A proposal for total reform of the patent system

[Bryan Bishop]

Obviously, reforming technology patents out of existence will not be allowed to happen because of the extremely entrenched interests. However, there may be another type of possible reform to decouple the disastrous impact of patents on technology innovation and technology financing incentives.

Looking at the patent system, there are two competing opinions regarding the function of the patent system. All patent systems have always been poorly designed, and they were always for granting limited monopolies. The competing opinion is that patent systems are completely necessary for technology innovation incentive reasons. However, empirical evidence (from some studies) suggests that the patent system does not actually offer those incentives. Others would say that, well, North Korea doesn't have a patent system, and look at their technological level. The problem is that North Korea actually does have a patent system that is very similar to the Soviet patent system (which doubles as an odd historical note itself...).

My proposal is to remove the technology component of patents. This has some fringe benefits; for example, the patent office no longer has to expend considerable resources on the technological evaluation of each patent application. Application processing time can be reduced to seconds or even less. Evaluation of the rights conferred by each patent can be stated directly up front, rather than having to be resolved through the legal system in court (where "technology wizards" make statements about "technology magic" that nobody understands anyway). Multiple interfering patents can be resolved computationally. The fees used to purchase patents can dump money straight into research or something, or prize fund pools for the NSF and other research grant agencies, who knows.

An interesting idea is that a "patent property tax" or "participatory patent tax" could be imposed upon each area of commerce that a patent participant does business in, and then those collected taxes are used to pay the licensing revenue to the correct patent owners.

The problem of technology disclosure can be solved through other means, probably with some government-sponsored manner, but it should be decoupled from the concept of granting limited monopolies.

The primary downside that I see is that this proposal exposes the raw truth of the patent system, and "grants of limited monopoly" sound absurd and ridiculous if that's all they are (without the technology considerations). So maybe I would have to come up with some way of making this sound less ridiculous (in light of the platitudes of the current patent system).... 

- Bryan
http://heybryan.org/
1 512 203 0507

[Whosawhatsis]

Can you elaborate on what you mean by "remove the technology component of patents”? I read it three times, and I still can’t figure out what you’re proposing. What would a patent look like without “the technology component”?

[Bryan Bishop]

On Sat, May 31, 2014 at 2:47 PM, Whosawhatsis <whosaw...@gmail.com> wrote:

Can you elaborate on what you mean by "remove the technology component of patents”? I read it three times, and I still can’t figure out what you’re proposing. What would a patent look like without “the technology component”?

The patent itself would state the terms of the grant (a certain amount of revenue from an area of commerce, for example). There would be no drawings, schematics, claims, or technology-related text.

[John Griessen]

On 05/31/2014 02:50 PM, Bryan Bishop wrote:
> The patent itself would state the terms of the grant (a certain amount of revenue from an area of commerce, for example). There
> would be no drawings, schematics, claims, or technology-related text.

What stops trolls from publishing claims via that route?

[Bryan Bishop]

You mean, in a hypothetical reform scenario, you're asking what would stop people from attempting to apply old laws to the new system? Well, I guess nothing, and judges might even find it unconstitutional. But this is true for any reform scenario, not particularly this one.

[whosawhatsis]

I’m wondering what’s to keep people from claiming a patent on something when they haven’t developed anything if the patent process doesn’t require them to provide technical details to be evaluated.

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[Bryan Bishop]

On Sat, May 31, 2014 at 9:09 PM, whosawhatsis <whosaw...@gmail.com> wrote:

I’m wondering what’s to keep people from claiming a patent on something when they haven’t developed anything if the patent process doesn’t require them to provide technical details to be evaluated.

Yep, that was the whole point of the proposal. Assume for a moment that patents as they currently operate significantly hinder innovation to a dramatic extent. So what would you do in this situation? You can't just wish the patent system out of existence. You would want to find some way to decouple the disastrous impact of the patent system from technology and innovation. How would you do that? My proposal was to make it not about technology (or products for that matter). The patents are still grants of limited monopolies (perhaps by NAICS codes for certain areas of commerce). The revenue owed to a patent owner could be calculated based on an "patent tax" perhaps that applies separately to each area of commerce. Most patent owners will probably not build products, although some might and perhaps they own patents as a way to supplement their income in various industries.

Meanwhile, you and I are free to build as much technology as we please without worrying about patent litigation for whether or not we're "allowed" to stand on the shoulders of giants, whether or not we're "allowed" to build and use current-generation CNC machines to make our businesses more efficient, etc. The reason this proposal is interesting is because it tears down the glass ceiling on technology and what we can collectively do with technology. Actually, I should be more careful with my wording. The litigation itself is not my concern, but rather the legal framework that allows us to collaborate on hardware projects in the first place. Since the patent system as it is now exists above and beyond copyright law, none of the current schemes for open source work for hardware because the law allows inventions to be patented.

[whosawhatsis]

So you’re saying the only patents we should have are business method patents? http://en.wikipedia.org/wiki/Business_method_patent

I’m not sure I like those much either, but at least restricting patents in that way would keep them from interfering with (and possibly from stealing from, as Takerbot is trying to do) the not-for-profit open source development of technology.

The first thing I would want to do to reform the patent system (assuming abolishing it entirely is off the table) would be to drastically reduce the terms of all patents to better reflect the rate at which innovation occurs today.

[John Griessen]

On 05/31/2014 09:47 PM, whosawhatsis wrote:
> The first thing I would want to do to reform the patent system (assuming abolishing it entirely is off the table) would be to
> drastically reduce the terms of all patents to better reflect the rate at which innovation occurs today.

+1

This would let you gauge the resistance to change in the **political** system of patent law.

To get Bryan's concept to work, the prices of patents need to come down a lot also, since
under that scheme of "no documenting claims" everything would either be patented or
no one cares.

With no docs, even old public domain concepts would get a patent -- all that stops a patent
is not paying its fees... The way people and corps act, I can't see it -- they'd frequently
claim the same areas of activity with different wordings, then battle over that...

The system as is models after battle, so any incremental change is going to be battle related.

[Bryan Bishop]

On Sun, Jun 1, 2014 at 10:29 AM, John Griessen <jo...@industromatic.com> wrote:

With no docs, even old public domain concepts would get a patent -- all that stops a patent

Why would concepts be patented in my proposed system? The point was that it was decoupled from inventions, products, etc. Re: claiming the same area, that would be the job of the USPTO.

[Matt Maier]

I think you could solve most of the problems with the patent system just by allowing the winning party in litigation to collect their legal fees from the losing party. Patent trolling is what's ruining he system, and they won't be able to troll if they have to actually win in court. 

As for the patent system interfering with open source hardware development, I'm not entirely sure that's actually going to be a problem. I think the OSHW community is quickly coming to an agreement that prior art needs to be collected, published, and proactively pushed to the USPTO. We have yet to see if that will be effective, but I'm optimistic. And that's just America; there is a huge variety of patent law around the world. If specific areas of OSHW work do get chilled by patent trolls that will just encourage community members in other legal jurisdictions to fill the void. 

Also, even after several exchanges, I still have no idea how the change you're describing is supposed to work. A patent happens when someone says, "Look at what I invented," and the patent examiner says, "yup, that's new," and the government grants the inventor a monopoly on that specific thing for a period of time. How would someone apply for a "patent" if they don't have to actually invent anything? They'd just, like, ask pretty please for a monopoly on a particular area of commerce?

On Sunday, June 1, 2014 9:36:57 AM UTC-6, Bryan Bishop wrote:

On Sun, Jun 1, 2014 at 10:29 AM, John Griessen <jo...@industromatic.com> wrote:

With no docs, even old public domain concepts would get a patent -- all that stops a patent

The point was that it was decoupled from inventions, products, etc. 

[Bryan Bishop]

On Sun, Jun 1, 2014 at 12:33 PM, Matt Maier <blueb...@gmail.com> wrote:

I think you could solve most of the problems with the patent system just by allowing the winning party in litigation to collect their legal fees from the losing party. Patent trolling is what's ruining he system, and they won't be able to troll if they have to actually win in court. 

There are many that consider the system to be broken, even in absence of patent trolls:

http://archive.mises.org/18812/andrew-torrance-patents-and-the-regress-of-useful-arts/

http://mises.org/daily/3682

 

As for the patent system interfering with open source hardware development, I'm not entirely sure that's actually going to be a problem.

The patent system- by definition- has rule over inventions, a feature that copyright law does not possess. Open source hardware is definitely about inventions.

 

I think the OSHW community is quickly coming to an agreement that prior art needs to be collected, published, and proactively pushed to the USPTO.

Often the USPTO does not evaluate all prior art anyway, and it shows up during litigation later (or not at all). AFAIK, they don't even bother to search the web.

 

We have yet to see if that will be effective, but I'm optimistic. And that's just America; there is a huge variety of patent law around the world.

The majority of patent laws around the world have been organized along the same set of guidelines by the WIPO, with the exception of South Sudan and one or two other outliers.

 

If specific areas of OSHW work do get chilled by patent trolls that will just encourage community members in other legal jurisdictions to fill the void. 

Yes, ultimately any set of laws can be ignored. That's true.

Also, even after several exchanges, I still have no idea how the change you're describing is supposed to work. A patent happens when someone says, "Look at what I invented," and the patent examiner says, "yup, that's new,"

That's just the common folklore. There's actually a wide universe of patents other than invention-type patents (land patent, letters patent, etc.).

 

They'd just, like, ask pretty please for a monopoly on a particular area of commerce?

Yes that's right. That's how it originally worked, by the way:

http://en.wikipedia.org/wiki/History_of_patent_law

"""

By the 16th century, the English Crown would habitually grant letters patent for monopolies to favoured persons (or people who were prepared to pay for them).[13] Blackstone (same reference) also explains how "letters patent" (Latin literae patentes, "letters that lie open") were so called because the seal hung from the foot of the document: they were addressed "To all to whom these presents shall come" and could be read without breaking the seal, as opposed to "letters close", addressed to a particular person who had to break the seal to read them.

This power was used to raise money for the Crown, and was widely abused, as the Crown granted patents in respect of all sorts of common goods (salt, for example). Consequently, the Court began to limit the circumstances in which they could be granted. After public outcry, James I of England was forced to revoke all existing monopolies and declare that they were only to be used for "projects of new invention". This was incorporated into the Statute of Monopolies in which Parliament restricted the Crown's power explicitly so that the King could only issue letters patent to the inventors or introducers of original inventions for a fixed number of years. It also voided all existing monopolies and dispensations with the exception of:

...the sole working or making of any manner of new manufactures within this realm to the true and first inventor and inventors of such manufactures which others at the time of making such letters patent and grants shall not use...

The Statute became the foundation for later developments in patent law in England and elsewhere.

[Bryan Bishop]

On Sun, Jun 1, 2014 at 1:44 PM, John Griessen <jo...@industromatic.com> wrote:

On 06/01/2014 10:36 AM, Bryan Bishop wrote:

Why would concepts be patented in my proposed system?

Please tell us more.   I am confused about your proposal.

Well, I started off by saying that inventions would not be patented. The patents would just be the legal grants. So patents aren't the subject of concepts, inventions, devices, etc. That was in the original proposal.

[Andrew Shindyapin]

Can you give us a simple example of a patent under your proposal, and how it differs from the current system?

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[Bryan Bishop]

On Sun, Jun 1, 2014 at 1:51 PM, Andrew Shindyapin <andrei.s...@gmail.com> wrote:

Can you give us a simple example of a patent under your proposal, and how it differs from the current system?

Well, I actually don't particularly care about the structure of the grants under the proposed system, except that they must not be based on technology, or confer any rights or protections for technologies. So the patent could just be a revenue grant, stating that the owner is owed some amount of revenue, and that the government is obligated to pay that amount every year. There could be other structures of course. As for the differences with the current system, you will notice that patents are about technology and have schematics attached to them. I'll give you an example: https://docs.google.com/viewer?url=patentimages.storage.googleapis.com/pdfs/US3800691.pdf - notice that this patent is a grant over the toaster technology, conferring to the patent owner rights to restrict others from building, using, selling said toaster technology.

[Matt Maier]

On Sun, Jun 1, 2014 at 11:46 AM, Bryan Bishop <kan...@gmail.com> wrote:

On Sun, Jun 1, 2014 at 12:33 PM, Matt Maier <blueb...@gmail.com> wrote:

I think you could solve most of the problems with the patent system just by allowing the winning party in litigation to collect their legal fees from the losing party. Patent trolling is what's ruining he system, and they won't be able to troll if they have to actually win in court. 

There are many that consider the system to be broken, even in absence of patent trolls:

http://archive.mises.org/18812/andrew-torrance-patents-and-the-regress-of-useful-arts/

http://mises.org/daily/3682

 

"Torrance’s simulation indicates that a society with no patent law would have more innovation than one with patent law."

That's the wrong thing to focus on. It's not simply a matter of "moar enovashun!" There's always going to be some kind of balancing act between supporting new things and supporting established things. It's the balance that government is responsible for. For every person who comes down hard on the side of supporting new things there is someone else coming down hard on the side of supporting established things. They can't both get their way. 

I suggested starting with reforming the litigation rules because that focuses on the balance. If the winner gets their fees paid by the loser it discourages frivolous lawsuits. The court system can be used to actually resolve real disagreements about the balance.

 

As for the patent system interfering with open source hardware development, I'm not entirely sure that's actually going to be a problem.

The patent system- by definition- has rule over inventions, a feature that copyright law does not possess. Open source hardware is definitely about inventions.

Right, but can you point to where the patent system has actually created a problem for the open source hardware community yet?

 

 

I think the OSHW community is quickly coming to an agreement that prior art needs to be collected, published, and proactively pushed to the USPTO.

Often the USPTO does not evaluate all prior art anyway, and it shows up during litigation later (or not at all). AFAIK, they don't even bother to search the web.

Then the community will quickly compile an awful lot of evidence of what the USPTO is doing wrong, which will drive actual change. Aren't they funded by the fees paid when they grant patents? That's, like, an absurd conflict of interest, right? Let's get that changed first. 

 

 

We have yet to see if that will be effective, but I'm optimistic. And that's just America; there is a huge variety of patent law around the world.

The majority of patent laws around the world have been organized along the same set of guidelines by the WIPO, with the exception of South Sudan and one or two other outliers.

 

If specific areas of OSHW work do get chilled by patent trolls that will just encourage community members in other legal jurisdictions to fill the void. 

Yes, ultimately any set of laws can be ignored. That's true.

Not just ignored. Patents only apply in the country they're granted in. So if the OSHW community is global, it will be relatively easy for the community as a whole to spontaneously adjust to legal problems in one country. Maybe one particular guy doesn't get to play anymore, but everyone else still can.

 

Also, even after several exchanges, I still have no idea how the change you're describing is supposed to work. A patent happens when someone says, "Look at what I invented," and the patent examiner says, "yup, that's new,"

That's just the common folklore. There's actually a wide universe of patents other than invention-type patents (land patent, letters patent, etc.).

Yeah, but we're obviously talking about invention patents, since OSHW doesn't have anything to do with land.

 

 

They'd just, like, ask pretty please for a monopoly on a particular area of commerce?

Yes that's right. That's how it originally worked, by the way:

http://en.wikipedia.org/wiki/History_of_patent_law

"""

By the 16th century, the English Crown would habitually grant letters patent for monopolies to favoured persons (or people who were prepared to pay for them).[13] Blackstone (same reference) also explains how "letters patent" (Latin literae patentes, "letters that lie open") were so called because the seal hung from the foot of the document: they were addressed "To all to whom these presents shall come" and could be read without breaking the seal, as opposed to "letters close", addressed to a particular person who had to break the seal to read them.

This power was used to raise money for the Crown, and was widely abused, as the Crown granted patents in respect of all sorts of common goods (salt, for example). Consequently, the Court began to limit the circumstances in which they could be granted. After public outcry, James I of England was forced to revoke all existing monopolies and declare that they were only to be used for "projects of new invention". This was incorporated into the Statute of Monopolies in which Parliament restricted the Crown's power explicitly so that the King could only issue letters patent to the inventors or introducers of original inventions for a fixed number of years. It also voided all existing monopolies and dispensations with the exception of:

...the sole working or making of any manner of new manufactures within this realm to the true and first inventor and inventors of such manufactures which others at the time of making such letters patent and grants shall not use...

The Statute became the foundation for later developments in patent law in England and elsewhere.

"""

- Bryan
http://heybryan.org/
1 512 203 0507

Right, yeah, so is your suggestion to go BACK to that?

[John Griessen]

On 06/01/2014 02:03 PM, Matt Maier wrote:
> Aren't they funded by the fees paid when they grant patents? That's, like, an absurd conflict of interest, right? Let's get that
> changed first.

On 06/01/2014 12:33 PM, Matt Maier wrote:> I think you could solve most of the problems with the patent system just by allowing

the winning party in litigation to collect
> their legal fees from the losing party. Patent trolling is what's ruining he system, and they won't be able to troll if they have
> to actually win in court.

Like these two.

[John Griessen]

On 06/01/2014 01:58 PM, Bryan Bishop wrote:
> must not be based on technology, or confer any rights or protections for technologies.
> So the patent could just be a revenue grant, stating that the owner is owed some amount of revenue, and that the government is
> obligated to pay that amount every year.

Sounds like a bottomless taxpayer deficit hole with strange "revenue" troll sharks vying for the feed.
Can't see it politically happening. Does not even have the plausibility factor of Swift's Modest Proposal.

[Michael Weinberg]

funny, we just released a whitepaper on a 5 part plan for patent reform:

http://www.publicknowledge.org/documents/a-five-part-plan-for-patent-reform

What's Inside:

The patent system is an important motivator for new technology. But in its present state, the patent system has problems and loopholes that allow for abuse and exploitation, harming rather than promoting innovation.

In this white paper, we look at how to fix those problems in patent law, by identifying areas that are currently abused and that require reform. Those five areas are:

Accounting for all inventors. The standards for patenting must account for all types of inventors, large and small, and especially those who work outside the patent system.

Clarity of patents. Patents are intended to disseminate knowledge about new inventions and technologies. Thus, patent documents must be made clear and understandable, so that they serve that function.

Targeting the right parties. Threats of complex patent litigation, levied against consumers, small companies, and non-technology businesses, stifle innovation without any corresponding benefit to inventors.

Avoiding gamesmanship in litigation. Licensing and enforcement of patents should be about the merits of the patents, not about a party’s ability to run its opponents into the ground with litigation costs.

Maintaining competition in the innovation economy. Patent owners ought to use their patents in ways consistent with long-standing principles favoring a competitive marketplace.

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Public Knowledge | @publicknowledge | www.publicknowledge.org 

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Promoting a Creative & Connected Future.

[Bryan Bishop]

On Mon, Jun 2, 2014 at 9:56 AM, Michael Weinberg <mwei...@publicknowledge.org> wrote:

http://www.publicknowledge.org/documents/a-five-part-plan-for-patent-reform

This just looks like a redirect to gumroad, can you give us the actual document if you want us to look at it?

[Michael Weinberg]

sorry about that. attached.