Tech ‘patent wars’ are bad for consumers

by , Deputy Technology Editor Technology 5 August 2011
VN:F [1.9.22_1171]
6 - 1
avatar

In recent times the likes of Google, Apple, Microsoft, HTC, Samsung and many more have locked horns in increasingly bitter patent disputes. Does this matter for consumers and what could the long-term implications be?

Patent on crossword

Even a hardened tech fanatic like me can’t help but groan at patent disputes. Patents are effectively a means of claiming ownership of a particular feature or way of doing something.

And most of the time companies will simply license the use of their patents to others. For example, both Apple and Google license Microsoft’s system for syncing email and contacts on a mobile. Money doesn’t always trade hands – sometimes companies trade the use of each others’ patents.

Sometimes, however, things get ugly. High-profile patent disputes used to be the domain of so-called ‘patent trolls’ – small companies that existed purely to patent ideas and sue those they believed infringed them for a profit. In the past, larger “legitimate” companies normally negotiated with each other and only occasionally came into conflict.

Now, though, the industry’s biggest companies are at each other’s throats, disputing patents left, right and centre. And they’re taking their disagreements public.

At the centre of it all is Google’s “free” Android operating system, which Google now claims is being victimised. Is this true and what does it mean for the man of the street?

Google: Apple and Microsoft are patent bullies

Google recently published a highly unusual attack on Apple, Microsoft and others for what it deemed anti-competitive activity. David Drummond, Google’s chief legal officer, said:

‘Android’s success has yielded something else: a hostile, organized campaign against Android by Microsoft, Oracle, Apple and other companies, waged through bogus patents… our competitors want to impose a “tax” for these dubious patents that makes Android devices more expensive for consumers.’

His complaints centre on bidding for a large patent portfolio. Apple, Microsoft, Oracle and others formed a consortium to bid for the patents, and outbid Google with a $4.5billion offer. Microsoft is now seeking license fees of $15 per Android device from Samsung, putting a price on what Google offers for free. Google feels this is unfair.

Not the whole story

If you believe Microsoft, however, Google isn’t being entirely honest. In fact, Microsoft claims it invited Google to join the patents consortium, but Google refused. A Microsoft employee went so far as to publish Google’s rejection email. The implication being that Google wanted the patents for itself, rather than sharing them with competitors. .

Further embarrassment has been heaped upon Google in its patent dispute with Oracle, however. Internal emails appear to reveal Google knew it was infringing on patents in Android and chose not to take a license.

This, and the revelation from Microsoft, has led many to accuse Google of wilfully infringing on patents. It’s Google’s fault, they say, and it’s paying the price of a risky non-conformist strategy.

What does it all mean for you and me?

Such disputes might keep the tech commentators busy, but for ordinary consumers, like you and me, it is a complete turn-off. Many of the problems are caused by the US patent system, which is widely regarded as flawed – but why should we care?

Google is correct in saying that these patent battles could lead to higher prices for consumers. Indeed, Microsoft already makes money from every Android phone HTC makes. It’s reasonable to believe this cost has been passed on to you and me.

However, even worse than higher prices, such disputes could have implications for smaller, innovative companies. If it’s so easy to patent ideas and concepts, even if you don’t use them, what are companies who are trying to make innovative products to do when they come up against such barriers?

Google is by no means the innocent party in this dispute, but its squabbles with rivals are symptomatic of a much larger problem; a problem that makes it increasingly difficult for new and emerging companies to succeed, resulting in less choice for consumers.

35 comments

Add your comments

avatar

MetalSamurai

After a little back and forth on twitter earlier I was going to write a short piece on why patents are harmful and actually prevent innovation, but ran out of time.

Instead here are sone links. Read them. Get the Consumers’ Association to campaign against patents, especially the pernicious software patents that many big companies are spending millions on lobbyists to buy the ears of MEPs.

http://www.techdirt.com/articles/20110724/22250715225/when-patents-attack-how-patents-are-destroying-innovation-silicon-valley.shtml

http://www.techdirt.com/articles/20110804/02572815385/planet-money-continues-to-show-how-damaging-software-patents-are-to-innovation.shtml 

For followup research, just google for each of these terms “patent thicket”, “Lodsys”,”Nathan Myhrvold”, “Intellectual Ventures”, “patent trolls”.

avatar

MetalSamurai

And then this morning another meta-article on the subject, full of useful links

http://t.co/WwmcLj5

avatar

Glyn Moody

Great to see “Which?” addressing this. Patents are supposed to be a fair bargain with society. In return for a government-backed monopoly, a company offers the public innovation that wouldn’t otherwise have seen the light of day. That might have worked in the 18th century, but as the smartphone market shows, doesn’t work today.

Most of the patents in question are obvious (that’s why everyone is infringing on them – they are just basic technology that everyone would naturally use), but are being employed by the company that managed to obtain that patent as a way to impose a tax on all the other players.

As well a stifling competition, that means that we, the public, are being forced to pay for something that was obvious. In other words, it didn’t need the monopoly incentive, and it is unfair that we must pay this tax anyway because of the broken patent system that grants such trivial and obvious patents.

avatar

Dennis D. McDonald

And, make sure you listen to this episode of This American Life, “When Patents Attack”: http://www.thisamericanlife.org/radio-archives/episode/441/when-patents-attack

avatar

Mark Goodge

Given that yesterday was the 20th anniversary of the web, it’s worth noting that we wouldn’t even be reading this if CERN and Tim Berners-Lee had taken a restrictive approach to intellectual property when they created it. It’s in the public interest to promote innovation by means of an open approach. http://mark.goodge.co.uk/2011/08/happy-birthday-worldwide-web/

avatar

Lawrence D’Oliveiro

Patents were never about invention, they were about monopoly. The original “letters patent” were a grant of monopoly from the king for something basic but essential, like the manufacture of salt. With such a grant, you could make a fat profit, and anybody who tried to offer a cheaper alternative would have their operation broken up by the cops. And of course, in return for that grant, the king got his cut.

Later, when Parliament took the power of granting patents away from the king, instead of getting rid of it completely, they added “invention” as the excuse for granting these monopolies.

In short, patents are a hangover from a monopolistic, mercantilist era. They have no place in a Capitalist society.

avatar

PeteDA

Patents stifle innovation, development and competition. Software patents doubly so.

avatar

Andrew Robinson

The justification usually given for the existence of patents is to ‘protect the little guy’ – the lone genius who has a great idea and founds a company around it – from getting ripped off by big corporations. The problem is that our current patent system has grown into something that actually achieves the exact opposite. It stacks the odds strongly in favour of big corporations who can buy into the sort of patent exchange clubs described in the article. So many broad, vaguely worded patents are being granted that it’s impossible for the little guy to manufacture anything (great idea or not) without the threat of litigation for patent infringement, and patent litigation is such a long, expensive process that the best strategy is usually to give in and pay up, even if you are right.

I suggest readers go to the USPTO website, pick any patent at random, read it, then ask themselves these questions:

1. Do you understand exactly what’s covered by the patent?
2. Do you think it contains only genuine, clever, ideas that nobody else has ever had?

I’m willing to bet that the answers will be no, and no.

Now consider that there are literally millions upon millions of these patents, each effectively being a law that says “you cannot do this”, and answer one more question:

3. Would you feel safe from patent litigation if you started up a small business tomorrow?

I’m not against protecting the little guy, or against rewarding inventors, in fact I’m all in favour of these things that the patent system was designed to do, but the system we have in place at the moment doesn’t achieve those noble goals.

avatar

Nigel C

I am a software professional/researcher with a main interest area in compression, and I agree with the article and the previous commenters that software patents are damaging innovation in very harmful ways and need to be abolished as a matter of urgency.

There are many stories I could share where patents strangled the promising startup in its cradle or built a minefield around a new technology and made it practically unusable, but I’ll stick to something that has clearly affected everyone and I know a few things about: compression.

Did you know that the JPEG standard defines two slight variations for compression, one significantly more efficient than the other (Arithmetic coding > Huffman coding by around 10% without loss of quality)? 10% may not sound significant, but consider that we are talking about 10% off the size of each single image downloaded by the billion internet users in the world — an unimaginable amount of bandwidth is being wasted because of patents.

Let me explain. After the standard was published, various patents surfaced claiming “ownership” over the more efficient coding method. Since most developers were worried that implementing that part of the standard would open them to patent attacks, the efficient compression was omitted from implementations. At the same time, note that *nobody* has licensed those patents, including the software giants making Windows, Photoshop and similar, let alone smaller companies and FOSS projects. Most of the patents *may* have expired last year, but at the moment most software still doesn’t support the better coding method.

In other words, the patent monopoly in question has delayed progress by 20 years, and we’re all worse off for it.

Compare this to similar stories about GIF (and patent troll Lodsys), MP3 (Fraunhofer), MPEG (MPEG LA LLC) and so on.

In fact, right now there’s a serious patent threat growing from MPEG LA against Vorbis and Google’s VP8 OSS royalty-free audio/video compression formats. MPEG LA, are a private company with control of a patent pool for licensing things like MPEG 2/4 and H.264 (NB: they have no products, their only “products” are licensing patents and suing) and they are trying to stifle open competition by setting up a minefield against new technologies. So far, they have failed to produce any actual patents, but they are spreading FUD about having dozens of relevant patents ready to use against those formats. To make things worse, we won’t know if their FUD is true until they take someone to court, but as you can imagine that leads to risk and a chilling effect on the uptake of new technologies.

And I could go on. I could talk about the patents on wavelet compression that are blocking tons of possible innovations. Wavelets are basic math that has been around for centuries — but stick the word “computer” or “internet” in there and lo and behold a patent monopoly!

tl;dr
The patent trolls and megacorps should have fun with their patent hoarding and trolling, but the inventors and innovators are suffering. Their activities are a net loss for all of us. Please, help abolish software patents.

avatar

Doug Winter

As a director of a small software company, I dread to think how we’d function in the US where software can be patented.

The justification for these sorts of monopolies, just as with copyright, is that it protects the little guy – but as one of those little guys I can tell you how false that is. Every piece of work we do would infringe one patent or another in the US, not because we’re thieving copycats but because it’s almost *impossible* to do anything in technology now without infringing something. Much of what we do is just plain obvious, or is the only sensible solution to a problem, and having this subject to patent is daft.

Monopolies are explicitly anticompetitive and they can only be justified when there is strong evidence of significant benefit to society. There are clear cases where patents can do this, but there are many many cases where patents have caused far more harm for everyone than benefit.

avatar

Florian Mueller

@Doug Winter: It’s a myth that software isn’t patentable (or that software patents aren’t enforceable) in Europe. Here’s a list of nine European software patents over which Apple sued Nokiain the UK and in Germany (same set of nine patents in either place):
http://fosspatents.blogspot.com/2011/04/at-least-9-apple-patents-asserted.html

There are differences in litigation rules and litigation economics between the different jurisdictions. But software is patented in Europe on a daily basis. On my blog I follow those wireless patent disputes in detail and when I see patents in action in U.S. litigation, I frequently check for European equivalents. Most of the more recent patents asserted by large players in U.S. litigation also have European equivalents, and the courts here increasingly refuse to declare them invalid just on the grounds of subject matter (if they invalidate them, they will perhaps do so due to prior art or similar reasons, but not on the basis of software being excluded “as such” from the scope of patentable subject matter under the European Patent Convention.)

avatar

Mike Linksvayer

Great comments above, though a few give too much ground (assuming that patents have a beneficent origin), happy to see Lawrence D’Oliveiro’s to set the record straight. Though I’d add to his that patents have no place in a Socialist society, either. They are rent seeking, corruption, deadweight loss in whatever context.

avatar

saunby

Patents require disclosure – this was, and remains important. Open source places even higher value on disclosure. So please, whatever you propose to replace patents, don’t let it be “secret sauce” no industry deserves that sort of nonsense.

avatar

mlinksva

saunby,

The patent regime only encourages disclosure when the private value of the monopoly grant exceeds the value of keeping the sauce secret — trade secret is always an option. And whether that disclosure is effective is highly questionable. See chapter 7 of http://www.dklevine.com/general/intellectual/againstfinal.htm

If one cares about disclosure, mechanisms that address disclosure without the cost of monopoly grant ought be pursued, eg regulatory and procurement policy.

avatar

Near

Andy you got something wrong. You first mention about the Nortell auction and then say that the winning patent consortium offered Google to join them.The microsoft offer didn’t come in the time of the Nortell auction actually. It was way back when Microsoft jointly bid for Novell patents.

Novell and Nortell! get your story straight !

avatar

dean

For me patents are an insidious practice, at least in the electronic world. In Germany for example, it is patent central. One example of when I was working for someone abroad: There was a patent that declared the way that a sat nav must plan routes to city centres in Germany, “someone” was sued and they actually tried to make a whole new device with special navigation software for Germany, but it turned out that creating and testing the software would actually cost way more than just paying the patent holder the money that he requested.

It’s about people safeguarding their future earnings.

avatar

Alistair Mackenzie

Abolishing patents is throwing the baby out with the bathwater, why publish if you can’t expect to benefit? The current patent system is being played and a lot of patents are granted for obvious prior art, so the system needs reformed but abolishing patents would ultimately stifle innovation.
Can people give example in the smartphone market where patents are causing a lack of innovation?

avatar

Nigel C

Why? Why would that stifle innovation? That’s the assumption a lot of laypeople seem to be making — “If software patents were allowed in the first place, surely the people who let that happen had a good reason for it!” But they were wrong. Most people in the trenches will tell you that.

I’d go so far as to say that all software is obvious. You will find no software developers digging around in the patent office for solutions to their programming problems. The answers are found in maths books, and when faced with a particular problem most programmers will independently come up with similar, if not identical, solutions. In fact, software patents don’t even contain solutions, just vague descriptions of general ideas that a lawyer can turn into a bullet for the developers to dodge.

Also, have you ever realised that the entire PC and software industries grew up without patents? Wouldn’t you say there was already plenty of innovation going on before the patents started coming through ten years ago?

As for your question regarding the smartphone market, the answers are hidden in the original article… but take a look at this slightly dated diagram:

http://brazenthoughts.com/wp-content/uploads/2010/11/Patent-Thicket.jpg

Those are a subset of the lawsuits currently going on between the smartphone companies and various trolls. If you think that everyone suing everyone is not cause for concern, then you may want to think about how much all those lawsuits cost, and the fact that it’s the consumer who will bear all the costs. Moreover, you should ask yourself how any startups and self-employed developers will be able to compete in an environment where you need a massive arsenal of patents and an army of lawyers to survive.

avatar

Alistair Mackenzie

You’re conflating lots of different arguments, I assume that you object to patent use in software only not in general. patents should be granted for non obvious, innovation that isn’t prior art. If software patents are vague, then they should be disallowed. I don’t agree that all software innovation is obvious, otherwise programming would be trivial. Certain kinds of applications exist only in software – spreadsheets for example and it’s not clear to me why you shouldn’t be able to benefit from inventions such as this.
Looking it up the first software patent was granted in 1962, so in fact the PC industry grew up with the possibility of patents being used.
The smartphone market seems to be highly innovative, I’m not convinced it’s as seriously hampered as you make out.
However the Lodsys case is a concern and an obvious misuse of patents (double billing amongst others), however reform seems more likely to get the result we want which is a level playing field for large and small developers. Big companies suing each other is much less of a concern and seems to be standard operating procedure in the US. In fact that seems to be the larger problem, an excessively litigious corporate environment.

avatar

Nigel C

>I assume that you object to patent use in software only not in general.

There are others more qualified to make a judgement on other types of patent. I’m a software guy.

>patents should be granted for non obvious, innovation that isn’t prior art. If software patents are vague, then they should be disallowed. I don’t agree that all software innovation is obvious, otherwise programming would be trivial. Certain kinds of applications exist only in software – spreadsheets for example

Define “non-obvious”. To a skilled programmer faced with the trivial task of writing a computerised accounting worksheet — which is what a spreadsheet is — the task of simulating the boxes on the paper with boxes on the screen is pretty obvious. Does that deserve a 20-year monopoly? If VisiCalc hadn’t been made, do you think no-one would have thought of computerising accounting? Also, the makers of VisiCalc were not granted a patent, yet they still innovated. Can you explain that?

>it’s not clear to me why you shouldn’t be able to benefit from inventions such as this.

Of course you should be able to benefit, but it shouldn’t be the government’s job to reward you. If your invention is worthwhile you will have a competitive, innovative product on the market and you had better keep innovating if you want to stay ahead.

>Looking it up the first software patent was granted in 1962, so in fact the PC industry grew up with the possibility of patents being used.

Indeed, but my point was that such patents typically haven’t been enforceable until the creation of much more recent case law.

>The smartphone market seems to be highly innovative, I’m not convinced it’s as seriously hampered as you make out

The innovation is happening because it’s a very competitive and lucrative market, while the patent wars are consuming resources which could be spent on innovation.

As an example, Microsoft’s lawsuits against Android handset makers. They are demanding per-phone license fees equal to the price of a license of their own phone OS (!). That can’t be in any way construed as good for innovation. If I recall correctly, their patents are for stupid things like displaying download bars on top of images and other such non-inventions.

>however reform seems more likely to get the result we want which is a level playing field for large and small developers

Surely, a level playing field should involve no government monopolies being granted on basic algorithms and ideas, as small developers usually don’t have the means to compete in a courtroom. There is no doubt that massive foreign companies like Microsoft and IBM wouldn’t waste a second before obliterating all local British competition using their patents…

>In fact that seems to be the larger problem, an excessively litigious corporate environment.

So let’s put weapons in their hands! Much fun to be had.

avatar

Alistair Mackenzie

It’s clear that non obvious has to be decided case by case, how can you define something that isn’t yet invented? Yes for the record I would be happy for Mitch Kapor to be paid £1 every time someone sold a spreadsheet programme, why not, he invented the concept which didn’t come out of accountancy and was never appeared before the PC. Visicalc didn’t patent the idea because they didn’t know they could – not out of any great altruism and they innovated to make a profit. Patents aren’t necessary to make a profit, but again it’s not clear to me why inventors shouldn’t be paid for their inventions if they want to be.

Where you’re on the weakest ground is to deny that governments have a role to play in creating fair markets – that is their primary role.

Maths isn’t patentable, as far as I know. And algorithms not in the US, by the look of things.

In essence you’ve already lost the argument, software patents exist, my argument is that we need to reform them. Getting rid of them would cause a different set of problems not a libertarian utopia, without some form of protection of ideas big companies would just steal ideas they liked, with no recourse for the little guy.

My point about the smartphone market is that if big companies want to waste 1% of their output enriching lawyers I doubt it seriously harms anyone.

avatar

Nigel C

>It’s clear that non obvious has to be decided case by case, how can you define something that isn’t yet invented?

By looking at existing examples of software technologies that were considered “non-obvious” to a skilled programmer, maybe?

I can assure you that all the patents on the compression technologies I’ve mentioned are obvious to everyone working in compression, the algorithms they describe are many centuries old and their compression/energy compaction properties have been known all along. The patent authors were simply the first ones to ask the government for monopolies on the combination of those algorithms with computers.

You also brought up spreadsheets, which are simply digital versions of *existing* accounting worksheets, and appeared right after the introduction of affordable home computers. They were obvious, and a patent on such a trivial idea would have set us back by decades.

>Yes for the record I would be happy for Mitch Kapor to be paid £1 every time someone sold a spreadsheet programme

That’s very nice of you, but the question is not whether you would like to but whether *everyone should*.

>Visicalc didn’t patent the idea because they didn’t know they could.

No, it’s because they couldn’t. “Bricklin never received a patent for VisiCalc. It was not until after 1981 that software programs were made eligible for patents by the Supreme Court.” http://inventors.about.com/library/weekly/aa010199.htm

>they innovated to make a profit

Which is why we all innovate. We don’t innovate to receive rents on our ideas but to make a good product and make a profit from it.

>Where you’re on the weakest ground is to deny that governments have a role to play in creating fair markets – that is their primary role.

“Fair” being the operative word. At no point have I denied that governments have a place in regulating markets (in fact, I think they do), I deny that government monopolies on basic ideas are fair (at least in the case of software, I can’t speak for other things).

>Maths isn’t patentable, as far as I know. And algorithms not in the US, by the look of things.

What is software if not a collection of maths and algorithms to solve specific problems? I’m hoping you won’t argue that GUI components are worth government protection.

>In essence you’ve already lost the argument, software patents exist, my argument is that we need to reform them.

You are wrong, software is *not* patentable as such, and you can’t reform what doesn’t exist. We have “zombie” software patents and they need to be put to rest.

>Getting rid of them would cause a different set of problems not a libertarian utopia, without some form of protection of ideas big companies would just steal ideas they liked, with no recourse for the little guy.

You are currently talking to the little guy, who can assure you he doesn’t care about a mythical “libertarian utopia”. The little guy is telling you he couldn’t sue the big companies because he doesn’t have enough lawyers, but the big companies can sue the little guy any day, who probably won’t afford to protect himself. Level the playing field by not letting the big companies bully the little guy, which means don’t give them the weapons to go after the little guy in the first place. Let everyone compete in the marketplace, not the courthouse.

>My point about the smartphone market is that if big companies want to waste 1% of their output enriching lawyers I doubt it seriously harms anyone.

“Google high-ups David Drummond and Kent Walker have both released predictions claiming that the current patent war raging through the smartphone market will kill company innovation thus hurting the end consumer.”

http://uk.ibtimes.com/articles/192384/20110804/google-android-accuse-apple-ios-microsoft-windows-patent-dispute-sue-lawsuit-court-iphone-smartphone.htm

avatar

Alistair Mackenzie

There are two main arguments here, both of which you’ve failed to convince me of:

1) That patents are bad in general;
2) That software is a special case and can’t be patentable.

Patents are granted for novel functionality, given that you don’t want to argue that software is non-functional you have to argue it’s not novel. Roughly your argument is that because I have a mechanical invention that consists of a box with cogs in, I can’t patent it because cogs are well understood. That’s clearly wrong.

Also imagine I had a control system which I could build in three ways:
1) Purely mechanically;
2) In analogue circuitry;
3) In software.
Why should 1 & 2 be patentable but 3 not? Surely the effect of abolishing software patents would be to discourage software development.

This is an excellent link that refutes your claims in great detail.
http://thisismynext.com/2011/08/11/broken-patent-system/

Note that patents are a reciprocal arrangement – the inventor had to disclose the details of their invention in return for a time limited monopoly, like all law it’s a compromise.

Furthermore here’s proof where the little guy was helped by patents (Burst.com vs Apple):
http://www.pbs.org/cringely/predictions/bob/2006/prediction_bob_20060104_000500.html
How would burst have protected themselves without patents? Apple just stole their technology.

The imbalance between small and large companies is just a fact of business life, not something patent law can address.

As to Google – they’re just bad losers, you know pagerank is patented don’t you? Like a lot of big companies they believe in patents when it suits them

avatar

saunby

It does seem that there is a widespread dislike of software patents, but I certainly can’t tell if patents would have done less harm than copyright has done.

avatar

Patentology

Of course patents result in higher prices for consumers. This is one of the things they are MEANT to do! But this does not necessarily mean that they are ‘bad’ for consumers, or for society as a whole.

When you look at the players in a particular market, you will often observe two extremes. At one end are the ‘innovators’. They invest a (relatively) large amount in R&D. They have research labs or centres, which employ lots of smart and (often) very highly-qualified people to be creative, and come up with great new ideas that make better, more attractive, more functional, more desirable and more usuable products. Think Apple, for example.

At the other extreme are the ‘imitators’. They mainly want to cash in on the market created by the innovators, by doing pretty much the same things more cheaply. (You know who you are!)

The ‘software patents’ debate often focusses too much on individual patents. People say that a patent is ‘too broad’, or that it covers some ‘trivial’ feature. But, in many cases, those patents came out of environments that cost real money to maintain, and you cannot do that if you cannot charge enough for the resulting products. And you cannot charge more, and stay in business, if some Chinese imitator, or other upstart in your industry (again, you know who you are) can do just as much using fewer resources by copying you innovations.

So, of course license fees push up the price of competing products. HTC pays Microsoft to use its patents, pushing up the price of HTC smartphones to the point where they are more comparable to Windows Phone 7 products. Just as importantly, Microsoft collects that money, and keeps up its own R&D.

Imitators can become innovators. Sometimes the ‘imitation’ period is just a ‘catch up’ phase. Patents are not a perfect machanism, but they do mediate this market for innovation. Google can whine all it likes, but the simple fact is that Android is an ‘imitator’ technology, piggybacking on Java and other innovations, and it is clear to anyone with a brain that this is all part of Google’s ‘catch up’ strategy. They should pay the license fees, until the day comes when they have done enough innovating (and patenting) of their own to sit around the table with the big boys!

With the demise of Bell Labs, amongst others, there are already fewer great industrial research organisations left in the world. Where, and how, will tomorrow’s ‘transistor’ be invented, or the next discovery comparable to the background radiation from the big bang be discovered? Private money paid for those, folks. Profits from a monopoly, of all things! Patents and licensing are the only real chance of survival for those institutions that remain, and the only possible mechanism for new ones arising.

There is a ‘big picture’ here, people. You just cannot see the wood for the trees!

avatar

Glyn Moody

So the argument there is:

Broad, trivial patents come out of environments that are expensive to maintain. If we didn’t allow otherwise unnecessary licensing fees to be charged for those broad, trivial patents, then the companies producing those broad, trivial patents wouldn’t be able to afford to run the research labs to produce broad, trivial patents….

So how about this?

Get rid of patents completely. Broad, trivial ideas are invented anyway, because they are broad and trivial. Anyone can use them, so they don’t impose a completely unnecessary tax (as Microsoft does on HTC to make the latter’s superior, low-cost technology cost more).

That just leaves, non-broad, non-trivial ideas. Unlike broad, trivial ideas, which everyone has to use (because they are broad and trivial) these produce a real, competitive advantage in the market. That produce real profits that can be used to fund research into more non-broad, non-trivial ideas. Doing so keeps you ahead of companies that merely copy your ideas.

That’s how capitalism is supposed to work: you continue to innovate, you continue to get rewarded. The patent system does the opposite: it encourages rent-seeking on broad, obvious ideas, that does not require further innovation from the patent holder, and throttles the ability of other companies to spend money on coming up with truly innovative inventions.

avatar

Patentology

I put ‘broad’ and ‘trivial’ in quotation marks for a reason, although you appear to have failed to recognise that. And I am well-aware how capitalism is ‘supposed’ to work. Patents are a limited exception to free competition, and have performed a useful function in various societies for over 600 years (Statute of Venice, 1474). Nobody is going to ‘get rid of patents completely’. Business is done in the real world, subject to a variety of laws and regulations, and the accidental and deliberate consequences of history.

You think that the current ‘software patents’ debate is the first and only time any new technology has caused ripples? Samuel Morse was forced to the Supreme Court to defend his patent rights.

avatar

Glyn Moody

(this is a reply to your comment below – no threading here)

I realise that you put inverted commas around those terms, but many people – myself included – see them as exact descriptions of the situation, especially in the field of software.

As to whether patents have worked well in the past, there’s debate. Interesting data points include James Watts’ use of patents to chill competitive innovation for decades – see http://mises.org/daily/3280 for details of how technology took off after his extended patents finally expired.

But more generally, there is no reason why something that may have worked in the past, is still relevant today. Perhaps the conditions that made it work then are no longer the case. Indeed, I believe there are very good reasons why patents are no longer working, and why we need to abolish them: http://blogs.computerworlduk.com/open-enterprise/2011/07/why-we-should—and-can—abolish-all-patents/index.htm.

avatar

Family Man

I dont want to go into specifics but I have seen US patent trolls at work and it is not pretty. First of all the patents in question were valid in the US only. Secondly, at the time the patents were granted the US system appears to have been to grant patents without checking for conflicts with existing “Prior Art” or WW patents. The attitude seems to have been let the US courts sort it out if it ever became an issue. Given that these relate to an established global technology standard it has caused all kinds of commercial damage. And by the way did you know that if you explain to them why you don’t infringe their patent they can apply to the US courts to add a “clarification” to their dodgy patent. The patents in question are highly questionable but it is costly to fight in the US courts so these trolls get away with it by threatening your customers and causing you to lose business untill it reaches a point that you have to pay for a licence or fight them in the US courts. The majority of the key patents for mobile phone technology are now held by a small number of very large companies. These companies can sue each other but essentialy it usualy end with some kind of cross licence agreement. Small players are locked out because they cannot compete.
Patents still have a place in todays society but I would suggest that there should be only one world wide system. All local regional patents should be tested against this WW database and declared void if there is a conflict with an earlier patent form another part of the world. Lastly, technology moves a lot quicker now than it did in bygone years so we should have a much shorter patents validity. Maybe 10 years maximum.

avatar

Liam

Most national and international agencies which fund research insist that the technology developed is protected by patent. This takes up about 25% of the grant income.

Patent agents take the research proposal document and translate the language into patent jargon, charging the project an immense amount of money. Any other translation process would cost about a quarter of the typical patent fee.

The whole process is a form of extortion. Patent agents drive around in Mercs – patent lawyers drive about in gold plated Mercs.

If someone were to write a book or compose a piece of music it would be protected by copyright at no cost whatsoever. The whole patenting process should be included in copyright law and the patenting profession should ride around on bicycles.

Hi all, I thought you might like to have your say on our latest Convo, which touches on this topic.

Samsung must cease sales of its latest tablet in Europe. Why? A German court has upheld Apple’s complaint that Samsung’s Galaxy Tab 10.1 is an iPad lookalike. But doesn’t an iPad just look like any other tablet?

http://conversation.which.co.uk/technology/samsung-galaxy-tab-injunction-apple-ipad-german-court/

avatar

Wirecutter

Once upon a time the US patent office was run under reasonably sensible rules, this was up to I think about 4 or 5 administrations ago. Thats when the lawyers took over from the engineer/practical side and it became possible to change one letter on a existing patent or quite simply just draw a shape and register that! ( four wheels on the corners of a box?) then challenge one else with a current patent that looks the same and as long as you have good lawyers and a large fund you will win!

avatar

PandL

I am sure that given the general feelings on this board, not everybody will agree with my post, however, I suggest that the world of patenting is little understood by the general public. Whilst I agree that the software industry has a disproportionately large number of patent trolls, this should not lead to condemnation of the patent system as a whole.

>It’s clear that non obvious has to be decided case by case, how can you define something that isn’t yet invented?>

Firstly, each and every patent application IS examined on a case by case basis. Every patent application is thoroughly searched by a skilled searcher by the patent office before it is even allocated to an examiner. The examiner will then review the invention and the prior art and in almost every case objections to the novelty and inventive step of application are raised. Inventions need to be both novel and inventive to be granted. If an application for a patent is obvious by virtue of combination of two earlier documents, it will not be granted.

Secondly, every patent is published before grant and every patent can be challenged either by formal opposition procedure or by submission of third party observations to the Examiner by any interested party. The patent office have nothing to gain by granting patents which are not valid.

I am not certain that patents actually stifle innovation. The point of the patent system is to grant a monopoly to the inventor for a short period of time in order to reward them for their investment in innovation. Why should company X not be afforded a short monopoly for a product if they have spent hundreds of thousands of pounds researching in the area? There are exemptions in the patents act which allow researchers to work around patented technology to develop new products, provided they are not commercially exploiting the patented technology without this constituting an infringement. If a small company develops a new product, they can obtain a patent, and ultimately sell it or license it onto a big player in the market, this stimulates innovation!

The US patent system is quirky and differs considerably to the patent system in the rest of the world, however, the system is currently under reform and changes are expected soon. In Europe software patents can be filed, but they must have a technical function as their outcome.

If the patent system worked like the copyright system and inherently protected ideas this would be even more chaotic as there would be no examination procedure and no doubt many more patent battles between companies who have nothing defensible at all.

Whilst patents are granted territorially they are searched against prior art globally. The only reason they are territorial is so that patent owners can pick and chose where they want protection rather than pay for countries they don’t want.

The speed of movement of technology has little relevance to the duration of patents. Where technology is fast moving, patents become stale quickly as people invent new technology and stop using the old patented stuff. In other fields, such as the pharmaceutical industry it is rare for a product to be invented, tested and given approval to market before the end of the current 20 year patent term. For this reason, pharmaceutical patent holders can apply for 5 years supplementary protection if they have not been able to get to market in time to be compensated for their research efforts.

This is not strictly true, I am a patent agent and whilst I do have to charge my clients, they are not obliged to use a patent attorney to protect their inventions. Anybody can file a patent application themselves without an attorney. The ‘translation’ process often involves helping the inventor to identify the invention, by searching databases, to find out which parts of their ‘invention’ are actually new. By spending a little time and money doing this the applicant can find out whether it is worth filing the application before investing in obtaining a patent. If the researcher doesn’t want to spend money on filing patent applications, they don’t have to. I can only assume that they do because they do find protecting their ideas useful and can use their patents to add value to their business.

Finally, I can’t afford a Mercedes, but do have a bicycle.

Interesting, Google has just purchased Motorola for $12.5 billion. And don’t pretend that patents isn’t one of the reasons. Google’s co-founder Larry Page comments: “Our acquisition of Motorola will increase competition by strengthening Google’s patent portfolio, which will enable us to better protect Android from anti-competitive threats from Microsoft, Apple and other companies.”

Interesting – the dynamics of this patent war are changing daily.

avatar

Ned

Patents are essential for protecting real inventions.
I have experience with patenting non-software scientific inventions in European and US patent offices.
The US patent office is incompetent. I’m told that US patent examiners are poorly paid, so many of them are immigrants in their first US job; their command of English is often poor, and they are only working there until they can find a better-paid job.
Another problem, I suspect, is US NATIONAL INTEREST. Also in non-software patents, I see a lot of patents granted to US applicants, for inventions which are obvious or non-innovative*.
But it’s a different story if you are a foreigner. I had a “hard” and clearly innovative invention which had no problem getting patents in other juristictions. But the US examiner would cite any old patent in the same vague subject area, and blandly state that it foresaw my invention, without further explanation. Then I would have to spend time explaining why it was irrelevant. Then he would withdraw that objection, but cite another, even more irrelavant, old patent. This happened 4 times, and each of the objections was withdrawn. Finally his supervisor stepped in, cited an even MORE irrelevant old patent, and said he was not open to discussion.

*(to take an easy example, I saw a patent granted recently to the use of kapok as a sound absorbent in loudspeaker boxes. Apart from it being obvious that anything fluffy like kapok could be used as a sound absorbent, it is not innovative: I myself own a pair of loudspeakers stuffed with kapok, made in 1971).

Back to top

Post a Comment

Commenting guidelines

Your email is never published nor shared. Required fields are marked

Tired of typing your name and email? Why not register.

Register or Log in

Browse by Category

Consumer Rights

770 Conversations

9553 Participants

27364 Comments

Energy & Home

648 Conversations

7174 Participants

24747 Comments

Money

819 Conversations

6041 Participants

15766 Comments

Technology

776 Conversations

7535 Participants

19710 Comments

Transport & Travel

600 Conversations

4795 Participants

13472 Comments