Patents are out of control, and they’re hurting innovation (2017)(learnliberty.org)
learnliberty.org
Patents are out of control, and they’re hurting innovation (2017)
https://www.learnliberty.org/blog/patents-are-out-of-control-and-theyre-hurting-innovation/
91 comments
>It should just be a free-for-all. You see someone with a better mousetrap, you make a better mousetrap. You compete on actually bringing it to market, which is not the same thing as whatever you think the innovation is. Surely that creates the most value for society, or at least should be the default until the quite high hurdle of evidence for patents is cleared.
As I understand it, this is how IP is valued in China - not the idea, but the execution.
Yes, ultimately it means better mousetraps for the consumer. Maybe even cheaper, better mousetraps. But it sucks for the guy who actually designed and engineered the better, cheaper mousetrap if he doesn't have the knowledge or capital required to actually produce it better/cheaper.
So, it seems like neither the idea nor the execution alone carries the full value. There must be some happy medium.
As I understand it, this is how IP is valued in China - not the idea, but the execution.
Yes, ultimately it means better mousetraps for the consumer. Maybe even cheaper, better mousetraps. But it sucks for the guy who actually designed and engineered the better, cheaper mousetrap if he doesn't have the knowledge or capital required to actually produce it better/cheaper.
So, it seems like neither the idea nor the execution alone carries the full value. There must be some happy medium.
I have 4-5 patents owned by my companies. It doesn't suck for the guy who originally thought of it because while his competitors are busy trying to duplicate the work, (s)he is out working on the next thing. What it means is we can't invent, then sit back on our laurels and milk a cash cow. Personally, I'd rather continue innovating.
That’s legitimate, but I have two questions in response:
1, How effective are patents at protecting an under-funded inventor? (As I’ve been told by my lawyer) They cost tens of thousands to file and much more to enforce. It seems way more likely that a rich company will railroad you and eat the legal costs later.
2, As execution does matter, don’t patents leave the potential for a concept to be poorly executed and its value wasted during the period it might matter most? The lifetime of a patent is huge in the span of tech.
Given those questions and the other negatives, including patent trolls and the really broad assignment of patents, I really have to wonder what benefit we’re getting here.
1, How effective are patents at protecting an under-funded inventor? (As I’ve been told by my lawyer) They cost tens of thousands to file and much more to enforce. It seems way more likely that a rich company will railroad you and eat the legal costs later.
2, As execution does matter, don’t patents leave the potential for a concept to be poorly executed and its value wasted during the period it might matter most? The lifetime of a patent is huge in the span of tech.
Given those questions and the other negatives, including patent trolls and the really broad assignment of patents, I really have to wonder what benefit we’re getting here.
> How effective are patents at protecting an under-funded inventor?
My own impression, "less than they used to be". I read patents from time to time, and there's a huge difference between, say, one of Tesla's patents for which he clearly wrote the application himself and a present-day patent, where the writing was clearly done by a professional unrelated to the technical field.
That said, I wonder how out of reach the self-filing route really is. My own patent cost me 2000 Canadian in consultant's fees, essentially to have them proofread my draft and make suggestions. I still had to have a bit of back-and-forth with the examiner, but none of it felt out of reach even today.
To my way of thinking, the whole idea of a patent hearkens back to a time when kings granted monopolies and the people getting them took care of the rest. It doesn't make much sense for an inventor today, who would ideally want everyone competing to execute on their idea. There are probably a lot of better alternatives to the patenting system that properly harness the tendency of data to be copied. Maybe some form of a value-added tax for getting into new business segments that automatically get remitted to the inventor? To no one's surprise, coming up with a better idea than the patent system isn't the hard part!
My own impression, "less than they used to be". I read patents from time to time, and there's a huge difference between, say, one of Tesla's patents for which he clearly wrote the application himself and a present-day patent, where the writing was clearly done by a professional unrelated to the technical field.
That said, I wonder how out of reach the self-filing route really is. My own patent cost me 2000 Canadian in consultant's fees, essentially to have them proofread my draft and make suggestions. I still had to have a bit of back-and-forth with the examiner, but none of it felt out of reach even today.
To my way of thinking, the whole idea of a patent hearkens back to a time when kings granted monopolies and the people getting them took care of the rest. It doesn't make much sense for an inventor today, who would ideally want everyone competing to execute on their idea. There are probably a lot of better alternatives to the patenting system that properly harness the tendency of data to be copied. Maybe some form of a value-added tax for getting into new business segments that automatically get remitted to the inventor? To no one's surprise, coming up with a better idea than the patent system isn't the hard part!
> How effective are patents at protecting an under-funded inventor?
Also, how effective is not having a patent at protecting an under-funded inventor?
There are ample cases of smaller inventors getting decent payouts from bigger companies stealing the invention, often after having been shown it be the small guy trying to find a way to bring to market.
And, if the patent is really valuable, small guys can often find bigger guys to fund patent suits for a cut of the return, just like any business.
Not having a patent is not a gain for a small time inventor. When I have done startup style things, I was constantly asked if I have patents. It enables investors to have more leverage to protect the startup from outright copying from bigger, better funded companies.
Also, how effective is not having a patent at protecting an under-funded inventor?
There are ample cases of smaller inventors getting decent payouts from bigger companies stealing the invention, often after having been shown it be the small guy trying to find a way to bring to market.
And, if the patent is really valuable, small guys can often find bigger guys to fund patent suits for a cut of the return, just like any business.
Not having a patent is not a gain for a small time inventor. When I have done startup style things, I was constantly asked if I have patents. It enables investors to have more leverage to protect the startup from outright copying from bigger, better funded companies.
IMO, as a sibling comment mentioned, time is key here.
Patents should be strictly enforced for 2-3 years, after that they're made obsolete.
This gives you the benefit of being ahead for a while, or someone else to be ahead for a while if you want to directly sell the process. After that it's free for all.
Current situation is free for nobody but China.
Current situation is free for nobody but China.
I think in an oddly perverse way, it's worked out with Western countries innovating on the idea/patent side, and China optimizing production sides.
Inventor should publish it in a peer-reviewed journal of inventions.
At the end of the year, government decides which inventions were most valuable to society. Then these inventions are rewarded from an innovation budget.
(Related question: why are patents treated so differently from fundamental research?)
At the end of the year, government decides which inventions were most valuable to society. Then these inventions are rewarded from an innovation budget.
(Related question: why are patents treated so differently from fundamental research?)
You effectively defined the patent system.
All patent applications are published (not necessarily granted). Prior to publishing is review by a patent examiner. Someone who usually has to be knowledgeable of the related subject matter. Many examiners have advanced degrees.
Laws/policies are supposed to dictate which inventions the government is supposed to grant.
It’s supposed to be financially rewarding to publish a patent, for both personal and national commerce economics. Which we assume sparks innovation in the private sector and better science/technologies/anything for all.
It sounds like you want to flip the script. Some commercially funded capability to review the endless stream of patents - in which would need to be particularly formal and that can be regulated, and for the government to redefine the incentives.
Btw Governments do offer grant opportunities for various innovative/research areas before they are proven.
All patent applications are published (not necessarily granted). Prior to publishing is review by a patent examiner. Someone who usually has to be knowledgeable of the related subject matter. Many examiners have advanced degrees.
Laws/policies are supposed to dictate which inventions the government is supposed to grant.
It’s supposed to be financially rewarding to publish a patent, for both personal and national commerce economics. Which we assume sparks innovation in the private sector and better science/technologies/anything for all.
It sounds like you want to flip the script. Some commercially funded capability to review the endless stream of patents - in which would need to be particularly formal and that can be regulated, and for the government to redefine the incentives.
Btw Governments do offer grant opportunities for various innovative/research areas before they are proven.
> You effectively defined the patent system.
The patent system offers a temporary monopoly on the tech to the patent holder. This is not the case here.
The patent system offers a temporary monopoly on the tech to the patent holder. This is not the case here.
A similar scheme is called "retroactive public goods funding" and its a great idea. https://astralcodexten.substack.com/p/lewis-carroll-invented...
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> The whole idea needs some kind of evidence that it works.
> We can all imagine that maybe if there weren't patents, certain things wouldn't get invented. But that experiment happens in people's heads
Yeah. These hypotheticals are always brought up whenever someone criticizes patents but the fact is there's actual historical evidence that lack of patents leads to more innovation, more competition, more industry, more prosperity for all nations and especially for developing countries.
https://news.ycombinator.com/item?id=28330810
All intellectual property is nothing but monopolists trying to maintain their monopoly position. They struck gold once and want to keep extracting value out of that mine forever.
> We can all imagine that maybe if there weren't patents, certain things wouldn't get invented. But that experiment happens in people's heads
Yeah. These hypotheticals are always brought up whenever someone criticizes patents but the fact is there's actual historical evidence that lack of patents leads to more innovation, more competition, more industry, more prosperity for all nations and especially for developing countries.
https://news.ycombinator.com/item?id=28330810
All intellectual property is nothing but monopolists trying to maintain their monopoly position. They struck gold once and want to keep extracting value out of that mine forever.
The whole idea behind patents is that it opens up trade secrets and makes them available to society.
So what we should have is a system where some inventor sells their idea to society (a government institution), which then determines what price they are willing to pay for that invention.
So, we should have no more monopolies on a technology for certain periods (what a stupid, stupid idea). Just pay for the invention if you want it to be opened up.
Everything else in our society works with dollars, so why not this thing?
So what we should have is a system where some inventor sells their idea to society (a government institution), which then determines what price they are willing to pay for that invention.
So, we should have no more monopolies on a technology for certain periods (what a stupid, stupid idea). Just pay for the invention if you want it to be opened up.
Everything else in our society works with dollars, so why not this thing?
How is the buyer going to know what they are buying?
It should be a rental, more like how TV show residuals, not a one time purchase. So long as the invention keeps providing value to the citizens, the inventor should keep getting paid for it.
You could determine the value provided by auctioning off these patents through a Vickrey Auction, an auction that incentivizes people to always bid their true value. I'm fairly sure you could properly set this up such that very few people lost access, the inventor got more money than they could have made, and no one has to ever deal with the bureaucracy that the current system brings.
You could determine the value provided by auctioning off these patents through a Vickrey Auction, an auction that incentivizes people to always bid their true value. I'm fairly sure you could properly set this up such that very few people lost access, the inventor got more money than they could have made, and no one has to ever deal with the bureaucracy that the current system brings.
Working prototype. Or look at how research is funded.
Re: "It should be a free for all."
Currently, if you invent an innovative new mechanical device like a better can opener, and it sells well on Amazon, within a few weeks, low cost Chinese copy cats will flood the market, and you will not be able to make a profit.
So, a free-for-all strategy seems to reward low cost copiers over innovators. It just depends on what we want to reward.
If your product can simply be copied and then delivered in a few weeks, the innovation is not really all that innovative, you've merely discovered a variant of the item that people want that is already within the space of currently manufacturable items. The capability to make the thing already existed.
A lot of "low-cost copying" is actually just tuning an existing apparatus to what the market wants. Suppose you discover that people want to buy triangle-shaped plates. Either there's something special about your particular take on it that naturally protects your business, or existing makers of round plates can retool and make triangles and get value out to the customers sooner and in more volume than you. Why not let them have that reward?
Also keep in mind that a lot of these low cost manufacturers are actually testing the market themselves with new variants, so it's not like they're not doing anything innovative.
A lot of "low-cost copying" is actually just tuning an existing apparatus to what the market wants. Suppose you discover that people want to buy triangle-shaped plates. Either there's something special about your particular take on it that naturally protects your business, or existing makers of round plates can retool and make triangles and get value out to the customers sooner and in more volume than you. Why not let them have that reward?
Also keep in mind that a lot of these low cost manufacturers are actually testing the market themselves with new variants, so it's not like they're not doing anything innovative.
You can copy a song in milliseconds and distribute it instantly - that doesn't mean it's not innovative.
There is no alternative system for remuneration, we use intellectual property rights to ensure that people are rewarded for the results of their creative work.
Without that right of ownership, the balance of power between capital and labor becomes even more tilted toward capital.
There is no alternative system for remuneration, we use intellectual property rights to ensure that people are rewarded for the results of their creative work.
Without that right of ownership, the balance of power between capital and labor becomes even more tilted toward capital.
I'd argue the opposite is true, which is why we need some evidence one way or another that the patent system works at all, and we don't have that. So why do we have a restrictive system that doesn't have any real data to support its existence?
> We can all imagine that maybe if there weren't patents, certain things wouldn't get invented. But that experiment happens in people's heads, and the outcome depends on how they are invested.
Well put!
Well put!
Patents were never about "encouraging innovation". Originally they were a money-making scheme for the Crown and quickly evolved into a pay-to-play scheme whereby patents were granted on things like salt (See: https://en.wikipedia.org/wiki/History_of_patent_law).
Eventually they evolved into what we now know as "intellectual property law" in the 18th century and that system was all about disclosure. It had nothing to do with "encouraging innovation". What's most interesting is that even back then patents were being abused and hindering innovation. See the info in that Wikipedia article about Boulton & Watt preventing improvements to the steam engine.
The simple truth is that patents are not required for innovation and they were never intended to protect individual inventors; they were designed to protect business interests. To allow established players to keep the up-and-comings out of their markets.
Eventually they evolved into what we now know as "intellectual property law" in the 18th century and that system was all about disclosure. It had nothing to do with "encouraging innovation". What's most interesting is that even back then patents were being abused and hindering innovation. See the info in that Wikipedia article about Boulton & Watt preventing improvements to the steam engine.
The simple truth is that patents are not required for innovation and they were never intended to protect individual inventors; they were designed to protect business interests. To allow established players to keep the up-and-comings out of their markets.
> Patents were never about "encouraging innovation".
The US Constitution disagrees:
The US Constitution disagrees:
Article I, Section 8, Clause 8 [The Congress shall have power] “To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”This is why I've heard the argument (presumably from Stephan Kinsella, who wrote a book against intellectual property) that the patent system is unconstitutional - it is dubious that patents "promote the progress of science and useful arts."
The economist Fritz Machlup did a study in the 1950s on the economics of the patent system in the US and in his conclusion came to: "If we did not have a patent system, it would be irresponsible, on the basis of our present knowledge of its economic consequences, to recommend instituting one."
The economist Fritz Machlup did a study in the 1950s on the economics of the patent system in the US and in his conclusion came to: "If we did not have a patent system, it would be irresponsible, on the basis of our present knowledge of its economic consequences, to recommend instituting one."
That is a dubious argument in its own right. Inventors undertake the considerable effort of inventing and then pay the expense of filing a patent application while disclosing their invention to the public for the reward of a limited monopoly which they would then have to defend in court, again at their expense. Your argument says they are not motivated To promote the progress of science and useful arts but they seem pretty motivated to me.
I haven't read this literature in awhile but there was a time when I was looking into it and it seemed that there was empirical evidence that if you really want to promote innovation via governmental means the way to do it is through competitions, basically like grant applications or xprize-type things.
The benefits from a patent-type system have to be compared to the alternative, which is where people innovate solely to stay ahead of market competitors and protect trade secrets. In that scenario, one might argue that there's a natural measure of innovation, the ease and speed with which a competitor can copy something or implement a competing product.
I'm not inherently opposed to patents but I do think their implementation today is extremely dysfunctional.
The benefits from a patent-type system have to be compared to the alternative, which is where people innovate solely to stay ahead of market competitors and protect trade secrets. In that scenario, one might argue that there's a natural measure of innovation, the ease and speed with which a competitor can copy something or implement a competing product.
I'm not inherently opposed to patents but I do think their implementation today is extremely dysfunctional.
A couple of edits:
> all about disclosure
was post-hoc justified using disclosure.
> It had nothing to do with "encouraging innovation"
Technically disclosure is supposed to encourage innovation by allowing people to see what's up and then either choose to iterate on it (and wait till expiry to deploy the iteration) or "find a better way", either inspired by disclosed patent, or knowing that you have to skirt the bounds of the disclosed patent.
Open question about whether that actually works (I personally think the answer is no).
> all about disclosure
was post-hoc justified using disclosure.
> It had nothing to do with "encouraging innovation"
Technically disclosure is supposed to encourage innovation by allowing people to see what's up and then either choose to iterate on it (and wait till expiry to deploy the iteration) or "find a better way", either inspired by disclosed patent, or knowing that you have to skirt the bounds of the disclosed patent.
Open question about whether that actually works (I personally think the answer is no).
Technically disclosure is supposed to encourage innovation by allowing people to see what's up and then [..] "find a better way"
Except that if you acknowledge the existence of the patent (for example in an internal paper trail), you will then be found liable for willful infringement and will face triple damages, even if you honestly believe you found a way to avoid using the method covered by the patent.
At least that's the legal advice I've seen coming from the USA:
- never talk to cops
- never read a patent
- never read proprietary source code
Except that if you acknowledge the existence of the patent (for example in an internal paper trail), you will then be found liable for willful infringement and will face triple damages, even if you honestly believe you found a way to avoid using the method covered by the patent.
At least that's the legal advice I've seen coming from the USA:
- never talk to cops
- never read a patent
- never read proprietary source code
In my adult life, I have seen two small niches completely explode the instant the underlying patents expired: mechanical keyboards and 3D-printing. In the former, companies like Kailh started off producing copies of existing Cherry designs, but they've since expanded to their own original designs which in my opinion are vastly superior. At the same time, the original Cherry design's monopoly allowed the community to center on their shape and mounting mechanisms as a standard (despite the fact that they're not great and can be improved). If it were a free-for-all, I feel like there would be a lot less consensus on the form factor.
I think the world has outgrown our current approach to IP, but as long as it continues to suit the needs of those who already hold resources, nothing will change.
I think the world has outgrown our current approach to IP, but as long as it continues to suit the needs of those who already hold resources, nothing will change.
Hardware patents seem to make more sense than software patents. Words and diagrams are more constrained in possible interpretations with physical things. Software terms can be interpreted too damned many ways, making it an expensive lawyer war.
In my opinion we should either do away with software patents, or make sure they are interpreted in a sufficiently narrow way, and are clearly "not obvious". Further, "business processes" didn't used to be patentable, and that's the way it should be.
In my opinion we should either do away with software patents, or make sure they are interpreted in a sufficiently narrow way, and are clearly "not obvious". Further, "business processes" didn't used to be patentable, and that's the way it should be.
Former USPTO patent examiner here. As the article suggests, the main problem with overly broad patents comes down to a lack of time given to examiners. Can't find it in the time given? You'll often be told to allow the application (that is, grant a patent). Other "solutions" like punishing examiners for making bad allowances (which seems to be the current focus at the USPTO) are just band aids on the problem. The amount of time examiners get was basically set in the late 1970s based on some IBM study from the 1960s as far as I'm aware. There have been some increases in time since then but if the number of documents to search is increasing exponentially in time, a modest increase in time is not enough, period, even accounting for the fact that searches are computerized now.
I wouldn't have minded staying at the USPTO for longer if I was given more time. The lack of time was the main reason I quit.
My understanding is that the time issue would be more easily solved by better funding the USPTO. Right now the USPTO is funded only by fees they charge, and the Department of Commerce diverts some of that funding outside of the USPTO. Fund the USPTO via taxation in addition to allowing the USPTO to keep the funds it brings in and I think we'll start to see improvements in the time given to examiners.
(There are other issues, like the fact that examiners barely get any more time for having more claims. Typical patent applications are 20 claims, but I only got an hour more for examining a particularly annoying application with over 40 claims. That's over twice the work with barely any more time! By the way, the USPTO charges the applicant extra for these extra claims.)
There are other patent quality problems that I think come down to the incentives of attorneys. Too many patents are written in vague legalese that no "person having ordinary skill in the art" would understand. As an examiner I was told that I could not do 112(a) rejections for those sorts of things (this is the sort of rejection it would fall under) and that seems to be typical USPTO policy.
I wouldn't have minded staying at the USPTO for longer if I was given more time. The lack of time was the main reason I quit.
My understanding is that the time issue would be more easily solved by better funding the USPTO. Right now the USPTO is funded only by fees they charge, and the Department of Commerce diverts some of that funding outside of the USPTO. Fund the USPTO via taxation in addition to allowing the USPTO to keep the funds it brings in and I think we'll start to see improvements in the time given to examiners.
(There are other issues, like the fact that examiners barely get any more time for having more claims. Typical patent applications are 20 claims, but I only got an hour more for examining a particularly annoying application with over 40 claims. That's over twice the work with barely any more time! By the way, the USPTO charges the applicant extra for these extra claims.)
There are other patent quality problems that I think come down to the incentives of attorneys. Too many patents are written in vague legalese that no "person having ordinary skill in the art" would understand. As an examiner I was told that I could not do 112(a) rejections for those sorts of things (this is the sort of rejection it would fall under) and that seems to be typical USPTO policy.
> Too many patents are written in vague legalese that no "person having ordinary skill in the art" would understand.
It’s generous to say that it’s just a problem for someone with “ordinary skill in the art”. I fully expect that patents written in confusing legalese are more likely to get granted, because this makes it hard for examiners, too.
I think that if a patent isn’t understandable to an ordinary practitioner, it should be deemed invalid. Reading through software patents, 90% of the effort is understanding what the hell it says. (The other 10% is trying not to scream about the fact this obvious garbage was granted.)
It’s generous to say that it’s just a problem for someone with “ordinary skill in the art”. I fully expect that patents written in confusing legalese are more likely to get granted, because this makes it hard for examiners, too.
I think that if a patent isn’t understandable to an ordinary practitioner, it should be deemed invalid. Reading through software patents, 90% of the effort is understanding what the hell it says. (The other 10% is trying not to scream about the fact this obvious garbage was granted.)
For more on some of the incentives attorneys face to write vaguely, see this blog post (written for mechanical inventions but you'll get the point): https://krajec.com/dont-write-patents-that-hide-the-ball/
One of the best discussions I ever heard was from Stephan Kinsella when he discussed the patent system as a system of negative servitudes or negative easements (https://www.stephankinsella.com/paf-podcast/kol365-guest-lec...). Essentially IP is similar to joining an HOA, which might give you negative rights in your property such as the inability to use it as a dump, the inability to paint it bright pink, etc. but with IP your potential competitors are petitioning the USPTO to create negative rights in property you already own.
In general, for anyone with a general interest in the anti-IP position, the following resources are good:
* C4SIF - Center for the study of innovative freedom - c4sif.org
* The Case Against Intellectual Monopoly by Michele Boldrin and David K. Levine - http://www.dklevine.com/general/intellectual/against.htm
In general, for anyone with a general interest in the anti-IP position, the following resources are good:
* C4SIF - Center for the study of innovative freedom - c4sif.org
* The Case Against Intellectual Monopoly by Michele Boldrin and David K. Levine - http://www.dklevine.com/general/intellectual/against.htm
A few months after I left a company, I got an email from their attorney telling me to sign an invention assignment form. No other information, so I asked to see the provisional patent that I was asked to assign to the employer -- after some back and forth they forwarded it to me. The provisional broadly described an entire academic domain with no specifics whatsoever. Imagine something like "you can use data to recommend things to medical patients." No specifics about what the "data" or "recommend" or further defining which patients.
A long time ago, a former employer sued me for stealing their trade secrets but wouldn't tell me what trade secrets I stole were. After a few rounds of litigation, the employer admitted the "trade secret" was a literally a section of HIPAA. Shortly thereafter, the case was dismissed with prejudice and the former employer paid my legal fees (and then some for the trouble). It seemed clear they knew there was no merit to their accusations, but it was more about a vindictive smear campaign. (also, belated thanks to HN... my plea for help to this forum was met with a referral to an attorney that ended up successfully sorting this issue out for me)
That experience scarred me enough to basically refuse to sign the ambiguous invention assignment agreement from the first paragraph. You don't know how the companies will use these patents, and even if a patent isn't granted you're often still asked to assign any rights to the invention. An overly broad invention assignment form opens the possibility for organizations to come after you with meritless lawsuits claiming you're using the company's property in your future work... which, even if you know you'll eventually prevail, it's still a total disruption to your life.
This whole system is broken.
A long time ago, a former employer sued me for stealing their trade secrets but wouldn't tell me what trade secrets I stole were. After a few rounds of litigation, the employer admitted the "trade secret" was a literally a section of HIPAA. Shortly thereafter, the case was dismissed with prejudice and the former employer paid my legal fees (and then some for the trouble). It seemed clear they knew there was no merit to their accusations, but it was more about a vindictive smear campaign. (also, belated thanks to HN... my plea for help to this forum was met with a referral to an attorney that ended up successfully sorting this issue out for me)
That experience scarred me enough to basically refuse to sign the ambiguous invention assignment agreement from the first paragraph. You don't know how the companies will use these patents, and even if a patent isn't granted you're often still asked to assign any rights to the invention. An overly broad invention assignment form opens the possibility for organizations to come after you with meritless lawsuits claiming you're using the company's property in your future work... which, even if you know you'll eventually prevail, it's still a total disruption to your life.
This whole system is broken.
Patents encourage this idea of, "it's the idea, not the execution that matters". You see this propagate in start up land where new founders want you to sign an NDA just to pitch to you.
The whole thing is silly. I don't think ideas are nearly as original as we would like to believe. Pretty sure every one of us has seen some thing come out that we replied, "hey, that's my idea!".
I think we tell ourselves that the big guys with the money just want to steal our idea, and patents protect the little guy. But it would take more money to patent something (legal fees) than just go out and build it. Investing and manufacturing companies have pivoted to a "prove to me your idea is useful by making a small business first" model, which, essentially invalidates the theoretical purpose of patents.
Patents are one of those things that seem like a good idea, and probably was for a while. Then people started playing by the letter of the law instead of the sprit of the law and it all went to hell.
You know the phrase "best thing since sliced bread", well the sliced bread machine was patented and now we all have sliced bread. That is the way it should work.
You know the phrase "best thing since sliced bread", well the sliced bread machine was patented and now we all have sliced bread. That is the way it should work.
I'm a bit torn because one of the alternative systems to patents is the medieval system where secretive guilds jealously guard their techniques and tools from the public. Things can turn ugly with industrial espionage between companies and countries getting a lot of people killed because there is no legal recourse.
But we also provide legal protection for trade secrets!
The whole thing is a mess.
The whole thing is a mess.
I watched a mini-documentary (FSF supported) on patent absurdity many years ago, which still rings true. (http://patentabsurdity.com/watch.html)
Granted, in the meantime, we've had some SCOTUS rulings which are more or less anti-software patents, but it's all too common for them to reverse circuit court rulings which are almost always pro patents.
Granted, in the meantime, we've had some SCOTUS rulings which are more or less anti-software patents, but it's all too common for them to reverse circuit court rulings which are almost always pro patents.
A friend of mine is retired from pharmaceutical research. Where he did a lot of computer work. His wisdom is that the ease of patent granting should vary enormously by the type of invention being patented, and difficulty of being a credible would-be inventor in the field. And the thing patented must exist, and actually work. (So no "if we use some unobtainium..." patents.)
So - invent a new drug (for humans), where safety regulations guarantee that actual approval to sell the drug will cost many, many millions of dollars? Patentable. (Yes, there are other issues with modern drug companies & patents - Not. The. Point.) If somebody comes up with a working, practical fusion reactor? Very patentable - that can't have been cheap to do, and "thousands of experts have been trying for decades" is proof that this inventor really is something special.
Vs. software, abstract ideas, waterbeds, scanning to e-mail, a clever new way to peel potatoes, etc. - sorry, but patents should simply not exist for such stuff. You can only copyright your code, trademark your brand, etc.
So - invent a new drug (for humans), where safety regulations guarantee that actual approval to sell the drug will cost many, many millions of dollars? Patentable. (Yes, there are other issues with modern drug companies & patents - Not. The. Point.) If somebody comes up with a working, practical fusion reactor? Very patentable - that can't have been cheap to do, and "thousands of experts have been trying for decades" is proof that this inventor really is something special.
Vs. software, abstract ideas, waterbeds, scanning to e-mail, a clever new way to peel potatoes, etc. - sorry, but patents should simply not exist for such stuff. You can only copyright your code, trademark your brand, etc.
This comes up every month or so.
If you'd like to get rid of software patents, the lawyers, company management, and professional societies are not going to help. Band together, get a Congressman to introduce a bill, and then start pressuring candidates to support it.
If you write an op-ed about this, your opponents will cite medical and biological patents to defend "patents as an abstract idea." They will muddy the issue. The only way to defeat that is to separate out "software patents as a bad idea" from "worthwhile inventions that deserve patenting." You, yourself, might want to abolish all patents, but that proposal will face a blizzard of opposition.
The court has demanded that patent examiners who make a finding of obviousness cite documentary evidence for each feature in a claim, no matter how mundane or obvious the feature is. But what if the feature is so mundane no one would write about it? The paradoxical result is that the more obvious a feature, the harder it can be to prove obvious.
This is nonsense. Things are "generally known to ones ordinarily skilled in the art" can be ruled obvious and are all the time.
One researcher estimated that, for software-related inventions, about 50 percent of patents are likely invalid, even under the existing permissive standards for validity.
It's more like 90%, and I've read hundreds of them.
If you'd like to get rid of software patents, the lawyers, company management, and professional societies are not going to help. Band together, get a Congressman to introduce a bill, and then start pressuring candidates to support it.
If you write an op-ed about this, your opponents will cite medical and biological patents to defend "patents as an abstract idea." They will muddy the issue. The only way to defeat that is to separate out "software patents as a bad idea" from "worthwhile inventions that deserve patenting." You, yourself, might want to abolish all patents, but that proposal will face a blizzard of opposition.
The court has demanded that patent examiners who make a finding of obviousness cite documentary evidence for each feature in a claim, no matter how mundane or obvious the feature is. But what if the feature is so mundane no one would write about it? The paradoxical result is that the more obvious a feature, the harder it can be to prove obvious.
This is nonsense. Things are "generally known to ones ordinarily skilled in the art" can be ruled obvious and are all the time.
One researcher estimated that, for software-related inventions, about 50 percent of patents are likely invalid, even under the existing permissive standards for validity.
It's more like 90%, and I've read hundreds of them.
Patents are like a brake that society applies to itself, only to enrich lawyers.
And there are certain countries that are not dissuaded by patents, where innovation will not stop. For a while at least.
And there are certain countries that are not dissuaded by patents, where innovation will not stop. For a while at least.
One positive thing I found about the work I patented, was that because the work was patented (and thus public), we were able to speak a little more openly about the innovation we made. The alternative is that every innovation is a trade secret, which is also not ideal.
Another alternative is to have neither.
I'm no where near an expert and I'm not a big fan of software patents,
on the subject of prior work, and just thinking out loud, but I wonder if USPTO could set up some rules whereby the person asking for a patent has to do some sort of search for prior art, in order to get the patent
and if they don't or do it badly/ not to the rules, then a penalty is applied, financial or immediate ban on patients?
on the subject of prior work, and just thinking out loud, but I wonder if USPTO could set up some rules whereby the person asking for a patent has to do some sort of search for prior art, in order to get the patent
and if they don't or do it badly/ not to the rules, then a penalty is applied, financial or immediate ban on patients?
I believe this is already the case. One is supposed to look for prior art. In fact, most patents build on something else and do list prior art.
The problem with proving something is an exact copy is just the nature of our field - anything can be argued as a copy or innovation.
Most ideas that get patented are reasonable next steps from an existing idea anybody in the profession with half a brain will take.
The problem with proving something is an exact copy is just the nature of our field - anything can be argued as a copy or innovation.
Most ideas that get patented are reasonable next steps from an existing idea anybody in the profession with half a brain will take.
Slight correction on your first point.
There is no requirement that one looks for prior art. 37 CFR 1.56 requires that an applicant disclose pertinent prior art that is already known to the applicant or his lawyer and disclose prior art that the applicant becomes aware of during the application process.
There is no requirement that one looks for prior art. 37 CFR 1.56 requires that an applicant disclose pertinent prior art that is already known to the applicant or his lawyer and disclose prior art that the applicant becomes aware of during the application process.
> In nonprovisional applications, applicants and other individuals substantively involved with the preparation and/or prosecution of the application have a duty to submit to the Office information which is material to patentability as defined in 37 CFR 1.56.
See https://www.uspto.gov/web/offices/pac/mpep/s609.html
See https://www.uspto.gov/web/offices/pac/mpep/s609.html
> but I wonder if USPTO could set up some rules whereby the person asking for a patent has to do some sort of search for prior art, in order to get the patent
Disclosing prior art, and how your patent builds on and is different from it, is part of the patent application process.
> and if they don't or do it badly/ not to the rules, then a penalty is applied
That penalty is the patent is completely invalidated.
Disclosing prior art, and how your patent builds on and is different from it, is part of the patent application process.
> and if they don't or do it badly/ not to the rules, then a penalty is applied
That penalty is the patent is completely invalidated.
In theory, but in practice getting a patent invalided is a fraught and unreliable process. The courts have been generally deferential to the the USPTO decision, which may be a problem if some examiners have allowed patents to go through on the assumption that the courts can fix it later if they get it wrong.
It would help if we could enforce a requirement that the holder is actively using or at least further developing whatever it is.
Another requirement would be that the current owner of the patent be kept on file and up-to-date otherwise the patent gets automatically invalidated.
As it stands right now it can be literally impossible to find the current owner of a patent. The "inventor" is irrelevant metadata in a patent filing. What matters is who owns it and what happens a lot of the time is some business owned a patent and it folded. Or the patent was secretly sold to some other entity and that sale was never disclosed to anyone (and even if the previous owner can be found they have no obligation to tell you who they sold it to).
So even if you wanted to negotiate a license for an existing patent it's an uphill battle a lot of the time to even figure out who you need to talk to. It's an incredibly impractical system.
As it stands right now it can be literally impossible to find the current owner of a patent. The "inventor" is irrelevant metadata in a patent filing. What matters is who owns it and what happens a lot of the time is some business owned a patent and it folded. Or the patent was secretly sold to some other entity and that sale was never disclosed to anyone (and even if the previous owner can be found they have no obligation to tell you who they sold it to).
So even if you wanted to negotiate a license for an existing patent it's an uphill battle a lot of the time to even figure out who you need to talk to. It's an incredibly impractical system.
There are gaps, but in almost all cases in the US in my experience, non-inventor owners record their interest in pubic records at the USPTO assignment database to perfect title: https://assignment.uspto.gov/patent/index.html#/patent/searc.... If they fail to do this, the previous owner could re-sell the asset to someone else who records and could have superior title. 35 USC 261, para. 4. In practice, gaps arise when patent assets are transferred between entities controlled by the same party, who doesn't need to worry about the prior owner trying to re-sell the same asset they already transferred. But event then, the public records get you pretty close to the owner.
Didn't know that, sounds terrible.
My go to example here is 3D printers. The basic way that 3D printers work (FDM) was patented in 1988. That patent finally expired in 2009, and the explosion in 3D printing is entirely driven by the open source community. Most of the designs and firmware for consumer grade hardware came from the RepRap project, including my Creality printer. Heck, my printer uses an open source firmware designed for the RepRap project straight from the factory.
It's probably a good thing that the inventors of FDM got compensated in some way, but it's also hard to not come to the conclusion that Stratsys owning all the 3D printing patents basically held back 3D printing for a long time.
It's probably a good thing that the inventors of FDM got compensated in some way, but it's also hard to not come to the conclusion that Stratsys owning all the 3D printing patents basically held back 3D printing for a long time.
I am very disillusioned about the vast majority of patents and patent holders.
I was part of a group working on getting patents. That is right - we weren't necessarily trying to solve anything but literally just brainstorming possible things we could realistically patent. The rest of the process then devolved into, "how this will look and sound to the committee or the board" rather than being about the functionality. I couldn't stand it and politely excused myself from the group.
The whole experience left a very bad taste with me about the patent system in general.
I can't think of how the process should be improved because I can see how a stricter vetting can stifle _real_ creativity but the current process is not good.
I was part of a group working on getting patents. That is right - we weren't necessarily trying to solve anything but literally just brainstorming possible things we could realistically patent. The rest of the process then devolved into, "how this will look and sound to the committee or the board" rather than being about the functionality. I couldn't stand it and politely excused myself from the group.
The whole experience left a very bad taste with me about the patent system in general.
I can't think of how the process should be improved because I can see how a stricter vetting can stifle _real_ creativity but the current process is not good.
The article is interesting, and while I do generally agree with loosening intellectual property restrictions, the tone makes this feel like it's preaching to the choir, instead of making a claim and trying to get more broad agreement. I suppose given the source there are some assumptions that can be made about the audience, but at the same time starting off the article with "every one of these claims is like a new federal regulation governing private conduct." kind of tips their hand on their perspective.
Patent applications should be published online right away so they can get roasted by the whole internet. This follows the principal of Cunningham's Law "the best way to get the right answer on the internet is not to ask a question; it's to post the wrong answer."
Generally strong IP rules tend to favor the less wealthy, weaker IP rules tend to favor those with the most capital. That's why billionaire Mark Cuban is funding things like this article. When people say things like "just out execute in the marketplace" what they are really saying is just pour millions into the project. Not everyone has millions and one of the foundational principals of US society is that a poor person with a good idea should be able to get rich. How rich and what they should do to qualify for the patent is worthy of debate. For example patent holders should have to be a "practicing entity" (aka a real business) working to deliver the innovation to the market.
The patent system should be better not gone.
Generally strong IP rules tend to favor the less wealthy, weaker IP rules tend to favor those with the most capital. That's why billionaire Mark Cuban is funding things like this article. When people say things like "just out execute in the marketplace" what they are really saying is just pour millions into the project. Not everyone has millions and one of the foundational principals of US society is that a poor person with a good idea should be able to get rich. How rich and what they should do to qualify for the patent is worthy of debate. For example patent holders should have to be a "practicing entity" (aka a real business) working to deliver the innovation to the market.
The patent system should be better not gone.
Really disagree with this. The existence of patents is a significant hamper on entrepreneurship. There are a lot of business spaces where you simply cannot touch because billion and trillion dollar companies have deep patent portfolios they’ll fight with. Think things like hardware and devices. Even garbage like using a fingerprint to authenticate with you bank.
As a small timer, the patent system is just a way to extract a tax from other people or sell your patent to a big business that’ll use it to bully people like I mentioned.
Plenty of businesses have been founded on out executing giants, and won. Sure they had to maybe carve out a niche or have an edge at first (nothing says you cannot have trade secrets without patents).
As a small timer, the patent system is just a way to extract a tax from other people or sell your patent to a big business that’ll use it to bully people like I mentioned.
Plenty of businesses have been founded on out executing giants, and won. Sure they had to maybe carve out a niche or have an edge at first (nothing says you cannot have trade secrets without patents).
> Generally strong IP rules tend to favor the less wealthy, weaker IP rules tend to favor those with the most capital.
No. If you as a startup need to account for a significant amount of money to validate your entire company's activities for patent violations - including basic UI/UX improvements such as "one-click shopping" [1] - the situation becomes ridiculous and oppressive in itself.
Not to mention that a patent holder unwilling to license their patent can keep progress from society, such as in the infamous Qualcomm saga. Or, assuming you want to build an innovative, high-performant set-top box (which is incredibly easy to do so using something like a Raspberry Pi)... you need to deal with buying licenses for a bunch of video standard patents for that.
All of this is utter bullshit that only benefits the very rich and powerful, and stifles competition (and no, "free usage" exemptions don't count because you still have the fear of lawsuits above your head should your product be more successful than expected).
IMHO: As soon as you want anything to become a standard recognized by major international bodies, you should have to give up all the patents. Everything that is required to follow a government-mandated standard (which especially anything involving RF communication is) should be freely available to read and implement for everyone - looking at you, DIN.
[1]: https://en.wikipedia.org/wiki/1-Click
[2]: https://en.wikipedia.org/wiki/FTC_v_Qualcomm
No. If you as a startup need to account for a significant amount of money to validate your entire company's activities for patent violations - including basic UI/UX improvements such as "one-click shopping" [1] - the situation becomes ridiculous and oppressive in itself.
Not to mention that a patent holder unwilling to license their patent can keep progress from society, such as in the infamous Qualcomm saga. Or, assuming you want to build an innovative, high-performant set-top box (which is incredibly easy to do so using something like a Raspberry Pi)... you need to deal with buying licenses for a bunch of video standard patents for that.
All of this is utter bullshit that only benefits the very rich and powerful, and stifles competition (and no, "free usage" exemptions don't count because you still have the fear of lawsuits above your head should your product be more successful than expected).
IMHO: As soon as you want anything to become a standard recognized by major international bodies, you should have to give up all the patents. Everything that is required to follow a government-mandated standard (which especially anything involving RF communication is) should be freely available to read and implement for everyone - looking at you, DIN.
[1]: https://en.wikipedia.org/wiki/1-Click
[2]: https://en.wikipedia.org/wiki/FTC_v_Qualcomm
It’s time to get rid of patents and reduce copyright to a couple of years. They’ve become ridiculous vehicles for crony capitalism, rent seeking and anti-competitive behavior.
I see patents as a mechanism for extracting tributes for the US Empire / sphere of influence. So while patents hurt innovation they are probably less hurtful than alternative methods of extracting tribute.
Wouldn't patents protect a small software development company from having their product ripped off by one of the giants? Essentially force the giant to buy out the smaller developer?
Assuming the small company can even file a patent. To do that you need capital, lawyers, developers with free time. Meanwhile your larger competitor has already filed a dozen of them and has used a few vague ones in your domain to sue you out of existence.
Private citizens hire lawyers to file patents on their crackpot inventions. So I don't see cost and time being a being a barrier.
[deleted]
And nothing changed since.
Not entirely; there's been a SCOTUS decision (TC Heartland v. Kraft Food Brands Group) that has had an impact on forum shopping by patent litigants.
https://www.abajournal.com/news/article/patent_lawsuits_drop...
https://www.abajournal.com/news/article/patent_lawsuits_drop...
People don’t get it. The sole purpose of patents and intellectual property is to give a reward function to large capital allocators. Capital is heart and sole of any society, it is what builds skyscrapers, cars, toothbrushes, shopping centers, internet backbones and everything you can think of. If that capital does not have a reward function, it will build the wrong shit. It would be like a cell making the wrong proteins — you don’t want that.
Like everything, it’s only as good as it’s implementation. I think it would be better if a patent was awarded only after a profitable demonstration was built and running maybe with a pre-patent filed beforehand. It’s insane that a guy can sit at his desk and patent things arbitrarily — how is that providing guidance to capital? And I think the patent should withstand ongoing demonstrations of actual implementation.
And also, we need to get rid of arbitrary litigation because that just makes everyone afraid of other peoples patents. It would be easy to get rid of that.
Like everything, it’s only as good as it’s implementation. I think it would be better if a patent was awarded only after a profitable demonstration was built and running maybe with a pre-patent filed beforehand. It’s insane that a guy can sit at his desk and patent things arbitrarily — how is that providing guidance to capital? And I think the patent should withstand ongoing demonstrations of actual implementation.
And also, we need to get rid of arbitrary litigation because that just makes everyone afraid of other peoples patents. It would be easy to get rid of that.
Patents actually incentivize innovation - not hurt it.
Useful innovations are those which help society. Things that enable "standing on the shoulder of giants". Society values those innovations.
Often, the simple innovations are the best ones - yet, the simple innovations are also the ones most easily copy-able.
But, if something is easily copy-able, then one hesitates making those ideas public - for fear of copying and undercutting by competitors. Studies have shown that typically ~80% of R&D ends up as wasted effort (those 23 forks embarked on to realize #21 was the best).
So how can society encourage innovations to be made public? By providing incentives - such as patents - which are a limited time monopoly in exchange for fully describing the idea. Once the limited time monopoly expires, it is free for all - but in the meantime, others can read and understand the innovation - and either workaround (and provide society ANOTHER idea) or improve upon further or simply spark another idea.
Open societies out-proposer closed societies.
Useful innovations are those which help society. Things that enable "standing on the shoulder of giants". Society values those innovations.
Often, the simple innovations are the best ones - yet, the simple innovations are also the ones most easily copy-able.
But, if something is easily copy-able, then one hesitates making those ideas public - for fear of copying and undercutting by competitors. Studies have shown that typically ~80% of R&D ends up as wasted effort (those 23 forks embarked on to realize #21 was the best).
So how can society encourage innovations to be made public? By providing incentives - such as patents - which are a limited time monopoly in exchange for fully describing the idea. Once the limited time monopoly expires, it is free for all - but in the meantime, others can read and understand the innovation - and either workaround (and provide society ANOTHER idea) or improve upon further or simply spark another idea.
Open societies out-proposer closed societies.
> Often, the simple innovations are the best ones - yet, the simple innovations are also the ones most easily copy-able.
Simple innovations are also the ones that are most easy to accidentally create yourself. "The most obvious way to do it". In cases like this patents are frequently a hindrance as a company needs to find a less efficient and more complex way to solve a problem because the obvious solutions is being squatted by a patent troll that demands far too much for the small but critical piece of infrastructure.
Or worse, the patent troll uses various tricks to delay award of the patent until the industry has implemented the technology on millions of platforms and then surprises everybody with mass infringement lawsuits.
The patent process would probably be improved if before awarding a patent they asked a panel of experts how they would solve the problem that the patent solves. If the experts come up with the same solution in a short period of time then the patent is not awarded. Something has to be truly novel to be worthy of patent protection. Unfortunately this is not practical with the current volume of patents working through the system.
Simple innovations are also the ones that are most easy to accidentally create yourself. "The most obvious way to do it". In cases like this patents are frequently a hindrance as a company needs to find a less efficient and more complex way to solve a problem because the obvious solutions is being squatted by a patent troll that demands far too much for the small but critical piece of infrastructure.
Or worse, the patent troll uses various tricks to delay award of the patent until the industry has implemented the technology on millions of platforms and then surprises everybody with mass infringement lawsuits.
The patent process would probably be improved if before awarding a patent they asked a panel of experts how they would solve the problem that the patent solves. If the experts come up with the same solution in a short period of time then the patent is not awarded. Something has to be truly novel to be worthy of patent protection. Unfortunately this is not practical with the current volume of patents working through the system.
These are all generic, idealistic arguments which ignore the fact that things don't work this way in the real world, at least not how they did a couple hundred years ago.
Patenting something today doesn't require innovation, but money and a large team of lawyers. Patents don't encourage innovation but hamper it. Try and start a company today, and a large chunk of your capital will need to be kept aside for legal defense and paying off patent trolls and larger competitors who will bury you in lawsuits for vague, meaningless infringements.
Patenting something today doesn't require innovation, but money and a large team of lawyers. Patents don't encourage innovation but hamper it. Try and start a company today, and a large chunk of your capital will need to be kept aside for legal defense and paying off patent trolls and larger competitors who will bury you in lawsuits for vague, meaningless infringements.
Patents incentivize filing and owning patents. The disconnect is whether a patent actually represents innovation. IME the most innovative things in the software world are not patentable or never patented (algorithms, free software that sets a standard de facto). The things which are patented are stupid “X for Y” where someone tries to either block competitors or extract a tax from an obvious application of technology to a domain.
How "Intellectual Property" Impedes Competition
https://fee.org/articles/how-intellectual-property-impedes-c...
https://fee.org/articles/how-intellectual-property-impedes-c...
-2 points?
Did I say something incorrect or did I simply illuminate some unspeakable truth that strikes against the narrative what ycombinator editors are trying to convince readers of?
Did I say something incorrect or did I simply illuminate some unspeakable truth that strikes against the narrative what ycombinator editors are trying to convince readers of?
I didn't downvote you, but I really wanted to. It reads like it was written for middle schoolers by a pro-patent think tank. I resented having to spend the time to read to the end to see if there was anything besides "The Electric Company version of Why Do We Have Patents?" I think it's bad form to post like this on a forum of people whose average understanding of the patent issue is pretty sophisticated.
Clearly you've never been sued by a patent troll.
The patent system only benefits (1.) rich corporations that can afford the millions of dollars in lawyer fees to litigate patent claims, (2.) the lawyers that receive said fees.
The patent system only benefits (1.) rich corporations that can afford the millions of dollars in lawyer fees to litigate patent claims, (2.) the lawyers that receive said fees.
There have been significant changes to the U.S. patent system the past ~10 years. One of which is the ease, effectiveness, and costs of invalidating a patent.
First, spend a couple of hours analyzing the Patent Claims. Often you'll discover that you most likely do NOT infringe at all - or least highly unlikely.
Other times (albeit after having developed a bit more knowledge one-time), you'll assess with decent probability of the likeliness of being able to invalidate the patent - then the tables turn - use this as a threat against the troll. They greatly fear having their $costly patent potentially wiped out. They too are playing the odds, and even a 10-20% probability of having their patent invalidated can go a long ways to dropping the suit against you.
At the end of the day, engineers are overly afraid of patents. If they spent a little time understanding them, they could greatly reduce this exaggerated fear. It's not an insurmountable hurdle - engineers&scientists have more innate abilities then they give themselves credit for. It's more of a matter that this exaggerated fear has been drilled into them. Lawyers are incentivized to perpetuate these fears.
First, spend a couple of hours analyzing the Patent Claims. Often you'll discover that you most likely do NOT infringe at all - or least highly unlikely.
Other times (albeit after having developed a bit more knowledge one-time), you'll assess with decent probability of the likeliness of being able to invalidate the patent - then the tables turn - use this as a threat against the troll. They greatly fear having their $costly patent potentially wiped out. They too are playing the odds, and even a 10-20% probability of having their patent invalidated can go a long ways to dropping the suit against you.
At the end of the day, engineers are overly afraid of patents. If they spent a little time understanding them, they could greatly reduce this exaggerated fear. It's not an insurmountable hurdle - engineers&scientists have more innate abilities then they give themselves credit for. It's more of a matter that this exaggerated fear has been drilled into them. Lawyers are incentivized to perpetuate these fears.
Individuals and small business owners don't have time to learn patent law, nor do they have money to have dedicated legal departments like rich corporations. If I was sued I would not listen to some anonymous stranger on HN. I would get a lawyer. And I would be charged $300-$800/hr by said lawyer. In the patent ecosystem the patent-holding apex whales and lawyer-sharks hunt smaller creatures to eat, and devour whole.
It doesn't make any sense. There's no way reading a patent helps anyone understand anything, because the whole thing is done by lawyers, not engineers. Even reading the patent I applied for does not explain to me, the person who came up with the idea, of how it works. (Long story, not willing to get into it.)
The whole idea needs some kind of evidence that it works. We can all imagine that maybe if there weren't patents, certain things wouldn't get invented. But that experiment happens in people's heads, and the outcome depends on how they are invested. And it's not easy to come up with reasonable evidence, there would be a lot of confounding issues, such as whether patents themselves stop certain beneficial things from happening.
From what I can see a huge amount of innovation is called off due to patent uncertainty. I have a friend who is an inventor in the medical field, and quite a lot of the ideas he comes up with are junked because he's found some patent in a database that sounds too similar. At the same time he has to pay a tax to the lawyers on a bunch of low probability inventions.
It should just be a free-for-all. You see someone with a better mousetrap, you make a better mousetrap. You compete on actually bringing it to market, which is not the same thing as whatever you think the innovation is. Surely that creates the most value for society, or at least should be the default until the quite high hurdle of evidence for patents is cleared.
Won't that mean nobody thinks about better mousetraps? No, people will just think of better mousetrap production-and-marketing ideas compatible with this legal environment instead of what we have now.