I have a dirty secret that so far has not turned out poorly, but which could.
About a decade ago, before I was fully aware of the problems with patents, my employer asked me to assist in the filing of a patent on some work that I had done. Because it was my job, I complied. Then about 5 years ago they contacted me about the patent application, I answered a few simple questions and did a bit of routine paperwork as I believe was required of me based on contracts signed during my previous employment.
The patent was granted. Unbeknownst to me, 2 follow-on patents were also granted.
I learned recently that these patents were evaluated by 2 patent trolls, and both agreed that they were worth over $100 million dollars. Easily.
Why so much? Well we had done a careful review of the technology at the time, had demonstrated that we were solving a problem that a lot of companies were trying to solve, and our solution was different than any of theirs and had advantages. And since then other people had independently recreated the same solution, and now big companies like Facebook were infringing.
Luckily that patent wound up going into the hands of RPX instead of to the patent trolls. Unfortunately in the small print of RPX' FAQ you can find that while they are not a patent troll, they are willing to sell patents. So there is a non-zero possibility that those patents could be sold to a troll that could start suing people.
But here is the key takeaway. Software patents these days are most valuable when you did it first, then other people redid it without knowing about you. In other words patents have become pretty much a pure tax on real innovation rather than an incentive to innovate.
I apologize in advance should my actions wind up contributing to the current patent mess that our industry is caught up in.
> Software patents these days are most valuable when you did it first, then other people redid it without knowing about you.
I think it's quite a bit more sinister than this. As a patent lawyer confided to me once:
The most valuable patents are the obvious ones (as other folks will likely think of it themselves) and that his job is to mask the fact that a patent is in fact obvious.
> I think it's quite a bit more sinister than this. As a patent lawyer confided to me once: The most valuable patents are the obvious ones (as other folks will likely think of it themselves) and that his job is to mask the fact that a patent is in fact obvious.
That lawyer should be disbarred. Obvious inventions (from the perspective of a person having ordinary skill in the art) are per se unpatentable, and merely masking this obviousness using an obtuse independent claim spawning many dependent claims is one reason why we're in this mess. I really think that a foreseeability or causation test should be used to measure obviousness, or better still, that obviousness should be a question of fact that the jury determines.
The test for obviousness is... less than robust. In a quest for legal certainty, "obviousness" is tested by applying the teaching-suggestion-motivation (TSM) test[1]. While this does help to prevent hindsight bias, the fact is that people often fail to state the obvious, so there may be no record of just how obvious something was. So blindingly obvious things can and do slip through, though the Supreme Court has tried to give the courts some leeway to strike down the worst of the lot with KSR v. Teleflex (2006).
Totally agree the lawyer should be disbarred. However, many patent lawyers, especially those who work for either (a) big companies, (b) patent trolls, or (c) are independent owners of patents they've purchased from others "live on this concept."
As an engineer from a large software company once told me, "our internal patent lawyers have a simple saying - write the patent to be as broad as possible while obscuring what you are actually doing."
How about making patents non transferable? Wouldn't that solve the patent troll problem and at the same time preserve some of the rights of the inventors. The way I see the problem is that patents have become a hot commodity people just trade to make money where it should simply be a mean for inventors to benefit from their invention and creativity, meaning an incentive to innovate. Too simplistic?
It would reduce the problem, and I'm in favor of it. However, patent trolls would mutate and become outsourced "patent management" companies instead, litigating on behalf of the actual patent owners in exchange for a percentage. While some creators would be principled and refuse to try to profit this way, some would not be able to resist the lure.
It also still doesn't stop patents from being invented out of thin air without actually having to build something.
I don't think patents are salvageable. It's one thing to own the rights to a specific mystery novel, and another to own the concept of "the butler did it".
Hold the phone. Groklaw just reproduced a published academic paper in its entirity?! And no mention of "by permission". What is their basis, and can I do the same? I can think of many contexts where I might want to include a paper in whole as an exhibit, not just a reference.
What about the fact that patent portfolio companies (often who act to troll like) increase the value of patents you develop there by incentivizing startups to innovate and develop patents that allow them to subsidize the development of their company?
Providing we agree the goal is innovation, it doesn't work as currently practised. A patent is supposed to be an innovation so unique (non-obvious etc) that others are unlikely to come up with the same thing for quite a period of time that the innovator is given a 20 year monopoly (and ability to seek rent) as a reward for telling the world about the innovation details early. This is supposed to accelerate innovation.
The problem with software patents is that software doesn't work in isolation - things are built on other things, so nothing is really standalone. The other problem is that the patents that are accepted are not actually innovative. If they were then there wouldn't be all these other companies to sue for violating them! (It is standard legal advice to software engineers to never read patents.)
The value of patents is not in innovation - it is in providing grounds to sue others and collect rents from them. This has the net effect of slowing down innovation because it is safer to avoid newer things than be in the court room. It also means that competition is limited because others can't "fairly" compete in the same product space. It is ultimately a tax on doing business with the proceeds going to lawyers and others.
About a decade ago, before I was fully aware of the problems with patents, my employer asked me to assist in the filing of a patent on some work that I had done. Because it was my job, I complied. Then about 5 years ago they contacted me about the patent application, I answered a few simple questions and did a bit of routine paperwork as I believe was required of me based on contracts signed during my previous employment.
The patent was granted. Unbeknownst to me, 2 follow-on patents were also granted.
I learned recently that these patents were evaluated by 2 patent trolls, and both agreed that they were worth over $100 million dollars. Easily.
Why so much? Well we had done a careful review of the technology at the time, had demonstrated that we were solving a problem that a lot of companies were trying to solve, and our solution was different than any of theirs and had advantages. And since then other people had independently recreated the same solution, and now big companies like Facebook were infringing.
Luckily that patent wound up going into the hands of RPX instead of to the patent trolls. Unfortunately in the small print of RPX' FAQ you can find that while they are not a patent troll, they are willing to sell patents. So there is a non-zero possibility that those patents could be sold to a troll that could start suing people.
But here is the key takeaway. Software patents these days are most valuable when you did it first, then other people redid it without knowing about you. In other words patents have become pretty much a pure tax on real innovation rather than an incentive to innovate.
I apologize in advance should my actions wind up contributing to the current patent mess that our industry is caught up in.