I’m just going to be blunt: Our patent system sucks. It’s terrible to deal with, protects ridiculous things, and encourages frivolous litigation. It’s about as popular as a leper in a nudist colony.
For 10 years, patent reform has had the backing of major corporations who, like everyone else, are sick of patent trolls and costly defensive IP purchases. Nobody—not consumer groups, business, or inventors—believes this system works. Despite all of this, Congress managed to punt on real change. “It took 10 years to work out a deal that changed almost nothing,” says Jason Schultz, director of the Samuelson Law Clinic at UC Berkeley, speaking about the America Invents Act (AIA), the reform that finally crawled its way into law this year.
The administration claimed it to be a job creation bill, which is true, if your job is patent attorney. “[The idea] that patents create jobs is ridiculous,” says Schultz. “There’s growing evidence that too many patents actually hurts the economy.”
The AIA demonstrates how profoundly broken American legislation is. It makes small procedural changes, like awarding patents to the first to file or disclose, instead of the first to invent (which can be hard to establish legally). That won’t prevent patent litigation, but it may make it go more smoothly—like treating a broken leg with Vicodin.
AIA does nothing to hamper notorious patent trolls like Nathan Myhrvold’s Intellectual Ventures. It doesn’t address the low quality of many patents, the snail’s pace of the patent office, or the ultimate problem: There’s just too many of them being filed.
Instead, look for more patent fights putting new technologies out of business, limiting existing technologies, and diverting billions of dollars from people who actually build stuff to people who file paperwork, and then spend the next 50 years collecting interest and playing golf. Thanks, Congress!
Comments are closed on this article
btdog
November 30, 2011 at 7:00pm
The administration claimed it to be a job creation bill, which is true, if your job is patent attorney.
Whoa, whoa, whoa, Quinn Norton!
I don't know who you think you are, Missy, but you're treading on thin ice. This is MPC - we bash Republicans, not Democrats. Shame on you!
Carlidan
December 01, 2011 at 1:00am
"I don't know who you think you are, Missy, but you're treading on thin ice. This is MPC - we bash Republicans, not Democrats. Shame on you!"
I've seen them bash both parties. I think you have selected memories. And If you're so keen to believing that they are such a liberal technolgly media site, why are you here? I'm sorry if I offended you but I just don't like B.S. comments that have no revelance to the article at hand. :)
dogsbody
November 29, 2011 at 2:53pm
The whole purpose of copyright and patent has been twisted by people seeking to create money out of others work. The constitution actually gives validity to having copyrights and patents issued by the government for the purpose of encouraging creativity and innovation. We have gotten away from rewarding the creators and innovators and just rewarding the legal profession.
The most insidious concept is that of “Intellectual Property”. This makes the ideas of copyright and patent sound like real property, something that is concrete and lasts a long time, perhaps indefinitely. This is actually against the constitution which states that creators and innovators should receive recompense for a limited time. It also gives support for making breaches of the copyright or patent law a criminal offence rather than a civil offence; in other words, the person who violates copyright or patent is guilty of stealing property rather than just publishing or manufacturing a covered product without paying royalties. All of this tends to limit creativity and innovation, going against what was originally intended by the constitiution.
xs0u1x
November 29, 2011 at 12:48pm
great write up quinn. can't debate any of the points, because they are true.
Cregan89
November 29, 2011 at 12:35pm
I think an obvious and easy solution would be to shorten the patent term significantly, somewhere between 1-3 years. This way, those who acquired the patent get the economic advantage of a head start to bring the patent to market, but after that short term is up, that patent is now opened up to the public so that it can actively contribute to innovation for all. Or, if an individual came up with the patent and has no intentions of, or the ability to, bring it to market, they can still sell that patent or license it to larger companies. This would also make it much more difficult, and significantly less profitable for companies whose sole purpose is to sit on patents and not contribute to innovation in any way (aka Patent trolls).
Modred189
November 29, 2011 at 1:52pm
It's an interesting idea, but you forget to take into account recouperation of R&D costs. Take the pharmaceutical industry, for example. Each POTENTIAL product costs on average 5-9 million dollars, and those that make it to market cost around 15-20 million to create and complete FDA approval processes. It takes significantly longer than 3 years to recouperate the costs not just of the successful drug, but also teh failures that lead to it.
ScytheNoire
November 29, 2011 at 2:19pm
Once again, lies. There are proven reports that show that Big Pharma lies about R&D costs just to justify their outrageous prices and the need for patents. It's been proven false. Try using Google to educate yourself.
If you believe corporate lies, then I have a bridge to sell you.
Modred189
November 29, 2011 at 3:19pm
THose numbers are actually spot-on. I worked for an investment company evaluating a new pharmaceutical drug and was part of extensive research into such costs as a part of the investment's due diligence. If you really want to blame someone in this process, blame the insurance companies for charging so much to insure these companies against claims by trial articipants. But it takes 5-7 years to complete FDA certification trials. It's not cheap.
Now, I'm not saying that big pharma is hurting, or even NOT making a killing, but nonetheless 1-3 years is not enough to recoup much of these costs, and none of this takes into account the supply and demand metrics of the market.
Finally, you should probably avoid personal insults or claiming I'm lying (why would I?!). Particularly given the fact that you just told me to use the internet to educate myself. 0.o
tekknyne
November 29, 2011 at 12:17pm
Google "blog maverick patent". Mark Cuban is the owner of the Dallas Mavericks and is also a tech-savvy self-made millionare and owner of HDNet. His suggestions on patent reform are brilliant. End all process patents. This includes software patents. They're useless and stifle innovation.
Modred189
November 29, 2011 at 11:41am
Dear Ms. Norton, While I udnerstand your frustration, be reasured it is based on an inadequate understanding about how patents work, and what theya are designed to do. They are not designed to create jobs, boost competition, or ensure a fair market. They are there to protect inventions to spur on innovation. That's all.
Furthermore, your comments regarding patent trolls is very narrow. First they, again, ignore/mis-state the purpose of patents. Also, for some reason, you don't mention how the crazy false-marking trolls were COMPLETELY ELIMINATED by the AIA, with the removal of quitam actions per unit. Not only that, but what about the introduction of micro-entity status to help individual inventors?
Whie I hate to pimp my own blog, I have a full write up at thelink below, explaining why your fears, while possibly real and legitimate, are not accurately attached to the patent system. I hope it sheds some light on how teh systemworks, so your future comments can be more accurate.
Patents are there to prevent copying, not enhance competition in a market.
Link: http://law-ls.blogspot.com/2011/11/software-patents-why-some-just-dont-get.html
Vernak
November 29, 2011 at 12:42pm
She was not claiming patents are designed to create jobs. She was stating the Obama Administration made this claim and then she quoted a Director of a Law Clinic at UC Berkeley to reflect their analysis. She, herself, made no such claim.
Your repeated comments here and on your blog on how the tech media and the general public are ignorant and naive in this regard are really unnecessary to your arguments. I do not call attention to this to create an argumentum ad hominem with you. I simply recommend that in the future you may consider disagreeing more agreeably.
tekknyne
November 29, 2011 at 12:20pm
I started to read your blog until u stated that you went to OSU. After that, you lost all credability. GO BLUE!
Modred189
November 29, 2011 at 1:38pm
HAHA! Good game this year, as much as I hate to admit it. I always hate losing to MI, but at least if we had to, we did so in a valient fashion. It was indeed a game worthy of the rivalry. See you next year!
ScytheNoire
November 29, 2011 at 12:17pm
Modred189, you come off sounding like a patent lawyer. You are wrong about quite a few things there.
First, going back in history, patents have never been about protecting "inventions", but always been about protecting monopolies.
Second, the concept of "invention" is a very misleading one, since everything is an innovation. All work is based on that which has came before it. Nothing is completely original and new.
Third, the concept that patents help the small guy is again false. It doesn't matter who has the patent, as a large company will simply have more lawyers, more money, and crush the small guy. We've seen this happen again and again.
Forth, the patent system isn't just broken, it's unnecessary. It stifles innovation and creativity and holds back technology while wasting trillions of dollars on lawyers.
Fifth, it's proven through studies that patents don't spur on innovation, but instead hinder it. Take one market which thankfully has been fairly patent free - video games. Innovation has happened faster in gaming because developers can build off the work of other developers, making the design better, because they don't have to deal with patent lawyers and worry about lawsuits. They are free to innovate.
So perhaps before you post, you should consider telling the truth instead of spewing lies about the patent system actually being useful, as it has been proven in numerous studies to be holding back innovation and wasting money. That is all it does, fund lawyers.
Modred189
November 29, 2011 at 1:46pm
See, the problem is that you are also falling into the trap of not understaning the patent system at all. Here's how (in resposne to eachof your sections, above):
1: Patents ARE monopolies. They are a government granted monopoly over a technology for 20 years in exchange for the inventor teaching his invention to the world. They get their constitutional basis from Article 1 Sec.8 Cl. 8 where COngress is granted the power to: "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries"
2: This is nonsensical semantics, and I'm not sure what your point is.
3: Re-read my statement. I said that the creation of Micro-entity status was to help individual inventors. Furthermore, you clearly don't follow patent law, since the whole reason that patent trolls buy the patents of individual inventors is to enforce them and get that inventor a pay day for the infringing use of his invention.
4: Read my linked post for an example of just how wrong you are.
5; your ignorance of teh patent system is most evident here. Video games are not patentable, they are creative works and therefore are protectable under copyright law, and have been so protected for some time.
So perhaps you should consider that someone on the internet knows a lot about a particular topic than you before you get insulting. Furthermore, please only do so when you know something about the thing you are talking about, and not when your every word exposes how little exposure you have really had with it.
tekknyne
November 29, 2011 at 1:53pm
Well said. Thanky you for the follow-up. "Patents ARE monopolies.". I think we can agree on that. Who else is the government going to give their monopolies to but their buddies. Not hard-working, deserving inventors, but people who make a business out of owning IP's.
It's like most things capitalist. It sounds good on the surface, "free-market" and all this, but when u mix human nature into it, things become a means of self-preservation and get all twisted and perverted. We are the 99%.
tekknyne
November 29, 2011 at 12:35pm
He went to OSU dude, cut him some slack :)
IN all seriousness, I agree %100. True innovation is dead. There's 7 billion people on this planet. If you think that you have had an original thought that was never thought before, you are saddly mistaken.
Nimrod
November 29, 2011 at 1:33pm
you are a complete and utter fucking idiot. you go beyond stupid or ignorance and dip your toes right on into mental illness with that statement.
tekknyne
November 29, 2011 at 12:26pm
Read Mark Cuban's blog about eliminating process and software patents. He makes some really good points and supports his opinion with alot of evidence. You just claim that the avg American thinks patents stifle innovation. That's it. Then you rip on the #OWS movement and somehow tie that in?
LOL and you thank Steve Jobs for innovations in GUI's!? WOW.
Modred189
November 29, 2011 at 2:30pm
If you are referring to: http://blogmaverick.com/2011/08/07/my-suggestion-on-patent-law/
It's a very interesting read. Especially coming from someone in entertainment. Unfortunately, he should look to his own company: http://www.google.com/patents/about?id=7NKWAAAAEBAJ&dq=HDNet+process
But that being said, i don't know that he is in a much better position to advocate the elimination of ALL process patents. That just ignores the difference between software (which is what I think he really means) and hardware and manufacturing. Don't get me wrong, he's a smart guy when it comes to investment and entertainment, but I don't think he gets it either.
I Jedi
November 29, 2011 at 11:29am
If you think patent reform is a shitty deal, Norton, you should consider what SOPA and PIPA can do for the Internet.
Marthian
November 29, 2011 at 11:38am
They are all shitty deals. Sopa and Pipa, sure they will create SOME jobs, but those will immediately be overshadowed by the jobs lost because of what they cause.
I Jedi
November 29, 2011 at 12:09pm
There really is no good deal when it comes to combating piracy and counterfeiting of products. I can understand that companies want to product their investments, and I'm totally for that, but every deal they've presented, including patent reform, is just an over all shitty deal for all involved, except the companies pushing for these types of reform. Last I was reading up on DailyTech, people were talking about how patent reform could mean that some poor dumbass could present a great idea to a company, and the company could say they don't want it, but do a 180 and steal his ideal and it be perfectly legal, too. Truly something is a miss here in the past few decades with government.
Modred189
November 29, 2011 at 1:56pm
I have to disagree withthat first sentence. I think that the sucess of iTunes and the proliferation of competitors shows that, if you make it easy enough to get products at a fair price, people will pay. Shoot, Apple makes the VAST majority of its revenue and profits off of its iTunes music and app store. <
Also, consider Steam. It's a sucess because it offers games at competitive prices, with legitimate and reasonable DRM while enabling all kinds of other benefits.
The opposite is movies. There is no cheap, easy way to get movies at a fair price (ownership at least), and as a result, they are still being pirated like crazy.
Finally, that last example is bunk. Check out the guythat invented the intermittent windhield wiper and showed it to ford. He made a KILLING off of his suit.
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