Linked by Thom Holwerda on Mon 8th Oct 2012 09:24 UTC
Legal The failing US patent system is getting ever more mainstream - The New York Times is running a long and details piece on the failings of the system, especially in relation to the technology industry most of us hold so dearly. Most of the stuff in there isn't new to us - but there's two things in the article I want to highlight.
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Tony Swash
Member since:
2009-08-22

The fact that Apple and Google are spending so much is hardly surprising, intense IP litigation (and therefore costs) always takes place when technology mutates in such a way as to profoundly transform models in business arenas that are very large in such a way as to destroy old financial and market systems and create new ones. That is what is happening in the realm of the mobile device, vast fortunes are at stake and the only two successful players (so far) are Apple and Google. The conditions that create periods of intense IP litigation in any specific domain of technology do not last for ever. This one will fade away at some point. But not yet.

I have worked outside and inside government during my long working life and being outside it is a lot easier to see clear cut and seemingly obvious solutions to problems. Once inside however and confronted with the nitty gritty detail of how to actual change things with making things worse it get's very complicated very fast.

I am always suspicious of seemingly obvious and simple solutions, such as the abolition of IP laws, because in general changing things, especially things that involve a great deal of money, are always actually very difficult and never straightforward.

The question I would pose is that if one accepts the current legal framework for IP is broken what do you replace it with? That's a very serious and big question and I would interested to see what people suggest.

Reply Parent Score: 2

Thom_Holwerda Member since:
2005-06-29

The question I would pose is that if one accepts the current legal framework for IP is broken what do you replace it with? That's a very serious and big question and I would interested to see what people suggest.


There's a lot of different suggestions out there, most better than what we have now. Here's mine:

http://www.osnews.com/story/26157/How_to_fix_the_patent_mess

Reply Parent Score: 3

silix Member since:
2006-03-01

There's a lot of different suggestions out there, most better than what we have now. Here's mine:

http://www.osnews.com/story/26157/How_to_fix_the_patent_mess

in the previous piece you're advocating for the interim abolition of sw patents, thus for engineers in the sw field to become 2nd class citizens when it comes to intellectual property protection...

but suppose that you are intent on developing a product that you hope to sell, based on novel techniques and the application of interesting "new" mathematical theory - and that investigating the involved maths (eg, wavelets) and coming up with a working algorithm (ie inventing the solution for your chosen problem domain) takes you much more time and effort than making a prototype implementation..
now, think you'll agree it would be fair to get a bit of advantage for having done research and design on your own and for being the first to do so...
but copyright protects only the implementation's form and does nothing to stop anyone with a primer in the same maths from reimplementing the same techniques in another product (saving on research time, since you've done most of the job for him)

saying that copyright is enough for sw, you basically say that all research and design effort that goes into a sw product is worth nothing from an IP protection perspective, that it doesnt deserve protection being essentially a "free for everyone" thing, like maths, and that people working for sw houses on innovative solutions (notice, not innovative products) are wasting their time...
this has an interesting implication... now, if i'm working on something i deem innovative and that would be qualified for a patent (dont make the mistake to believe that all patenst are trivial ... there's VERY advanced stuff inside, just it's not newsworthy enough) but i know that what i'm working on won't gain me a competitive lead and won't allow me to control (at least to a certain extent) what my competitor put in their products...
what incentive do i have to come up with it first? what incentive do i have to come up with it at all?
to make significant design effort that my competitors can (and will) exploit to undercut my very product?
why dont i (say) ally with my competitor and agree to each sell owr own version of the same, uninnovative, commoditized algorithms?

Reply Parent Score: 0

Lennie Member since:
2007-09-22

I would only say patents for ICT don't seem to work and should be abolished.

We have enough other things in place to prevent blatant copying like copyright and trademark protection.

The alternative is to have an easy way to kill the obvious patents without long or expensive trials.

Reply Parent Score: 2

MOS6510 Member since:
2011-05-12

Why not keep it like it is, for starters, but limit the period a patent is valid for. Let's make it one year. Now companies really need to push innovation to stay ahead.

After a while you can make the period 6 months.

Reply Parent Score: 4

darknexus Member since:
2008-07-15

Why not keep it like it is, for starters, but limit the period a patent is valid for. Let's make it one year. Now companies really need to push innovation to stay ahead.

After a while you can make the period 6 months.

That'd only work if you also remove the ability for the person or company to renew the patent. Otherwise, you'd simply see an endless string of patent renewal applications and we'd be no better off.

Reply Parent Score: 3

Tony Swash Member since:
2009-08-22

Based on the interesting and thoughtful comments here it is clear that patent reform is not easy, and there are lots of ways to go about it and lots of opinions about how it should be done. The really contentious area is software patents, and it looks like the suggested ways to reform those (essentially that boils down their abolition) may open up new problems particularly for those with an investment in creation of software. It is likely that any reform of patents, and of software patents in particular (as the suggestion is for the most radical change in that area), may well open up new sorts of problems and will almost certainly be very contentious.

All of the above is not meant to argue against reform but simply to sketch out why it is so tricky and why in a realpolitik process, legislators my just choose to kick the can along the road.

I would repeat my point that in any given field IP legal activity tends to come in waves, usually associated with particularly disruptive technical change, and then to subside. Currently such a wave is affecting technologies, products and companies that interest people in forums such as this but tomorrow it could be in an entirely different field. Does anybody remember the bitter IP wars around photocopying technology?

I think in a world and in markets where a couple of years of technical advantage can mean the difference between success and failure it is understandable that companies that introduce what they consider to be particularly innovative and disruptive products will seek to protect them with legally enforceable IP rights. It is also inevitable that other companies will seek to outflank and render useless that IP protection and will almost certainly always win in the long run.


I don't want to open a can of worms by defending Apple but I do think that they are realistic about what they can achieve in the realm of IP protection and what they want is for other companies to be deterred from automatically and immediately lavishly copying Apple's every move and every product. To some extent Samsung has pulled back from doing that lately but for while they really were blatant about shadowing Apple's every move. Whose to blame them as it it resulted in pretty much Android's only money making success. And whose to blame Apple for trying to stop them? In the long run if Apple aspires successfully to be a leader in product design it has to accept that eventually others will emulate their approach and emulate the various designs they produce. That's what happens to cutting edge design, it sets trends in motion. But I think it is good to have a system that makes sure that that doesn't happen the next day, or in a an utterly blatant fashion (like sticking iTunes and Safari icons on the walls of Samsung's retail stores - Samsung actually did that).

Personally I wish they the IP wars could die away and that innovation could be more widespread in the industry. I am also hoping for a white Christmas ;)

Reply Parent Score: 2

JAlexoid Member since:
2009-05-19

Unfortunately the IP wars today are much more ridiculous than the ones surrounding photocopying.(No one was laying claim to the frequencies of light used by the machine)
I specifically cracked up from the blatant lie coming from the Apple exec saying that it took them years to perfect scroll to unlock... Seriously? Scroll to unlock and years?

Reply Parent Score: 3