Posted on 12/18/2001 8:32:14 AM PST by buaya
In March 2000, the author James Gleick (Chaos: Making a New Science) published an interesting article entitled Patently Absurd. Mr Gleick states:
"Once the province of a nuts-and-bolts world, patents are now being applied to thoughts and ideas in cyberspace. It's a ridiculous phenomenon and a nightmare for e-commerce."
He goes on to dissect "the patented 1-click feature," and other recent follies spuured by the e-commerce fad. In Part Two Gleick proceeded to analyze the politics of the US Patent and Trademark Office. It is interesting to note that Gleick states on his website:
"This article first appeared 12 March 2000 in the New York Times Magazine; ten days earlier, the Commissioner of Patents and Trademarks, Q. Todd Dickenson, called the editors and then the Times' lawyers in an attempt to block publication."
Probing the issue further, I discovered that this is not a new phenomenon fostered by the Internet. The US Supreme Court has dealt with an out-of-control patent system on at least two previous occaisons.
The case of Great Atlantic and Pacific Tea Co. vs. Supermarket Corp., (340 U.S. 147 (1950)) revolved around a dispute over an "invention": a simple wooden structure to move an order of groceries at a check-out counter as a rack of balls is moved in pocket billiards. Mr. Justice Douglas filed an interesting concurring opinion for himself and Justice Black:
"It is not enough that an article is new and useful. The Constitution never sanctioned the patenting of gadgets. Patents serve a higher end--the advancement of science. An invention need not be as startling as an atomic bomb to be patentable. But it has to be of such quality and distinction that masters of the scientific field in which it falls will recognize it as an advance."
Justice Douglas then quotes the following from an opinion written in 1882 by Justice Bradley in the case Atlantic Works v. Brady, (1017 U.S. 192, 200 (1882)):
"It was never the object of those laws to grant a monopoly for every trifling device, every shadow of a shade of an idea, which would naturally and spontaneously occur to any skilled mechanic or operator in the ordinary progress of manufactures. Such an indiscriminate creation of exclusive privileges tends rather to obstruct than to stimulate invention. It creates a class of speculative schemers who make it their business to watch the advancing wave of improvement, and gather its foam in the form of patented monopolies, which enable them to lay a heavy tax upon the industry of the country, without contributing anything to the real advancement of the arts. It embarrasses the honest pursuit of business with fears and apprehensions of concealed liens and unknown liabilities lawsuits and vexatious accountings for profits made in good faith."
Justice Douglas goes on to say:
"The attempts through the years to get a broader, looser conception of patents than the Constitution contemplates have been persistent. The Patent Office, like most administrative agencies, has looked with favor on the opportunity which the exercise of discretion affords to expand its own jurisdiction. And so it has placed a host of gadgets under the armour of patents--gadgets that obviously have had no place in the constitutional scheme of advancing scientific knowledge. A few that have reached this Court show the pressure to monopolies to the simplest of devices"
"The patent involved in the present case belongs to this list of incredible patents which the Patent Office has spawned. The fact that a patent as flimsy and as spurious as this one has to be brought all the way to this Court to be declared invalid dramatically illustrates how far our patent system frequently departs from the constitutional standards which are supposed to govern."
Here are a few ridiculous patents I've come across:
Patent 5,443,036 was granted for "A method for inducing cats to exercise consists of directing a beam of invisible light produced by a hand-held laser apparatus onto the floor or wall or other opaque surface in the vicinity of the cat, then moving the laser so as to cause the bright pattern of light to move in an irregular way fascinating to cats, and to any other animal with a chase instinct."
Patent 5,965,809 was granted for "Method of bra size determination by direct measurement of the breast."
Patent 5,993,336 was granted for "A method of executing a tennis stroke includes covering a knee of a tennis player with a knee pad during tennis play. The covered knee of the player is placed on a tennis court surface with the knee pad positioned between the knee and the surface. The tennis racket is swung toward a tennis ball so as to hit the tennis ball with the racket either while the covered knee is on the tennis court surface, or just prior to the knee contacting the tennis court surface."
Go to the USPTO website and check it out for yourself.
"To promote the Progress of Science and useful Arts" - I am constantly awed by the wisdom of this simple clause.
I'm often amused by patents which have major editing issues with duplicated paragraphs, incorrect or missing illustrations and so on.
Perhaps overstated, but with the "new" economy, patents seem to have have become a means of revenue almost replacing real products, and not via friendly licensing but by waiting quietly and attacking with the terror of lawsuits and protracted legal battles.
It's easy to complain. It takes real thought and hard work to provide rational, practical suggestions for "repairs".
Patents are good only for letting others steal your invention.
(2) Buaya's complaint joins that of the US Supreme Court, or did you not read the article?
AB
"The primary objective of copyright is not to reward the labor of authors, but "[t]o promote the Progress of Science and useful Arts." To this end, copyright assures authors the right to their original expression, but encourages others to build freely upon the ideas and information conveyed by a work. This result is neither unfair nor unfortunate. It is the means by which copyright advances the progress of science and art.
--Feist Publications, Inc. v. Rural Telephone Service Co., (499 US 340, 349(1991))
In short, the solution is more judges - at all levels - who adhere to the original intent of the Constitution:
"The Congress shall have Power ... To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."
What rational, practical suggestions do you to "fix" the system?
It's easy to complain. It's hard to actually come up with new ideas and implement them.
A finer man you will probably never meet. When he was on the Judiciary Committee, that was his specialty, so I hope he helps bring some needed reform to the Patent office.
Is this what you really want? It certainly is what you suggest.
If the patent system is "broken" why not fix the system? What is it about the system that is "broken" and needs to be fixed?
My take would be that the patent system is inherently non-market in character. Patent systems are a form of government privelege left over from 17th century monarchies. They promote an irrational concept of "intellectual property" which holds that one can "own" an idea. Problem is that ideas do not meet the definition of an economic good -- they don't have scarcity.
Patent systems are broken from the start. The fact that the system is being twisted to allow companies to deploy lawyers rather than better products against their competitors is not new, it's the way the game was set up in the first place.
"The patent office has become a place where the essential politics — the checks from contending interests — are out of balance. The voices heard daily at the patent office belong to people who like patents, want patents, and rely on patents for their living; their creed is, the more the better. Officials measure their own performance in terms of their output. It's as if they were a manufacturing company turning out product."
"The people interacting regularly with patent officials and examiners — their obvious clientele and customer base — are inventors and inventor representatives...It's virtually forgotten that the government's customers also include the rest of the nation, the citizenry at large, whose fortunes depend on the agency's judgments and policies."
In other words, the problem is the very sort of oligarchy you mention.
Abolishing patents would greatly enhance invention and improve greatly the lot of most inventors. See prior comments of the stolen "ideas" -- had the inventors known that their ideas would be so stolen, they would have negotiated and/or packaged so as to make money. Instead the patent system made both aggravation for the orginal idea men and coddled the laziness and theft-inclination of the companies what grabbed their ideas.
I dearly like the spanish word for business. It is "Negocio" -- Negotiation. Business is negotation, deals between interested parties. The whole IP process perverts that negotiation. It interposes patent lawyers.
Get rid of the entire category of "design patents".
A hopeful client approached me for my patent agent services, he had a big deal, a breakthrough. We met. He produced drawings of a salt-and pepper shaker set. A patent attorney could make a living with just design patents and never advance the state of art of technology by a single turn of a fine screwthread.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.