Arnold Kling  

Patent Law

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Two Three views. First, Michael Rosen writes,

Well, first, as almost everyone involved in the patent reform debate acknowledges, we must fully fund the PTO.

...There are not nearly enough examiners to review, revise, and recognize incoming patent applications. There is a backlog of approximately 400,000 such applications -- inventions just sitting around, gathering dust, preventing their inventors from exploiting the fruits of their labor. For the typical application, two years elapse from filing to issuance, a period expected to rise to four years by 2008 (most biotech and electrical patents already take four years to issue).

Brian Kahin writes,

The system favors the [patent applicant] from the start. A patent examination is basically a secret proceeding. The patent is granted, unless the examiner can show that a patent should not be granted. An inexperienced examiner with a newly minted bachelor's degree in science is often pitted against a high-paid patent attorney. And if you are still refused a patent, you can file a continuation application, restarting the process and maybe getting an easier examiner. Counting continuations, 85 percent to 95 percent of applications in the U.S. are eventually granted--a much higher rate than in Europe or Japan.

Patentees and their lawyers are now addicted to a high-volume stream of easy-to-get patents.

I am reminded of the story during the Vietnam War when the White House sent two analysts, one a hawk and one a dove, on a fact-finding mission. Their reports diverged so sharply that the recipient asked, "Are you sure you two visited the same country?"

Finally, there is non-lawyer Paul Graham, who makes much more sense to me than either of the lawyers.

A lot of companies (Microsoft, for example) have been granted large numbers of preposterously over-broad patents, but they keep them mainly for defensive purposes. Like nuclear weapons, the main role of big companies' patent portfolios is to threaten anyone who attacks them with a counter-suit.

Read Graham's whole essay.

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The author at Juan Freire in a related article titled Las patentes y el arte de la guerra: disuasión o destrucción masiva writes:
    Arnold Kling aporta en Econlog (Patent Law) más evidencias del sinsentido que significa el sistema de patentes norteamericano (un modelo al que nos vamos acercando peligrosamente en Europa). Primero resume dos artículos de abogados especializados en ... [Tracked on April 8, 2006 5:33 PM]
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T.R. Elliott writes:

I find these two descriptions fairly consistent. They are describing the same issue from slightly different perspectives (time versus success). I've only read the quotes so far. I say both are accurate and consistent representations of what is going on.

1. Companies are flooding the patent office with applications. That is the "high-volume-stream" mentioned by Kahin. Some of the applications are noise or would have been rejected years ago.

2. The lawyers in the patent office are up against highly paid people in the private sector. Quite true. Always the case.

3. The patent office takes far too long to review the patents.

4. The bar on what can be patented has been lowered. Hence the system favors the applicant (unless it conflicts with a previous patent).

Note that Kahin says nothing about how long it takes. He's talking about how easy it is to pass the bar and receive the patent. He nevers says how long.

Vincent Clement writes:

Rosen is incorrect to say that "inventions just sitting around, gathering dust, preventing their inventors from exploiting the fruits of their labor".

First, the overwhelming majority of patents granted by the PTO gather dust. They are filed, approved and never ever used. Second, there is absolutely nothing preventing an 'inventor' from exploiting the fruits of their labor. One does not have to patent their invention to make money. It helps, but it is not a requirement. Third, many of these so-called inventions are not inventions. They are a restatement of something that has already been done. The NTP-RIM case was essentially about a patent for wireless email. How is it different from wired email? It's not. Finally, part of the backlog could be reduced if software patents were eliminated. Code is already protected under copyright.

paul writes:

once again we see that the only thing that really protects us from the state is its inherent inefficiencies

death to enforceable copyrights and patents

Dewey Munson writes:

At the current state of knowledge dispersion it seems unlikely (to me) that there really is any valid patent. Why would we not be better off concentrating on those ideas most likely to be successful (brought to market)without patent protection. There probably would be increased competition.

Brad Hutchings writes:

I say give Rosen a chance. He's writing a series of IP reform articles on TCS. He's already gotten some strong, but thoughtful feedback on his first column -- I'm in there under screenname "BoscoH". Rosen's articles will be useful if for no other reason than to see how an insider perceives various proposals for reform. One thing I learned from the discussion thread is that our IP treaty agenda has probably done as much to solidify our laws as it has to get the rest of the world thinking about IP. On whole, a huge net benefit in my view, but at the same time, an obstacle to tuning the system to the new realities of software, business, and pharmaceutical patents.

Robert writes:

A broader understanding of what is "obvious" would go a long way towards failing most of what is wrong with the patent system.

Or failing that, making independent development a positive defense against an infringement claim would help, too. It certainly would have prevented the RIM-NTP debacle.

Lex Spoon writes:

Paul Graham's essay is well and deservedly flayed in its comments. Your quote from him is a good one, but the rest of the article is poor.

For one, Graham lumps all patents together, saying that a "hardware" patent is just the same as a software patent. But since when is any non-software patent a hardware patent? What about drug patents?

Second, Graham writes both that software patents are no big deal, but that he considers "patent troll" companies to be evil:

Patent trolls are companies consisting mainly of lawyers whose whole business is to accumulate patents and threaten to sue companies who actually make things. Patent trolls, it seems safe to say, are evil.

Well, which is it? If he is okay with software patents, then he should be okay with companies buying patents and then exercising them. It is not like the original patent holders were not paid by these "trolls". Would it make it any better if the original designer did the suing instead of a patent troll?

The strongest argument Graham makes is that software patents do not seem to get prosecuted very frequently. Thus, maybe they are talked about more than they have actual impact. That's a flimsy reason, though, to support software patents. It amounts to saying that they are not TOO bad, so they should not be fought TOO hard.

For better articles, try the League of Programming Freedom:

I am afraid I do not know any good articles in favor of software patents.

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