HaqDiesel Wrote:
Stone Wrote:
I know that some stuff gets allowed that shouldn't, and I also know there are issues/problems with the patent system (one of which is whether "business methods" are patentable), but I am a firm believer in the patent system and its ability to promote further innovation, which is precisely why the founding fathers mandated it in the Constitution.
This is some rhetoric right here. Whether you're a firm believer in the patent system is beside the point. Does it work, and if so, what is your evidence? As for the founding fathers, who gives a shit? They also withheld fundamental rights from black people and women, so their capacity to be wrong is well documented. And Jefferson, an inventor, considered patents monopolies (which they fucking are). The only question is whether the patent system works.
Software patents are systemically fucked for several reasons:
1. patent law in the courts is captured by patent-hoarding industries via the Federal Circuit, a specialist court stocked with judges who are the very patent attorneys who used to (and whose friends still do) depend for their livelihood on the granting of patents and a broad scope of patentable subject matter;
2. the patent office is overrun with applications and can't adequately review them because there's not enough time and the examiners' access to prior art is limited by office practice and their own inexperience;
3. patents (particularly software patents) are written by patent lawyers for patent lawyers, and not only do not serve their supposed purpose (to describe the "invention" such that others in the field can replicate it) but also dazzle nonspecialist judges into thinking, for example, that software is anything other than math.
The software industry is replete with patents on useless, obvious inventions (see the Lodsys patent on buying shit within an app) that may cost a lot (~$10,000) to get, but cost a damn sight more to defend against (particularly when wielded by a troll who is impervious to the defendant's own patents) which is why they're never invalidated and continue to fester and hinder innovation and generally just fucking cost everyone a whole lot of money without doing a damn bit of good in society.
In short, +1 Yail
1. I think a pretty low percentage of CAFC historically have been patent attorneys, so this argument is meritless. And even if ALL of them are/were patent attorneys, there are attorneys on both sides of the coin (prosecuting vs. defending) so I don't see your point at all. Or do you not want judges who were patent attorneys, who would then be "dazzled" by the patent language? You can't have it both ways, but you're trying to.
2. This is true and I can't argue with it. If our government would pump more money into the PTO, we'd be getting better patents overall. But that doesn't mean every patent is useless and should not have been granted (see below).
3. There certainly is "patent-ese" used, but if a judge can't understand what a longitudinal axis is or what a flange is, or a series of steps for a computer, then he/she shouldn't have wasted the time with all of the political bullshit to get on the bench. Both sides have attorneys to explain the invention/lack of invention and the claim terms, so where's the problem? If a jury can understand inventions and claim scope by the end of a trial, I don't understand why a judge is incapable over the course of a patent infringement suit.
I won't argue with you that there are useless patents and many that should not have been granted, but nearly 8,000,000 patents have been granted and you name one example. I've seen crap patents, but I've seen many more patents that have merit (whether or not they may be ultimately invalid due to one of a number of reasons).
You think we'd be better off today without a patent system? I don't buy it for a second. There are problems in the system, sure, which I mentioned, but I do believe innovation is furthered by patents. I've seen it . . . A LOT.
And to say that patents are never invalidated is just plain ignorant. I was willing to give your opinion some respect until I read that.