Sometimes I think we'd be better off just doing away with patents altogether and letting corporations be responsible for guarding their own secrets. There's lots of downsides to that approach, of course, but the amount of harm that patents do seems to far outweigh them.
At least in tech, corporations generally don't patent their secret sauce anyway. They surround their critical trade secrets with a screen of patents, building up a defense (or offense) against rivals.
> and letting corporations be responsible for guarding their own secrets
The point of patents is that we don’t want corporations guarding trade secrets, we want them to make their secrets public so that others can benefit from them. And in exchange, they get some time where nobody else can use it.
Getting rid of patents will just lead to trade secrets getting lost, like so many have been through history.
That might of been the case at one point in time but the current patent system allows the retention of the trade secret that makes the invention actually work as well as allowing a patent on that same invention. That is because there is no longer a requirement that the invention can be reproduced from the patent because this is no longer tested.
There was once a time when an actual working prototype had to be submitted to gain a patent. This "having your cake and eating it too" issue was why such a cumbersome requirement existed.
There are companies out there who do not know why a particular product works as well as it does. Those companies can still get a patent that does not describe the invention in a way that would allow someone to reproduce the desirable attributes of that product. They then can sue any smarter companies that actually can figure out the secret.
That was the original point of patents when the patent office required a working copy. The inventor gave the public enough information so it can be copied and in return the government gave a limited monopoly.
Then government process change and today patent has changed. The ability to copy a invention from a patent is for all practical purposes impossible and in general no one objects to that fact. As the joke goes the only invention invention that the patent office will demand to be able to copy is one that breaks the third law of thermodynamics.
Absolutely, and many patents are stupidly broad or obvious. I’m glad the patent office has begun cracking down on “X, but on a computer” patents, because those were all terrible.
I think software patents can be useful, but it should be very, very "non-obvious".
The bar should be very high to get a patent and it should only cover the most novel and unique algorithms out there.
Idiotic stuff like a "one click purchase" button or "do it on a computer" should be thrown in the trash immediately.
Pretty much all of our patent problems could be solved in all industries by simply raising the bar for what is considered non-obvious to those familiar with the craft and substantially different to what is already out there.
Employees of companies are instructed specifically to avoid reading patents, to avoid the chance of hitting the triple damages from "wilful patent infringement". (I suppose they could read expired patent definitions, but at least in tech, those are likely much less relevant.) I imagine this also has the effect that they have no idea what technologies could theoretically be licensed from the patent owners, so, even if both parties would be willing and could agree on mutually beneficial terms, the transaction isn't initiated in the first place. (In cases where technology is licensed, I suspect the discovery mechanism involves the patent owner advertising and promoting their thing, rather than people looking at the patent stream.)
The "archive that people maybe start looking at 20 years later" might be worth something. I wonder, though, if similar or greater benefits might be gotten by encouraging companies to dump their secrets (or parts thereof) into some archive where they will remain heavily encrypted and guarded for a few decades.
There are still trade secrets all over the place. Patents are an idea that has through evidence been proven to be more harmful than good. The rate of horsepower in the world exploded once the original steam engine patents expired.
The case for patents needs to be made empirically -- lets see where they actually drove innovation. In general you will see massive innovation as soon as a patent expires.
> The rate of horsepower in the world exploded once the original steam engine patents expired.
An invention exploding throughout the world upon the expiry of a patent is the primary feature of patents, not evidence that patents are bad. The whole point of patents is that after a brief monopoly period, the entire invention - detailed in the patent to a level sufficient to recreate it from scratch - becomes the public's to use.
Your example is evidence of patents successfully driving progress everywhere and working as intended.
I'd much rather things protected by trade secrets had been protected by patent instead. If that was the case, for example, I could buy coca-cola for the price of the store brand. But I can't, because the formulas are still secret and not held by the public, even after more than 100 years. The formula being secret serves only to benefit an entrenched multinational corporation and reduce competition - rewarding neither the public nor the original inventor.
There are normally many people on the verge of a discovery. The rewards should go to those who are able to effectively leverage their technology into useful products. Not artificially retard progress so that the 'first' person can milk the rewards.
Patents have a long history of abuse and very little evidence that they drive innovation. The case has to be made that their benefit outweighs their harm. My argument is that it doesn't.
> In general you will see massive innovation as soon as a patent expires.
As tofof said, that’s absolutely the entire point of the patent system. The original inventor (Watt?) patented his invention. For a period of time, he could use it exclusively. And then the patent expires and everyone gets to use it. Everyone wins.
We don't know what's been lost because they were kept secret. The patent, being a publicly accessible description of what was accomplished and how, increases the understanding by anyone who reads it.
Let's take Google's PageRank as an example.
Until PageRank, search engines tried to decipher the content of a page to decide the value of that page in a relevant search. PageRank took the value of page links as THE defining metric of quality and the result was a much better search engine.
Had Google kept this a trade secret, we'd still be guessing at how they accomplished the goal. Knowing what they did, and how they did it, means that the knowledge is available to everyone.
For a non-search related project we are doing, I directed on of our team members to read the PageRank algorithm, as it is somewhat informative of a potential solution to one of our problems.
Google patenting PageRank has meant that we get the value of knowing their process, but are unable to use it to compete with them.
I am pretty sure it would have leaked out pretty quickly. Usually when somebody puts a working system into the public it's just a matter of time until people figure out how it works.
A blockchain actually seems a bit pointless for this because there is no 'good' being spent, and likewise there is also no need for a strict ordering of patents - meaning the "chain" part opens you up to unnecessary problems. Such as, you could have a silly 51% attack where the network discards existing blocks/patents for another chain of blocks/patents, even though there are no problems with simply keeping all of them (Because no inconsistency is created by just keeping the data from both chains).
I think an easier way to solve this is to use something like torrents, and have the USPTO sign the data being sent out with a known public-private key pair (So you can verify that what you're being sent isn't just junk someone generated). These can get copied by anybody who connects to the network, verified that they are actual patents, and then when the USPTO distibutes the encryption key anyone with a copy can decrypt them. In this situation, there's no such thing as a 51% attack because there is no history to rewrite, and you can't dump fake patents into the system to attempt to 'overload' it without having the USPTO's private key. An effort could be made to delete some information by simply refusing to replicate it (And hoping others also refuse), but as long as someone has a copy there isn't anything an outside force could do to cause them to delete it if they don't want too, and if someone makes enough of an effort someone else should be able to replicate it.
> Getting rid of patents will just lead to trade secrets getting lost
It is hard to keep a secret. Even the most closely guarded ones (the atom bomb, for instance) tend to eventually leak. That, and many devices can be reverse engineered.
Seems to me that intentional infringement should be the only path available to plaintiffs. If the next person who has the same problem arrives at a similar solution without needing to refer to the patent's teachings, then society arguably obtained no benefit from granting the first person a temporary monopoly.
Very true, but that doesn't invalidate the point in the slightest.
Given that intentional infringement awards are trebled, plaintiffs have a huge incentive to accuse defendants of it. If any patent attorneys are reading this, can you cite any statistics regarding what percentage of cases end up with a finding of intentional infringement?
If you do that, you're basically signing our future over to almost every bigger corporation that currently exists.
They will almost always be able to reverse engineer and re-implement in a cheaper fashion than most smaller companies, especially with the economies of scale on their side.
They've also got deep enough pockets to sell products below cost while they drive competition out of the market.
Another corporate angle is the extent that MAD (Mutually Assured Destruction) is at work. Large companies in older industries will have a large portfolio and if they get hassled by a competitor, the competitor can strike back.
As a practical matter, what can happen is that small companies can't get traction since all of the minimum features/implementations in a given type of product have already been patented by one of the existing older companies as a form of low-hanging fruit.
As far as software related patents go, yes, there are so many patents granted on trivial or obvious techniques that the system seems to benefit lawyers and patent trolls to a much greater extent than it benefits the actual inventors.
I do see a need for patents on pharmaceuticals, where the costs of gaining FDA approval is much more significant than the cost of reverse engineering a generic version of a medicine. But software? No.
This view is common, and I think stems partly from the fact that engineers working in different industries within tech don't really understand how the business models work in other industries within tech.
In software, we'd probably be better off without patents entirely. From an economic point of view, patents protect capital investment-intensive technology from free-riding. In software, copyright does that just fine. (For most software, the hard part is writing it, not the underlying logic.)
But this software-influenced mental model doesn't scale. For example, you mention trade secrets as an alternative. But for a lot of things, you can't guard your secret sauce behind a REST API. If you're Rolls Royce and you ship a turbine blade that took tens of millions of dollars of CFD analysis to develop, your competitor can just buy an engine and replicate it. The "web software" industry is actually unusual in that you don't need patents or copyright to protect your R&D, because all the valuable software and data is protected behind a web server. Note that a lot of the anti-patent (and anti-copyright) sentiment among engineers is relatively recent, and coextensive with the ascendency of web tech.[1]
Likewise, if you're developing hardware, in many cases you need to share your secret sauce while still protecting it. ARM and the cellular industry are great examples. These are incredibly healthy, incredibly innovative ecosystems. And patents are the grease behind how those ecosystems work. ARM can sell you an IP core that gets embedded in hundreds of different chips, because it has patent protection on those chips. There are half a dozen major companies that coordinate to develop Wi-Fi, 4G, etc., and they use patents to make a return on the billions they spend in R&D.
Interestingly, as much as people gripe about patents, I'd posit that the WiFi/cellular/video ecosystems are much better models of cooperative R&D than extant patent-free models. People cluck about the benefits of patent-free, open web standards, but it's an incredibly anemic ecosystem, dominated by three companies and with just 2.5 major implementations. Part of the problem with the web is that, to monetize what you spend developing the standards, you have to build a browser that you can either use to data mine/show advertising, or use to sell some other product. You're forced to vertically integrate the development of the technology and the building of the consumer-facing product because there's no good way to monetize them separately. And the beauty of patents is that they allow you to achieve that separation.
[1] I found the anti-patent sentiment actually quite shocking when I first started talking to software folks. Coming from an communications background, patents are really fundamental parts of the business model. The first company I worked at, a cognitive radio startup, never really intended to build a product you could sell to customers. The purpose was to develop the algorithms and patent them, maybe develop a reference implementation that would be heavily customized. After all, our expertise wasn't in mass-manufacturing radios, it was in network algorithm design/RF engineering. Patents enabled us to specialize on that one piece, and package our work into something that could be bought and sold.
At least in tech, corporations generally don't patent their secret sauce anyway. They surround their critical trade secrets with a screen of patents, building up a defense (or offense) against rivals.