"Generally what happens there is mega-company A's patent department decides they don't have enough patents on their books and it puts them at a disadvantage over their competitors. So they offer big cash incentives to their employees to come up with anything patentable," he said.
"The employees wanting the cash simply submit as many ideas as possible, often knowing full well these ideas are trivial, frivolous or have been done before and wouldn't stand up in court. The lawyers then reword the patents in as much technical language as possible to confuse the patent examiners and bang, you have a patent."
Although this is an accusation that the UK patent office vigorously denies, claiming that the quality of the patents it grants is higher than those granted by its European counterparts, the granting of trivial patents is inevitable when large companies are able to minimise the costs of filing patents through economies of scale.
Some say the patent office should carry out more rigorous prior art searches and should be accountable for the patents it grants, but this would raise the costs of filing applications — due to the additional time and legal fees incurred by the patent office — which would further disadvantage small businesses.
The costs of defending a patent
Even if a small company has the resources to file a patent, that doesn't necessarily mean that they will have the resources to defend it. A recent report on the Web site of the Intellectual Property Advisory Committee (IPAC) claims that the patent system has failed small businesses and "personal experience, anecdotal evidence and research indicate there is widespread abuse of patent system. The issues highlighted by the IPAC report include (i) wilful infringement of clearly valid patents owned by lone inventors and SMEs, and (ii) wilful exerting of clearly invalid patents against SMEs by larger organisations or wealthier SMEs." The report states that the typical small business does not have sufficient financial means to defend their patents or access to affordable intellectual property insurance.
This is a problem that the PRG's Mitchell has faced. Mitchell, who is the chief executive of UK software company AllVoice Computing, had spent several years fighting a patent infringement suit in the US against Lernout & Hauspie (L&H), the makers of Dragon software. He won the initial case, but soon afterwards L&H went bankrupt and he is now fighting a similar case against the company that bought the rights to L&H's software. "The cost of enforcing my patents has extended to millions of dollars and several years of my time," says Mitchell.
Talkback
Looks like some happy few are hoping that the politicians will be stupid enough to simply hand them on a silver platter a complete new international market that they have the monopoly over.
And on top of that rows of rich, mostly overseas, internationals that will stumble over eachother to get their hands on anything they can.
But, as they say, to make a few people richer you need to make lots more poorer.
And that is exactly what this patent thing is boiling down too. Some want to be the arms dealer in this legal arms race and some are looking to conquer new lands and profits. But what's left then for the rest of us?
Maybe the captains of industry see a glorious future in this new legal war they envision. But what about the soldiers, corperals and sergeants? Is it really the case that the politicians are telling the generals what they can and can't do or is it vice versa?
Ignoring the tricksy "per se", that the UKPO/EPO use to pretend (absurdly) that they were talking either about written source code or about whole applications or about some phantom "non-technical" kind of software, when they are forced into a corner, it is a simple fact that the unamended directive will *codify* the EPO's legally questionable practice of granting software and biz method patents.
Never mind what the opponents of the Council version of the directive say: just read any independent analysis, such as the EESC opinion or Rossi's paper. Still not convinced you can patent the same software and biz methods at the EPO that the USPTO notoriously allows? Go to amazon and get yourself a copy of Keith Beresford's book, which tells you exactly how to do it, or read this:
http://www.european-patent-office.org/epidos/conf/patlib2000/presentations/beresfordk.pdf
Or look in the EPO and UKPO databases, which already hold around 50,000 software and biz method patents. So how exactly did they get there if they're "not allowed"? And just how exactly will the directive stop the recent avalanche of more of them, if - as claimed - it makes no changes to what the EPO considers patentable? This disgraceful and underhand attempt by the EPO and UKPO to sow confusion about what is really going on and what they intend the directive to achieve, is one of the most depressing aspects of this issue. The door is already wide open - the directive is intended to rip it off its hinges.
"How not to do it. In this was to be found the basis of the wise system, by tooth and nail upheld by the Circumlocution Office, of warning every ingenious British software author to be ingenious at his peril: of harassing him, obstructing him, inviting robbers in the guise of "IP companies" to plunder him, and at the best of confiscating his property after a short term of enjoyment, and giving it to the few largest companies, as though invention were on a par with felony. The system had uniformly found great favour with the Barnacles, and that was only reasonable, too; for one who worthily invents or writes innovative software must be in earnest, and the Barnacles abhorred and dreaded nothing half so much.That again was very reasonable; since in a country suffering under the affliction of a great amount of earnestness, there might, in an exceeding short space of time, be not a single Barnacle left sticking to a post."
From "Little Dorritt (for the modern reader)", by P.L.Hayes.
Thanks for info. We're a small software company and used the services of a legal firm specialising in patents on the advice of a government-backed advisor.
The experience was very expensive and bruising.
For anyone thinking of applying for patent on software, here is our experience.
First, trusted third-party advice is that up to 60 per cent of any software created will be stolen and modified/reused within four years - even if it is patented or patent application is filed.
Second, the legal profession work by the second and charge highly for their "expertise".
Third, we entered the process with the legal firm in good faith. When we decided not to pursue the patent application (at a MINIMUM cost of £4000 plus VAT), we were hit by an invoice for around £800. This was for the legal firm's time in looking at our hard work (all the patent searches we had done globally), a two-hour meeting with two legal representatives to discuss this, and a promise of a full questionnaire after agreement to pay the minimum £4000 (with no ceiling and no advice on how high the costs would go).
Fourth, a trusted third-party with experience in this field advised that we would need at least a £2 million "war-chest" to protect our patent.
So, our conclusion is - please, think very carefully before you enter into any patent process.