cognitive dissonance trying to reconcile these two positions.

At the level of economic theory, patents are a solution to the free rider problem. They're based on the idea that it doesn't pay to invest in an invention if the fruits of that investment can be easily and cheaply copied by competitors, who can undercut the innovator because they don't have to recoup the investment.

The difference between certain software patents and chemical formulas is the level of investment required to develop the technology. If the level of investment is low, the free rider problem isn't nearly as relevant. If an invention is cheap, the cost can quickly be recouped just by being the first mover. This is especially true in the online space, where there are major network effects favoring the first mover.

Drug design is a completely different bag of cats. The initial investments are huge, in the hundreds of millions of dollars. There are no network effects and being the first mover brings almost no advantage. Drug manufacturers can't compete on quality, they can't compete on anything other than the chemical formula itself and branding (and branding is the result of a different IP regime).

Re: The Patent, Used as a Sword

#14
post #9

It strikes me that there's an extreme lack of accountability back towards the patent office. In this article you have patent examiners saying "sure we get it wrong all the time", with no real recognition of the disastrous real world consequences of that for the companies who then later become victims of patent litigation (or even conversely, companies who went ahead and invested their future based on their patents be…

That sounds like a Disney movie.

Seriously though, that would never happen and we all know why. The question is: what can be done about it?

Honestly, what can we/I/you do?

Re: The Patent, Used as a Sword

#15
post #12

This article briefly touches upon first to file. I think it's clear that the change to first to file will result in the greatest threat to open innovation we have ever seen in our lives. Think about it -- suddenly you will have swarms of lawyers and executives at pharmaceutical companies paying visits to research labs, and you'll have people from large software companies forwarding ideas posted on open source develop…

I really hope people in our industry can stop the useless arguments of "end all patents!"

Actually, it's failing to stand for a principle that leads to this constant slide downward.

Sure, fight this particular battle, but as you're doing so, don't forget about the war.

Re: The Patent, Used as a Sword

#16
post #2

I understand that allowing patents for algorithms is bad for innovation. What I don't understand is that people say that and then in the same breath claim that allowing patents for chemical formulas is good for innovation. In both cases, the patent holder gets a monopoly and everyone else is stuck with them as their supplier. I feel a terrible cognitive dissonance trying to reconcile these two positions.

They can't be reconciled: patents bind another human down from thinking and acting and trading with his fellow human beings. There's no way to justify that; it's blatantly immoral.

Re: The Patent, Used as a Sword

#17
post #12

This article briefly touches upon first to file. I think it's clear that the change to first to file will result in the greatest threat to open innovation we have ever seen in our lives. Think about it -- suddenly you will have swarms of lawyers and executives at pharmaceutical companies paying visits to research labs, and you'll have people from large software companies forwarding ideas posted on open source develop…

First-to-file does not eliminate prior art.

Re: The Patent, Used as a Sword

#19
post #4

So, if a person wants to start a company, how can he make sure it's not breaking any patent that could cost him money and a legal mess later?, I suppose a few hours of investigation previous starting up is not enough...

This is in my opinion the biggest problem with the patent system. The bars for obviousness and novelty are too low if startups need to start worrying about whether they're accidentally coming up with the same designs as existing companies. Provable independent invention needs to be a defense to patent infringement.

Re: The Patent, Used as a Sword

#20
post #15
post #12

This article briefly touches upon first to file. I think it's clear that the change to first to file will result in the greatest threat to open innovation we have ever seen in our lives. Think about it -- suddenly you will have swarms of lawyers and executives at pharmaceutical companies paying visits to research labs, and you'll have people from large software companies forwarding ideas posted on open source develop…

I really hope people in our industry can stop the useless arguments of "end all patents!" Actually, it's failing to stand for a principle that leads to this constant slide downward. Sure, fight this particular battle, but as you're doing so, don't forget about the war.

+1 because I agree. Though, how many more battles must we win?

Maybe it's this lightspeed cultural advancement that makes it all seem so drawn out, but it sure feels like nothing is or has changed for the long term better.

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