Patents that should not be patents

@Bass:

Good point.  http://www.perkinscoie.com/news/pubs_detail.aspx?publication=1442&op=updates

Except then there is

http://en.wikipedia.org/wiki/Willful_blindness

Our world is rife with bad all around.

Please close this thread as I think it would not be beneficial for anyone to post to it.

 STAY AWAY!  RUN FOR THE HILLS.

1 day ago, Bass wrote

Any software patent that doesn't have human and machine readable code attached.

The problem with that idea is that it removes one of the key protections that patents are there for. Let's say I've an idea for a system called Product X that offers some revolutionary new idea that could improve everyone's life and all I really need is the time to sit down and create it. For arguments sake, let's imagine that would be about one year. Unfortunately during that time I also need to do pesky things like eat and pay bills, so I need someone to invest in me and my idea for it to become a reality.

Now, if I can patent my idea, I can arrange a meeting with a VC, pitch my idea and hopefully get their backing. My wonderful product X makes it into production a year later and everyone reaps the rewards of the system working as intended. Society as a whole wins because of the patent system.

If, however, I can't patent it till after I've actually made it then I can't risk going and pitching my idea to anyone, because at that point there is nothing to stop them taking the idea and making it themselves, leaving me entirely out of the loop. Likewise I can't actually get on and create it because my life is full of whatever work I'm having to do to pay the bills. Product X never gets made, society as a whole loses out on an innovative idea.

@AndyC:There's one drawback - if software from vendor X has an insightful (read: helpful feature that's not obvious but easy to implement) patented feature and software from vendor Y has another insightful patented feature, we'll possibly never see software from X and Y containing both feature.

Note that I just say "never see software from X and Y containing both feature", because there could be software Z, made in country that ignores software patents, immediately copies from both software vendors and made both feature available. And in the world of internet, even if software Z is just sold locally because it's a small business, the torrents will spread it worldwide if it's cool.

Software patents exist just to put vendor X and Y in a world of hurt that prevent them from making awesome products AND prevent them to compete with foreign products, and put legitimate customers in the world of hurt because they can't legally buy a product that contains both feature, and have to either 1) choose to use one of the (now) interior product or 2) download software written by Z.

1 hour ago, cheong wrote

@AndyC:There's one drawback - if software from vendor X has an insightful (read: helpful feature that's not obvious but easy to implement) patented feature and software from vendor Y has another insightful patented feature, we'll possibly never see software from X and Y containing both feature.

The version of Windows that you are running contains ideas about video decompression and ideas about audio decompression, both owned by different patent groups.

So that's clearly not true that patents stop people using your idea.

They just stop people using your idea for free and without your permission.

Patents don't stop you making awesome products. They stop big companies from stealing awesome ideas and not paying the inventor.

@evildictaitor: Remember the IE6 days when the patent holder explicitly said he'll never grant right for Microsoft to use auto-detect feature, so we all needed a script to load Flash?

Remember Apple use patent to bar certain model's of Samsung mobile phone to sell in U.S.?

They for certain can be used to hinder competition. Even if we can make law have clause to require the patent holder to license to the competitors, they can still create a unreasonablely high price tag that essentially equal to saying NO.

Patent rules stops multiple patent holders who are not getting along very well from making awesome product.

9 minutes ago, cheong wrote

@evildictaitor: Remember the IE6 days when the patent holder explicitly said he'll never grant right for Microsoft to use auto-detect feature, so we all needed a script to load Flash?

And that was their right to do, as the inventor of the idea.

Microsoft doesn't have any right to implement ideas that it didn't invent any more than I have the right to make and sell Gucci bags without permission of the brand-owner.

At the end of the day, patent holders are like any other business. They want to make money. But patent holders make money from licencing the idea to people who are actually using the idea.

If I patent "donut flavoured coffee", I only make money if someone chooses to actually implement it and sell donut flavoured coffee. If it turns out that was a stupid idea (who they hell would want donut flavoured coffee?), I make no money.

If I patent it for my little coffee shop and a Starbucks manager comes into my store, loves my donut flavoured coffee and tomorrow every Starbucks in the Western world is selling donut flavoured coffee to the tune of billions of dollars - why shouldn't I be entitled to my fair share? I was the one who invented it and perfected the flavour after all.

Starbucks can either come into my store and give me a reasonable price for my idea, or they can make their own damn flavours.

And if I don't want to sell to them for any price - why should I be forced to? Maybe I'm about to sign an international licencing agreement with Costa who want exclusivity on donut flavoured coffee. I shouldn't be compelled to allow Starbucks to steal my idea, and if they do, I should be allowed to sue them.

They for certain can be used to hinder competition. Even if we can make law have clause to require the patent holder to license to the competitors, they can still create a unreasonablely high price tag that essentially equal to saying NO.

You should look into FRAND licences. They specifically prohibit companies doing that. (MP3s are FRAND-patented for example).

@evildictaitor:Under FRAND clauses, the patent holders can still refuse licensing the patent to competitors. They're just required to assist identifying the portion of product that will result in infringment when the necessary claims are not granted.

2 hours ago, cheong wrote

@evildictaitor:Under FRAND clauses, the patent holders can still refuse licensing the patent to competitors. They're just required to assist identifying the portion of product that will result in infringment when the necessary claims are not granted.

Actually patents that are FRAND licences (like GSM and WiFi) cannot be withheld from competitors.

There are of course less fair versions of FRAND - Microsoft has several royalty-free FRAND with no-competitor licences (e.g. the Office 2007 UI is freely available, unless you're a competitor to one of the five Office applications http://www.microsoft.com/en-us/download/details.aspx?id=1571).

There are also several different types of "free if you don't sue us" patent licences, such as the Apache Licence (http://www.apache.org/licenses/LICENSE-2.0.html). These patents are aimed at saying "if you play fair, you can use this for free. If you stop playing fair, so will we".

@cheong: Sure, you can use them to hold back competition temporarily, but suitable reformation of patent laws (reducing the length etc) can make doing so counter-productive. If you can't rely on it being valid ad-infinitum it makes more commercial sense in most cases to generate revenue through licensing than it does to withhold them. Likewise erradicating vague and overly wide patent descriptions makes it possible for third-parties to ultimately innovate around your invention if you refuse to license, which again makes doing so counter-productive in most situations.

@AndyC:If that feature have sufficient value to generate productivity advantage against the competitor products, holding it long enough would be enough. (Thinking how MS Excel turn over the leading advantage of Lotus 1-2-3, although that's not a patent problem, just a productivity/usability problem)

@evildictaitor:FRAND clause does not have statements for the patent holder to hold the right to just produce the products themselves, it just say that if you're going to license it out, you have to license it at fair charges.

In other words, unless you're going to license your patents out, FRAND is irrelevent.

5 hours ago, cheong wrote

@evildictaitor:FRAND clause does not have statements for the patent holder to hold the right to just produce the products themselves, it just say that if you're going to license it out, you have to license it at fair charges.

In other words, unless you're going to license your patents out, FRAND is irrelevent.

From http://en.wikipedia.org/wiki/Reasonable_and_non-discriminatory_licensing:

Non-discriminatory relates to both the terms and the rates included in licensing agreements. As the name suggests this commitment requires that licensors treat each individual licensee in a similar manner. This does not mean that the rates and payment terms can't change dependent on the volume and creditworthiness of the licensee. However it does mean that the underlying licensing condition included in a licensing agreement must be the same regardless of the licensee. This obligation is included in order to maintain a level playing field with respect to existing competitors and to ensure that potential new entrants are free to enter the market on the same basis.

@cheong: I hope for your sake that China will always be in the Z section.

Also, for the record, patents exist in China:

http://www.sipo.gov.cn/

@evildictaitor:Yup. There's not licensor in self-use case, that's why I say it don't applies.

And there's even more complicated cases. Say vendor X have patent portfolio exchange agreement with vendor A. Now if vendor Y want to acquire vendor X's feature, by FRAND rule they should also set up portfolio exchange agreement in order to be fair to vendor A. But what if vendor Y's patent portfolio have significantly higher value than vendor X? Will vendor Y ever consider it's worthwhile to do that?

So just as this FAQ said, in many case it's just difficult to apply FRAND principle when licensing patents.

Say vendor X have patent portfolio exchange agreement with vendor A. Now if vendor Y want to acquire vendor X's feature, by FRAND rule they should also set up portfolio exchange agreement in order to be fair to vendor A. But what if vendor Y's patent portfolio have significantly higher value than vendor X? Will vendor Y ever consider it's worthwhile to do that?

From http://en.wikipedia.org/wiki/Reasonable_and_non-discriminatory_licensing

Fair relates mainly to the underlying licensing terms. Drawing from anti-trust/competition law; fair terms means terms which are not anti-competitive and that would not be considered unlawful if imposed by a dominant firm in their relative market. Examples of terms that would breach this commitment are; requiring licensees to buy licenses for products that they do not want in order to get a license for the products they do want (bundling), requiring licensees to license their own IP to the licensor for free (free grant backs) and including restrictive conditions on licensees' dealings with competitors (mandatory exclusivity).

Most standards that have patented components either use components which are royalty-free licenced or FRAND licenced.

For example, JPEG is a web-standard, because it is a requirement of web-browsers to be able to decode JPEG images (but not a requirement, for example, to decode TIFF images). JPEG is (was?) patented but is provided royalty free. The W3C (rightly) saw the possibility of abuse here if JPEG decided that, say, Google weren't allowed to show JPEGs in Google Chrome any more, or Microsoft needed to pay 1 kajillion dollars to show JPEGs in IE - so they insisted that JPEG be made FRAND or free to be accepted as an Internet standard.

The H.264 video codec is very nearly a web-standard, because it will probably soon be a requirement of web-browsers to be able to decode H.264 video streams. H.264 is free for web-browsers, but is FRAND everywhere else, such as in BluRay players. since otherwise a company could buy the rights to H.264 to do attacks on companies that make BluRay players (like Microsoft).

Since this would be unfair, most standards committees make it a requirement that critical components of a standard are either available under a free or FRAND licence, so that anyone can implement the standard - even if they are a competitor of the holder of the component part.

evildictator, I'm a firm believer in capitalism, as I view it as the only just system, but I think that the current (ab)use of the patent law has nothing to do with it.