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Some people think that the entire patent system should be done away with.
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While most campaigns against [[software patents]] think it's better to [[Why focus only on software|focus specifically on excluding software]], some people think '''the whole patent system should be abolished'''.  This is of course another way to get rid of software patents.
  
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==Why patents as a whole are the problem==
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These arguments are also useful for arguing that the patent system should be applied as narrowly as possible.  E.g. patents involve so much litigation, bureaucracy and other costs, so they should only be applied to a domain (software or other) if a really strong case can be made for doing so.  For software, a mountain of [[Studies on economics and innovation|studies]] shows that this case is not made, so this type of argument is another way to argue for abolishing software patents.
  
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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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==Patents failing in general==
  
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a) He had an interest in.
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As well as the protests against patents on software ideas, other fields where patents draw particular criticism are pharmaceuticals and agricultural products.
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b) Were in a field he had expertise in.
 
  
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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.
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In September 2008, the staff of the [[EPO]] went on strike to complain about the decline in patent quality.<ref>http://www.suepo.org/public/press/sup080918e.pdf</ref><ref>http://www.out-law.com/page-9453</ref>  In May 2009, the EPO President Alison Brimelow announced she would be stepping down after less than two years in the job.<ref>http://ipkitten.blogspot.com/2009/05/alison-brimelow-to-step-down.html</ref>  Also in May 2009, the EPO office in Munich was surrounded by pigs and tractors in a protest against patents on biotech.<ref>http://bulletin.sciencebusiness.net/ebulletins/showissue.php3?page=/548/art/13867</ref>
  
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===Proposal to repeat the experiment===
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==Comparison to hardware manufacturing==
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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]])
 
  
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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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The problem of [[blocking useful freedoms]], which is very clear for software, can be seen to an extent in other fields.
  
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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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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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    * 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
 
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    * 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:
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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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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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It has been argued that making and designing hardware requires a large amounts of money and materials, that there are laws and regulations that place restrictions on making various types of hardware. While this is true, anyone 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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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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All of the arguments against software patents, also apply to hardware patents. The issues are:
  
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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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# Do we limit our effectiveness by only arguing against one issue?
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# Do we make ourselves more effective by only arguing against one issue?
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# Do we leave ourselves open to further attack at a later time by only arguing one issue?
  
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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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==Other arguments against patents==
  
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In addition to the 4 rules above there are two other rules which are extremely important:
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* Companies and individuals will not cease to innovate if there were no patents.  The software industry grew by leaps and bounds when there were no patent protection at all.  Science papers are not patentable at all but the number of published science papers doubles every 10 years.  So the argument that innovation and invention needs monopoly privileges to incentivize them is bull.
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* Ideas are dime a dozen so cost exactly $0.008 per Idea.  Ideas that are so worthless should not be glorified by the government and the people and monopolized.
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* It is impossible to invent anything without infringing on someone's patent.  All ideas are build on previous ideas.
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* Even if everyone were to stop inventing its not a big deal, as mankind is prosperous and advanced enough for me.  So why encourage patents in the hope that people will invent more stuff?  We don't need to invent anymore, though that wont stop anyone from inventing.
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* Patents stifle competition and thus harms innovation.  For a small niggling improvement that I make on an automobile part I will have to negotiate with hundreds of other patentees in order to manufacture that part in order to benefit from my invention, a daunting task.
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* Patenting encourages the pharmaceutical industry to discard tried and tested drugs whose patents have expired in favor of new and dangerous drugs just so they can continue to milk mankind by poisoning it for their profit.  Surely we don't need more poisonsous drugs than what is already there on the market.
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* Some of the most important ideas of mankind are unpatentable like Einstein's theory of relativity.  Einstein wasn't promised a single dime (through monopoly laws) for inventing relativity, that didn't stop him from inventing it.
  
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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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==Related pages on {{SITENAME}}==
  
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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).
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* [[Why focus only on software]]
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* [[What is patentable]]
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* [[Software patents]]
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* [[Books about software and patents#On the patent system or innovation]]
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** [[Against Intellectual Monopoly]], a book, fully available online
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* [[List of patents that appear invalid with reasoning]]
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==External links==
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* [http://www.csmonitor.com/Commentary/Opinion/2009/1208/p09s06-coop.html The patent system: End it, don't mend it]
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* [http://fare.tunes.org/articles/patents.html Patents Are An Economic Absurdity], [[François-René Rideau]], 2000
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* [http://www.techdirt.com/articles/20100203/0303448024.shtml How Patents Harm Biotech Innovation]
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* [http://mises.org/daily/3702 Radical Patent Reform Is ''Not'' on the Way],  Stephan Kinsella
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* [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1502864 Modeling a Paradigm Shift: From Producer Innovation to User and Open Collaborative Innovation], Nov 2009, Carliss Baldwin and Eric Von Hippel (This paper argues that various categories of patents have been useless or counterproductive)
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* [http://www.ip-watch.org/weblog/2009/06/26/prevent-patents-inhibiting-knowledge-diffusion-for-green-technology-eu-told/ Prevent Patents Inhibiting Knowledge Diffusion For Green Technology, EU Told], Intellectual Property Watch, 26 June 2009
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** This article indicates that patents might be slowing the progress of environmental progress
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* [http://research.stlouisfed.org/wp/2012/2012-035.pdf The Case Against Patents], Oct 2012, Boldrin and Levine
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** [http://www.washingtonpost.com/blogs/ezra-klein/wp/2012/10/10/the-case-against-patents/ The case against patents (summary by a journalist)], 10 Oct 2012, '''Washington Post'''
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** [http://www.motherjones.com/kevin-drum/2012/10/quote-day-dont-just-reform-patents-get-rid-them Quote of the Day: Don't Just Reform Patents, Get Rid of Them], 10 Oct 2012, '''motherjones.com'''
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* [http://www.guardian.co.uk/commentisfree/2013/apr/24/gene-patents-scientific-research-innovation Gene patents are a hindrance to innovation], 24 Apr 2013 , '''Adam Rutherford'''
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* [http://www.luc.edu/media/lucedu/law/students/publications/llj/pdfs/45_1_stallman.pdf Patent Law Is, At Best, Not Worth Keeping], 2013, [[Richard Stallman]], Loyola University Chicago Law Journal
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==References==
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{{reflist}}
  
  
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==See also==
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{{footer}}
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* [[Why focus only on software]]
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[[Category:Non-software patents]]
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* [[Against Intellectual Monopoly]], a book, fully available online
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[[Category:Patents]]
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* [[List of patents that appear invalid with reasoning]]
 
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* [[List of patents that need to be examined]] - post them here
 
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* [[List of patents that appear to be valid]]
 
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* [[List of patents that cannot be evaluated]] (we need someone in the field to evaluate them)
 

Revision as of 03:21, 26 April 2016

While most campaigns against software patents think it's better to focus specifically on excluding software, some people think the whole patent system should be abolished. This is of course another way to get rid of software patents.

These arguments are also useful for arguing that the patent system should be applied as narrowly as possible. E.g. patents involve so much litigation, bureaucracy and other costs, so they should only be applied to a domain (software or other) if a really strong case can be made for doing so. For software, a mountain of studies shows that this case is not made, so this type of argument is another way to argue for abolishing software patents.

Patents failing in general

As well as the protests against patents on software ideas, other fields where patents draw particular criticism are pharmaceuticals and agricultural products.

In September 2008, the staff of the EPO went on strike to complain about the decline in patent quality.[1][2] In May 2009, the EPO President Alison Brimelow announced she would be stepping down after less than two years in the job.[3] Also in May 2009, the EPO office in Munich was surrounded by pigs and tractors in a protest against patents on biotech.[4]

Comparison to hardware manufacturing

The problem of blocking useful freedoms, which is very clear for software, can be seen to an extent in other fields.

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 are laws and regulations that place restrictions on making various types of hardware. While this is true, anyone 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. 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?

Other arguments against patents

  • Companies and individuals will not cease to innovate if there were no patents. The software industry grew by leaps and bounds when there were no patent protection at all. Science papers are not patentable at all but the number of published science papers doubles every 10 years. So the argument that innovation and invention needs monopoly privileges to incentivize them is bull.
  • Ideas are dime a dozen so cost exactly $0.008 per Idea. Ideas that are so worthless should not be glorified by the government and the people and monopolized.
  • It is impossible to invent anything without infringing on someone's patent. All ideas are build on previous ideas.
  • Even if everyone were to stop inventing its not a big deal, as mankind is prosperous and advanced enough for me. So why encourage patents in the hope that people will invent more stuff? We don't need to invent anymore, though that wont stop anyone from inventing.
  • Patents stifle competition and thus harms innovation. For a small niggling improvement that I make on an automobile part I will have to negotiate with hundreds of other patentees in order to manufacture that part in order to benefit from my invention, a daunting task.
  • Patenting encourages the pharmaceutical industry to discard tried and tested drugs whose patents have expired in favor of new and dangerous drugs just so they can continue to milk mankind by poisoning it for their profit. Surely we don't need more poisonsous drugs than what is already there on the market.
  • Some of the most important ideas of mankind are unpatentable like Einstein's theory of relativity. Einstein wasn't promised a single dime (through monopoly laws) for inventing relativity, that didn't stop him from inventing it.

Related pages on ESP Wiki

External links

References

  1. ↑ http://www.suepo.org/public/press/sup080918e.pdf
  2. ↑ http://www.out-law.com/page-9453
  3. ↑ http://ipkitten.blogspot.com/2009/05/alison-brimelow-to-step-down.html
  4. ↑ http://bulletin.sciencebusiness.net/ebulletins/showissue.php3?page=/548/art/13867
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