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Comment by themartorana | Hacker News Reader

I have no doubt that graphene will change the world, but as the article mentions, it may take a long time to get there.

The thing that bothered me the most was the mention of the patent race. Everything was "patent patent patent" - which means instead of a discovery in lab A spurring a totally new way of thinking in lab B, it restricts lab B from ever thinking that way.

Without the race to patent every single minuscule discovery about graphene and its properties, advancing early discoveries could move at an exponentially faster pace. Don't grab the ball and run with it - grab it and keep it to yourself.

I know all the arguments for patents, but I can't shake the feeling that they do nothing but stifle innovation and discovery by locking up research just when it gets interesting.

(When the measure of success is how many patents are filed, not how many discoveries are made... or how you just beat the Chinese to filing a patent, I'm just a tad less hopeful.)

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which means instead of a discovery in lab A spurring a totally new way of thinking in lab B, it restricts lab B from ever thinking that way.

This is not necessarily true.

Patents, unlike copyrights, are additive. If you write a book based on the Harry Potter characters, JK Rowling owns the copyright to your derivative work. But if Lab A patents a way of making graphene, Lab B is free to research and patent non-obvious refinements.

So you tend to see a tree of patents by different people:

1. Awesome new invention Foo! (Lab A) 1.A. Small but commercially important refinement of Foo. (Lab B) 1.A.i. More performant version of small refinement of Foo. (Lab A) 1.A.ii. Different way of increasing performance on small refinement of Foo. (Lab C)

... where you definitely need to license Patent 1 from Lab A if you want to sell your own Foo, but if you want to sell a Foo with Lab C's performance improvements you need to license Patent 1.A and 1.A.ii as well.

This is why there is a "race to patent every single miniscule discovery" in the first place -- Lab A getting Patent 1 doesn't remove the incentive to discover refinements. It is not obvious that the search for refinements would happen faster without this incentive.

In order to develop on Patent 1, Labs B and C should officially license Lab As patent.

As I understand it there's no "research exception" for patents, and they don't just apply to "selling". I'm basing my understanding on this article:

http://www.nature.com/nbt/journal/v25/n11/full/nbt1107-1225....

It's also true that researchers rarely take any notice of patents, and the issue just gets ignored.

A university patent office explained it to me as follows (note of course that doesn't guarantee this person was correct): patents do cover any "practice" of the patent, which includes practicing it for the purpose of even merely understanding and improving it. So research is not legally exempt. But in practice, patent infringement damages are almost exclusively at a court's discretion, and courts are almost exclusively interested in unlicensed commercial exploitation. A court can in principle issue a wide range of relief: an injunction against practicing the patent; a mandatory licensing fee; compensatory damages; or some combination of those. The nature of the relief is supposed to depend on the nature of the infringement and considerations of public policy. A widespread assumption is that it's not worth suing researchers who are trying to improve an invention without commercially exploiting the patent, because a court will be very unsympathetic to the patent holder, and unlikely to award any substantial relief.

Although I imagine being able to conduct research but never commercially exploit any discoveries made without the prospect of winding up in court would have a significant chilling effect on research funding.

> Patents, unlike copyrights, are additive. If you write a book based on the Harry Potter characters, JK Rowling owns the copyright to your derivative work.

No, they're both the same. One of the exclusive rights under the Copyright Act is the right to make derivative works, so you can't make a book based on Harry Potter characters without JK Rowling's permission. If you do anyway, JK Rowling can sue to stop you but she can't start selling your version herself and taking all the money without your permission. Nobody can sell the derivative work without permission from both authors, which is as it is with patents.

> This is why there is a "race to patent every single miniscule discovery" in the first place -- Lab A getting Patent 1 doesn't remove the incentive to discover refinements.

Of course it does. It requires the discoverer of the refinement to obtain the permission of Lab A before they can make any money, and the refined version competes with Lab A's version. So Lab A is better off to exclude the refined version from the market unless they can claim nearly the entire margin from it as they can with the original version, and the patent allows them to do that. Which leaves little or no incentive for anyone other than Lab A to make refinements.

The same thing happens with copyright. Disney makes movies based on ancient fairy tales because they're in the public domain. ABC's Once Upon A Time uses characters from Disney's Frozen because they're the same company. Universal Studios pretty much never makes movies with Disney characters, even though they theoretically could with Disney's permission, because Universal would be doing all the new work even though Disney could claim as much of the revenue as they like.

> It is not obvious that the search for refinements would happen faster without this incentive.

That's the fundamental trade off with patents. You grant a monopoly to one entity on the theory that the incentive of the monopoly will get that entity to invest in the research. The benefit of that incentive then has to be weighed against the cost of excluding all other potential innovators from the market for the term of the patent.

This is why patents work best in markets where innovation is slow. If patentable innovations happen only infrequently and/or there are only a small number of major players then the cost of the monopoly is smaller because fewer incremental innovations are being excluded by the patent.

This is one of the big reasons that software patents are so abominable -- the more innovation that would be happening without patents, the higher the cost of issuing patents grows.

> It requires the discoverer of the refinement to obtain the permission of Lab A before they can make any money

Not necessarily; they (lab B) can license the refinement to whoever they want, for example lab A. Or to a third party who licenses both technologies.

> Not necessarily; they (lab B) can license the refinement to whoever they want, for example lab A. Or to a third party who licenses both technologies.

In which of those cases is permission from Lab A not supposed to be required in order to make the product?

There are two scenarios here. In the first case Lab A doesn't license the base patent because it wants to make the product itself or (equivalently) sells or exclusively licenses it to a single manufacturer. In that case Lab B is dealing with a monopsony buyer and is hosed. The holder of the base patent can offer Lab B some fraction of their research cost for their patent, secure in the knowledge that Lab B's only alternative is to eat the entire cost and get nothing.

In the second case Lab A is licensing the patent to lots of people and you're proposing that Lab B license the improvement to the same people. The trouble is Lab A still has all the leverage. The availability of the improvement increases the value of the base patent, which allows Lab A to squeeze the licensees harder and leave less for Lab B. Lab B can't respond in kind because the licensees can do business with the Lab A patent without the Lab B patent but not vice versa.

I think you are missing some of the subtlety of _greim_'s point by presuming that Lab A and Lab B are on equal footing and that Lab B has a genuine interest in producing a product based on the patent they were granted. If the patents have sufficient overlap and Lab B has sufficient funds and legal firepower, they can convincingly threaten to sue Lab A and/or Lab A's customers. This may help to persuade Lab A to license the patent on terms more favorable to Lab B. If they are not in a position to do so themselves, Lab B can sell the patent to a non-practicing entity. In fact, even the theoretical existence of a sufficiently powerful NPE who could purchase Lab B's patent may compel Lab A to purchase or license it at the asking price just to prevent it from falling into adverse hands. Viewed from this angle, rather than being harmed, Lab B can be treated as a beneficiary of the patent system rather than a victim.

If Lab A has the original patent then it can make or license the original invention. Nothing Lab B does afterwards is supposed to be able to prevent that, and as long as Lab A and its licensees have that in their pocket as an alternative course of action, they have Lab B over a barrel. Lab B spent money improving the invention and the only way they can recover any of it is on Lab A's terms.

You're introducing an alternative scenario in which Lab B is an unscrupulous patent troll with no qualms about filing frivolous lawsuits for nuisance value. Sure, they can do that, but that isn't an incentive to improve the technology, it's an incentive to engage in patent trolling. And it's just as profitable whether Lab B makes a genuine improvement to the technology or not, so it provides no incentive to actually make the improvement.

The fallacy with your first paragraph is that it assumes that a patent grants the holder a positive right to produce something, whereas what the patent really grants is the right to prevent others from making something. These two are only equivalent if somehow the entirety of the invention is embodied by the patent, which for almost any useful invention won't be the case.

Rather than B extending A's patent, the reality is a tangled web of patents, all of which require licensing all of the rest to produce a real product without infringement. Or more realistically, the solution involves licensing from those more powerful than you, staring down those at an equal level, and infringing with impunity on those below you. This reality is known as the "Patent Thicket"[1].

I agree with you on the second part, but the counter-argument would be that the potential future marketability of the patent incentivized Lab B to do the research, which they otherwise would not have done. I'm sure there is some effect in this direction, but personally I think it's small. The sad part is that Lab B is practically forced to abuse their patents merely as a defensive tactic, on the theory that if they don't defect first their opponent will.

(I'll quit at this point, overcome by my own cynicism. Likely I agree with all your points. I started out trying to be a genuine devil's advocate, but at this point I realize I'm veering toward trollhood. I apologize, and recommend the link below for a more balanced assessment.)

[1] Patent Thickets: Strategic Patenting of Complex Technologies (http://www.researchoninnovation.org/thicket.pdf)

If Lab B can find a part of the process of developing A's original idea that Lab A has documented without covering every possible detail and contingency, Lab B can document that step and apply to the patent office for a patent on it.

Such patents are often granted because the standard patent lawyers have demanded is that a patent must issue unless the patent office can prove that every single detail and step ("limitation") is documented in the prior art. Also, patent officials have very little time to search for prior art, often just a few hours; the average time allotted to examiners in the US office is under nineteen man hours for all paperwork, documentation, and searching. That is why you see so many obviously redundant and unoriginal patents. There is an official requirement for non-obviousness but the patent court -- knowing where its judges' power, prestige, and lucre lies -- has made non-obviousness a dead letter by usually declaring nothing obvious except the exact prior art itself and raising the standards of proof sky-high.

So Lab B is probably not looking for substantive improvements. It's looking -- at least where computer, information, radio, video, software, and such patents apply, but probably with graphene also -- for a loophole where it can block Lab A's product by getting a patent on a necessary but incompletely documented part of the ordinary original product. If Lab B can accumulate enough of those, then Lab A will have to negotiate with Lab B.

Only then can Lab B's actual improvements have a chance in the market. And new patents on those improvements will then be promoted by patentability. But the cost of making such a system work is astronomically higher in the sciences HN usually deals with than any benefit it ever might offer.

You should hear the patent bar talk about how lost we used to be without them to regulate us and how software would collapse without them because patents are the only way to promote true innovation in the industry and how all research would shut down because the only reason it's viable is the patents you can acquire. And they're the ones that make the law.

> ...has made non-obviousness a dead letter by usually declaring nothing obvious except the exact prior art itself and raising the standards of proof sky-high.

This is not true, of course. The thing is (and I'm sure you know this) that the law defines "obviousness" as the combination of two or more prior art references, which differs from how we colloquially understand the word. This is for several reasons, the primary ones being objectiveness and avoiding hindsight. In fact, I theorize that the latter is precisely why people think they see "so many obviously redundant and unoriginal patents".

The situation described by JackC happens all the time. That's why patent pools like MPEG LA exist.

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

Thankfully for the rest of the world, that particular disease is primarily an affliction of the computer industry.

It's not an incentive to make incremental improvements, it's an artifact of the industry's strong need for interoperability in the face of overzealous patent issuing, and seemingly a way for anticompetitive behavior to dodge antitrust scrutiny.

The patent pools come before the standards. If your patent doesn't cover what's in the standard then nobody will use it, and if you're not one of the cool kids then nothing your patent covers will get put in the standard (see also Rambus).

The net effect of those patent pools is that the likes of Apple, Microsoft and Google pay each other amounts that essentially cancel each other out, but anyone wanting to enter the market has to pay a tax to all of their incumbent competitors. Not clear how that benefits innovation.

Most of the patents in the pools also aren't incremental, they're independent patents that cover different parts of the same standard.

"The patent pools come before the standards. If your patent doesn't cover what's in the standard then nobody will use it, and if you're not one of the cool kids then nothing your patent covers will get put in the standard"

Also the patents in the standard are often broadly written to cover whole genres of techniques. If your new innovative idea is excluded from the standard and you create a new competing standard, then your new standard is illegal because all the patents in the pool that might affect your new standard are unlicensed.

And the licenses the pool sells strictly apply only to uses of the established standard. There is no license available for your new standard at any price.

That's one of the reasons WebM was crippled for years; it had to design around hundreds of established techniques. Now that Google has spent years and billions on legal fights and patent acquisition MPEG-LA has opened up innovation legally to WebM and future versions might be good.

Your innovation isn't probably backed by Google, so good luck ever getting permission to try it.

And remember that even trying patented techniques in the lab is illegal if you have commercial applications in mind. There is a pure research exception, but if you want to develop a new codec or encryption idea built on older ones, you're skirting the law at best. The incumbents don't especially want to encourage your competition.

> Most of the patents in the pools also aren't incremental, they're independent patents that cover different parts of the same standard.

Is there any analysis that supports to this statement? Having seen many hundreds of patents, many of them in the video encoding area, I wouldn't hesitate to describe most of them as incremental improvements.

Also, the likes of Apple, Microsoft and Google end up paying the MPEG-LA much, much more than what they get paid for their share of the patents in the pool. They certainly do not cancel out, and if they had their way, they'd rather not pay anything at all. Unfortunately, with those codecs enjoying so much popular hardware support, they have little choice but to partake in the pool and pay their dues.

Anyone willing to contribute innovation to the market has a simple option: invent some technology that is valuable enough to be included in the standard, offer their own patents to the pool and get a share of the licensing pie. That way, inventors can do what they are good at (inventing) and vendors can do what they are good at (implementing and commercializing). Classic division of labour.

> Is there any analysis that supports to this statement?

Why are you asking for analysis? Aren't the lists of patents in the pools published? You can look directly at the source materials.

> Having seen many hundreds of patents, many of them in the video encoding area, I wouldn't hesitate to describe most of them as incremental improvements.

Certainly they aren't revolutionary, but you're ignoring the question of whether they're incremental improvements over existing patents or over the public domain. If the question is whether a patent reduces the incentive for others to make incremental improvements, finding an incremental improvement to something that exists in the public domain provides no such evidence.

> Also, the likes of Apple, Microsoft and Google end up paying the MPEG-LA much, much more than what they get paid for their share of the patents in the pool. They certainly do not cancel out

Do you have some evidence of this? For any company whose percentage of patents in the pool is proportional to their market share in the market, basic arithmetic says the royalties should cancel.

> if they had their way, they'd rather not pay anything at all. Unfortunately, with those codecs enjoying so much popular hardware support, they have little choice but to partake in the pool and pay their dues.

These are the companies that make the hardware or who tell the hardware makers what to make. If they collectively wanted to make the patent pool go away they could all just support both for a couple of generations while announcing immediately when support for the old codec will be discontinued so that people can stop using it. For some reason they don't.

> Anyone willing to contribute innovation to the market has a simple option: invent some technology that is valuable enough to be included in the standard, offer their own patents to the pool and get a share of the licensing pie.

But that's not how the standards bodies work. Nobody wants NPE patents in the pool but the NPE, and NPEs don't get a vote in the standards body. There are two primary ways that NPEs get royalties from the pool. The first is patents that cover the standard but nobody knew that when the standard was finalized or they would have fixed it, the classic submarine patent. You can't make money on this except by accident or by dishonesty. The second is patents that are so unreasonably broad they can't be avoided no matter what you do even if you know about them ahead of time. These are a defect in the patent office which shouldn't have issued them. No part of his involves some nice fellows in lab coats making decent wages without doing anything untoward.

> That way, inventors can do what they are good at (inventing) and vendors can do what they are good at (implementing and commercializing). Classic division of labour.

Patent pools have nothing to do with division of labor. They're an evolved response to patent thickets. Division of labor is: you get a patent and you sell it to a practicing entity who uses it to enjoy a competitive advantage. Patent pools only happen when there are so many patents you can't help tripping over them and the industry is trying to make the problem go away as best it can.

> but you're ignoring the question of whether they're incremental improvements over existing patents or over the public domain. If the question is whether a patent reduces the incentive for others to make incremental improvements, finding an incremental improvement to something that exists in the public domain provides no such evidence.

Here's how patents are prosecuted: Applicant files a patent with some broad claims. Examiner usually (statistically speaking) rejects it on the basis of non-novelty and/or obviousness and cites some prior art references, which are usually other patents. Applicant then amends their claims with the minimum amount of limitations needed to avoid the prior art references (because they want a patent as broad as possible) and tries again. This cycle typically continues until the examiner can no longer find a concise enough set of prior art references to cover all the limitations of the claim, at which point the patent is allowed.

This process necessarily means that the vast majority of patents technically introduce only incremental improvements (or, more correctly, differences) over the prior art.

Case in point, randomly selected HVEC-related Apple US patent 7,769,084. It was rejected 4 times by the examiner, the last rejection citing patents 5,986,712 (owned by Thomson Electronics) and 6,310,897 (owned by Sony). Apple prevailed by adding a single 20-word clause to a 3-part claim, which the examiner deemed different enough to allow.

If that is not incremental, I don't know what is. Also, note that prior art owned by two different companies did not prevent Apple from making (and then patenting) an incremental improvement to the art.

Here's Microsoft saying MPEG-LA costs it more than it makes:

http://blogs.msdn.com/b/ie/archive/2010/05/03/follow-up-on-h...

I feel like I saw similar statements from Apple and Google but I can't find them offhand. The rough math is easy: your share of the licensing pie is proportional to the fraction of your patents in the whole portfolio. The actual calculation is extremely complex, but you can get a good idea by looking at the lists of patents and their owners.

> ... NPEs don't get a vote in the standards body.

Are you sure? I thought I saw a lot of research institutes and universities on standards committees?

> Patent pools have nothing to do with division of labor.

Patent pools are not directly concerned with division of labor, but patents are. Pools are just a emergent licensing convenience when many fragmented rights are involved.

I thought there exist schemes like compulsory licencing, wherein patent owners must offer their patents for licencing for a reasonable fee (of course, what is reasonable is highly debatable).

Yes compulsory licensing exists, under eg Article 31 of the TRIPS Agreement [1].

Certainly in the UK one of the situations considered explicitly under the Patents Act is that of an advancement to a technology not being able to come to market due to unfavourable licensing terms, or refusal of a license. In which case, in the UK, the comptroller of patents can order a license under the terms he sees fit.

A current licensee can even apply for a compulsory license; presumably if they can show the terms are particularly usurious.

[2] is a brief discussion of the situation under TRIPS, UKPA and in Austria.

---

[1] http://www.wto.org/english/res_e/booksp_e/analytic_index_e/t...

[2] http://www.taylorwessing.com/synapse/ti_compulsorylicensingp...

> Nobody can sell the derivative work without permission from both authors, which is as it is with patents.

This is patently untrue.

Just as an example, there was a recent thread on reddit about how someone's Adventure Time fanart was used by the rights-holders of Adventure Time for a Tshirt that is now selling at hot topic (link: http://www.reddit.com/r/adventuretime/comments/24syra/hot_to...)

Unless the derivative work falls under fair use, the rights-holders can use it however they want.

You're citing a reddit thread for a legal principle. No.

> Unless the derivative work falls under fair use, the rights-holders can use it however they want.

Unless the derivative work falls under fair use, the rights-holders can stop you.

Let's make the case as clearly as possible. Microsoft incorporates some clip art into Windows without a license. Does the artist of the clip art now have a right to start selling copies of Microsoft Windows to everyone? Of course not.

What? No, that wouldn't make Windows a derivative work. We're talking about derivative works here. The 'reddit thread' I linked to isn't important; the point was that someone made artwork based on a TV show, and had that artwork turned into a Tshirt that is now selling at Hot Topic by the creators of that TV show, without having any choice in the matter. In other words, they have no claim to their artwork because it is a derivative work.

As completely bonkers as it sounds, you are probably in the wrong here.

So, just for background: you're basically right to sense that the fundamental thing in copyright law is the right to impose lawsuits to stop infringement. (We could add to this "or to collect damages", is the only major missing part.)

Restating the person you're replying to (in this vocabulary), you responded to "you can't stop the rights-holders" with "the rights-holders can stop you." This appears to be a total non-sequitur; I guess the most charitable interpretation is, "They cannot use your work however they want; they can merely stop you from using your work in ways that they don't want." The first half of that is wrong even though you only stated the second half of that (which on its own would not be particularly objectionable). Some peeking at the paragraph afterwards seems to confirm that this is what you meant; again that paragraph is OK by itself without context but is being used to support a wrong point in-context.

So here's why that paragraph is factually correct but doesn't make the point that you want: the US copyright law treats every derivative copyright work as made up of hypothetically-clearly-defined "parts" which each have one or more copyright interests in them. The judge in the case would probably not say that the "part" which contains your clip art is the whole of the Windows operating system; and Microsoft would retain its copyright interests in the rest of Windows while losing it in the "part" which was your clip art. This matters because it means that there is only one copyright interest on that part (yours) rather than two (yours and Microsoft's). So if Microsoft added a monocle and top hat to your cartoon-face-shaped-like-a-bean, you could in fact probably use their version without fear of a lawsuit (though again, some judge might say that, say, the top hat is sufficiently differentiable from the beanface that it is a "different part" of the derivative work).

> This is not necessarily true.

In biotech/pharma research, it is absolutely true. If a competitor's patent lands first on targeted genes/proteins/etc. it can shut down an entire lab's line of work permanently. The staff involved usually get reshuffled to other lines of interest, and any work they'd done is simply written off, never to see the light of day.

The US airframe industry was so hamstrung by patents that innovation and progress shifted to Europe. It took the government to force the industry to accept a patent pool and move forward. http://en.wikipedia.org/wiki/Wright_brothers_patent_war#The_...

This is actually a myth that was recently busted. See this paper, which presents compelling empirical evidence of the aircraft industry from that time to show that there was no such hold-up:

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2355673

Unfortunately, this is one of those myths, like the one of Watt's patents holding up development of steam, that gets repeated so often that people accept it without question.

which means instead of a discovery in lab A spurring a totally new way of thinking in lab B

Without the patent system's protections, lab A would be unlikely to divulge its discoveries to lab B.

That's fine, they're going to have to market their stuff some day.

That doesn't guarantee that the secrets come out. Counterexamples are Damascus steel and Roman concrete.

That doesn't guarantee that the secrets come out. Counterexamples are Damascus steel and Roman concrete.

Both of those have been reverse engineered by now. We have the advantage of the scientific method and a robust (reverse) engineering culture that would keep secrets from remaining secrets for too long.

Damascus steel has not been completely successfully reproduced to this day, though we're probably 95% of the way there.

Though, it's not exactly a field with hordes of scientists looking to reproduce it.

>Damascus steel has not been completely successfully reproduced to this day

Because it sucks compared to modern knife steels. VG-10, S30V, or any other high-end steel beats the hell out of Damascus/wootz steel.

If there were any serious benefit to Damascus steel, we would have certainly reverse-engineered it by now.

So the grants they depend on require divulgence to get the grant. It's not like they are funding themselves ...

> it restricts lab B from ever thinking that way

Is it not possible to look at existing patents and build on them, filing new patents which build on the existing ones? What would really restrict lab B from ever thinking that way would be if lab A never filed a patent, and just kept the discovery locked up as a trade secret.

In principle this would be possible. In practice, the standard advice is that inventors should avoid looking at competitors' patents to reduce the danger of "treble damages" due to "willful infringement". This fear is likely overblown, but I've certainly never heard of anyone excited to hear that their competitor has published a patent because they hope that the new information revealed in the patent will help them to innovate better.

I'm sure it's industry specific, but I've don't think I've ever even heard someone claim that they learned something from a patent that they could not have legally learned in some other way. Given that this spread of knowledge is part of the ideal that is presented for the existence of patents, it would be nice to hear from anyone who works in area where patents are felt to actually help in the spread of knowledge.

I'm willing to believe that promising a monopoly can help to incentivize research and innovation, but I'm doubtful they positively affect the rate at which knowledge is shared.

> advancing early discoveries could move at an exponentially faster pace.

Faster pace towards what though? Someone swooping in, doing the last 1% of the work, and making all the profit. E.g. it's sad how much more money Apple has made on Siri than SRI did. Patents do a pretty awful job of making sure researchers and inventors get compensated. But they're one of the few things to tip the balance in favor of researchers and inventors.

But they're one of the few things to tip the balance in favor of researchers and inventors.

My guess coming into this thread was that the business people and lawyers would be more pro-patent than the researchers and inventors. Of course one can be both, and I don't know the backgrounds of many participants, but it's interesting that in this thread both you and JackC have strong backgrounds in law. Have you found many researchers or inventors without comparable legal expertise who perceive the balance to be tipped in their favor? And moreover, that think this advantage is maintained rather than threatened by patents?

I got my degree in aerospace engineering, and worked at two R&D companies. I spent those years surrounded by engineering PhDs. Everyone supported the patent system, even though it was a huge hassle, because it gave them leverage against the Big Co's with outsourced manufacturing muscle.

I don't think the scales are tipped in favor of the inventors. I just think it's important to have something to even out the imbalance between commercialization and invention. I look at software, where there isn't a tradition of patenting things, and see the guys who built the technology that makes the world go around (UNIX, C, TCP/IP) leading comfortable professional lives while the WhatsApp creators exit for $16 billion. I don't think that state of affairs is indicative of the right balance, and I think it creates bad incentives for people in the industry.

I'm not saying that the patent system is the right solution. I'm saying that there is a problem that needs to be solved.

There are a mountain of patents to block innovation in speech recognition. Dragon and many others are ready to knock down any kind of real innovative small company that has success.[0] SRI never had a chance in that market to make it alone and that was understood from the beginning.

Only Apple's and Google's cash and legal muscle makes it possible for new speech recognition tech to be commercialized in the face of patents blocking innovation. Anyone smaller and less intimidating can just be crushed by incumbents.

"researchers and inventors"

That's disingenuous. It's the researchers and inventors that want the patent system out of software, information, and communication.

[0] http://www.nytimes.com/2012/10/08/technology/patent-wars-amo...

> It's the researchers and inventors that want the patent system out of software, information, and communication.

That's disingenuous. While that may appear true if you live in the HN / Silicon Valley bubble, it can in no way be generalized. In the rest of the world, i.e. the vast majority of it, most researchers, inventors and engineers (including in software, information and communications) are proud of their patents.

So much for standing on the shoulders of giants for progress. It's more like standing on your own shoulders.

The problem with patents is not whether or not they should exist, but the massive friction involved in licensing them to others. If the patent system had more requirements or controls about requiring a fair system of licensing and ownership division it could serve its original purpose much better in my opinion.

Perhaps there is room for a specialized marketplace?

There are plenty already, by all sorts of players. However the issue is search - which is probably one major aspect of the "friction" mentioned in the parent post: 1. Patents are often not exactly written to easily give their secrets (I would say there are specific forms of patent legalese). 2. You need (costly) experts to look at potential offers.

In addition, there are more disincentives to "easy" IP transactions: 1. Even when you've found a matching patent it doesn't mean that you can just pop out a product. Most of the actual work is still ahead of you. 2. Pricing and contract negotiation is rather difficult and costs as well. 3. The existing marketplaces are mostly rather small with the largest having maybe 20-30k offers. Just not enough to impact the myriads of problems available...

Still interested? Just reply, maybe I can help.

If you think provisional patents are stifling innovation, you should see what happens when you tell these researchers that they no longer have the possibility of getting incredibly filthy rich someday from their discoveries - because all patents have been eliminated and a new era of "share and share alike for the common good" is upon us.

Do the researchers themselves even own the patents -- or will the company/university they work for own the patents?

You should see what happens when they realize they aren't ever going to become filthy rich someday from their discoveries... just like everybody else.

They do actually own some % of it. They also do actually get filthy rich if the patent is worthwhile. The college I went to actually had two guys that invented most of the multi-touch technology that went into the original iPhone. Apple bought the patents out and the professor and doctoral student that had done the research made a good deal of money.

I imagine lawyers being more upset about that than researchers.

Nobody I know in research is in it for the money. There are much, much more direct ways for technically gifted people to get rich--look up "quantitative finance".

Hell, yeah! Good thing Jonas Salk buttoned-up his polio discoveries so he could make mad cash.

Oh, wait, he didn't.

"There is no patent. Could you patent the sun?" - Salk

You mean, 'the possibility of getting incredibly filthy rich, and the likelihood of making someone else with a more basic patent incredibly rich'? A patent thicket is the paradigmatic tragedy of the anti-commons...

> you should see what happens when you tell these researchers that they no longer have the possibility of getting incredibly filthy rich someday from their discoveries

My personal experience with this is that patents are only used as a kind of status symbol, in that they help researchers acquire new grants/funding ("look, it's marketable!") and make themselves look good to their institution. I'm yet to meet a researcher who's actually made any money off one, and most are by no means adequately compensated for their work.

That all said, I have met former researchers who've made successful start-ups from their academic work, and made money that way, and I'm sure patents were an essential part of that, but by that point they've left academia anyway. For them, I never had the impression that the prospect of making money was the motivating factor for getting into research. It was all just serendipity. Though I'm sure there are exceptions.

Yes, I've noticed no-one works on compilers unless they can use IP protection to get filthy rich. Or web servers. Or operating systems.

This assumes most of innovation is driven by hope of getting incredibly filthy rich, an assumption which I can provide plenty of counter-examples for. Eliminating all patents is of course counter productive as their advantage is obvious, but the current patent situation is far from being optimal (understatement of the day) so I'm certain a whole range of improvements are possible which will encourage innovation and do not necessitate switching over to communism...

> a new era of "share and share alike for the common good" is upon us.

Bringing discoveries and inventions into the public domain for the good of society is the primary reason for having a patent system. To the extent that it inhibits this outcome, the system is failing.

Because it worked so well for Tesla. (Nikola that is)

The Bayh-Dole act wasn't some singularity of research innovation.

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