U.S. Patents “Out of Bounds” or “Sheer lunacy”?

A recent article attempted to describe the procedural war zone that the patent process has become:

 The U.S. patent system has veered off course and is being abused, executives of three top technology companies said Wednesday.

The problems include damages that are too great, patents for insignificant innovations and poor quality patents that haven’t been researched enough, participants said in a panel discussion at the AlwaysOn Stanford Summit in Palo Alto, California.

“The patent system, right now, is tilting out of bounds,” said Chip Lutton, chief patent counsel at Apple Inc. He compared the situation to a bubble market, as companies buy up patents just to use them to get overinflated awards. Courts have failed to rein in these speculators, he said. – [Yahoo/PCWorld]

The patent process in the US has simply failed to keep up with the technology. More importantly, it has failed to properly address the specifics of what defines new technology, and what criteria needs to be met in order for a company to be able to patent these new technologies. As a result, the patent system has been the target of unbelievable levels of abuse.

As I pointed out in a recent post. There are some companies whose only purpose is to patent as many ideas as possible, wait for another company to invest the time, energy and funds to make the idea work, then make a healthy payday by filing patent infringement suits.

The entire patent system needs an overhaul. I believe there is a use and place for patents, but as it currently stands, the patent system no longer functions, and no longer protects the risk takers and true industry innovators. It has been turned into an easy way for those who can’t to make money of the backs of those who do.

I don’t think the phrase “tilting out of bounds” properly captures what is going on. I think the patent process is far beyond bounds. I think it as crossed over to the realm of lunacy, and been completely out of control and for at least a decade and half now…

U.S. Patent System ‘Tilting Out of Bounds’ – [Yahoo/PCWorld]


5 Responses to “U.S. Patents “Out of Bounds” or “Sheer lunacy”?”

  1. 1 danny1944
    August 5, 2007 at 5:08 pm

    Here are a few issues:

    How many patents are there? People who say that need to try and quantify the claim.

    Saying something is in the realm of lunacy. What does that mean?

    You say, “There are some companies whose only purpose is to patent as many ideas as possible, wait for another company to invest the time, energy and funds to make the idea work, then make a healthy payday by filing patent infringement suits.” Could you name some and then compare their numbers to the number of genuine independent inventors who may not have the financial resources to commercialize their product or concept.

    Companies like Apple want to have damages equivalent to what they pay in licensing. Then, guess what. When an independent inventor has a legitimate patent, they will litigate them into poverty, knowing that, even if they somehow lose, they will only pay a licensing fee.

  2. 2 danny1944
    August 5, 2007 at 5:09 pm

    Previous post, first line should read, how many bad patents are there?

  3. August 6, 2007 at 12:15 am

    Hey Danny, good questions/points.

    Your first question actually touches on one of the problems with the patent system the way it stands right now. There is no way to determine how many “bad” patents there currently are, because historically, the old criteria for what makes a “good” patent seems to do a bad job when it comes to things like intellectual property and technology.

    We’d have to look back over every patent in existence to make that determination, and I don’t think anyone has done that yet. At best we can only use the evidence from patent claims currently on the books, or in the media for examples of the kind of patent suit activity I am referring to. And there’s lots of those. All you need is Google…

    And saying that the patent system was in a state of “lunacy” was a humorous (or a bad attempt thereof) on my part to say that the patent process needs an big overhaul, primarily because the technology it is supposed to protect has been moving way faster than the system, and the ideologies and concepts currently used to validate patents are lagging badly.

    This post (which I see you have already commented on) contained a good example of a company who fits the demographic I am referring to. They may or may not have had a legal right to file suit, but I think that simply focusing on the number of bad patents and the various motivations for companies to file patents and sit on them will not do the issue justice.

    I believe the real problem is that the way the patent system has been implemented is currently flawed. Innovation is generally the result of the need to solve a common problem, whether widely accepted or not, and as soon as the technology is available to do so, the same solution is usually thought up around the same time frame by multiple, geographically dispersed and unrelated people.

    However the one who actually gets the patent is generally decided by who got to the patent office first, not who came up with the innovation first. So from this perspective, patents give an unfair advantage to “first producers”, and not “superior producers”.

    Another problem is the idea of using patents to restrict third party improvement. If someone develops a product, then patents it, should they be allowed to patent anything and everything that may be remotely related to their product? I think not. But thats what is happening today.

    As I see it, patents should only be to prevent someone from stealing the product idea you originally came up with. Not any future improvement, variation, or modification thereof. Innovation is about improvement on existing ideas, and usually occurs as an improvement upon, or modification of another’s technology, ideas or products.

    So in my opinion, no one should be allowed to file patents for products they have not made, or cannot produce, simply because they can. Patents should be reserved for people who have come up with a working production-capable model, or proof of concept for any new invention. Not just an idea.

    Which brings me to yet another issue. Specifically the criteria for when one should be allowed to patent something. I personally do not believe that it is right for someone to be able to patent an idea any more.

    Anyone can just sit there, come up with a gazillion ideas, patent them, and then turn over and go back to sleep. But I don’t think that person should be allowed to cry “patent infringement!” when someone actually puts their resources, time and money into making something that may be simply remotely similar to what they had in their head, just because they patented it.

    I understand that someone might come up with a genuinely good idea, but be unable to come up with the resources or financing for it, but I honestly do not feel that should mean that nobody else should be able to benefit from the idea, especially if they also came up with it on their own, just because of that. I believe that a patent should require more than an idea, perhaps a working production model, before you should be allowed a patent.

    In fact under this process, the big companies like Apple would not do be allowed to “Troll” either, though that may not prevent them from bringing suits. There really also needs to be an improvement in the patent claim process, that helps protect people from being litigated out of existence.

    With a properly defined process, It should ideally be possible to ascertain the validity of a claim without a long drawn out infringement suit that ends up putting the little guy out of business, even if they have a legitimate claim. But all of this will require some serious patent reform.

    Just my $0.02…

  4. 4 danny1944
    August 6, 2007 at 6:18 am

    I’m not sure I understand all your points.

    First to invent example: Elias Howe patented the sewing machine. Good patent, but his machine was not very usable. So he sells it to Singer, who improves upon it and makes a superior product. But it was Howe’s idea. And that is how the system should work. And I’m sure Singer wrote patents for the improvements.

    Holding a patent does not preclude another inventor from combining elements and improving them to create a new invention.

    By the way, in the old days the patent office required a working model of a invention.

    Also another point you make is that it is a very rare situation where the infringed party does not wish to license and the courts will pressure the parties to come to a licensing agreement. The Eolas case may be the exception to the rule, but perhaps the inventor is a bit unbalanced.

  5. August 6, 2007 at 1:04 pm


    The example you provided is a good one of how the patent process is supposed to work. When Elias Howe patented the sewing machine, he did not then sit back, think about every possible improvement, modification and/or possible combination of other innovations and then patent them all, so that he could make a profit when Singer made improvements on his original product.

    That is not the way I think patents are supposed to work. But that is the way it works now. Today I can sit down and think of a whole bunch of patented ideas, combine elements and improve them, as you described, and then patent a slew of new product ideas, fully intending to never actually put any resources, time or money into production with them.

    Then I can sit back, wait for someone else to come up with a similar product, put the resources into working out the kinks and producing a viable product, then slap a suit on them as soon as they turn a profit. That just isn’t fair. I think they had the right idea in the old days. We should go back to requiring a working model in order to patent a product.

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