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Study Says 30% of Patents Are Duplicative and Thus Invalid
Friday, January 14 2005 @ 07:08 AM EST

The Economist has an article on IBM's recent patent pledge, whereby it is granting open source developers the right to freely use without royalties 500 of IBM's patents for open source development. The article calls it "a bold step that could have far-reaching implications for the computer industry." Then it begins to explain how the current patent system is strangling innovation:

Indeed, there are good reasons for believing that today's system of granting patents is stifling innovation, not encouraging it. Patent offices around the world have never been busier. This is partly because of increasing amounts of work in the fields of the internet, genomes and nanotechnology. But it is also because patent offices are being too lax in granting licences, encouraging firms to rush to register as many (often dubious) ideas as possible in an effort to erect legal barriers against their competitors.

In 1998, America allowed firms for the first time to take out patents protecting so-called "business methods". These often seem to cover ideas which are neither useful nor wholly novel -- simple tests (together with not being obvious) which are supposed to determine whether a patent should be granted or not. Patents, which usually give the holder a monopoly over the process or innovation protected for 20 years, are also becoming more difficult and costly to challenge. In addition, the USPTO is often reluctant to turn down an application because, perversely, doing so involves more time and effort than approving it."

And, they say, with China and India becoming more active in western markets, it is going to get worse. Then they cite a recent study by M*CAM, a consultancy which studies intellectual property, which "found that more than 30% of patents make duplicate claims, raising questions about their validity."

They don't say which M*CAM study they are referring to, but here is the announcement about one and here's an earlier study of the US patent system, done with the aid of M*CAM DOORS, a patent analytic tool. If you read it, you'll find out that this isn't the first time the patent laws in the US have needed to be tweaked because of abuses. M*CAM was commissioned by Congress to investigate the patent system. They are not some wild-eyed group of radicals. Note its conclusion regarding the modern day US Patent Office:

In conclusion, the existence and development of a patent system in the United States provided the necessary stimulus to foster an environment of rapid technological advancement. The legal treatment of patents as a piece of property, no different from real estate, provided the groundwork required to create large powerful corporations. These corporations profited significantly from their state-granted limited monopolies. The system created by the Patent Act of 1836 has remained largely intact, with a few minor adjustments. However, as our Founders feared, this system has led to continued abuses and problems with the United States Patent Office.

Patents currently take several years from date of application filing to date of issuance. Many times, a patent is issued long after the technology that was embodied in the patent has become obsolete. Patents are still being granted for obvious, non-useful inventions. Additionally, there currently exists a flood of patent infringement litigation - American corporations have realized the financial benefit associated with winning a patent infringement suit. Millions of dollars are routinely awarded for damages and patent licensing fees. For some, patents have become nothing more than a mechanism for bargaining in court.

It is this problem -- the cynical misuse of the patent system as a mechanism for bargaining in court -- that IBM is seeking to address. IBM's move may encourage other firms to follow them in building up a patent commons for open source. "If they do, then more firms may be encouraged to collaborate in developing new software instead of trying to forestall their rivals by taking out pre-emptive patents," the Economist states.

Erecting legal barriers against competitors is not what the patent system is supposed to be for. It is supposed to be about encouraging innovation. If it is failing to do that, and according to this article and the study it is failing, then it's obvious that we all will benefit by making some changes. Bold isn't a big enough word for what IBM has done, while it waits for the patent debate to reach a conclusion. Take a look at this article to get some idea of the impact the EU patent debate is having there and in the US. The statement from MIT is hard to match up with the M*CAM study that 30% of all patents are probably bogus:

"It would very much hurt the high-tech community'' and innovation if laws were dramatically altered, said Ann Hammersla, senior counsel for intellectual property at the Massachusetts Institute of Technology.

I think I may safely translate that as meaning that MIT would be very much hurt, or thinks it would be. But if so many patents are being approved that there is a 30% duplication rate, something is rotten in the system and it needs to be fixed.

Meanwhile, IBM just steps right over the problem. It isn't asking the world to give up all their patents. We can see how effective such a tack would likely be with Ms. Hammersla of MIT. Instead, they say: if patents threaten to destroy open source innovation, let's do something about it. Do we really want a world where a Linux can't happen ever again? Only if you are Microsoft would you be a beneficiary of such a system. If you are not Microsoft, and most of us are not, then it simply makes good sense to create a field where innovation can flourish.

The article makes one more statement I'd like to correct:

Other recent squabbles have centered around claims of patent and copyright violations for the Linux open-source system.

I'd like to point out that SCO has no patents at play in the current litigation. None. No one in the world has yet brought a patent infringement action against Linux. Microsoft has blown a lot of smoke in the air about it, and I fully expect they would like you to believe it has already happened, but it has not. Rather, IBM has accused SCO of violating IBM's patents.

If you wish to verify the information about the allegations in the lawsuit, all the legal filings are on Groklaw's Legal Docs page: http://www.groklaw.net/staticpages/index.php?page=legal-docs#scovibm.

SCO's 2nd Amended Complaint: http://www.groklaw.net/article.php?story=20040207022922296
IBM's 2nd Amended Counterclaims: http://www.groklaw.net/article.php?story=20040331043539340

This is the third or fourth article in the last week that I've seen saying something like this, so I'm thinking maybe we should do a chart for the media.

M*CAM has a number of articles listed on its news page, and here's a quotation from one article listed there, entitled "Patents Seen Loose Of Constitutional Moorings" from New Technology Week, April 19, 2004:

Since the time of Abraham Lincoln the patent office has not been funded in a manner that would allow it to fulfill its constitutional charter. The Constitutions says that in exchange for a disclosure that advances science and the useful arts you may get a limited monopoly. Fair enough. Now, here comes the problem: Since 1980, since the infamous Bayh-Dole Act, which was going to unleash the brain trust of America - one word has been added to "patent" that is unconstitutional yet it characterizes over 90% of the patents in circulation, not only in the United States but also in Japan and Europe. That word is "defensive". A "defensive patent".

I would submit to you that anybody who actually uses those two words in conjunction is advocating something that is in stark violation of the Constitutional (intent). Why? Because the grant of a monopoly was not for your protectionist self-interest. The grant of a monopoly was in exchange for your disclosure of something that promoted science and technology and industry. In 1980 to 1983, the decision was made that quantity was more important than quality and the Patent Office became a customer service organization. Who's the customer? As I read the patent statute and the Constitution, I don't see the customer as the applicant. I see the customer as the public - for whom, in that exchange of sovereign grant of monopoly rights, there has been an advancement of the public interest.


  


Study Says 30% of Patents Are Duplicative and Thus Invalid | 85 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections go here please.
Authored by: Hiro Protagonist on Friday, January 14 2005 @ 08:42 AM EST
Corrections go here please.

---
I Grok... Therefore... I am.

[ Reply to This | # ]

Off Topic goes here
Authored by: FrankH on Friday, January 14 2005 @ 08:57 AM EST
Because it needs to go somewhere

[ Reply to This | # ]

Patents supposed to discourage trade secrets?
Authored by: Anonymous on Friday, January 14 2005 @ 09:00 AM EST

> I see the customer as the public - for whom, in that exchange of
> sovereign grant of monopoly rights, there has been an advancement
> of the public interest.

It is not what patents were supposed to be all about? You disclore the
full inner working of a particular invention, knowing it would became
known to others... but in exchange you get a temporary monopoly.
This is not the case anymore, with obvious so-called "innovations"
that do not innovate anymore. Hence it became a win-win game for
big corporations: "you give me a monopoly and I'll give you a piece
of obvious silliness".

The question is... Is democracy supposed to benefit the people or
only the rich, big corporations?

[ Reply to This | # ]

Another Economist Article...
Authored by: maehara on Friday, January 14 2005 @ 09:11 AM EST

Seems the Economist has been busy - The Register quotes another article where they take aim at Wi-Fi chip manufacturers (including Intel, Broadcom and Atheros) for not working with the F/OSS community, instead trying to keep their interface specs closed.

The full article is in the paid-only area of the Economists' website, but El Reg reports:
"Now an unlikely open source champion, The Economist, has stepped up the pressure on chipmakers to open up. In a headline article, the magazine accuses Atheros and Broadcom, in particular, of failing to spur growth in Wi-Fi uptake by sharing technology, particularly with community and open source projects."

Another pillar of the capatalist world who seems to be "getting it"?

---
maehara

[ Reply to This | # ]

Antitrust of the 60's
Authored by: Anonymous on Friday, January 14 2005 @ 09:24 AM EST
I am not an expert and would like to see some comments from folks who really
understand this. That said:

I recall that in the early to mid 1960's several major business's were
"opened up" by the Justice department. I am slightly familiar with
Xerox but there were other companies and Bell Telephone. The result was the
breakup of some companies as well as the forced licensing of patents. I think
that is what turned on the "patent everything" switch at Xerox and
Kodak, among others. I mean that to read as the folks vetting patent
applications at various companies went from trying to discourage pointless
patents to trying to find anything patentable so they could cover all bases. I
think this also lead to the defensive patent portfolio with cross licensing
model. I think understanding this will help understand what is going on in
software today. Can anyone elaborate?

[ Reply to This | # ]

Defensive patents
Authored by: Anonymous on Friday, January 14 2005 @ 09:33 AM EST

A "defensive patent".

I would submit to you that anybody who actually uses those two words in conjunction is advocating something that is in stark violation of the Constitutional (intent).

I'm not sure I agree. At Netscape, for example, we worked to build up a patent portfolio for defensive purposes, but we weren't trying to defend a monopoly; we were preparing to defend ourselves against people defending their monopolies. The hope was that, if someone sued us for patent infringement, we could look at their products to see if they were infringing any of our patents; if so, we'd settle the case with a cross-licensing deal. (Or, at least, that's what management told us when they set up the patent bonus program.)

Now, I will admit that this use of patents is not what the Founders had in mind; however, it's not as indefensible as the quoted article said. It's still patents being used to promote innovation--specifically, by protecting our ability to innovate from those who would abuse their patents.

Of course, it would be better if this type of defensive portfolio weren't necessary...

--John Stracke

[ Reply to This | # ]

Investigating the Patent office?
Authored by: Anonymous on Friday, January 14 2005 @ 09:40 AM EST
Should we be turning our attention to the Patent office as well? See whose
working there and their associations, decisions they make, policies, etc. I
would especially like to know how they feel about the patent issue themselves.
I would also like to know where the registering fees go and what else the patent
office does.

This is a government office and we have a right to know what's going on in
there. They are the one group we don't have any details on or hear news about,
but they seem to be right in the center of the patent problem.

[ Reply to This | # ]

Cellphone market is patent infested
Authored by: Anonymous on Friday, January 14 2005 @ 10:05 AM EST

For some, patents have become nothing more than a mechanism for bargaining in court.

The company I work for experienced this kind of bargaining first-hand when we released a PDA with a built-in GSM/GPRS cellphone. If I understand it correctly, large parts of the GSM/GPRS standard and also the CDMA standard are covered by patents. These patents are owned by the likes of Nokia, Ericson, Motorola, Qualcomm, etc. It is therefore impossible to build a device that complies with these standards without infringing numerous patents. Anyone who wants to enter this market (as my company has) must be prepared to pay the high cost of license fees to the aforementioned companies. If for some reason these companies decide they don't like you anymore, I suppose they could simply raise the license fees to uncomfortable levels. The only way to avoid paying is...you guessed it...to have a patent portfolio of your own! Then you can bargain with the cellphone gods and get your fees reduced, or perhaps eliminated altogether if you have enough patents. To that end, executives at my company are encouraging us to patent any and everything we come up with, offering financial incentives to employees who do so. Much of the stuff being patented is pretty lame in my opinion, certainly "obvious to a person skilled in the art" or whatever...

The crown jewel would be to get some of our patented technology accepted as part of a standard like GPRS. Then we'll be in the position of Nokia et al -- anybody who builds a compliant device automatically owes us money. Second best would be to get some of our stuff accepted as a "de-facto" standard -- then everybody who wants to build a device that gets taken seriously by consumers owes us money. It's too late for us to get our patents into GSM/GPRS or CDMA -- those standards are not changing anymore, but there are other standards on the horizon -- successors to current standards. These standards are not yet finalized, so there is still opportunity to get our stuff in. The stakes are high -- if we get our IP in the standard, we'll have a guaranteed source of income for years to come. If not, we'll be facing even more exorbitant license costs than before -- perhaps as high as 50% of the cost of manufacturing will be license fees! This could potentially shut us out of new markets.

I suppose our situation illustrates the dual nature of patents. On the one hand they are encouraging us to contribute innovations (however dubious) to new standards, but on the other hand my company fully intends to use these patents as an anti-competitive weapon, just as they have been used against us.

[ Reply to This | # ]

Patents as economic imperialism
Authored by: Anonymous on Friday, January 14 2005 @ 12:05 PM EST
Through the 1990s it became increasingly clear that some - mostly but not
exclusively in the USA - saw patents as an investment in the *national* economy.
Patents granted to [our] companies should be enforced around the world through
WTO rules, thus giving [our] companies and economy a competitive advantage
against [foreigners].

At the forefront of pushing the "national advantage" was the USPTO.
Hence the huge proliferation of often-dubious patents in the US. Software is
not the only area to suffer: we hear from time to time of absurdities like
peoples from third-world countries being told to pay royalties for continuing to
use their own traditional medicines!

[ Reply to This | # ]

SCO patents?
Authored by: Ares_Man on Friday, January 14 2005 @ 02:48 PM EST
It seems like every other article I read from some online periodical mistakenly says that SCO accuses IBM of infringing patents. Here is another one. You would think that by now people would know better.

---
The DMCA is a blueprint for turning business models into law!

[ Reply to This | # ]

IBM patent list
Authored by: jseigh on Friday, January 14 2005 @ 04:40 PM EST
IBM pledged patents

They can be used with any of the opensource.org listed licenses. Some of those licenses allow commercial reuse of the opensource software so I can't imagine that the patents are IBM's more valuable patents.

[ Reply to This | # ]

Ann Hammersla and MIT's Views on Patents
Authored by: Anonymous on Saturday, January 15 2005 @ 03:35 AM EST
When you read Ann Hammersla's comments about the patent
system, keep in mind that it's her job to keep hundreds of
millions of dollars in patent royalties rolling in to MIT.
When someone gets paid based on how much IP revenue they
bring in, they are hardly an unbiased observer.

I met Ms. Hammersla while an undergrad at MIT a few years
ago, and my impression was that she was ultra-conservative
on any issue that might interrupt MIT's revenue. There
were several cases where my fellow students and I were
directly warned not to mess with the system that helps pay
for our education, even though we were just trying to
expose the problems with university patent abuse as part
of a research project.

When this kind of "bogus patents are good if they make
money" attitude comes from a university and its (often
rich) professors, students end up graduating and going out
into the world with the same attitude. This is likely a
major factor in why so many people don't want to mess with
the patent system even though it's clearly broken.

[ Reply to This | # ]

The media is conflating SCO's claims and the OSRM claim about 283 patents
Authored by: Anonymous on Saturday, January 15 2005 @ 04:02 AM EST
Other recent squabbles have centered around claims of patent and copyright violations for the Linux open-source system.
I'd like to point out that SCO has no patents at play in the current litigation. None. No one in the world has yet brought a patent infringement action against Linux.

Since the article talks about "squabbles" (plural), I think they are alluding to the announcement some time ago that Linux may be infringing 283 patents. Steve Ballmer repeated this last November, so it shouldn't be a surprise that it pops up again.

[ Reply to This | # ]

Study Says 30% of Patents Are Duplicative and Thus Invalid
Authored by: PeteS on Saturday, January 15 2005 @ 07:11 AM EST
I noted that European (UK in this case) patent attorneys are miffed about restarting the patent process. This is a case, of course, of protecting their revenue stream of getting patents filed for others.

Here's the Previo us comment on this.

PeteS

---
Artificial Intelligence is no match for Natural Stupidity

[ Reply to This | # ]

Study Says 30% of Patents Are Duplicative and Thus Invalid
Authored by: kamauo on Saturday, January 15 2005 @ 03:38 PM EST
The big problem with the patent law is that when it was created it was created
in good faith to be used by honest people.

In 1836 when this law was enacted most of the population was unable to read and
write therefore it was not such a big problem.

However, things have changed dramatically to the point where the rapid diffusion
of education has also created a lot of dishonest people, to put it mildly.

Therefore a much wiser generation has been able to exploit a lot of laws that
our less savvy ancestor thought possible.

It is now time to change a lot of these laws to reflect our current level of
awareness and expertise.

If and when the government fails to do this it will be tantamount to the
government forcing grown folks to wear the same clothes, which we wore when we
were children.

If things are allowed to remain the way they are we will soon wake up to the
fact that we are still in the cycle of repression, violent rebellion and
piecemeal reformation.

This was the lot of our less enlightened ancestors and/or barbarous ancestors.
Do we extend civilization or do we revert to barbarism?

If we fail to enact the necessary reforms without violent rebellion history will
prove that we have learned nothing new even in light of us being more educated.

For the most part our ancestors were virtuous, wise, and well-meaning but
inexperienced folks. Now that we are much more experienced, it is time for us
to do better.

The only reason why we will fail to do better is because we are yet ignorant of
reality.

The current patent laws directly serve to create a climate for the breeding of
monopolies.

Monopolies are the greatest danger to any capitalist society. This should be
obvious to all of us who did not forgo our abilities to think in terms of
freedom of mind and liberty.

It is with great sincerity that I commend Ms. Pamela Jones for the great work
that she is doing.

Now, Ms. Jones, there is something I would like to share with you; however, at
this time I do not want to make it public.

So if you are interested please let me know. You do have my email address.








[ Reply to This | # ]

Solution to Software Patent Problem
Authored by: ghopper on Sunday, January 16 2005 @ 12:22 PM EST
A patent grants a 20 year monopoly on a technology, but in exchange for that,
the technology becomes public domain after the 20 years is up.

Software (that is nonobvious, and meets the other rules of a patent) should be
no different than other patents. After the 20 years is up, the implementation
of that patent should be public domain. For this to mean anything, (working)
source code must be submitted with a patent application. In effect, the author
is trading their future copyright claims for 20 years worth of patent
protection.

[ Reply to This | # ]

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