decoration decoration

When you want to know more...
For layout only
Site Map
About Groklaw
Legal Research
ApplevSamsung p.2
Cast: Lawyers
Comes v. MS
Gordon v MS
IV v. Google
Legal Docs
MS Litigations
News Picks
Novell v. MS
Novell-MS Deal
OOXML Appeals
Quote Database
Red Hat v SCO
Salus Book
SCEA v Hotz
SCO Appeals
SCO Bankruptcy
SCO Financials
SCO Overview
SCO v Novell
Sean Daly
Software Patents
Switch to Linux
Unix Books


Groklaw Gear

Click here to send an email to the editor of this weblog.

You won't find me on Facebook


Donate Paypal

No Legal Advice

The information on Groklaw is not intended to constitute legal advice. While Mark is a lawyer and he has asked other lawyers and law students to contribute articles, all of these articles are offered to help educate, not to provide specific legal advice. They are not your lawyers.

Here's Groklaw's comments policy.

What's New

No new stories

COMMENTS last 48 hrs
No new comments


hosted by ibiblio

On servers donated to ibiblio by AMD.

Possible solutions to patents | 354 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Possible solutions to patents
Authored by: Anonymous on Saturday, November 24 2012 @ 12:10 PM EST
Ensure that there is an ALL between patent claims rather than OR. If you make
10 claims in your patent then ALL 10 must be met for infringement. You can't
pick an choose claims and previous applications count as prior art so renewals
do not get any extensions.

[ Reply to This | Parent | # ]

It would work
Authored by: Ian Al on Saturday, November 24 2012 @ 12:13 PM EST
However, the true inventor would not be able to protect his or her patent
against the conglomerate bullies. Neither would he be able to pay the fees,
especially the renewals if they are on an ascending scale. It is the
Microsoft/Apple syndrome: 'I take what I want. I'm a bad go-getter, yeah'.

There is more chance of stopping the non-inventing, non-practising... entities.

I still think that enforcing the law and the legal opinions of the Supreme Court
would be the most effective solution to patent misuse, in general. Richard
Stallman was making that very point with his reference to Diehr.

Ian Al
Software Patents: It's the disclosed functions in the patent, stupid!

[ Reply to This | Parent | # ]

Possible solutions to patents
Authored by: feldegast on Saturday, November 24 2012 @ 02:06 PM EST
how about this for an idea?

Make patents unenforceable (no government granted monoply)
but charge to read each patent with the patent holder getting
a percentage.
This way those who do not read them are unaffected but those
who read them to get ideas etc have to pay to do so.

this would more closely match the idea that "you read a
patent to learn how to do something"

My posts are ©2004-2012 and released under the Creative Commons License
Attribution-Noncommercial 2.0
P.J. has permission for commercial use.

[ Reply to This | Parent | # ]

Possible solutions to patents
Authored by: dio gratia on Saturday, November 24 2012 @ 05:00 PM EST

Ban the sale of patents - only inventors can license them - no sub licensing.
The founding fathers were explicit that a property right be inherent in that patent right, that patent rights were transferable.

From the Patent Act of 1790 (The first United States Patent statute) Sec. 1.:

... and thereupon granting to such petitioner or petitioners, his, her or their heirs, administrators or assigns for any term not exceeding fourteen years, the sole and exclusive right and liberty of making, constructing, using and vending to others to be used, the said invention or discovery' ...
(Section 1 is all one sentence, bold emphasis added). You might think that any 'attack' on patent-ability should be firmly rooted in Section 1 Clause 8, sub-clause 8 of the U.S. Constitution (for purposes of U.S. patent law):
(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;
The theory being that securing the right to their respective writings and discoveries results in financial interest in disclosing expressions of ideas or the inventor's discoveries. As the Patent Act of 1790 was entitled "An Act to promote the progress of useful Arts".

You should likely have to demonstrate that patents are granted outside the Constitutional mandate, that progress of the useful arts doesn't result from granting patents, or that the alleged discoveries are not worthy of patent for the same reason, that progress of the useful arts is stymied as the result of poor patent quality.

The underlying problem being that the system is dominated by patent practitioners who appear to as a class confuse the economic incentive of patents with promotion of the useful arts.

From a personal perspective, contemplating disclosure of an invention through preemptive publication in a manner subject to Patent Office notice I also worry about someone patenting applications of such an invention, because it is novel. That should be stymied by the requirement that a patent prove 'useful', that the written description is adequate for a person having ordinary skill in the art or arts closest to implement and that the applications should be non-obvious at the time of submission (to me as a practitioner of the art).

The Patent Office falls short on testing usefulness now expecting third parties to do so under the AIA. Non-obviousness is virtually ignored.

[ Reply to This | Parent | # ]

Patent trolls are a misdirection
Authored by: Anonymous on Sunday, November 25 2012 @ 12:58 PM EST

It seems to me that patent trolls (as in non practising entities) are a misdirection. If they weren't allowed then big companies would just get patents cheaper and use them to sue small users anyway.

Patent trolls serve to make the problems in the system more clear and also to spread the risk up to big companies as well as down. In many ways this is a good thing.

[ Reply to This | Parent | # ]

Authored by: Anonymous on Monday, November 26 2012 @ 05:36 AM EST

In a submission to the Canadian Government I argued that Patents and
Copyrights should be non-transferable except by inheritance, and that
Corporations, which since they are not human, and therefore incapable of
creativity, should be banned by law from holding either.

In the case of a Corporation or person wishing to use a Patent of Copyright
a license could be taken out, such license being for no longer than six
years, with automatic renewals being disallowed.

The aim was to restore control to the creators.

At the time I hadn't thought of Free Software or the Creative Commons, I'd
now include carve outs to cover them as well.


[ Reply to This | Parent | # ]

Possible solutions to patents
Authored by: Anonymous on Tuesday, November 27 2012 @ 06:27 PM EST
First, revamp patent issuance:
(a) Encourage the PTO to reject dodgy patents by changing
the fee structure. Basically, a valid rejection needs to be
significantly profitable. (Use rejected patents as prior
(b) Require that patents be demonstrably clear, obviously
novel, and obviously useful to a competent engineer.
(c) Pay bounties for patent invalidation.

Second, reduce the number of active patents:
(a) Change the fee structure so really old patents cost a
lot to renew.
(b) Offer a small bounty for invalidation of already granted
patents. (paid for out of increased reexamination fees,
increased renewal fees) Build a highly searchable database.
(c) Base patent terms on development costs.
(term=log1000(cost in USD)*5 years)

Third, make granted patents less dangerous:
(a) Don't allow injunctions unless at least 30% of the value
of the product derives from the patent. Apportion value
between all known applicable patents. This basically
eliminates the cell phone issue.

Problems? These would solve the industry issue, but not the
free software issue. That requires either eliminating
software patents or carving out an exemption that covers
free software. And exemption for free software is
problematic - because it is usually possible to make
software free when competing with another company. (EG, IBM
gave away an identical package when a competitor started
selling accounting software that ran on mainframes.)
Eliminating software patents also has possible long-term
problems. Imagine building a startup where M$ was
completely free to pour in a few billion and duplicate your
work. I'm not in favor of blanket elimination.


[ Reply to This | Parent | # ]

Groklaw © Copyright 2003-2013 Pamela Jones.
All trademarks and copyrights on this page are owned by their respective owners.
Comments are owned by the individual posters.

PJ's articles are licensed under a Creative Commons License. ( Details )