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Difference between revisions of "Harm caused by all types of patents"

(Major update of page, detail added about patentability)
(move "hardware manufacturing" to here, see Talk of "focus on software" article - cut patentability criteria from here, move to patentability criteria page)
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==Why patents as a whole are the problem==
 
==Why patents as a whole are the problem==
  
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A study a while back by [http://www.groklaw.net Groklaw] contributor Wayne aka "The Mad Hatter", which involved reading several hundred patent applications, which was mentioned in a post.  In this study, he found only one valid patent.[http://www.groklaw.net/comment.php?mode=display&sid=20090514214945549&title=I+know+a+bit+about+patents&type=article&order=&hideanonymous=0&pid=757022#c757245]  The patents checked were patents that:
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A study a while back by [[Groklaw]] contributor Wayne aka "The Mad Hatter", which involved reading several hundred patent applications, which was mentioned in a post.  In this study, he found only one valid patent.[http://www.groklaw.net/comment.php?mode=display&sid=20090514214945549&title=I+know+a+bit+about+patents&type=article&order=&hideanonymous=0&pid=757022#c757245]  The patents checked were patents that:
  
 
a) He had an interest in.
 
a) He had an interest in.
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Wayne has proposed: "''As a result, I propose that we look into a cross section of patents. I will evaluate those that I can for validity, and I'd like to ask others to do the same. While this will be ad-hoc, by using a larger sample size, we will be able to further prove that there are issues with Patents in general.''" (This can be discussed on [[Talk:Should the whole patent system be axed]])
 
Wayne has proposed: "''As a result, I propose that we look into a cross section of patents. I will evaluate those that I can for validity, and I'd like to ask others to do the same. While this will be ad-hoc, by using a larger sample size, we will be able to further prove that there are issues with Patents in general.''" (This can be discussed on [[Talk:Should the whole patent system be axed]])
  
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To do this, it is necessary to look at the conditions for [http://en.wikipedia.org/wiki/Patentable patentability], specifically with reference to the US Patent Office, since many of the problems appear to stem from the United States, either through patents issued there which would not be issued in other jurisdictions ([http://www.michaelgeist.ca/content/view/4006/159/ Business Method Patents not Legal in Canada]), or through attempts to export the American Patent Regime to other states ([http://boycottnovell.com/2009/05/30/dojo-community-hostile-patent/ Europe Under Patent Siege - 1/2 way down page]). Specifically the USPTO requires:
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To do this, it is necessary to look at the conditions for [http://en.wikipedia.org/wiki/Patentable patentability], specifically with reference to the US Patent Office, since many of the problems appear to stem from the United States, either through patents issued there which would not be issued in other jurisdictions ([http://www.michaelgeist.ca/content/view/4006/159/ Business Method Patents not Legal in Canada]), or through attempts to export the American Patent Regime to other states ([http://boycottnovell.com/2009/05/30/dojo-community-hostile-patent/ Europe Under Patent Siege - 1/2 way down page]).
  
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    * be of patentable subject matter, ie a kind of subject-matter that is eligible for patent protection,
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==Comparison to hardware manufacturing==
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    * be novel (i.e. at least some aspect of it must be new)
 
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    * be non-obvious (in United States patent law); and
 
−
    * be useful (in U.S. patent law).
 
  
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The text is from Wikipedia, references to the EU Patent Office were removed since we are not considering it at this time. Further explanation of these clauses is below:
+
For the manufacturing of hardware, you have to consider how patents will affect:
  
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1) The invention must be something that the Patent Office can legally issue a patent for, this is defined in the regulations, but generally it is taken to be a physical invention. There is considerable argument at the present time about "Business Method" patents, which according to a recent court ruling are disallowed, however it is being argued by [http://www.ipwatchdog.com/2009/05/19/bilski-not-so-bad-for-software-patents-after-all/id=3582/ Gene Quinn] that the only requirement is that a computer be included in the application for the patent to be issued. Patent lawyers make money from filing patent applications, and herding them through the process, and thus have an interest in the range of patentability being as wide as possible. This may not be in the best interests of society as a whole.
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# the cost of mass production
 +
# the impact on quality/safety of what's offered to citizens
 +
# the impact on the economy overall
  
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2 The invention must be NOVEL. In industry this is known as the "DUH" clause. One example is the [http://en.wikipedia.org/wiki/KSR_v._Teleflex KSR vs Teleflex] case, where the patent in question covered the shape of a lever. In effect the invention must not have been previously invented. This is not simple however, as the rules disallow certain types of evidence, so it is possible to patent something that has been in general use for years prior to the patent being applied for.
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Whether innovations in hardware manufacturing should be patentable or not is open to question. While hardware is different than software, some of the same principles apply (i.e. new innovations are built on earlier innovations). What is definitely different is the cost of reproduction, since the effective cost of reproduction is zero.
  
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3) Non-Obvious means that the idea shouldn't be Obvious. Simple modifications of existing devices are not allowed, nor are combinations of existing components. An example would be the motorcycle. If an automobile already exists, taking the engine from an automobile and mounting it on a bicycle frame to make a motorcycle will not be patentable. Lawyers however can write patent applications to obscure the obviousness factor, and sometimes do.
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For software, there are similar questions to the three above, plus there is the fourth question of individual liberty and the effectiveness of communities. This question is also pertinent to hardware manufacturing. While individuals and communities often don't manufacture hardware [http://en.wikipedia.org/wiki/Amana_Corporation see the Amana Corporation and Community] they sometimes do, and even when they don't, the question of individual liberty is important. A device that was not operable by women for example would not be acceptable in most societies.
  
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4) Be Useful. This is known as "You can't fool Mother Nature" clause (from the [http://www.tvacres.com/admascots_mothernature.htm Chifton Margarine] commercials of the 1970's). In simple terms, the invention has to work. If it doesn't work, it's not eligible for patent protection. While this sounds like a no brainer, a lot of patents are issued by the USPTO for inventions that cannot and do not work, as they break [http://en.wikipedia.org/wiki/Natural_law natural laws].  
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If someone patents a method for making hardware, it may not directly reduce people's liberty, however if may indirectly do so. For example a patent was recently issued for a propane powered lawnmower. Propane powered lawnmowers had been made by hobbyists for years, however the issuance of this patent makes converting a gasoline fueled lawnmower to propane fuel by a hobbyist illegal. It is possible that this patent was not legally issued, depending upon how the patent office rules are interpreted.
  
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In addition to the 4 rules above there are two other rules which are extremely important:
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It has been argued that making and designing hardware requires a large amounts of money and materials, that there laws and regulations that place restrictions on making various types of hardware. While this is true, anddyone with a minimal amount of education can learn how to build large hardware projects, for an example in [http://en.wikipedia.org/wiki/Scrappy_Races#Scrappy_Races_.28UK.29 Scrappy Races] competitors have to build [http://en.wikipedia.org/wiki/Automobile Automobiles] out of scrap with a limited budget, and race them across the United Kingdom. As an example of a patent that could affect this sort of competition is the one litigated in [http://en.wikipedia.org/wiki/KSR_v._Teleflex KSR vs Teleflex] where the patent in question was invalidated by the Supreme Court of the United States. The patent covered a particular shape of lever, which was found to be obvious by the court.
  
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5) Prior Art must be listed. If prior art is not listed, and it is provable that the filer knew about the prior are the patent may be invalidated. Where this is most important is with the obviousness clause, as it may be decided that based on the prior art that the invention was obvious, and therefore not eligible for patent protection.
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All of the arguments against software patents, also apply to hardware patents. The issues are:
 +
 
 +
#1 Do we limit our effectiveness by only arguing against one issue?
 +
#2 Do we make ourselves more effective by only arguing against one issue?
 +
#3 Do we leave ourselves open to further attack at a later time by only arguing one issue?
  
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6) The patent application must contain a description that would allow a person with "knowledge of the art" to build the invention. Deliberate obscuration of the description to block someone from building the device is not allowed (note that this is a also common complaint about software patents, that the description is not clear enough to allow someone to build a device).
 
  
  

Revision as of 18:04, 1 June 2009

Some people think that the entire patent system should be done away with.

Why patents as a whole are the problem

A study a while back by Groklaw contributor Wayne aka "The Mad Hatter", which involved reading several hundred patent applications, which was mentioned in a post. In this study, he found only one valid patent.[1] The patents checked were patents that:

a) He had an interest in. b) Were in a field he had expertise in.

None of the patents that he understood met the US Patent Office regulations for issuance of a patent, according to his understanding of those regulations. There were a couple of patents, about 1% of the total, which he noted that he couldn't understand. He noted that the odds of reaching similar numbers with another batch of patents was, in his estimation, quite high.

Proposal to repeat the experiment

Wayne has proposed: "As a result, I propose that we look into a cross section of patents. I will evaluate those that I can for validity, and I'd like to ask others to do the same. While this will be ad-hoc, by using a larger sample size, we will be able to further prove that there are issues with Patents in general." (This can be discussed on Talk:Should the whole patent system be axed)

To do this, it is necessary to look at the conditions for patentability, specifically with reference to the US Patent Office, since many of the problems appear to stem from the United States, either through patents issued there which would not be issued in other jurisdictions (Business Method Patents not Legal in Canada), or through attempts to export the American Patent Regime to other states (Europe Under Patent Siege - 1/2 way down page).

Comparison to hardware manufacturing

For the manufacturing of hardware, you have to consider how patents will affect:

  1. the cost of mass production
  2. the impact on quality/safety of what's offered to citizens
  3. the impact on the economy overall

Whether innovations in hardware manufacturing should be patentable or not is open to question. While hardware is different than software, some of the same principles apply (i.e. new innovations are built on earlier innovations). What is definitely different is the cost of reproduction, since the effective cost of reproduction is zero.

For software, there are similar questions to the three above, plus there is the fourth question of individual liberty and the effectiveness of communities. This question is also pertinent to hardware manufacturing. While individuals and communities often don't manufacture hardware see the Amana Corporation and Community they sometimes do, and even when they don't, the question of individual liberty is important. A device that was not operable by women for example would not be acceptable in most societies.

If someone patents a method for making hardware, it may not directly reduce people's liberty, however if may indirectly do so. For example a patent was recently issued for a propane powered lawnmower. Propane powered lawnmowers had been made by hobbyists for years, however the issuance of this patent makes converting a gasoline fueled lawnmower to propane fuel by a hobbyist illegal. It is possible that this patent was not legally issued, depending upon how the patent office rules are interpreted.

It has been argued that making and designing hardware requires a large amounts of money and materials, that there laws and regulations that place restrictions on making various types of hardware. While this is true, anddyone with a minimal amount of education can learn how to build large hardware projects, for an example in Scrappy Races competitors have to build Automobiles out of scrap with a limited budget, and race them across the United Kingdom. As an example of a patent that could affect this sort of competition is the one litigated in KSR vs Teleflex where the patent in question was invalidated by the Supreme Court of the United States. The patent covered a particular shape of lever, which was found to be obvious by the court.

All of the arguments against software patents, also apply to hardware patents. The issues are:

  1. 1 Do we limit our effectiveness by only arguing against one issue?
  2. 2 Do we make ourselves more effective by only arguing against one issue?
  3. 3 Do we leave ourselves open to further attack at a later time by only arguing one issue?


See also

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