tag:blogger.com,1999:blog-1883551996126668365.post481898964172562660..comments2024-01-11T21:24:44.379-07:00Comments on A Blog of Tom: What Do Patents Encourage?Tom Cantinehttp://www.blogger.com/profile/06234109728445439457noreply@blogger.comBlogger4125tag:blogger.com,1999:blog-1883551996126668365.post-35593789786101128042012-12-07T16:13:07.576-07:002012-12-07T16:13:07.576-07:00Oh, I agree: do patents encourage more than they d...Oh, I agree: do patents encourage more than they discourage? That's the question. All I'm asserting here is that the amount of innovation they discourage is non-zero.<br /><br />My point about prior art WAS broad, but deliberately so. It isn't just a worry that someone else somewhere might have had the idea already, but that someone somewhere might be proceeding (perhaps on a small scale, perhaps just escaping your notice) and you might only find out about it once you try to assert your patent, either against them or against someone who knows about them (or manages to find out about them in the course of litigation). <br /><br />I only brought up copyright to contrast the means of acquiring protection. I certainly don't think that's the way it should work for patents, only that inventors have the additional mess of unknowns to worry about: has someone else already done this? Copyright doesn't oblige you to look. (In fact, perversely, you're almost better off NOT looking, so you can more genuinely argue that you weren't influenced by someone else's creation.)Tom Cantinehttps://www.blogger.com/profile/06234109728445439457noreply@blogger.comtag:blogger.com,1999:blog-1883551996126668365.post-90875569247306740962012-12-07T14:02:02.787-07:002012-12-07T14:02:02.787-07:00I think the question is not whether or not patents...I think the question is not whether or not patents can act as a barrier to innovation but whether patents prevent more innovation than they spur. To continue with your example, why would I bother developing said MP3->cassette adapter if I know that larger, more well known companies can just copy it, pour their massive marketing engines behind the copy and leave me with nothing to show for my innovation?<br /><br />This is where I think reining in the types of things you can patent will help a lot by reducing the chances you might inadvertently violate someone else's patent.<br /><br />I do think your assessment of prior art is a bit broad. Prior art requires more than just someone having thought of something. The idea has to have been available publicly. So trade secrets don't count to prior art, nor do unpublished ideas. Again providing better means of searching existing patents will help.<br /><br />Copyright is a bit more narrow than patents. I can copyright a story and characters but I can't copyright a type of story. Thus the multitude of variations of Lord of the Rings that flooded my childhood. :)<br /><br />I believe with code you can copyright a method of accomplishing a task but not the idea of accomplishing that task. Paul Turnbullhttps://www.blogger.com/profile/02582093331471655375noreply@blogger.comtag:blogger.com,1999:blog-1883551996126668365.post-52161058368873612632012-12-07T13:03:01.007-07:002012-12-07T13:03:01.007-07:00These are fine ideas, but they don't address t...These are fine ideas, but they don't address the central concern I was writing about, which is that the very existence of patent law can act as a barrier to innovation in some cases. Making it easier to search through patents would alleviate this somewhat, but the fact that you have to do it at all is the barrier I'm talking about.<br /><br />Consider the example I gave, of my thinking up an idea for an MP3->cassette adapter gadget. In the absence of patent legislation, someone more technically adept than myself might have just gone home and designed and built the thing, maybe selling a few if it worked, improving on it and perhaps growing it into a profitable business. But under the current patent regime, it's not enough to come up with an idea yourself; you need to establish that no one else did so independently. And even searching through existing patents isn't necessarily going to do the trick; someone else might still have come up with the idea and NOT patented it, which as prior art is going to cause problems for you if your patent ever is the subject of litigation. So in some ways the risk is actually higher to come up with an invention and try to do anything with it, than it would be without patent law existing at all.<br /><br />Copyright works differently, and while I also think copyright is a terribly kludge, there is at least one element that seems a little more intuitive from a moral sense, under the Berne Convention, and that's the way ownership inheres the instant you create something, rather than when you apply for protection. If I write a story independently, I don't need to go out and establish that no one else has written a similar story (though a good writer should read a lot of other stuff anyway). Thought experiment: How much new creative stuff would actually be published if we had to search through the Copyright Office to make sure no one had written something similar, or risk being sued when we published? WIth copyright, it's statistically (practically) impossible to create a derivative work without actually DERIVING it from someone else's material; with patent, you can infringe even if you develop your idea completely independently. Tom Cantinehttps://www.blogger.com/profile/06234109728445439457noreply@blogger.comtag:blogger.com,1999:blog-1883551996126668365.post-33552180025862379322012-12-06T11:48:28.273-07:002012-12-06T11:48:28.273-07:00A few ideas occur to me. There are arguments for a...A few ideas occur to me. There are arguments for and against each one but given the enormous impact this issue has on the economy they're definitely worth talking about. I'd also note this is mostly about the USPTO as it has a disproportionate impact on patents worldwide.<br /><br />1. Eliminate software and process patents. They allow the patenting of ideas without actual implementation. I should not be able patent something without at least knowing how to implement it.<br /><br />2. Provide a better way to search through existing patents. One of the principles behind them is that by making them publicly available you get the right to license them. Right now searching through the U.S. patent database is a frustrating experience. I'm pretty sure there are some data mining techniques in the patent database that could be used to improve it.<br /><br />3. Related to that: Enforce a simpler language on patents.<br /><br />4. Drastically increase the budget to the USPTO so they can actually afford to properly process the massive number of patents they have to deal with. Right now the policy seems to be: "When in doubt, approve it and let the courts deal with it."Paul Turnbullhttps://www.blogger.com/profile/02582093331471655375noreply@blogger.com