[silvestrov]

One thing missing in the patent system is that the patent seeker should pay a "fee" of $1000 if it is patentlyobvious that prior art exists.

That would enable "Amazon Mechanical Turk"-style killing of most patents with prior art.

[geoka9]

And the person who found prior art should get a cut of that fee. Crowdsourcing at its best.

[freyr]

And then every patent would receive a deluge of obfuscated examples of prior art.

And the patent office would become even less effective. Perhaps a good thing, unless you believe some things actually should be patentable.

[zanny]

Can you give an example of a patent being helpful in producing innovation and prosperity in the last 20 years?

IE, a patent that was an original idea, someone else tried to duplicate in a blatantly rip-off way before the patent expired, and the ensuing lawsuit lets the patent creator (who has their patent to-market in a useful state) take the copycat off the market?

[freyr]

You're assuming that patents promote innovation once they're defended in court.

Another argument would be that they promote innovation by (1) preventing blatant rip offs in the first place, (2) incentivizing individual inventors who invest their time and money with the assurance that their efforts won't be blatantly ripped off in the end by someone with more resources.

There are countless examples of truly innovative patents filed by individuals who devoted their lives to creating new things. Some of the inventors profited directly from their patents, others spent their life savings in court trying to defend their patents.

There are also countless patents for idiotic ideas, and countless idiotic patents that shouldn't have been filed in the first place. But saying all patents are bad might be throwing out the baby with the bathwater.

[DevX101]

The pharmaceutical and biotech industry would be almost non-existent without intellectual property protection.

[busyant]

Absolutely correct. I used to work in this industry, and one of the 1st questions asked when we were thinking about testing a drug to treat a disease was "Does someone else 'own' this drug or do we?"

If someone else 'owned' the drug, then there was no point in pursuing it because the true "owner" would crush us if the drug ultimately proved useful in treating disease.

Interestingly, the people writing the drug patents use the same types of techniques mentioned by Joel...especially making claims as broad as possible.

The chemists that I worked with considered it an art form to be able to make broad claims that did not intersect with those of competing pharma companies.

There's a lot of bullshit that can go on w/ pharma patents, too, but the VCs would never fund a biotech startup if we couldn't defend "our" drugs.

[ESRogs]

While I'm sure a case could be made that IP protection is necessary in biotech, isn't the example you gave actually evidence of the the opposite -- that patents stifle innovation and research?

[bandushrew]

doesn't that mean that if nobody owned the drug, drug companies would be free to work on a wider range of research?

[freyr]

> Interestingly, the people writing the drug patents use the same types of techniques mentioned by Joel...especially making claims as broad as possible.

Systems (legal, computer, etc.) need to be developed with the full expectation that people will do everything in their power to exploit them.

[mdkess]

For pharma patents - is there a requirement of trying to bring a patented chemical to market (at the very least, doing clinical trials, etc)?

[zanny]

I don't necessarily call that a good thing. It isn't a black and white pro that a business gets monopoly rights to distribute new drugs for 2 decades, even if most new drug research is funded for that profit.

[Guvante]

You would have to make the penalty too high for a small shop to afford to actually impact the big wigs' carpet bombing technique.

Similarly, what do you do about the "I was accidently too broad" cases, which are just as dangerous.

[cyanbane]

I have to think that the patent in Spolsky's example cost at least a couple grand to produce/submit. I also would love to see the cost per rejected patent produced by the USPTO that comes from US tax payer dollars.

[roc]

As the Patent office generates net revenue for the US Government, you don't have to worry about that.

[sutro]

Actually you do have to worry about that. Since the USPTO is financed by patent application fees it has a perverse incentive to continue promiscuously granting as many patents as possible.

[throwawaykf]

Another frequently repeated myth. Actually:

1) Pretty much each and every action has a fee attached [1].

2) Each rejection has a 3 - 6 month time limit to be responded to.

3) Most applicants will fight every rejection to preserve their rights.

4) Granted patents have (admittedly higher [3]) fees due only every 3, 7 and 11 years, whereas patents in prosecution typically have fees due every 3 - 6 months. However, granted patents are not guaranteed to be renewed, which means their contribution is reduced [4, 5].

So if you want to talk perverse incentives, the USPTO actually have greater incentive to issue more rejections and collect frequent short-term fees on applicant responses, than they do to issue patents and collect infrequent long-term fees on renewals.

[1] http://www.uspto.gov/web/offices/ac/qs/ope/fee031913.htm

[2] http://www.uspto.gov/web/offices/ac/qs/ope/fee031913.htm#mai...

[3] http://www.patentlyo.com/patent/2010/06/patent-maintenance-f...

[4] http://btlj.org/data/articles/20_04_02.pdf

[5] http://www.uspto.gov/about/stratplan/ar/2011/mda_06_01_03.ht...

[sutro]

This myopic myth-busting of yours assumes that the number of patent applications remains unchanged regardless of how many are granted when in reality more granted patents fuels the fire of more applications. If the USPTO did the right thing and severely limited or even eliminated software patents there's no question that the number of applications, and thus the USPTO's overall budget and staffing levels, would decrease dramatically.

[throwawaykf]

Apologies for the late response. I don't check regularly.

1. There is no evidence to back your thesis that "more granted patents fuels the fire of more applications". See this graph [1] of allowance rates in 2000 - 2005 (for an explanation, ask a patent attorney or agent about "Dudas") and this table [2] for number of applications over that time period. There is zero correlation with the steep drop in allowance rates and the rate of new patent applications over the relevant time periods.

2. Why do you think your idea of "the right thing" is actually the right thing, if any such thing exists? Just because the HN echo chamber agrees with you? As I have shown time and time again, the Internet, especially tech media, has no real knowledge of how patents work.

3. The Supreme Court, let alone the CAFC, the PTO and various courts, cannot even define what "software patents" are. How would you begin to limit or eliminate them?

4. None of the above entities have found sufficient rationale to exclude business method patents, let alone software patents. Contrary to popular belief, it's not because they are stupid or technically illiterate, it's because they are very careful thinkers and make the best of what they can given their boundaries.

5. The budget and staffing of the USPTO is, unfortunately, mostly independent of the number of patent applications they receive. Currently, they generate more fees than they are allocated a budget for, and the federal government siphons away the rest.

[1] http://www.patentlyo.com/patent/PatentlyO2006059.jpg [2] http://www.uspto.gov/web/offices/ac/ido/oeip/taf/us_stat.htm

[roc]

You may have to worry about the incentives, but you don't have to worry about any cost in tax dollars of rejecting applications.

Unless somehow they began rejecting so many applications, and those rejections all cost more than the fees collected from those applications, so as to total more in losses than the surplus revenue of the rest of the PTO (all other patent and trademark activity, including renewals) over its costs.

Which Isn't Going To Happen.

[donaldc]

Since the USPTO is financed by patent application fees it has a perverse incentive to continue promiscuously granting as many patents as possible.

I would hope that filers for patents that are rejected would still get charged a fee. If they aren't, they should be. After all, it still takes up a patent clerk's time.

[rgraham]

This appears to be the case. Well, perhaps not an additional fee, but filing isn't cheap.

http://www.uspto.gov/web/offices/ac/qs/ope/fee031913.htm

[kbenson]

if it is __patentlyobvious__ that prior art exists

That's worth a chuckle.

(In truth, if it were patently obvious, this would be a much easier problem...)

[larrys]

Would hurt the proverbial small inventor more than it would hurt others. Almost like a regressive tax.

[mrgoldenbrown]

I think the problem is that the proverbial small inventor is extremely rare, and if they are indeed small enough for us to take pity on them, then a patent isn't enough to protect them anyway.

[fnordfnordfnord]

I don't think the proverbial small inventor is so rare, but that as you say, a patent is practically useless for them.

[dlwh]

Make the prior art fee scale up by number of patent applications submitted by that entity, then. First one's free. Then $100, then start growing at some small-ish exponent.

[pbhjpbhj]

Then you get shell companies and such being used for patent filing making it harder to establish who really is in control of the applications.