Patents are popular. Part 2
Comments to the first part showed another popular misconception with which I would like to start the second part of the article. Many people unfairly reproach the patent system for slowing down progress, because they consider patents to be a certificate of ownership of an invention, while a patent only registers the advantage of the owner in commercial use of the invention. The difference in definitions is huge. Firstly, the advantage of the patent holder is limited in time. Secondly, both the application for the invention and the patent itself are open, public documents. In fact, the invention becomes the heritage of mankind. Of course, in the database of patents - the bank of knowledge - there is a lot of garbage, trivial, useless or even stupid inventions, but the value of the piggy bank, like any mechanism for the free exchange of information in general, cannot be overestimated. Patents do not interfere with inventing! Just the opposite: the full guaranteed availability of previous inventions contributes to progress, it helps not to reinvent the bicycle, but to improve the really necessary and promising directions. The patent system was designed to create an analogue of the academic tradition of publishing works, and it must be admitted that it copes quite successfully with this task. The law requires the applicant to “provide a comprehensive description and details of the invention in such a way that a person with ordinary abilities will be able to reproduce it”. Add to this a regulated form of filing, some kind of verification and filtering of patent examiners, a modern computerized search and cataloging system, and we get a picture that is almost ideal for an inventor: study on health, use, improve, create your own!
Monopoly patent rights and restrictions begin to play a role only when commercializing products that include patented elements, not before. A large number of people for some reason interfere with progress and invention with the sales stage, the increased attention of techies to which never ceases to amaze me. The good guy Linus with thousands of fellow hobbyists is developing the core of the OS in the commercial world of Intel / Microsoft; then other good guys from Andorid Inc. develop an environment for mobile applications in the commercial world of Java; then other good guys from Google are developing HAL for commercial mobile platforms; then other good guys from HTC integrate it all into a finished commercial product — a smart phone with the specifications of the late nineties desktops. If this is not progress from an engineering point of view, then I do not know what then to call progress. And the patent system does not interfere in any stage of this complex technological path! It does not necessarily help (although it is theoretically intended), but at least it does not interfere.
Screaming headlines appear on sales of HTC phones and the start of patent sales deductions. Yes, the weight of patent deductions can be up to 30% of the cost of goods, especially for mobile devices, which is extremely large, but “this is such a world, baby” ©. Would you like to talk about the amount of VAT? About import duties? About the percentage of direct and indirect taxes on companies? In some mysterious, perverted way, the conversation about incomes and expenses moves to the technological plane and translates into obstacles to progress. Patents can have a maximum effect on HTC profits, but not hinder scientific and technological progress. The “margin with gigahertz” mix, typical of a popular non-professionally covered patent topic, is wrong in its very foundation.
Imagine for a moment that the RSA algorithm is stored as a trade secret (in the depths of the NSA or by analogy with Coca-Cola: she also loves the legend, as if the recipe is known to only three people). What would change for commercial organizations that purchase encryption products? Nothing at all. Against the backdrop of extremely expensive safety certifications, possible competition will not make such products much cheaper. What would have changed for the tech-user community? We would not have convenient public key encryption methods! Let's go back to reality. The RSA algorithm was patented (yes, the same terrible “software patent”), and as a result, published in detail. Commercial users both paid for products and paid. And the simple humanity uses PGP, certificates, electronic signatures and other non-commercial delights based on this publication; a community of cryptographers improves asymmetric encryption algorithms. In 2000, the patent expired, and now RSA finally and without any restrictions became the property of mankind. Who became ill with the devil's patent?
Let's add another weighty protection from major players in the market, which patents provide to start-ups and small inventors, and we will finally understand why Thomas Jefferson, who was at the origins of [including] patent laws and the US Patent Office, turned from an opponent of patents into one of the most ardent their supporters.
')
And now, having painted with the bright colors the charms of the patent system, I will apply an especially cool publicist method and declare: positive, logical, and helping to invent the patent system is working BADLY . No, in theory, everything is still good, but in reality the picture is far from idyllic. Perhaps it was such in the 1800s, although even then there were enough scandals, but with the current pace of life, the change of technology and the growing fashion for patents, the system is seriously outdated. 20 years of advantages for the invention ?! Cool for aspirin, which we use even after 200 years, but a large number of today's inventions will end their life expectancy much earlier than the patent's expiration, and in all its versions and incarnations. The game is unfair : society gives the inventor an advantage in exchange for ... no one needs garbage in 20 years. The process is also outdated: the patent examiner is not enough to be overwhelmed with applications above the roof, so he is also forced to wade through the wilds written by lawyers who are accustomed to using as wide and ambiguous terms as possible. The low quality of such expertise has become the talk of the town, while the price of the monopoly on the trivial “invention” obtained can be very high for players in the whole industry.
The saddest thing is that you cannot fundamentally correct the situation. The Patent Office can tighten checks, tighten the screws, sort out properly and punish anyone. Recently, bureau experts have been blaming and demanding real evidence of the absence of prior art from applicants, so that the golden days of patenting browser cookies have happily passed. But it did not become better: “inventors” take quantity. Thousands, tens of thousands of applications from each large and medium-sized company, for each iron module, code function, interface, communication. The system is stupidly spamming. The concept of “invention” is mercilessly eroded, being replaced by a completely everyday solution of the task, which will be solved more or less equally by any arbitrary team of professionals of the corresponding profile! And a special role in the exorbitant load on the patent bureau is played, of course, by software patents, a sort of analogue of penis enlargement proposals and fake rolls in mail spam.
The evil irony is that the original provisions on patents in the United States do not allow the patenting of algorithms and software, as they do not allow the patenting of natural phenomena, physical laws, mathematics, etc. Software patents became possible only due to the intervention of the Supreme Court. At first, a series of its solutions did not find anything wrong with the fact that formulas and algorithms are part of a patent, then, little by little, software patents were completely legalized in the USA and some European countries. Very often, not only an algorithm appears in patents, but also a business process, or a virtual “apparatus”, as if “physically implementing” the patented code. Therefore, those who believe that software patents are easy to identify or revoke are wrong. The mere existence of pure software patents does not make the system worse: commonplace patents are equally harmful in any field. “The method of generating a unique URL for downloading documents” annoys no less than “Sandwiches without a crust”. On the other hand, the RSA already mentioned by me is a real invention with a capital letter, a breakthrough, substitute any other suitable epithet. That is, the question returns to the quality of the patent examination.
One of the frequently proposed proposals for reforming the patent system is a public discussion of applications. I fully support this proposal. If the Bureau does not cope with the examination itself, leave it to the public! There are quite a few people in the world who are able to reasonably help the patent expert's eye: “No, man, hyperlinks are not an invention. They already exist and are used everywhere, and long before the WEB. ” The emphasis should be placed not on a legal procedure, but on a joint search of previous works, on the answer to the main question that distinguishes the patented thing from the non-patentable: “invention, not innovation” (invention, not improvement).
It is curious to note that there is no such procedure for applications, but it actually exists ... for already issued patents. If it is interesting to the community, in the third part of the article we will consider the concept of reexamination (re-examination), designed to minimize the harm from banal patents.
Monopoly patent rights and restrictions begin to play a role only when commercializing products that include patented elements, not before. A large number of people for some reason interfere with progress and invention with the sales stage, the increased attention of techies to which never ceases to amaze me. The good guy Linus with thousands of fellow hobbyists is developing the core of the OS in the commercial world of Intel / Microsoft; then other good guys from Andorid Inc. develop an environment for mobile applications in the commercial world of Java; then other good guys from Google are developing HAL for commercial mobile platforms; then other good guys from HTC integrate it all into a finished commercial product — a smart phone with the specifications of the late nineties desktops. If this is not progress from an engineering point of view, then I do not know what then to call progress. And the patent system does not interfere in any stage of this complex technological path! It does not necessarily help (although it is theoretically intended), but at least it does not interfere.
Screaming headlines appear on sales of HTC phones and the start of patent sales deductions. Yes, the weight of patent deductions can be up to 30% of the cost of goods, especially for mobile devices, which is extremely large, but “this is such a world, baby” ©. Would you like to talk about the amount of VAT? About import duties? About the percentage of direct and indirect taxes on companies? In some mysterious, perverted way, the conversation about incomes and expenses moves to the technological plane and translates into obstacles to progress. Patents can have a maximum effect on HTC profits, but not hinder scientific and technological progress. The “margin with gigahertz” mix, typical of a popular non-professionally covered patent topic, is wrong in its very foundation.
Example: Secret for three
Imagine for a moment that the RSA algorithm is stored as a trade secret (in the depths of the NSA or by analogy with Coca-Cola: she also loves the legend, as if the recipe is known to only three people). What would change for commercial organizations that purchase encryption products? Nothing at all. Against the backdrop of extremely expensive safety certifications, possible competition will not make such products much cheaper. What would have changed for the tech-user community? We would not have convenient public key encryption methods! Let's go back to reality. The RSA algorithm was patented (yes, the same terrible “software patent”), and as a result, published in detail. Commercial users both paid for products and paid. And the simple humanity uses PGP, certificates, electronic signatures and other non-commercial delights based on this publication; a community of cryptographers improves asymmetric encryption algorithms. In 2000, the patent expired, and now RSA finally and without any restrictions became the property of mankind. Who became ill with the devil's patent?
RSA is also indicative of the fact that a similar (albeit unfinished) work was invented by an English mathematician 10 years before Rivest, Shamir and Adleman, but being buried for 20 years in the form of top-secret work in British special services, but it did not even help the invention of the great trinity theoretically (they simply did not know about it).
Let's add another weighty protection from major players in the market, which patents provide to start-ups and small inventors, and we will finally understand why Thomas Jefferson, who was at the origins of [including] patent laws and the US Patent Office, turned from an opponent of patents into one of the most ardent their supporters.
')
Well-intentioned
And now, having painted with the bright colors the charms of the patent system, I will apply an especially cool publicist method and declare: positive, logical, and helping to invent the patent system is working BADLY . No, in theory, everything is still good, but in reality the picture is far from idyllic. Perhaps it was such in the 1800s, although even then there were enough scandals, but with the current pace of life, the change of technology and the growing fashion for patents, the system is seriously outdated. 20 years of advantages for the invention ?! Cool for aspirin, which we use even after 200 years, but a large number of today's inventions will end their life expectancy much earlier than the patent's expiration, and in all its versions and incarnations. The game is unfair : society gives the inventor an advantage in exchange for ... no one needs garbage in 20 years. The process is also outdated: the patent examiner is not enough to be overwhelmed with applications above the roof, so he is also forced to wade through the wilds written by lawyers who are accustomed to using as wide and ambiguous terms as possible. The low quality of such expertise has become the talk of the town, while the price of the monopoly on the trivial “invention” obtained can be very high for players in the whole industry.
The saddest thing is that you cannot fundamentally correct the situation. The Patent Office can tighten checks, tighten the screws, sort out properly and punish anyone. Recently, bureau experts have been blaming and demanding real evidence of the absence of prior art from applicants, so that the golden days of patenting browser cookies have happily passed. But it did not become better: “inventors” take quantity. Thousands, tens of thousands of applications from each large and medium-sized company, for each iron module, code function, interface, communication. The system is stupidly spamming. The concept of “invention” is mercilessly eroded, being replaced by a completely everyday solution of the task, which will be solved more or less equally by any arbitrary team of professionals of the corresponding profile! And a special role in the exorbitant load on the patent bureau is played, of course, by software patents, a sort of analogue of penis enlargement proposals and fake rolls in mail spam.
“Soft” patents
The evil irony is that the original provisions on patents in the United States do not allow the patenting of algorithms and software, as they do not allow the patenting of natural phenomena, physical laws, mathematics, etc. Software patents became possible only due to the intervention of the Supreme Court. At first, a series of its solutions did not find anything wrong with the fact that formulas and algorithms are part of a patent, then, little by little, software patents were completely legalized in the USA and some European countries. Very often, not only an algorithm appears in patents, but also a business process, or a virtual “apparatus”, as if “physically implementing” the patented code. Therefore, those who believe that software patents are easy to identify or revoke are wrong. The mere existence of pure software patents does not make the system worse: commonplace patents are equally harmful in any field. “The method of generating a unique URL for downloading documents” annoys no less than “Sandwiches without a crust”. On the other hand, the RSA already mentioned by me is a real invention with a capital letter, a breakthrough, substitute any other suitable epithet. That is, the question returns to the quality of the patent examination.
One of the frequently proposed proposals for reforming the patent system is a public discussion of applications. I fully support this proposal. If the Bureau does not cope with the examination itself, leave it to the public! There are quite a few people in the world who are able to reasonably help the patent expert's eye: “No, man, hyperlinks are not an invention. They already exist and are used everywhere, and long before the WEB. ” The emphasis should be placed not on a legal procedure, but on a joint search of previous works, on the answer to the main question that distinguishes the patented thing from the non-patentable: “invention, not innovation” (invention, not improvement).
It is curious to note that there is no such procedure for applications, but it actually exists ... for already issued patents. If it is interesting to the community, in the third part of the article we will consider the concept of reexamination (re-examination), designed to minimize the harm from banal patents.
Source: https://habr.com/ru/post/126521/
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