Here is a true story I have not previously shared on HN...
While in law school, in attempt to defray tuition costs, I would order Livestrong style silicone bracelets and sell them at Daytona Beach bike week. After tinkering I began working with the manufacturer to mold the silicone bracelets with RFID chips and file a patent.
As a law student, I found the patent filing process to bring real world practice to my classroom theory, plus I learned a lot about RFID technology in the process (mostly researching prior art, such as, RFID shopping carts; RFID one time use hospital bands; ect...). However, as a law student I had no practical (financial) way of bringing my idea to market.
Nevertheless, I contacted Disney's director of park operations to discuss the potential of my RFID silicone bands acting as park tickets, monetary accounts and the general efficiency RFID bands could have of park operation efficiency (tracking lines, ride times, open seats, ect...). As one might expect I was blown off, given a nice generic response that there is no interest...but sure enough 7-8 years later the parks have incorporated RFID technology through the use of...silicone bands.
I think such a story highlights the various positions one could take on our patent existing system. Some might say I was a patent troll, filing a patent where I knew I could never financially bring a product to market, others would argue that situation is why patents exist where the inventor needs to protect an idea where often times but for being the inventor/patent filer a giant corporation might come along and simply take an idea without any benefit to the inventor...finally some may say I should not have received a patent in the first place as RFID silicone bands are not non-obvious in the first place.
Though I never sued, my own experience brings a certain bias to the table, and I would simply ask in countries that do not have a similar intellectual system to the US, is there an example of an inventor actually bringing an invention to market where they were not simply beat out by an existing corporation?
You invented neither peanut or jelly or bread, should the pbj sandwich be patentable? The chances of you being the only source pitching RFID tech to Disney is zero. Sorry you didn't get their business. Did you pitch to any other companies? Did you expect Disney to license your patent and figure out the technical implementation themselves? Does your patent apply for non-silicone bracelets? Seems like RFID tech is and still is a legitimate business opportunity for many.. sounds like you gave up on it, why?
>You invented neither peanut or jelly or bread, should the pbj sandwich be patentable?
This is the idea of researching prior art...and could be extended to the numerous other RFID technologies that are patented, I mentioned a few that were part of my patent application: 1. RFID shopping cart (presumably inventor didn't invent shopping carts or RFID) and 2. 1 time use RFID hospital bands (again inventor invented neither hospital bands or RFID). Ultimately, combining two technologies (using the term loosely) in non-obvious (sometimes it is obvious) results in a new patentable invention.
I realize you were using your example as just that, but while a PBJ will not be patentable, one could copyright the recipe. Coke specifically avoided doing this in a counter-intuitive measure to protect the closely guarded secret formula (which would otherwise be publicly disclosed if a copyright was filed).
Recipes explicitly cannot be copyrighted: http://www.copyright.gov/fls/fl122.html
This is why Coke's recipe is a trade secret instead. I've recently been down the patent research path myself and to me it is still not clear what creates a patentable non-obvious combination of technologies, and what is simply not patentable. In many cases it seems based on the patent reviewer's subjectivity.
>Recipes explicitly cannot be copyrighted
Yes; however, as the link you provide explains if more than just a simple listing of ingredients (i.e. description, pictures, ect...) the same can be awarded copyright. A copyright on a cook book is still the industry standard, because a single filing/fee covers an entire book of recipes.
>I've recently been down the patent research path myself and to me it is still not clear what creates a patentable non-obvious combination of technologies, and what is simply not patentable. In many cases it seems based on the patent reviewer's subjectivity.
100%, much like trademark and copyright much is left to the subjectivity of the reviewer. I will say this about the patent office (compared to trademarks), the reviewers are generally very well educated in their respective fields (engineering, medicine, ect...). The only other way to gain more insight into obviousness standard is reading case law/precedent.
You're thinking about the invention process backwards.
Edison, according to legend, patented the light bulb. (He actually patented an improved filament, and the screw-in base.) Once the thing exists, it is easy to trace the process back to the origin, just as it is easy to trace from the leaf of a tree back to the trunk at ground level.
Edison did not patent the thousands of experimental filament failures that he tested before reaching a viable consumer product. His task was to climb the tree and find one particular leaf.
The PB & J sandwich seems simple. All you had to do was add two ingredients together!
But you also had to not add any of the other possible sandwich ingredients. No lettuce. No tomato. No mayonnaise. No mustard. No ketchup. No roast beef. No jalapeno slices. No pickles. No cole slaw. You also had to pick the right variety of bread. Pumpernickel doesn't work out quite as well. Sliced bagel favors different sorts of sandwiches. Cornbread doesn't work at all.
You can't just permute every possible combination of sandwich-able foods and expect the good combinations to be obvious. But once identified, they are obvious in retrospect, thanks to a quirk of human psychology. It wouldn't have been obvious that phonograph needles could be made from peanuts, or that light bulb filaments could be made from bamboo until after inventors had done it for the first time. So don't confuse simplicity with obviousness.
The problem with patenting a particular sandwich, or any other type of food recipe, is enforceability. Once the recipe is known, you have no way of knowing whether unlicensed cooks are making your dish.
The fact that Disney is using RFID bracelets, on the other hand, is immediately discoverable and verifiable by anyone who visits their parks. Furthermore, they have pockets deep enough to afford even unreasonable license terms. The problem was not even technical. It has always been human acceptance. Stick an RFID on a hospital-style plastic band, and no one wants to wear it. Embed it in an exclusive park souvenir, and people will even pay extra for the privilege of having one.
The bracelet is how you get the guest to carry the same RFID tag for their entire visit without losing it, breaking it, or shorting it out. Previously, Disney has used paper tickets, hand stamps, biometrics readers, and mobile applications to manage guests, and they still had problems with loopholes, fraud, and innocent accidents.
If someone were able to patent a PB&J sandwich, somewhere like a Disney theme park might be one of the few places on the planet where its licensing could be enforced profitably. They cannot hide what they do, as anyone present could read a menu and watch a sampling of trays exiting the serving line, then figure out the numbers on a napkin.
This is exactly what the patent system was made for; so the little guy could have an incentive to invent without being crushed by a copycat with more clout. So he doesn't have to be the only person to pitch it. He only has to be the first to offer patent licensing terms.
>This is exactly what the patent system was made for; so the little guy could have an incentive to invent
I think this is completely false despite it being "common wisdom". I've challenged people who say this to provide some sort of evidence that patent systems aid innovation and seen none that was anywhere near convincing so far.
Nobody so far has so much as ventured an answer except one person who pointed to a study that measured innovation solely by the increased use of patent systems in countries where the regime of legal monopolies strengthened over time. I see that as evidence of the insidious nature of patent systems if anything, but to each his own I guess. Got anything?
In theory, there is no difference between theory and practice.
In practice, there is no legal construct that cannot be employed to the advantage of the party that can hire better lawyers. In the battle of ironclad patent versus fully funded legal war chest, the latter wins.
The implication of my post, in context, was that the patent system does not accomplish that idealistic purpose. And indeed, the article itself says that most actual innovation avoids patents. I interpret this as the network of innovators recognizing the flaws in the system and routing around them.
> I've challenged people who say this to provide some sort of evidence that patent systems aid innovation and seen none that was anywhere near convincing so far.
You've been challenging people who haven't looked enough :-) For one, Kenneth Sokoloff (mentioned in TFA) authored some of the highest cited studies that show the benefits of patent systems.
You are right that measuring the effect of patents on innovation in terms of patents is somewhat circular, but economists have long realized this. There are now tons of historical and empirical studies showing increased patenting being correlated with improved metrics of innovation as measured by various proxies such as R&D expenditure, diversity of industries doing research, VC financing for startups, employee growth, and even economic well-being. Of course, there are costs of the patent system as well, and various studies that attempt to quantify those.
Instead of pointing to dozens of individual studies, it'd be easier to point you to this meta-study that references a number of those other articles:
"RECENT RESEARCH ON THE ECONOMICS OF PATENTS", Bronwyn H. Hall and Dietmar Harhoff (Google for PDF)
I think you make a good point. I wasn't saying yes or no, just posing the question, since it seems like a fairly obvious invention, that one doesn't need to work particularly hard at to invent, and probably has been thought of and will be thought of repeatedly by people who work with rfid's over time. You say that's hindsight because i've only now heard of the combination. But I thought the whole premise of rfids was tiny devices that could be embedded in anything.
Maybe it seems bogus because it's a human, social invention, rather than a technical one.
In any case he got the patent, so what does he have to be bitter about? He even went to law school so it would probably cost him less to sue than the average joe. After going through all the trouble to get it, why doesn't he sue anyway? I bet the fear of having his patent invalidated if Disney decides not to settle plays a role.
I don't have time to really dig into this, but I'll offer the following lay opinion anyway:
The idea of putting an RFID chip in a silicone band per se strikes me as obvious, in the sense that someone who needed to track people in a confined space would be likely to think of it themselves, once they were aware of the existence of the component technologies.
A patent is a deal that the people make with an inventor: in exchange for the publication of your invention, we give you a time-limited monopoly on it. In order for this to be a good deal for us, the intellectual contribution of your idea to the state of the art needs to be significant. If someone else is likely to have the same idea, then granting you a patent is a very bad deal: you get a license to sue, and the people get nothing of any value in exchange. (Aside: note that this is a fundamentally economic judgment, not a legal one. I think some training in economics should be required for patent examiners.)
Now, that said, I haven't looked at the patent. It may be that there is more to it than this; that there were specific technical difficulties that had to be overcome. Just for example, let's suppose that in early prototypes, the chip had a tendency to work its way to the surface of the silicone and fall out. The solution to that problem might well be nonobvious and deserving of a patent. But you haven't mentioned anything like that.