So how does an ordinary person create an income from a creative technical concept in the 21st Century?
Right now, if a corporation wants ideas about something, it can get thousands of them by offering a $10,000 prize for the winning entry of a crowd-sourcing competition.
Right now, if a corporation wants ideas about something, it can get thousands of them by offering a $10,000 prize for the winning entry of a crowd-sourcing competition.
1
A patent is is only good if the holder is able and willing to defend it. Large companies can file infringement claims (warranted or not) and bury a small company with legal expenses. I've seen a case where the small company won and then had to relitigate because the large company appealed, twice.
There is no justice in some of these cases.
There is no justice in some of these cases.
5
Two points. First, in the past many innovations from public universities were just released to the public. But as taxpayers have withdrawn their support from universities, so they have had to find other support. So, faculty have been instructed to submit any possible patentable innovation to the university patent lawyers to generate their own support.
Second, simply shifting the theft of IP from civil to criminal with penalties in relation to the value of the stolen property would put a big pinch on thieves.
Second, simply shifting the theft of IP from civil to criminal with penalties in relation to the value of the stolen property would put a big pinch on thieves.
5
What is even uglier than the couple of things listed here that were signed by President Obama, the guy long branded as the "people's prez" (with a half-nueron of common sense you know that was a bait and switch on gullible softhearted folks), are the fact of ultra-powerful corporations which buy out the innovators and disruptors for insane amounts of money, and shut those businesses and innovations down, and pocket the technology (more like bury it). No one, not the NY Times, etc even bothers to scratch the surface of those anti-competitive practices. It is a cost of doing business, which any market-cornering conglomerate practices. Go big or go home, and if you are thinking about putting your life into some group's innovative idea, just understand you will probably cash out because your colleagues and the visionary you tie your own fate to, are going to do just that. Forget those dreams of sweat blood and tears to make a new way. If you are working on a disruption, chances are it will be bought up and shut down as soon as, or even before it gets going.
2
This is outrageous and should be addressed. "Institutions of learning" used to be islands of honesty, where people could complete their educations. After witnessing the behavior of Scott Walker, I'd say Wisconsin is full of criminals. I always thought that state was so benign. Who knew?
2
It is a plain fact that virtually all of engineering is obvious to engineers skilled in the particular art.
1
Nocera has correctly captured the unfairness of "efficient infringing" and how patent law now has diminished the ability of inventors to license their ideas. For the record, WARF probably could not have offered an exclusive license to Apple, as Nocera suggested might have been the case. Because the same patent was a subject of litigation with Intel, and the parties settled, Intel probably has a license to the invention. (The settlement details have not been disclosed publicly.) Nevertheless, licensing is usually rather inexpensive early in the life of an invention, with non-exclusive licenses granted for $100K to a few million dollars. Even though Apple may find the $234 million in damages, plus additional millions in legal fees, to be negligible in the grand scheme of things, those same funds could have been used instead to purchase early licenses from hundreds of inventors. This is how patents and licenses should work in ideal times.
3
Of course, we should also consider that the patent is not valid. At this point only a WARF friendly Wisconsin court ruled favorable towards WARF.. As a computer engineer with more than a dozen patents I see this one as shaky. Since the time of main frame computers engineers have developed schemes to speed execution and since the time of laptop computers they have developed schemes to make them more power efficient. That is what engineers that develop computers and in the case specifically their CPU's do. One should not assume that WARF's patent "allowing the efficient out-of-order execution of computer instructions with a data speculation circuit" is novel given prior art and normal expected evolution of that art. Given more inexpensive transistors to work with as Moore's law does, engineers should develop ever more complex schemes. Joe Nocera should not be so quick to assume $234 million is small change to Apple and advocate awarding it to WARF. The validity of the patent is important and if it is not valid that money belongs to the shareholders of Apple. Even if it is valid, the patent is a very, very small and non-essential part of what makes Apple products valuable. Without WARF’s specific scheme, there are others. Let's give the inventors their fair royalty when earned, but let's not paint every thing as big bad company against the little guy.
7
The purpose of the patent system is not to penalize the large company or reward the little guy. It is to promote progress in the arts and sciences. If WARF informed the public about an innovation and received substantial compensation, progress has been promoted. Why care whether Apple is punished?
On the other hand, litigation is not an efficient mechanism for resolving a patent dispute or any other dispute. Therein lies the problem. Litigation is slow and uncertain, and it is decided by people who have little understanding of the matters they’re being asked to decide. Decisions are based on personal biases and prejudices and extraneous matters (e.g., which witnesses are more “likeable”). The "truth" is never at issue. Patent litigation is like any other litigation, only more so.
Nocera blurs the line between two separate issues: the grant of patents; and the enforcement of patents. The former has been addressed by recent legislation and public pressure (the Patent Office is a political animal), and it will continue to be addressed. Unfortunately, the latter has been ignored. Improvements in litigation and other forms of conflict resolution have not been made, but they are needed. Badly. And not just for the patent system.
On the other hand, litigation is not an efficient mechanism for resolving a patent dispute or any other dispute. Therein lies the problem. Litigation is slow and uncertain, and it is decided by people who have little understanding of the matters they’re being asked to decide. Decisions are based on personal biases and prejudices and extraneous matters (e.g., which witnesses are more “likeable”). The "truth" is never at issue. Patent litigation is like any other litigation, only more so.
Nocera blurs the line between two separate issues: the grant of patents; and the enforcement of patents. The former has been addressed by recent legislation and public pressure (the Patent Office is a political animal), and it will continue to be addressed. Unfortunately, the latter has been ignored. Improvements in litigation and other forms of conflict resolution have not been made, but they are needed. Badly. And not just for the patent system.
Big companies are getting away with stealing intellectual property?
Well, they also get away with the opposite offence, killing upstart rivals with a shot from their patent cannon. Patents have become an impenetrable jungle, in which only the truly powerful can survive, thanks to their lawyers and to their non-attack treaties with other behemoths. Also, I don't have insight into the rights of the university that was wronged, but $234 million sounds like a decent start when it comes to compensation.
Well, they also get away with the opposite offence, killing upstart rivals with a shot from their patent cannon. Patents have become an impenetrable jungle, in which only the truly powerful can survive, thanks to their lawyers and to their non-attack treaties with other behemoths. Also, I don't have insight into the rights of the university that was wronged, but $234 million sounds like a decent start when it comes to compensation.
3
Thank you, once again, Mr. Nocera for shedding light on a little-known area of business. The article says, "the law specifically gives universities the right to seek patents on federally funded research. Why? “To encourage the commercialization of new products.” In other words, OUR taxpayer dollars fund their research but they and/or the companies they sell the patent to are allowed to profit and WE hard-working taxpayers get nothing but higher education costs? THAT is the problem. There needs to be a complete overhaul of the patent process in America that demands that at least one-half the gross profits from any "public-university-researched" product or service is returned to OUR system to support OUR social structure - maybe even pay for free college for all as Senator Sanders advocates. There should be NO patents allowed for medical products or services, And there MUST be changes to OUR laws that stop the constant litigation rip-offs we endure and attorneys profit so obscenely from. Let's restore balance in the United States of America.
6
It isn't even close to time for the pendulum to swing the other way. In the first place, at the very least not until software and business process patents are disallowed. There is next to no evidence that patents in general lead to more innovation, howevern ther is definitely lead to is higher prices if for no other reason than totally wasted money on litigation.
4
Patents and other intellectual property law is an extreme legal specialty that even most lawyers don't understand. It is an unwise lawyer who ventures into it without specialized training and staff support. Only a few firms do it at all. As with Admiralty law, most lawyers know that, and avoid it like the plague.
Therefore most Americans just can't know what has been happening in the field of intellectual property law. Off in their specialized obscurity, they are invisible.
It should be no surprise in today's political world that they've been abusing that.
Our "free trade" deals have featured major attempts to spread that abuse worldwide. I doubt the negotiators for other countries quite know what is being pushed on them, but ours are specialists who know exactly what they are doing. It is a high priority for them, and they sell out some of our other interests to get it, interests the negotiators from other countries understand better and are eager to grab.
Our intellectual property law has departed from its original purpose, which was to reward innovation. It restrict innovation. It creates legal nightmares around the very idea of innovation.
A good comparison is what organized crime does to stockholder meetings in Japan. They buy a couple of shares, and use their position to threaten serious disruption unless bought off. That is what our laws have become, exactly.
It has become anticompetitive. It is contrary to our values. It is insider corruption.
Therefore most Americans just can't know what has been happening in the field of intellectual property law. Off in their specialized obscurity, they are invisible.
It should be no surprise in today's political world that they've been abusing that.
Our "free trade" deals have featured major attempts to spread that abuse worldwide. I doubt the negotiators for other countries quite know what is being pushed on them, but ours are specialists who know exactly what they are doing. It is a high priority for them, and they sell out some of our other interests to get it, interests the negotiators from other countries understand better and are eager to grab.
Our intellectual property law has departed from its original purpose, which was to reward innovation. It restrict innovation. It creates legal nightmares around the very idea of innovation.
A good comparison is what organized crime does to stockholder meetings in Japan. They buy a couple of shares, and use their position to threaten serious disruption unless bought off. That is what our laws have become, exactly.
It has become anticompetitive. It is contrary to our values. It is insider corruption.
17
"Efficient infringing" is willful theft of something valuable and, in the sorts of cases mentioned, should be a felony because of the high value.
I thought a patent troll was much different than described here. I thought, through diligent research, trolls found and bought patents or companies that owned patents that seemed to be widely infringed then filed a a flurry of lawsuits against the the most prosperous companies allegedly infringing.
That is rather more clever than evil, like The Beatles buying up the copyrights to all those popular and college tunes thought to be public domain.
I thought a patent troll was much different than described here. I thought, through diligent research, trolls found and bought patents or companies that owned patents that seemed to be widely infringed then filed a a flurry of lawsuits against the the most prosperous companies allegedly infringing.
That is rather more clever than evil, like The Beatles buying up the copyrights to all those popular and college tunes thought to be public domain.
Both my father and son have research patents while working at universities. The patents have their names on them, but one of the preconditions of employment is that the patent rights belong to the university. Similar patent provisions apply to patents developed by individuals working for private companies.
Patents are designed to reward innovators with exclusive rights for a period time to recover the costs of the invention.
To whatever extent desirable to themselves, patent holders often seek to license their patents, even if they intend to use the invention themselves. Of course, if the patent represents a significant advance, they may use it to their own sole advantage.
But for me, the big issue isn't what some commentators have written about in terms of patents being a mere extension of existing knowledge or technology. Innovation is still required.
What bothers me is that in today's world, so much of the advance is the result of public money from the federal government in terms of research grants and contracts for innovative technology. But when the NIH gives money for a promising idea or the Defense Department contracts out to a private company to develop a new technology, we the people who have paid for it somehow get left with nothing.
If it's worth money, we should get something back for our investment. But more importantly, we should get to ensure that the patent will be used for all of our benefit, not for the benefit of a privileged few.
Patents are designed to reward innovators with exclusive rights for a period time to recover the costs of the invention.
To whatever extent desirable to themselves, patent holders often seek to license their patents, even if they intend to use the invention themselves. Of course, if the patent represents a significant advance, they may use it to their own sole advantage.
But for me, the big issue isn't what some commentators have written about in terms of patents being a mere extension of existing knowledge or technology. Innovation is still required.
What bothers me is that in today's world, so much of the advance is the result of public money from the federal government in terms of research grants and contracts for innovative technology. But when the NIH gives money for a promising idea or the Defense Department contracts out to a private company to develop a new technology, we the people who have paid for it somehow get left with nothing.
If it's worth money, we should get something back for our investment. But more importantly, we should get to ensure that the patent will be used for all of our benefit, not for the benefit of a privileged few.
59
Excellent point that seems to be overlooked.
I can see two sides to that argument. On one hand, we the public essentially funded the research through tax dollars, and it seems unfair that the user of those funds gets rich on our nickel while we get nothing back.
Or do we? Without funding, many innovations that we enjoy today would never have been developed. Sure, we have to pay for them, but they are there for us to use. Society as a whole benefits, and the clever, bold, hardworking entrepreneurs are rewarded a well-deserved disproportionate share.
I have been of either opinion at different times, but ultimately believe that investment in higher education and innovations is a net positive.
I can see two sides to that argument. On one hand, we the public essentially funded the research through tax dollars, and it seems unfair that the user of those funds gets rich on our nickel while we get nothing back.
Or do we? Without funding, many innovations that we enjoy today would never have been developed. Sure, we have to pay for them, but they are there for us to use. Society as a whole benefits, and the clever, bold, hardworking entrepreneurs are rewarded a well-deserved disproportionate share.
I have been of either opinion at different times, but ultimately believe that investment in higher education and innovations is a net positive.
Actually, if federally funded research leads to a patent, the government is entitled to use that innovation without paying a royalty.
All research grants contain such a clause and the grantees are required to report any patents to the granting agency.
All research grants contain such a clause and the grantees are required to report any patents to the granting agency.
The most pernicious myth in the American mythological canon is the idea of free (unregulated) enterprise as the engine of innovation and prosperity for all. This article highlights just one of many examples of how big money and our legal system suffocate innovation and concentrate the spoils of other people's work in the hands of the powerful few. Civil penalties are meaningless when the litigation calculus favors (virtually requires) violating the rules because big profits are secured regardless of legal outcomes. It's simply part of any successful business model, and to do otherwise demonstrates fiduciary irresponsibility. Everyone plays their part as routine participants -- just another normal day at the office -- and the worst part is that those being robbed by this fixed system tend to be the most ardent defenders of America's most pernicious myth.
26
Big money wants much less regulation, and much less taxation, so they can commit many more of these crimes, with impunity. Any vote for a Republican will make this a certainty.
2
Mr. Nocera has this completely right. America has been the world's innovator for some time now, but these so-called Patent Reforms have the primary effect to pave the way for large companies to simply take the innovations that small companies and universities are creating. For example, one of the newer "patent reform" concepts is for the loser in a patent suit to pay the costs of the winner. This might sound nice, but in fact it means small businesses and universities will have to make serious bets on their future before even considering trying to enforce their patents. And large companies know it. And the patent bills contain lots more damage for American innovation. Which makes patents less valuable, and inventions less worthwhile. When 20 years from now we see everything being made somewhere outside the U.S., and only by the largest companies in the world, remember these days back now when we were destroying America's inventors and innovativeness.
11
Patents cause publication of the subject methods, which is why many tweaks never get patented, but remain trade secrets.
The Patent Clause "to promote the progress of science and the useful arts..." and the requiremant of patent publication (rather than keeping a trade secret) puts its emphasis on the dispersion and use of inventions. Fleming didn't patent penicillin in 1929 much less license it to someone who could make it widely availbe to the world. The result was a two decade delay in its lifesaving use. Did Warf actively seek to license this particular innovation, or did all the tech companies really intentionally not bother to negotiate? Only if the later is true did the purpose of the Patent Clause get controvened.
And let us not forget that the Patent Office and Congress by loosening the standards for patents granted has encouraged bad behavior (think of the 55 mile speed limit analogy). Patents on such silliness as business practices or a found plant or trivial "innovations" may justifiably lead those companies that simply want to get something done to act first and license later. This mindset which Joe Nocera deplores may have actually become necessary to carry out the intention of the Patent Clause.
And let us not forget that the Patent Office and Congress by loosening the standards for patents granted has encouraged bad behavior (think of the 55 mile speed limit analogy). Patents on such silliness as business practices or a found plant or trivial "innovations" may justifiably lead those companies that simply want to get something done to act first and license later. This mindset which Joe Nocera deplores may have actually become necessary to carry out the intention of the Patent Clause.
1
Sure, start with the wrong definition of a patent troll and it's easy to call WARF one then defend them. But to me a patent troll seeks a patent on something that already exists. Reform needs to start with the patent office recognizing its obligation to ensure the application actually is an inventive workable device. Of course THAT requires a budget increase and good luck getting that through this GOP-controlled congress.
2
You are sorely mistaken if you think a patent troll is just someone who seeks a patent on existing stuff. As someone who has filed (and been granted as well as rejected) patents with the USPTO, my experience suggests that the patent reviewers are of good caliber and are quite competent at detecting duplicate "inventions".
Real trolls are those who conjure up ideas that are marginal improvements over existing state-of-the-art; most educated people with knowledge in the relevant areas could come up with similar ideas were they to spend time thinking about them and reading basic literature. It's just that those ideas have little market value at the present moment (though that situation changes within a few years), so people who would be interested in productizing those ideas wouldn't have bothered to invest the time and effort. In other words, patent trolls are just grabbing low-hanging fruit that has little current market value but might have significant future market value.
Real trolls are those who conjure up ideas that are marginal improvements over existing state-of-the-art; most educated people with knowledge in the relevant areas could come up with similar ideas were they to spend time thinking about them and reading basic literature. It's just that those ideas have little market value at the present moment (though that situation changes within a few years), so people who would be interested in productizing those ideas wouldn't have bothered to invest the time and effort. In other words, patent trolls are just grabbing low-hanging fruit that has little current market value but might have significant future market value.
2
The patent office just leaves it to inventors to prove originality, etc. in their lawsuits for royalties.
Future? Patents are supposed to be for devices, not for dreams. Ooh ooh ooh. I claim the patent on the warp drive!
Does the pendulum REALLY need to start swinging in the other direction, Mr. Nocera, or does the American legal system need to be constrained, to the extent that there ARE TRUE PENALTIES for pushing the bounds of common sense and balance in order to gain maximum competitive advantage? The latter, I believe, would be the wisest course, but since almost all legislators are lawyers and many judges are swayed by campaign money or extreme ideology, I won't hold my breath!
THIS syndrome of overpowering one's opponents by drowning them in litigation is the consequence of a completely adversarial, winner-take-all legal system, which has further empowered the financial and corporate sectors to OVERPOWER our democracy. THAT is what people are mad as hell about!
THIS syndrome of overpowering one's opponents by drowning them in litigation is the consequence of a completely adversarial, winner-take-all legal system, which has further empowered the financial and corporate sectors to OVERPOWER our democracy. THAT is what people are mad as hell about!
12
Who do you suppose is writing those bills for Congress to pass? When companies "invest" in Congresspersons, they expect to get a return -- as Donald Trump recently explained.
9
All you get with a patent is a cause of action to sue people.
2
At one time, the length of patents was more reasonable, their definition less obscure, and the measure of damage was more near a fair licencing fee.
People had to sell the right to use a patent, at a fair price. If they didn't, then all they could collect was that fair price. What they law really prevented was taking that invention without paying the fair licencing fee.
Now it is very different. They last far longer, they block more, and they can set a price so high that it amounts to refusal to deal.
It becomes robbery of others' efforts, and prevention of progress, instead of reward for innovation and advancing progress.
People had to sell the right to use a patent, at a fair price. If they didn't, then all they could collect was that fair price. What they law really prevented was taking that invention without paying the fair licencing fee.
Now it is very different. They last far longer, they block more, and they can set a price so high that it amounts to refusal to deal.
It becomes robbery of others' efforts, and prevention of progress, instead of reward for innovation and advancing progress.
5
"All you get with a patent is a cause of action to sue people."
And that cause to sue can effectively give you exclusive access to a lucrative market. I believe it was Poloroid patents that killed Kodak's instant camera forcing them to buy back existing cameras.
And that cause to sue can effectively give you exclusive access to a lucrative market. I believe it was Poloroid patents that killed Kodak's instant camera forcing them to buy back existing cameras.
Companies, like 3D Systems, buy patents and then hold them to choke out the competition. They have a team that does nothing except research the patents on the competitors in hopes to find the infringement. If found, they simply shut it down or sue their competitor. I, personally, do not believe that this encourages free market production and competition, obviously.
I also play an massive online role-playing game. There are several thousands of people who play, of course. Last year I ran into one who declared to have copyrighted names, common names, i.e.: Robert and its derivatives, Agustus, Brenda, Babycakes, and so on. Whenever he/she saw a name in the chat panel or on the screen he/she would demand a few dollars from the individual. Of course he/she was reported and banned from the game but how could he do this? Because the copyright laws of the USA states if a person writes something on the internet it is covered via the copyright publishing law. The player opened a blog and began writing the names he/she found on baby naming sites adding names as needed whenever crossing a new name. Of course, copyright was never meant for this purpose, but until the person using it with ill-intent is challenged they will succeed. This is no different than WARF or any other college. They intentionally write patents with just enough information on an idea to harvest crops of money. If you think this doesn't harm new ideas from garage inventors then you are wrong.
I also play an massive online role-playing game. There are several thousands of people who play, of course. Last year I ran into one who declared to have copyrighted names, common names, i.e.: Robert and its derivatives, Agustus, Brenda, Babycakes, and so on. Whenever he/she saw a name in the chat panel or on the screen he/she would demand a few dollars from the individual. Of course he/she was reported and banned from the game but how could he do this? Because the copyright laws of the USA states if a person writes something on the internet it is covered via the copyright publishing law. The player opened a blog and began writing the names he/she found on baby naming sites adding names as needed whenever crossing a new name. Of course, copyright was never meant for this purpose, but until the person using it with ill-intent is challenged they will succeed. This is no different than WARF or any other college. They intentionally write patents with just enough information on an idea to harvest crops of money. If you think this doesn't harm new ideas from garage inventors then you are wrong.
9
It reminds one of the Golden Age comic book about the Prankster copyrighting the alphabet, necessitating intervention by Superman to save the world.
Joe, sounds to me like there are just to many lawyers.
1
There are too few people who understand what is going on right under their noses.
2
My only objection here is whether a university should be able to patent something based on federally-funded research. Shouldn't the federal government at least get a stake in it, if it doesn't actually enter the public domain?
6
There is a point made in this column that to me makes no sense.
The columnist writes that WARF wanted to grant an exclusive license to an Apple competitor. The column then goes on to say that WARF had to use litigation against Apple to get from Apple what it should have gotten through negotiation.
In the first place, an exclusive license to a competitor might well have meant that Apple could not have legally used the invention in the patent at all. Exclusive means “you and no one else.” The competitor might have opted to be the only one with the right to use the invention to the exclusion of Apple and everyone else.
With the exclusive license, however, would have come the right to sublicense. An option therefore for the competitor would have been to grant Apple a sublicense. That would have been between the exclusive licensee and Apple. The possible benefit to WARF would have come only through the increased royalties or other payments the exclusive licensee would make to WARF because of the Apple sublicense.
In short, whether the exclusive licensee maintained its exclusivity in use of the invention or sublicensed Apple to use the invention, there never could have been the “negotiation” between WARF and Apple envisioned by the column, and the column envisions both the exclusive license and a WARF-Apple negotiation. Once WARF granted an exclusive license to the Apple competitor WARF no longer had licensing rights.
The columnist writes that WARF wanted to grant an exclusive license to an Apple competitor. The column then goes on to say that WARF had to use litigation against Apple to get from Apple what it should have gotten through negotiation.
In the first place, an exclusive license to a competitor might well have meant that Apple could not have legally used the invention in the patent at all. Exclusive means “you and no one else.” The competitor might have opted to be the only one with the right to use the invention to the exclusion of Apple and everyone else.
With the exclusive license, however, would have come the right to sublicense. An option therefore for the competitor would have been to grant Apple a sublicense. That would have been between the exclusive licensee and Apple. The possible benefit to WARF would have come only through the increased royalties or other payments the exclusive licensee would make to WARF because of the Apple sublicense.
In short, whether the exclusive licensee maintained its exclusivity in use of the invention or sublicensed Apple to use the invention, there never could have been the “negotiation” between WARF and Apple envisioned by the column, and the column envisions both the exclusive license and a WARF-Apple negotiation. Once WARF granted an exclusive license to the Apple competitor WARF no longer had licensing rights.
If the university seeks to license patents its scientists develop to those who could exploit those patents commercially, then I’d have to say that they’re NOT patent trolls.
One tends to think of patent trolls as corporations that seek to buy what they believe are under-exploited patents, then increase their exploitation with companies that manufacture existing products. These troll organizations don’t invent anything themselves, but engage in a kind of patent arbitrage without adding anything of value themselves.
But the university’s scientists DO invent things, and their patents protect intellectual property THEY developed and for which they should benefit in new products. Seems to me that they have a right to charge what the traffic will bear in license costs.
In Joe’s example, WARF’s basic interests against Apple were protected, despite the lack of injunctive relief. While the lack of an injunctive ability DOES penalize the small inventor, and kept WARF from offering a patent license in a competitive manner where it might have benefited rather than having it hijacked by Apple, our laws seek to balance interests. The threat of leveling an injunction against a company that depends on products over which every process or sub-component is NOT patented by the manufacturer gives excessive power to what could be REAL patent trolls. And nobody likes a troll but another troll.
The real solution is to limit Apple’s ability to knowingly hijack processes it hasn’t patented.
One tends to think of patent trolls as corporations that seek to buy what they believe are under-exploited patents, then increase their exploitation with companies that manufacture existing products. These troll organizations don’t invent anything themselves, but engage in a kind of patent arbitrage without adding anything of value themselves.
But the university’s scientists DO invent things, and their patents protect intellectual property THEY developed and for which they should benefit in new products. Seems to me that they have a right to charge what the traffic will bear in license costs.
In Joe’s example, WARF’s basic interests against Apple were protected, despite the lack of injunctive relief. While the lack of an injunctive ability DOES penalize the small inventor, and kept WARF from offering a patent license in a competitive manner where it might have benefited rather than having it hijacked by Apple, our laws seek to balance interests. The threat of leveling an injunction against a company that depends on products over which every process or sub-component is NOT patented by the manufacturer gives excessive power to what could be REAL patent trolls. And nobody likes a troll but another troll.
The real solution is to limit Apple’s ability to knowingly hijack processes it hasn’t patented.
3
Good article. Patent law was originally intended to empower the "little guy", but it as it currently stands it does almost the opposite, empowering wealthy corporations like Apple. That's what happens when laws are written by and for the corporate lobbyists.
It would probably be an improvement to scrap patent law completely (except maybe in the pharmaceutical industry, where profits from patent-protected drugs actually do fund some useful development). At least then smaller companies would be able to use innovations from university research as freely as big corporations already do.
It would probably be an improvement to scrap patent law completely (except maybe in the pharmaceutical industry, where profits from patent-protected drugs actually do fund some useful development). At least then smaller companies would be able to use innovations from university research as freely as big corporations already do.
1
"It would probably be an improvement to scrap patent law completely (except maybe in the pharmaceutical industry, "
Patents give society disclosure of information that would otherwise remain private. It improves the return on R & D. Not all patents can be easily reverse engineered like the process to make a chemical.
With patents, you get exclusive rights to your innovation for a period of time in exchange for disclosing it to the world. In those regards they make sense.
A idea must meet a number of requirements to be patent able including novel/new, useful, and non-obvious. Two things i would consider for reforming patents are;
1. Setting the bar appropriately high in the non obvious to one skilled in the art requirments.
2 Shortening the protection duration in quickly evolving technologies. if a technology has been mature for 20 years, an someone comes up with an improvement, then it wasn't obvious. An alternative to a gas pedal might be such an example. For a newer technology like drones, perhaps some innovations will be obvious because the problem around just arose.
Johan
Patents give society disclosure of information that would otherwise remain private. It improves the return on R & D. Not all patents can be easily reverse engineered like the process to make a chemical.
With patents, you get exclusive rights to your innovation for a period of time in exchange for disclosing it to the world. In those regards they make sense.
A idea must meet a number of requirements to be patent able including novel/new, useful, and non-obvious. Two things i would consider for reforming patents are;
1. Setting the bar appropriately high in the non obvious to one skilled in the art requirments.
2 Shortening the protection duration in quickly evolving technologies. if a technology has been mature for 20 years, an someone comes up with an improvement, then it wasn't obvious. An alternative to a gas pedal might be such an example. For a newer technology like drones, perhaps some innovations will be obvious because the problem around just arose.
Johan
2
The difference between WARF and a patent troll is that WARF funds researchers at UW who engage in research and WARF applies for relatively narrow patents. Patent trolls don't support research (generally), and apply for broad patents, frequently on things that are obvious to those "skilled in the art". The cure for bad patents is to fund the Patent and Trademark Office sufficiently to hire people "skilled in the art", but knowing what these people could earn in private industry, this doesn't seem practical. It would cost money, and who wants more Government spending?
3
One wonders why this host blocked a posting that states the plain legal fact that a patent is nothing more than a temporary cause of action to file lawsuits alleging that somebody else is doing something described in the claims language without permission of the patent owner.
The problem with our current patent system has to do with the difference between having an idea and having an idea, acting on it and making the idea work. Given a specific technological setting, many people are going to have the ideas that are practically identical. Currently the first person to register the idea owns gets the patent rights rather than the first person to work on the idea and prove its worth. This makes no sense and is arguable sort of childish. We shouldn't have laws that enforce 'calling dibs'.
6
Good point. At one time, patent law did require more proof that the patent was issued for something made workable, with proof of that, not just an abstract idea.
2
Legislation pending in both the Senate and the House will make it much more difficult for patent holders to bring infringement actions. Merely filing a complaint (the initial pleading by a plaintiff) will become an ordeal by requiring the plaintiff/patent holder to use a “claim chart” to show every possible infringement for each claim against each product. This is at the earliest stage of a lawsuit, when the scope of infringement is not fully known.
Traditionally, at trial a patent holder needed to prove infringement by a preponderance of the evidence (the lowest burden of proof), but the alleged infringer needed to prove the defense of invalidity of the patent by clear and convincing evidence. That divergence was exploited, as Joe Nocera writes, by so-called “patent trolls”. Now, however, Congress (heavily lobbied, as usual) is doing an end run which will effectively flip the burden to make it very difficult for inventors to hold onto the fruits of their labors.
It could really harm the economy and, equally as important, America’s leadership position in innovation over the long haul. Write your Senator or Congressman for more information.
Traditionally, at trial a patent holder needed to prove infringement by a preponderance of the evidence (the lowest burden of proof), but the alleged infringer needed to prove the defense of invalidity of the patent by clear and convincing evidence. That divergence was exploited, as Joe Nocera writes, by so-called “patent trolls”. Now, however, Congress (heavily lobbied, as usual) is doing an end run which will effectively flip the burden to make it very difficult for inventors to hold onto the fruits of their labors.
It could really harm the economy and, equally as important, America’s leadership position in innovation over the long haul. Write your Senator or Congressman for more information.
1
I did some consulting in a patent case involving entities that might be called "patent trolls". Every single company complaining about patent trolls was itself the plaintiff in many cases, often over similar patents, against other large corporations.
One problem is that the Patent Office issues a great many patents that it should not, for obvious or well-known "inventions".
One problem is that the Patent Office issues a great many patents that it should not, for obvious or well-known "inventions".
13
My daughter is a bioengineer working for a tiny startup company. On reading this great article, I just emailed her with the comment that I hope that she and her company are not punished for trying to do good. Neutral would have been that I hope that if their product is good, they will be rewarded; but the Apples and (numerous medical device companies) really discourage our young people from trying to innovate.
7
Is the University of Wisconsin-Madison a patent troll? Yes, and it is no better or worse than the typical patent troll.
When an individual or corporation comes up with a patentable idea that they are not able to exploit themselves, they monetize their invention by selling the patent to a company that is in the business of licensing patents to those who can make use of it. They have no other realistic means of profiting from their invention.
One can take the position that this is or is not proper. Whichever position one takes, it is equally applicable to patent enforcement entities such as that run by the University of Wisconsin.
I tend towards the position that there is nothing wrong with patent trolls. The problem is in the US patent office and the law.
Too many patents are issued for inventions that can easily be duplicated by any competent engineer. These should be denied for not meeting non-obvious requirements of the law. And patent duration is too long. In the area of electronics, cutting edge ideas of 5-10 years ago can find their way into most of today's electronics. Should the inventor of a good but not earth shattering idea be paid for years by every electronics manufacturer in the world?
When an individual or corporation comes up with a patentable idea that they are not able to exploit themselves, they monetize their invention by selling the patent to a company that is in the business of licensing patents to those who can make use of it. They have no other realistic means of profiting from their invention.
One can take the position that this is or is not proper. Whichever position one takes, it is equally applicable to patent enforcement entities such as that run by the University of Wisconsin.
I tend towards the position that there is nothing wrong with patent trolls. The problem is in the US patent office and the law.
Too many patents are issued for inventions that can easily be duplicated by any competent engineer. These should be denied for not meeting non-obvious requirements of the law. And patent duration is too long. In the area of electronics, cutting edge ideas of 5-10 years ago can find their way into most of today's electronics. Should the inventor of a good but not earth shattering idea be paid for years by every electronics manufacturer in the world?
3
Intellectual property has come a long way. Time was, if an inventor came up with a cheaper way to refine iron ore into steel, or a faster method of textile production, they would be well in their rights to want a legal monopoly to sell it. Back in those days, the cost to start a business was much, much higher, and if it weren't for patents, as soon as word got out of a new invention, a well-heeled competitor could bring it to market before the inventor would even be ready for production.
Times have changed. Nowadays, the most egregious abuses of the patent system - software and pharmaceuticals - game the process by laying claim to technology built on the research of thousands of others that is often obsolete in half a decade.
If we want to truly reform the patent system, I have three suggestions:
1: Forbid licensing requirements when the patent holding entity is not the original inventor and has no intent to produce it themselves.
2: Restrict pharmaceutical companies from claiming patents for slight chemical modifications of drugs they already have patented and have no difference in effect.
3: Limit the lifetime of software patents to just a few years, unless it is significantly groundbreaking (quantum computing, hardware-based recurrent neural networks, etc.)
America has always been the land of reinvention. Let us not cripple ourselves under the guise of "Exceptionalism."
Times have changed. Nowadays, the most egregious abuses of the patent system - software and pharmaceuticals - game the process by laying claim to technology built on the research of thousands of others that is often obsolete in half a decade.
If we want to truly reform the patent system, I have three suggestions:
1: Forbid licensing requirements when the patent holding entity is not the original inventor and has no intent to produce it themselves.
2: Restrict pharmaceutical companies from claiming patents for slight chemical modifications of drugs they already have patented and have no difference in effect.
3: Limit the lifetime of software patents to just a few years, unless it is significantly groundbreaking (quantum computing, hardware-based recurrent neural networks, etc.)
America has always been the land of reinvention. Let us not cripple ourselves under the guise of "Exceptionalism."
4
Let's follow the money. Congress appropriates money for the NIH or the NSF. Colleges and non-profit hospitals apply for grant money. Grant gets approved, and research is conducted. Research leads to a patent which generates money from licensing agreement or patent troll lawsuit. So, here we have the taxpayer giving even more money to these massively rich nonprofit institutions. Outrageous!
5
It is hard to pick out good guys and bad guys in the modern patent world. Over the last decade at least the process for granting patents has become ridiculous. I'm no fan of Apple's business processes, but from what I've read (not just with Apple) there is about an equal amount of misuse of patent law by both patent applicants/holders and patent licensees/infringers.
We need to get back to the core idea of what a patent is. Limited time protection for creating something truly unique. For example, naturally occurring phenomenon may be discovered, but should not be patent-able, as they are not created.
We need to get back to the core idea of what a patent is. Limited time protection for creating something truly unique. For example, naturally occurring phenomenon may be discovered, but should not be patent-able, as they are not created.
6
Patent portfolio of a tech company and cross licensing between the companies works better for the high tech industry. The university patent portfolio is an anomaly in this established business arrangement. It has become a lawyer's paradise - and need cleaning. University is not in business to sale products and services in competitive market and has no need for cross licensing. Their patent portfolio should be open to public as these are created by public money. The only beneficiary should be the inventor and without loyalty they can be paid limp sum money to get the patent right. Congress should look into this matter to avoid the confusion in the high tech industry.
3
Makes one reconsider the whole idea of a patent. Is there any baby in that bathwater at all? Why not simply acknowledge the fact that most truly original research is done on the public dime and allocate the needed public dimes? We really seem to have a talent in the US for contorting a clear public purpose into a rube-goldberg tangle of legislation for the gain of corporate entities.
13
This article is right on target. The purpose of the 2011 "patent reform" was to weaken the position of independent inventors, empowering big corporations to steal their inventions or force them to be licensed on unfavorable terms. The current "patent reform" bill will take this even further. It is ironic, and contemptible, that a Congress and administration that can't agree on anything else can come together in support of such a immoral, counter productive, and unamerican policy.
20
.... and the "conservative representatives' and their corporate lobby manipulators (pay NO attention) behind the curtain cry, in public: "Crony Capitalism?" Washington, D.C., surfs on a river of crony capitalism because, well, money "is free speech."
1
Naive, short-sighted, whatever.
Patents are given to protect the purported inventor, but in fact the "inventor" doesn't appear out of thin air with his or her invention sprung full grown from the void of space.
There is a long trail behind every so called invention which dilutes any "new" idea. The fact that companies provide labs to facilitate development of ideas which may in turn become inventions gives them an advantage, but that isn't reason to give them exclusive rights.
Every so called invention or discovery by individuals is not actually a discovery, but a refinement and reformulation of knowledge of an existing product or process of those who preceded them.
Giving legal advantage to those who have simply built on human progress has clearly isolated humanity both financially and therefore socially. Today instead of the most fearsome animal ruling the kingdom, that creature has been replaced with one devised and loosely tethered by the agreement we know and for the most part must accept as law.
We have not yet come to grips with the fact that none of us asked to be born and that consequently all should have equal rights to whatever developments are made. Avoidance or denial of this undeniable fact has and will continue to keep us at each others throats. If we really want peace it must be preceded by the acknowledgement of human equality.
Acceptance of patents is simply another means to deny the equality and advancement of humanity.
Patents are given to protect the purported inventor, but in fact the "inventor" doesn't appear out of thin air with his or her invention sprung full grown from the void of space.
There is a long trail behind every so called invention which dilutes any "new" idea. The fact that companies provide labs to facilitate development of ideas which may in turn become inventions gives them an advantage, but that isn't reason to give them exclusive rights.
Every so called invention or discovery by individuals is not actually a discovery, but a refinement and reformulation of knowledge of an existing product or process of those who preceded them.
Giving legal advantage to those who have simply built on human progress has clearly isolated humanity both financially and therefore socially. Today instead of the most fearsome animal ruling the kingdom, that creature has been replaced with one devised and loosely tethered by the agreement we know and for the most part must accept as law.
We have not yet come to grips with the fact that none of us asked to be born and that consequently all should have equal rights to whatever developments are made. Avoidance or denial of this undeniable fact has and will continue to keep us at each others throats. If we really want peace it must be preceded by the acknowledgement of human equality.
Acceptance of patents is simply another means to deny the equality and advancement of humanity.
2
A good column as usual! Just a few observations --
WARF is the predictable outcome from universities who run science and engineering departments as profit making entities. UW-Madison just happens to be better at it (and more aggressive) than other universities.
The patent infringed by Apple has relatively narrow applicability. Its method detects data dependencies in a CPU pipeline that can slow the flow of instructions through the pipe. Aside from companies building CPUs, the range of potential licensees is rather limited. AMD, Intel, etc. have already figured this problem out.
"Efficient infringing" is another by-product of the quasi-libertarian "Don't put no rules on us because we're special" Valley Boy attitude. Sorry, folks. The same laws apply to everyone.
WARF is the predictable outcome from universities who run science and engineering departments as profit making entities. UW-Madison just happens to be better at it (and more aggressive) than other universities.
The patent infringed by Apple has relatively narrow applicability. Its method detects data dependencies in a CPU pipeline that can slow the flow of instructions through the pipe. Aside from companies building CPUs, the range of potential licensees is rather limited. AMD, Intel, etc. have already figured this problem out.
"Efficient infringing" is another by-product of the quasi-libertarian "Don't put no rules on us because we're special" Valley Boy attitude. Sorry, folks. The same laws apply to everyone.
7
The problem is not the trolls, but the patent office. They will give a patent to anything. If I 'invested' "a method of writing newspaper columns electronically, and publishing them in digital media", and then sued Joe Nocera for infringing my patent, he would be very upset, and rightly so.
The general public little realizes how worthless 99% of these patents are.
The general public little realizes how worthless 99% of these patents are.
10
The main characteristic that separates patent trolls from legitimate patent use is that they pursue the prosecution of ridiculous patents that should never have been granted in the first place, typically because they would fail the "obviousness" test for one "skilled in the art". University patents essentially never fall into this category.
7
Take the sugar out of patent possession. As patent and copyright laws now stand everyone loses. A lot of money changes hands and the consumer pays for it all in the long run. But the biggest loser is the advancement of human knowledge. Ideas should not be out of circulation for tens of years while people squabble about who has the right to make millions of dollars. Biomedicine is one area where million dollar squabbles hurt people who are ill from physical trauma and who often cannot afford million dollar medicines.
8
I think it's great that the subject of patent use and abuse is being taken up in an article in the Times. This one, however is confusing and I hope many more to come will improve over time.
In this story I'm having a difficult time figuring out who the "villan" is, WARF described as some sort of hybrid troll or Apple featured as big bad business?
But the answer does not really matter because the patent in this case is a bit of software that itself relies on the work of so many others that it does not acknowledge or pay rights to use either. The only difference is an entity, one that had absolutely nothing to do with it's creation holds the patent.
The entire notion of who "owns" an idea is absurd when Universities or Corporations lay claim to the work of individuals reaping millions but paying the university scientist (or their lab team) peanuts and an hourly wage at that when the company or university goes on to enjoy the monetary rights to an idea for the entire life of the patent.
But it's worse than that. All science and technology now relies on decades, even centuries of technology that came before it. Every time someone writes down someone else's idea to capture money eg, every textbook, published article, is essentially taking credit for and exploiting the common used by everyone.
Patent law used to make sense earlier industrial revolution but stopped making sense at it's decline. It makes no sense in the age of software at all.
In this story I'm having a difficult time figuring out who the "villan" is, WARF described as some sort of hybrid troll or Apple featured as big bad business?
But the answer does not really matter because the patent in this case is a bit of software that itself relies on the work of so many others that it does not acknowledge or pay rights to use either. The only difference is an entity, one that had absolutely nothing to do with it's creation holds the patent.
The entire notion of who "owns" an idea is absurd when Universities or Corporations lay claim to the work of individuals reaping millions but paying the university scientist (or their lab team) peanuts and an hourly wage at that when the company or university goes on to enjoy the monetary rights to an idea for the entire life of the patent.
But it's worse than that. All science and technology now relies on decades, even centuries of technology that came before it. Every time someone writes down someone else's idea to capture money eg, every textbook, published article, is essentially taking credit for and exploiting the common used by everyone.
Patent law used to make sense earlier industrial revolution but stopped making sense at it's decline. It makes no sense in the age of software at all.
15
The successful university "inventors" are usually well paid tenured staff members. They did not fall off the turnip truck. The tend to be bright people who get a percentage of resulting royalties, raises, and often better jobs at other institutions. The universities agree to this percentage in order to provide an incentive for the staff members to do patentable work.
I find it remarkable that Mr. Nocera would focus his article on the deserving minority of NPEs (non-performing entities) -- namely, universities -- and ignore the very real problem of true patent trolls: organizations whose entire business model is to buy up IP and sue in friendly districts.
Abuse of power goes both ways. But in my opinion, it is the large majority of NPEs who are the real stiflers of innovation.
Abuse of power goes both ways. But in my opinion, it is the large majority of NPEs who are the real stiflers of innovation.
17
In a joint project with Professor Ben-ami Bravdo of the Faculty of Agriculture, Hebrew University, a novel method of completely automatic irrigation was developed. I never was officially attached to the University. We approached Ysum, the developmental wing of the University who agreed to finance a patent, which was taken out in the name of the University, with Bravdo and I named as inventors. Our efforts to acquire a workable licensing agreement were fruitless. The conditions demanded by Ysum made it impossible to develop a saleable product.
3
There's not much new here. The idea that a company, be it a large corporation or a small Direct Response TV company, will sometimes run roughshod over an inventor, just knock off a patent and consider the costs of litigation and settlement as a business expense, is nothing new. Likewise, patent trolls have been around a long time and predate the Internet and Nathan Myhrvold. Consider Jerome Lemelson as exhibit A (nice whitewash he's received from MIT).
It's virtually impossible for the current patent system to distinguish in advance between ideas that will truly advance the state of the art and those that will simply gum up the works. Sometimes a simple but genuinely unobvious twist of a doohickey can make a big difference in functionality. Sometimes the twist is obvious and inevitable and a farsighted troll writes a patent on it. The patent office can't distinguish between the two.
Rather than changing what exists at he USPTO, what's needed is an addition to the system,
Let's consider a formal and affordable patent mediation process; something that will render an opinion prior to a trial, prior to Markman; something that is required before filing a lawsuit and is executed quickly without discovery etc with just the simple facts of the allegation to consider. The mediation opinion should then be granted legal weight for any trial that might follow. That might put things on a better track.
It's virtually impossible for the current patent system to distinguish in advance between ideas that will truly advance the state of the art and those that will simply gum up the works. Sometimes a simple but genuinely unobvious twist of a doohickey can make a big difference in functionality. Sometimes the twist is obvious and inevitable and a farsighted troll writes a patent on it. The patent office can't distinguish between the two.
Rather than changing what exists at he USPTO, what's needed is an addition to the system,
Let's consider a formal and affordable patent mediation process; something that will render an opinion prior to a trial, prior to Markman; something that is required before filing a lawsuit and is executed quickly without discovery etc with just the simple facts of the allegation to consider. The mediation opinion should then be granted legal weight for any trial that might follow. That might put things on a better track.
7
Patent trolls are real, and a very real problem. Some time ago I worked at a university media center. We had a video series that I wanted to digitize and store on a media server. I tried to get rights to do so from the copyright owner of the video series. Their response was that ordinarily they'd be happy to let me do so, however they were scared of being sued by a particular patent troll who had an over broad patent claiming rights to all video streaming, and who was going around suing small colleges and businesses.
Patent reform is well past due, if you ask me.
Patent reform is well past due, if you ask me.
42
For me, your column raises as many questions as it answers. For instance, how did Apple get its hands on WARF's innovation in the first place? And what is the value of that innovation if Apple's competitors can also get it in the same way? Or was Apple guilty of corporate espionage? Maybe I missed the answers in your column, but something seems amiss. Not that I don't agree with your main point that laws must be carefully constructed to balance the objectives of fostering innovation and ensuring its widespread benefits.
1
Michael, I can think of a couple of ways Apple found out about WARF's innovation. Perhaps someone had a conversation with someone else at WARF in which this innovation was discussed, and later mentioned it to someone working with Apple. Maybe Apple has staff that research patents granted in certain areas, like IP. And maybe Apple has staff that do research on universities' technical research and patent applications.
The jury did not accept that the infringement was wilful (which Mr. Nocera calls efficient), hence the lower award. What is Mr. Nocera proposing? That patent trolls get richer? That would only benefit Apple (they've won their share of awards too).
2
I have a number of patents on reusing used rubbers including old tires. But the earliest one issued in 1999 was copied totally by Chinese companies and the infringers went onto make equipment to use the process. That technology is used widely even today by companies in Malaysia, but not in the US. I had no way of suing them. However since then we have made vast improvements to the technology and use it in the US in our process.
Process patents, also known as utility patents, when infringed even by small companies are harder to detect as improvements to the techniques are incorporated into manufacturing lines that the inventors have no access to. Perhaps there should be some form of "public defender" type service from the legal community to provide affordable way to take on the infringers by the patent holders who want to sidestep the trolls.
Good article. Thanks NYT and Joe Nocera.
Process patents, also known as utility patents, when infringed even by small companies are harder to detect as improvements to the techniques are incorporated into manufacturing lines that the inventors have no access to. Perhaps there should be some form of "public defender" type service from the legal community to provide affordable way to take on the infringers by the patent holders who want to sidestep the trolls.
Good article. Thanks NYT and Joe Nocera.
2
I think patent trolling is wonderful. I think it effectively raises the share-price of "Doc Browns" -- i.e. small inventors -- the world-over.
Yes, many businesses do get shaken-down, though. And that really breaks my heart lol.
Yes, many businesses do get shaken-down, though. And that really breaks my heart lol.
The worst trolls are those companies that do no research and are non-performing, but buy up many patents in a targeted technology and come at companies with a complex of claims.
22
Patent law is best discussed by patent attorneys because of the esoteric facets of the laws both statutory and case. Once Mr. Nocera receives his LLB and successfully represents several patent infringement lawsuits with wins in court and on appeal then I'll lend some credence to this article.
2
Couldn't an small inventor patent their invention in another country with better protections?
Nocera's column is muddled and confused. Patents were time-limited incentives for innovation. Now they are a lifetime teat for the originators that prevent innovation.
Patent trolls are companies whose sole purpose is to buy up IP that they did not produce and then sue companies to extort payments. Lumping a university foundation with that crowd is an insult--they try to benefit the university by licensing IP to companies.
Patents must be evaluated with a finer lens. In, e.g. pharma, companies have made investments, there are only A FEW of them in that economy, and recouping investment and fair profit is understandable. However, BIG PHARMA has abused this privilege by tweaking drugs for new patents, bullying generic makers or even buying them up. Recent news about companies formed to buy drug rights and explode their costs is even more egregious. Reform is sorely needed.
Patents have no place in software, period. EVERY sizable company produces software for internal use or sale, and searching for "prior art" is impossible. USPTO has been negligent in awarding software patents for trivial operations. Copyright is the right form of protection for source code: if it's lifted and re-used, violation; if it's re-invented in the obvious way, no harm no foul.
At bottom, software is mathematics, which has been established as not patentable, based on theoretical mathematics and computer science.
To pursue the idea about software, read "Math You Can't Use" by Ben Klemens.
Patent trolls are companies whose sole purpose is to buy up IP that they did not produce and then sue companies to extort payments. Lumping a university foundation with that crowd is an insult--they try to benefit the university by licensing IP to companies.
Patents must be evaluated with a finer lens. In, e.g. pharma, companies have made investments, there are only A FEW of them in that economy, and recouping investment and fair profit is understandable. However, BIG PHARMA has abused this privilege by tweaking drugs for new patents, bullying generic makers or even buying them up. Recent news about companies formed to buy drug rights and explode their costs is even more egregious. Reform is sorely needed.
Patents have no place in software, period. EVERY sizable company produces software for internal use or sale, and searching for "prior art" is impossible. USPTO has been negligent in awarding software patents for trivial operations. Copyright is the right form of protection for source code: if it's lifted and re-used, violation; if it's re-invented in the obvious way, no harm no foul.
At bottom, software is mathematics, which has been established as not patentable, based on theoretical mathematics and computer science.
To pursue the idea about software, read "Math You Can't Use" by Ben Klemens.
40
The glacial rate of patent issuance is a greater failure in the patent system. Protecting the gentleman farmer that builds a cleaver tractor implement is long behind us. All my patents sat in the patent office for 4+ years before they were issued. Given the pace of technology today, a product is here and gone before the patent even issues. Software also creates many issues for traditional patents. Software patents can be very difficult to detect infringement in black-box systems. The patent system is broken, but it isn't the patent trolls that broke it.
13
Finally! A reporter going outside the troll-as-boogeyman echo chamber tells the real story. Unfortunately, patent reform will remain an issue in congress so long as lobbying groups such as the Coalition for Patent Fairness exist. Once created, such organizations need to perpetuate their existence even though the cost of trolls represents less than 1% of their members' expenses.
If a company were to lobby congress to change laws in order to allow them to massively pollute, we would deem such lobbying to be unethical. For the companies that want to weaken the patent system to lobby for that is just as unethical. Weakening patents undermines the incentive system that have benefitted the USA since the nation's founding. Doing so will cause new lifesaving innovations to not be funded. People will die sooner and society will be worse off. Those who lobby for these changes are willing to make most people worse off for them to be better off. If that's not unethical, then I don't know what is.
Thank you Joe Nocera!
If a company were to lobby congress to change laws in order to allow them to massively pollute, we would deem such lobbying to be unethical. For the companies that want to weaken the patent system to lobby for that is just as unethical. Weakening patents undermines the incentive system that have benefitted the USA since the nation's founding. Doing so will cause new lifesaving innovations to not be funded. People will die sooner and society will be worse off. Those who lobby for these changes are willing to make most people worse off for them to be better off. If that's not unethical, then I don't know what is.
Thank you Joe Nocera!
4
A single example like this is pointless in that it does nothing to inform policy. Patent trolls (and this includes universities) cause real harm to consumers and stifle innovation. Any other company could have done what Apple did--use the technology--and suffer the same consequences. Thie policy change being ineptly attacked did not stifle the beneficial use of the tech, it enabled it. The broader fix is relatively obvious: if a patent holder does not make a diligent effort to commercialize the protected invention it should lapse into the public domain. BTW, Why should a copyright have any more protection than a patent? Are they really that different?
18
I am an inventor who went through WARF.
We would not have pushed as hard (it was not a funded project, it was a summer's self directed research class) if we didn't think that the University would benefit, and for a graduate student, a few thousand dollars can go a long way. Why should it be OK for a large commercial organization to take independent research and invention and not pay something? WARF protects the inventors by having a fierce legal staff, and in some cases it licenses the product to spin-out firms (of the people who did the invention).
WARF isn't buying up portfolios of dubious patents and then hunting for companies who are using something arguably related to those patents. It helps the direct inventor through the patenting process and shares the fruits of their invention. That isn't troll behavior.
Dana Jennings mentioned that invention in his story several years ago.
I don't see an obituary, so I wish him the best of health.
We would not have pushed as hard (it was not a funded project, it was a summer's self directed research class) if we didn't think that the University would benefit, and for a graduate student, a few thousand dollars can go a long way. Why should it be OK for a large commercial organization to take independent research and invention and not pay something? WARF protects the inventors by having a fierce legal staff, and in some cases it licenses the product to spin-out firms (of the people who did the invention).
WARF isn't buying up portfolios of dubious patents and then hunting for companies who are using something arguably related to those patents. It helps the direct inventor through the patenting process and shares the fruits of their invention. That isn't troll behavior.
Dana Jennings mentioned that invention in his story several years ago.
I don't see an obituary, so I wish him the best of health.
29
From the companies that used efficient tech to best figure how to offshore their US taxes, I guess we shouldn't be surprised. But now that we know these things, we must stand up to this behavior.
Where is Congress going to stand?
Where is Congress going to stand?
2
"Efficient Infringing" - another great euphemism for "stealing", brought to you by Corporate America.
7
Patents have been aggressively used to restrict tech development in the past. I remember Bell Labs' patented discoveries were shelved and effectively hidden by not being cataloged in the library. Wouldn't want progress or the need or cost to upgrade the networks.
7
Maybe we need to look at patents differently. The right to patent an invention is not a basic civil right. We imagine "inventors" whose inventions are "stolen" or the alternative, the troll blocking creators by injunctions. But maybe we need to drop the entire notion of patents and rebuild a system that creates incentives but does not reward them for too long.
In the current era, we have drugs being in essence copied but because of slight differences in chemistry, patented. We even have seeds patented, and potentially farmers punished if they end up using plants from seeds that simply were windblown onto their fields.
enough of this nonsense.
In the current era, we have drugs being in essence copied but because of slight differences in chemistry, patented. We even have seeds patented, and potentially farmers punished if they end up using plants from seeds that simply were windblown onto their fields.
enough of this nonsense.
30
Sorry Terry, but patents are in fact a basic right supported by the Constitution. Article I Section 8 Clause 8: "The Congress shall have power...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;"
Patents are the legal instrument created by Congress for inventors to secure exclusive rights to their discoveries. And there is no doubt that patents promote the progress of useful arts.
Patents are the legal instrument created by Congress for inventors to secure exclusive rights to their discoveries. And there is no doubt that patents promote the progress of useful arts.
If your concern of over the fate of the small inventor who wants to enjoy his exclusive right to exploit his inventions, why did the majority of this column relate to an organization that does no research and no development and has no intention whatsoever to ever bring a product to market? WARF and its mission may be several steps more useful to our society than the most egregious trolls, but it certainly is not a good example to make your point.
The purpose of the patent laws is to encourage persons (both human and legal constructs) to invest in creating new techniques so that they can enter the public domain and be used by all. But if a university is funded by the public through the mechanism of government, they really shouldn't need the profit incentive. So why not just get that information into the public domain so all can use it immediately? I would argue that the government should file the patents and then immediately release them specifically so the likes of Apple can't get their hands on them and block new entrants in the business from using them for lack of monster legal budgets.
Don't lose sight of the purpose of patents as presented in the Constitution. It is not to make money for schools, it is to get new ideas and technologies into the public's hands as soon as possible.
To answer your original question: Duh!
Van
The purpose of the patent laws is to encourage persons (both human and legal constructs) to invest in creating new techniques so that they can enter the public domain and be used by all. But if a university is funded by the public through the mechanism of government, they really shouldn't need the profit incentive. So why not just get that information into the public domain so all can use it immediately? I would argue that the government should file the patents and then immediately release them specifically so the likes of Apple can't get their hands on them and block new entrants in the business from using them for lack of monster legal budgets.
Don't lose sight of the purpose of patents as presented in the Constitution. It is not to make money for schools, it is to get new ideas and technologies into the public's hands as soon as possible.
To answer your original question: Duh!
Van
34
The thing is that most public universities aren't really funded by the government. The state of Wisconsin only contributes 17% to the UW-Madison's budget and that figure was calculated before the 250 million dollar Walker budget cut. Similar figures can be found at most flagship universities (going as low as 7% at Michigan). So no, public universities are not primarily funded by the public. At best they're subsidized, only going as far as providing lower tuition for in-state students and to a limited extent paying faculty. Most large land-grant universities rely on private endowments. The reason the University of Wisconsin is the research powerhouse it is today is because of institutions like WARF (which is a non-profit). You can't expect Nobel laureates and field medalists, and other talented individuals, do research for free. It doesn't work that way. Besides, most WARF patents do end up in the public domain within two decades. In the meantime anyone can license from them and the revenue goes back into research.
2
WARF is simply a matter of corporate structure; the money comes back to the university via the foundation. Many universities structure their intellectual property holdings this way.
2
A potential, but unlikely, approach might lie in moving our concept of intellectual property protection from an "input" model to an "output" model. Rather patent protection being time based (17 years + endless extensions), shift to reasonable return, or return on investment. Once a patent has delivered 10x or 100x the investment (including an allowance for legitimate research failures, as well as the successful innovation) and exceeded a very attractive floor - say $10M for an individual inventor - the idea moves to the public domain. That return could come in the form of profits from commercialization or royalties from licensing. The obligation would shift so that those inclined to "efficient infringement" would have to demonstrate that a very lucrative return has been achieved by an inventor, and that injunctions would be easy to achieve unless / until that return has been demonstrated. Under this approach, those who want to commercialize would have a quantifiable make / buy (license) choice - whether the idea was held by the the inventor or patent troll. On the other hand, we'd undermine that piece of the American Dream that says if I invent some "neat thing" the result could be even better than hitting the lottery.
1
PATENT TROLLS must be subjected to the same sort of law that California adopted awhile ago, to prevent frivolous suits to punish businesses that violate the handicapped access laws, if the lawsuits involve nobody who has an interest in handicapped access.
Put more plainly, it seems to be fair and rational that if a patent application is made, those who make it should demonstrate a material, active involvement in developing the product they wish to patent in order to have legal standing to bring a suit for patent violation.
For example, if a university is engaged in developing nanotechnology and discovers a means for producing marketable substances made of nano materials, I believe that a patent should be limited to the specific substances being investigated by that university.
Patents need to meet the Goldilocks principle for coverage: Not to broad, not too narrow, but just right. After all, if it's good enough for the right temperature for Baby Bear's porridge, it should be good enough for a US patent.
Put more plainly, it seems to be fair and rational that if a patent application is made, those who make it should demonstrate a material, active involvement in developing the product they wish to patent in order to have legal standing to bring a suit for patent violation.
For example, if a university is engaged in developing nanotechnology and discovers a means for producing marketable substances made of nano materials, I believe that a patent should be limited to the specific substances being investigated by that university.
Patents need to meet the Goldilocks principle for coverage: Not to broad, not too narrow, but just right. After all, if it's good enough for the right temperature for Baby Bear's porridge, it should be good enough for a US patent.
1
Big is beating small all over the place. Individual hamburger stands and small chains must compete with McDonald. Hardware stores compete with Home Depot. Office supply stores compete with Staples. Grocery stores compete with supermarkets. Everybody competes with Wal-mart.
In the computer world, the best product is the one everybody else uses, because communication hassles are minimized. The product may have bugs that remain unfixed for years, but if there is no alternative it is a waste of resources to fix them.
Most small entities have trouble resisting competition from large entities; the notable exception is Chinese restaurants and Asian restaurants in general. The Taco Bells and Olive Gardens of Chinese food have not been very successful.
Big beats small, mainly because big lobbies for rules that give it the advantage. Patents is just one areal where this happens.
In the computer world, the best product is the one everybody else uses, because communication hassles are minimized. The product may have bugs that remain unfixed for years, but if there is no alternative it is a waste of resources to fix them.
Most small entities have trouble resisting competition from large entities; the notable exception is Chinese restaurants and Asian restaurants in general. The Taco Bells and Olive Gardens of Chinese food have not been very successful.
Big beats small, mainly because big lobbies for rules that give it the advantage. Patents is just one areal where this happens.
2
Mr. Nocera,
Thank you for this article. It appears that big business has the inside track in Washington.
I'm not sure what year it was (but during the past twenty years) I applied for what I believe was a trademark registration. The response was very suspect.
In either 2012 or 2013 I visited the office of the Federal Communications Commission (FCC) in Washington, DC and asked to speak with a representative (I wanted information). I was told that I would have to conduct my business online. As I stood at the desk, individuals came in and were allowed into their office (to visit people). I couldn't believe that an American citizen would be denied the opportunity to sit down and transact business with an American government agency (such as the FCC).
Thank you for this article. It appears that big business has the inside track in Washington.
I'm not sure what year it was (but during the past twenty years) I applied for what I believe was a trademark registration. The response was very suspect.
In either 2012 or 2013 I visited the office of the Federal Communications Commission (FCC) in Washington, DC and asked to speak with a representative (I wanted information). I was told that I would have to conduct my business online. As I stood at the desk, individuals came in and were allowed into their office (to visit people). I couldn't believe that an American citizen would be denied the opportunity to sit down and transact business with an American government agency (such as the FCC).
5
The development of the steam engine is yet another example of how the patent system suppressed innovation in a crucial technology. http://fee.org/freeman/do-patents-encourage-or-hinder-innovation-the-cas...
I coauthored many patents (granted & pending) as part of co-founding my now-profitable company, so might actually represent the “small American inventor”. In developing our products, I would have innovated with or without the patent system. Most businesses such as my own are not in Apple’s enviable position, and incapable (morally & financially) of practicing “efficient infringement”. To the contrary, we were the target of unwarranted litigation, by a much larger competitor and also by a non-practicing entity (NPE, or troll). We chose to fight (and win) both cases but it came at a dear cost. In addition to millions of dollars spent on legal, I was subject to days of deposition.
The patent system desperately needs to penalize frivolous lawsuits, including by NPEs; and it needs to weed out or block frivolous patents themselves.