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Supreme Court Should Say No to Patents That Take Old Ideas Away from the Public

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Re: Supreme Court Should Say No to Patents That Take Old Ideas Away from the Public

#61

Post by austincheney »

> EFF and R Street’s brief emphasizes the need for the Supreme Court to confirm what should be uncontroversial: to be patentable, inventions must be new.

New is not good enough. In theory patents must be novel and this should be applied to practice as well. The difference between new and novel is the degree of originality. New can mean taking an existing idea and putting a fresh spin on it. Novel means the idea never existed before and the current invention is original opposed to a modification or extension. Normally novelty is documented against an inception date, but inception dates are hard to qualify in court.

Also, while on this subject patents should be limited to inventions deliberately excluding discoveries. An invention is something a person made or formed with some degree of deliberation. A discovery is something that already existed and that a person merely found for the first time. This distinction would invalidate attempts to protect genetic sequences and organic chemicals present in nature. It would continue to allow protection of drugs that are more than merely chemical isolations.

Re: Supreme Court Should Say No to Patents That Take Old Ideas Away from the Public

#62

Post by entwife »

monochromatic wrote: post #34

This is basically the result of a poorly drafted statute. More discussion (and less polemic) here: https://patentlyo.com/patent/2018/07/diagnostics-provisional...

The Ariosa decision involves whether an invention could be said to be publicly disclosed on the date of a provisional patent application. A provisional patent application is unpublished, although, if it ultimately supports a patent claim, it is made available to public. Details of the court case are better explained by Dennis Crouch in the cited article.

Re: Supreme Court Should Say No to Patents That Take Old Ideas Away from the Public

#63

Post by chrisweekly »

lisper wrote: post #52
Waterluvian wrote: post #51

Earlier quoted context omitted.

That's fascinating because in my talk with a patent lawyer, they have a very special set of rules for "perpetual motion machines" that make them quite easy to reject.

Yes, there are a few crackpot ideas for which there are special rules, including perpetual motion. But anything else is fair game, and there is a fairly foolproof process by which you can get a patent on anything. It goes more or less like this: 1. Draft the patent application. You don't even need to do any research. The PTO will do that for you. 2. Wait for the application to be rejected, which it almost certainly w…

That is just... appalling.

Re: Supreme Court Should Say No to Patents That Take Old Ideas Away from the Public

#64

Post by combatentropy »

I thought that the reason for the patent system was that otherwise people would keep their ideas secret, and society would not benefit. The very word "patent" means "open" --- like when you say "it's patently obvious" it means "it's openly obvious" (it's like really, really obvious). So a patent is meant to bring an idea into the open. But if the idea is already in the open . . . ?

Re: Supreme Court Should Say No to Patents That Take Old Ideas Away from the Public

#65

Post by sfRattan »

craftyguy wrote: post #16
ErikVandeWater wrote: post #12

Earlier quoted context omitted.

Not new. Turbotax has long lobbied the government to make the tax law convoluted so you have to use Turbotax (or another similarsoftware) so you can avoid fines for submitting the wrong amount of taxes.

That has nothing to do with patents and/or patent trolling. You don't need to pay patent royalties to file your taxes.. (for example)

Both are arguably forms of rent-seeking.

Re: Supreme Court Should Say No to Patents That Take Old Ideas Away from the Public

#66

Post by throwaway2048 »

jchw wrote: post #7
opportune wrote: post #5

The entire patent system needs to be redesigned. Lawyers always seem terrified at the prospect of throwing away decades of case law but in this case, considering the nature of what patents represent and how they are used has changed so much from their original purpose, it’s probably necessary. Of course, big business incumbents don’t mind the system because they have corporate lawyer teams that understand how it work…

It may balance out over time, but big businesses spend an enormous amount of money defending themselves against patent suits and defensively filing patents. Patent trolls are the only types of businesses that purely see upside from patents.

forcing upstart competitors to spend potentially billions fending off patent trolls is a good barrier to entry

Re: Supreme Court Should Say No to Patents That Take Old Ideas Away from the Public

#67

Post by thayne »

CobrastanJorji wrote: post #39
jchw wrote: post #7

Earlier quoted context omitted.

It may balance out over time, but big businesses spend an enormous amount of money defending themselves against patent suits and defensively filing patents. Patent trolls are the only types of businesses that purely see upside from patents.

You're right, but several important business models stop working out when patents disappear, most notably drug researchers.

> The entire patent system needs to be redesigned.

That doesn't necessarily mean removing it altogether. Making more thing unpatentable (ex algorithms, discoveries, etc.) and shortening the lifetimes of patents could go a long way.

Re: Supreme Court Should Say No to Patents That Take Old Ideas Away from the Public

#68

Post by namibj »

jchw wrote: post #13
opportune wrote: post #9

Earlier quoted context omitted.

They also benefit from the stability of operating within a pretty known system and the fact that they are able to afford legal expertise. Big businesses may get hurt by patent trolls, but I’d imagine that this is less strategically important to their business than using their patents to prevent competitors from starting up or from taking away their business. Small businesses get hurt the most by the patent system. A…

No doubt it hurts small business the worst, but I'd not agree with the notion that all big businesses net gain from this. Lawyer time isn't cheap, and the bigger you are, the more attention you gather. And of course, patent trolls optimize to use the most lawyer time possible, to make it less efficient to defend (sometimes, it legitimately isn't worth it.) Basically abolishing patents would definitely receive pushbac…

You might instead want to make a looser pays rule standard for patent suits, due to their special notions for who has standing.

Re: Supreme Court Should Say No to Patents That Take Old Ideas Away from the Public

#69

Post by icebraining »

cannonedhamster wrote: post #57
jchw wrote: post #13

Earlier quoted context omitted.

No doubt it hurts small business the worst, but I'd not agree with the notion that all big businesses net gain from this. Lawyer time isn't cheap, and the bigger you are, the more attention you gather. And of course, patent trolls optimize to use the most lawyer time possible, to make it less efficient to defend (sometimes, it legitimately isn't worth it.) Basically abolishing patents would definitely receive pushbac…

If you're big enough you have teams of lawyers on staff. It costs you literally nothing extra. If you're not big enough to have staff lawyers you're not big. Small businesses are pretty much everyone else. You can't polish a turd, and this system as well as the copyright system are a giant turd that's antithetical to the original intent of the law.

The lawyers they have on staff wouldn't otherwise be shooting pool and drinking beer, they'd be doing useful things for the company. There's a big (opportunity) cost.

Plus lawyers are not all interchangeable, just because you have people who know employment law or how to M&A didn't mean they are good at fighting patents on court. AFAIK they're usually externally firms, not in-house lawyers

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