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FTC Issues Report Critical Of Patent Policy
hayek writes "The Federal Trade Commission issued a report yesterday regarding failings in current U.S. patent policy. Among other things, the FTC recommends that the burden of proof on parties challenging patents in court be lowered from the current 'clear and convincing' standard, to the easier 'preponderance of the evidence' standard. Even if you don't think the FTC recommendations go far enough, implementing them would be a good start to solving some of the problems caused by the current system." nolife points out a report at Law.com indicating that, under the current system, "Patent examiners have from 8 to 25 hours to read and understand each application, search for prior art, evaluate patentability, communicate with the applicant, work out necessary revisions, and reach and write up conclusions."
GO LINUX!
When Amazon can patent simple online sales methods, you know there's a problem with the process.
That's insane. You know what, I wrote more, but really, "That's insane" is enough.
...oh, I'd say somewhere from ZERO to 25 hours to read a patent.
It's an oldie but a goodie.
First Post (TM). Patent pending... damn. I see evidence of prior art.
Executive Summary
;)
Official Press Release
Full Report: Promote Innovation: The Proper Balance of Competition and Patent Law and Policy
A Report by the Federal Trade Commission, October 2003
Of course, it would have been nice if some one had submitted this article yesterday.
2003-10-28 18:40:17 FTC Issues Report on Competition and Patent Policy (articles,patents) (rejected)
"We reject as false the choice between our safety and our ideals." --The American President (20.1.2009)
Luckily the government is doing something that isnt for corporate interests and Bush campaign donors. I wonder which public servant is going to be asked for a resignation tommorrow? "Only one thing is impossible for God: to find any sense in any copyright law on the planet . . . Whenever a copyright law is to be made or altered, then the idiots assemble." -- Mark Twain
The Slant
Tricky Dick Nixon invented hacking...
"Patent examiners have from 8 to 25 hours to read and understand each application, search for prior art, evaluate patentability, communicate with the applicant, work out necessary revisions, and reach and write up conclusions."
These are government workers people. You forget that they get coffee every 2 hours, a smoke break every hour, a pastry diversion every 3 hours, and spend 1 out of every 5 minutes keeping the perpetual-motion machine running.
Force a rather large deposit. If the patent is found to clearly be invalid, don't return the deposit for wasting the examiner's time. To keep this from hurting small inventors, make it only apply to organizations applying for more than 3 in a year.
Is there a reason why patent claims aren't posted on the www for public comment before they're approved? I can't think of any.
I would say that the better thing to do is to make patents harder to get so that there won't be as many courtroom challenges to begin with. A pity that might make patents less of a profit center for the government, but that's life.
Well, as soon as someone sees it, they'll go out and implement it, fake some timestamps, and say, "See? Prior art!"
Either that, or honest prior art will be accused of having fake timestamps.
tasks(723) drafts(105) languages(484) examples(29106)
Now that Microsoft lost a patent lawsuit it's time to fix the system! Sorry to be so cynical, but it looks to me like the Eolas (sp?) case was a godsend.
Among other things, the FTC recommends that the burden of proof on parties challenging patents in court be lowered from the current 'clear and convincing' standard, to the easier 'preponderance of the evidence' standard.
Given the exceptional nature of patents--extending a government enforced monopoly on ideas and entire markets for decades--one should perhaps even demand that the person defending a patent should provide "clear and convincing evidence" that the patent is valid.
However, just changing the standard to "preponderance of the evidence" sounds like a good change and something that is long overdue.
I had a thought that USPTO should also accept proposal for patent-free ideas. In this, people should be allowed to submit idea that USPTO should certify that it is free of patent. If USPTO is competent enough to grant patent by saying, this hasn't been done before; they should be able to certify that this doesn't violate any patent. Once it is granted, people should feel free using this idea. In case someone wants to file a patent lawsuit on this patent-free idea, then the burden of proof should be on plaintiff. By default the idea should be considered patent free.
.gif, .jpg, eolas etc patents.
This would be a tremendous boost to standard organization. We no more will get surprise
The cost of such patent-free filing should be at par with patent filing.
How about a system where there's a fee for the initial issuance of a patent. Every two or three years, the patent has to be reissued, at an exponential cost.
That'll force patents to expire along with their usefulness.
Of course, there's still the big business has big money aspect.
tasks(723) drafts(105) languages(484) examples(29106)
So there's your patent-free idea database: publications of any sort. This ought to be obvious, because "obvious" is one of the synonyms of "patent"...
Time is Nature's way of keeping everything from happening at once... the bitch.
Perhaps it would help to have a public input phase - say a week during which freshly approved applications are posted on the web, and the public has a chance to review and weigh in with prior art, etc. If it was nicely indexed and searchable, helpful /.ers and others with free time might be able to make a difference.
GL
The USPTO is the largest income-generating government office behind the IRS. The problem is that they're in the business of issuing patents (and it's quite profitable) rather than in the business of serving the public by properly issuing patents. Why reject a patent application, and the fees that come along with granting a patent, when you can accept the application, take the money, issue a patent (no matter how frivilous), and let the federal courts sort it out later once the lawsuits start to come in.
The problem is the USPTO has zero accountability, and as long as it's bringing in so much revenue for the federal gov't there is no reason to implement any changes.
My solution... the people at the USPTO in charge of granting patents should be held personally responsible for every patent they approve. If the patent is later declared invalid by a court, that person must refund (out of their own pocket with no reimbursement from the gov't) all the fees the patent applicant paid.
Stupid people make stupid things profitable.
As helpful as this is, there are better changes that could be made that would further improve the system:
First, when the USPTO screws up in awarding the patent, the USPTO should cover the cost of fixing it. As it stands, if I have prior art for a patent, I have to pay them to fix what they screwed up. It should be modified so that overturning a patent is free. (Really, they should dock the commission of the person who signed the patent). They could request that you post a bond for the fees until they have decided (with it to remain in bond if you appeal). Furthermore, this process should be made as simple as possible, and not require legal assistance.
Second, the hobbyist exemption should be expanded and clarified with respect to Free software. While an outright exemption would lead to much rejoicing, a more realistic exemption would be for cases where 1: no money is accepted for the software and 2: the patent holder does not have a competing product on the market. This protects Free Software from submarine patenters who produce nothing but lawsuits, while still appeasing companies who feel threatened by open source by protecting them from direct competition.
If I have been able to see further than others, it is because I bought a pair of binoculars.
And who exactly are you going to get to work under this system?
I do not remember the specific name, but there is something you can file with the USPTO that is *not* a patent but rather something that merely documents something new. Whatever it's called, it prevents anyone from patenting the thing (although, obviously, they can still patent some improvement on it).
Does anyone remember what it's called. Unfortunately, IANApatentL.
My understanding is that patents cannot be issued for an idea that's "obvious to an expert in the field".
Many notorious patents are, in fact, obvious to an expert in the field. (Example: Eolas's patent that a plugin can be embedded directly in the browser window. Even non-experts would tend to say: "well, duh".)
Why can't the USPTO employ experts who can look at the basic idea of a patent solely to flag the ones which they consider obvious?
That wouldn't be a complete solution, but it might help eliminate the most egregous patents.
Not only are patents presumed valid when they are challenged in court, they are presumed valid even before granting, to the extent that the burden is on the patent officer to establish why it should not be granted. That is utterly ridiculous. When someone applies for a patent, they are making a blatant and sweeping claim against the whole human race; essentially, they are saying that no one else in the history of the earth has built something like it.
Strong statements like that should be backed up with extremely solid evidence. While it is not possible for an applicant to conclusively prove a negative, the burden of proof should still lie on the applicant's shoulders, forcing them to impress the patent examiners and convince them that there is a strong likelihood that they are the first one on earth to put the alleged invention together.
---------
There is inferior bacteria on the interior of your posterior.
"Patent examiners have from 8 to 25 hours to read and understand each application, search for prior art, evaluate patentability, communicate with the applicant, work out necessary revisions, and reach and write up conclusions."
I suggest that business method patents be eliminated by statute to reduce the workload on the patent examiners to improve the amount of time to devote to each patent application.
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""Patent examiners have from 8 to 25 hours to read and understand each application, search for prior art, evaluate patentability, communicate with the applicant, work out necessary revisions, and reach and write up conclusions."
That is 7.5-24.5 hours more than they need when a simple google query returns more prior art than would be needed.
This leads me to believe that patent examiners are measured on their performance. I hunch they're measured on both the number of patent applications they crank per week and the number of prior art cases they find.
Come Friday, I expect the heat is on to make numbers and it comes down to which is the fastest way to complete a case (ie. Is there less paper work to reject or accept an application?).
Please don't mark this funny, I'm being serious.
Engineering is the art of compromise.
you're saying nobody would work in a job with some personal responsibility? Well, some people will.
Stupid people make stupid things profitable.
The solution might be to patent a government organization which issues patents, then implement it.
Maybe god smiled at him for dating the chick with the crippled son.
But his luck is gone and now he sucks.
If I didn't know better, I'd say he made a deal with satan to win the superbowl.
It is the system at fault, not the workers. If the USPTO was to be hit with damages for bad calls, then their profit/loss would not look as healthy and people might start asking some questions.
The voters don't care about patents because so few are impacted (say compared with tax legislation). Imagine if Bush had said:"Read my lips, no more patents." nobody would have cared a shit.
Engineering is the art of compromise.
Fuck the patent office.
It only serves big money interests anymore. Its a farce. Patenting of software and business processes.
George Bush makes us look like idiots, our patent system is a joke. Hell, we're starting to make canada look like a decent place to live, and that's saying something.
No, fuck the patent office, not because the guys there are personally bad, but just because they're a tool of interests of other than the American people.
Fuck em.
In addition to the USPTO being given deterrents against granting bad patents, applicants should be given deterrents against filing frivilous patents in the first place, in order to reduce the workload on the patent office and give them time to properly evaluate the genuine candidates.
Patent holders should be fined if a patent is overturned, perhaps with a fine proportional to the license fees they have extracted. To be fair, they should also be given the opportunity to voluntarily withdraw a patent at any time before a challenge without being liable for any penalty.
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There is inferior bacteria on the interior of your posterior.
Post a sign on the USPTO door right abobe the night deposit slot that reads "After hours, slide patent candidate through slot. Candidate will not be considered valid without proof of prior art."
Your "solution" sucks ass.
A better solution is to end all self-funding activity by such agencies. All money ought to be appropriated by the legislature like the constitution says.
Apply this to the local police too.
>80 column hard wrapped e-mail is not a sign of intelligent
>life
The only thing for certain is that people reading and posting to slashdot generally lack the slightest clue on the inner workings of the US Patent System. I believe that Slashdot needs to have some sort of informational session teaching readers how the system works. Until then, posts regarding failure of the US Patent system should be halted. The sort of comments and speculation found on the topic here at Slashdot on serve to misinform others. I come to you as a US Patent Examiner. Please consider this suggestion. Maybe an ask Slashdot or Slashdot interview might be a step in the right direction.
Bill Lumberg
One of the biggest (current) problems with patents is the 'ambush' issue... After something has been in use for years, someone suddenly jumps up and says "We were just assignae a patent for that".
If people had been aware of the patent application, they would have been able to either
(1) use another method, or
(2) file a notice with the PTO about prior art/obviousness to prevent the application from being awarded.
I'd suggest that Patent rules require someone who is applying for a patent to put a patent pending mark on their products which have patents pending and (a hotlink to) a discription of the patent and it's application number. That would allow people to respond intelligently to the application now, rather than after 5 years of entrenched use, and an entreched patent award.
Free Software: Like love, it grows best when given away.
If you think government workers have it sweet, you haven't worked at my private firm. Not only do we get coffee breaks, smoke breaks, and pastries, we also get coke breaks, donuts, and we get to use company machines to download pr0n!
The point is, that no candiate is ever going to agree with you on everything. Some of you really need to get a sense of proportion. I'm all for a vigourous debate of ideas. Just because someone disagrees with you doesn't make them evil incarnate. I'm not saying that the character of a leader is unimportant, but most people are far too eager attribute bad motives to people they disagree with and to excuse the behavior of those on "their side".
----- Question authority, but not ours. Hate the man, but we're not him.
Let's see now, the deluge of silly software patents STRONGLY SUGGEST that this is a model 8-hour day for the examiner:
... hey, it's personal time!)
... one of the "engines of the modern American economy" or some other equally inane PR that is hiding our severe social problems).
Amazon's execs can just call up their buddies, who eventually reach their buddies in the USPTO and Congress, and your boss will get the tanning of his life.
Then he (or his replacement) turns around and chews out YOUR ass.
And you will either approve that Amazon app for the spectacular innovation of "clicking a mouse TWICE" or you will have to clean out your cubicle.
get coffee and read paper:
1 hour
read and understand ONE application:
1/2 hour (skim submitter's corporation marks, lookup stock ticker on the NASDAQ)
yak with fellow examiner about last night's ballgame or movie:
1 hour
search for prior art:
0 (they applied for it, so it must be an innovation, duh)
evaluate patentability:
0 (they applied for it, so it must be patentable, duh)
communicate with the applicant:
0 (application+fee = all the USPTO needs)
work out necessary revisions:
1/2 hour (there are always some typos)
call gf and/or wife:
1 hour
lunch:
1 hour (not counted
push some paperwork around to make it all look good:
1/2 hour
reach and write up conclusions:
1/2 hour (apply cut-n-paste document praising software innovation)
surf web for latest 1337 g4m3 k0d3z:
3 hours (hey, it takes time to get m4d 5k1llz)
Seriously now, I'm sure they do spend quite a bit of time on each app, but due to political pressures, if they want to keep their jobs, they must eventually give in and approve even silly patents. Those hours are probably spent finding any way possible to just deny the silly app, just to fail in the end due to the "writing on the wall" that essentially says if Sun, Microsoft, Oracle et al file a patent, then they should get it or there's going to be trouble of a wide ranging sort.
I'm sure the first layer of trouble is a bevy of patent lawyers sending x2 weight in paper for everything you try to issue a denial response on. They can bury you in paper, and in the end it's just easier to give in and let the courts handle it if there's any prior art.
I'm sure the 2nd layer of trouble is Da Boss, who has to come down on you like a 16-ton weight if you actually put up a fight against a silly patent by a major corporation. After all, he's got all his employee metrics to mind each week (or daily, if his boss is an even bigger dick), and your "quality over quantity" approach has no adherents in the upper echelons.
Finally, I'm sure the 3rd and final layer of trouble is if you and your boss stand firm against a particular silly patent from a high-profile company like Amazon (you know
[You have a stable society when some nut guns down a schoolyard and the law doesn't change.]
One thing I absolutely don't understand in this report is the stuff about companies not reading each others' patents. Examples:
...and...
"Some hearings participants explained that they do not read their competitors' patents because of concern that learning about others' innovations will expose them to treble damages infringement liability."
"The FTC's recommended legislative change would allow firms to read patents to learn about new innovations..."
Are they saying it's somehow illegal for Company A to read Company B's patents? That can't possibly be right. But what else could they mean?
Not only here on Slashdot, but here, and here. too.
The ignorance of the FFII and EFF about software patents is simply astonishing. I've talked to some of these people about their views on patents. Amusing. It's like talking to the Taliban about the importance of women's rights.
Oh, just give up on the term "hacker." Most people equate "hacker" with "computer criminal" and you are not going to change that.
I don't care how much you want and whine about the term "cracker." The general population has decided what the word "hacker" means and your definition lost. Pick a new one.
Once a definition has been decided it has a tendency to stick even if the Special Interest Group is forceful in changing it. "Queer" still means "Homosexual" (at least in part) even if we came up with the new, improved, prefered term "Gay." You don't want to be thought of as computer criminals? Get the general public to think of a new word (or new defintion of an old word) when they think of your definition of "hacker." Because they ain't going to change their definition of "hacker" to make you happy.
Maybe then you can work on a logo. (And, BTW, the Go/Othelo/Life logo is pretty stupid anyhow. You want a logo? Get one that is cute and personable, like the Penguin or Daemon.) But don't worry about a logo right now. The Hacker community has bigger public relations problems.
Yes indeed, no governmental appendage should be allowed to fund itself. It allows for easy corruption, ESPECIALLY the damn police.
Slashdot is proof that Sturgeon's Law applies to mankind.
Wish I had a mod point for ya, definitely insightful.
Denuding the USPTO of its staff by making them personally acountable - a principle that does not even apply in the real world - would harldy improve matters.
Its a quesiton of incentives and motives, not of quality of personnel.
[x] auto-moderate all posts by this user as insightful
I'm generally against IP on the principal that owning an idea is literally impossible. That said, patents, trademarks and copyright have encouraged innovation and are very much responsible for the technology economy's existence. That said, there are three changes to patent law that would make total sense:
a) change the standard from clear and convincing to a preponderance of the evidence.
b) eliminate submarine patents. Tricking people into infringing and then suing for big $$$ is not just.
c) eliminate the ability of patenting the specific use of a general purpose tool. Patenting the use of a digital computer for counting beans. Patenting using an on screen button to buy something is equally obvious. Plus, the original designer of the technology built the tool for flexibility and we should assume the designer intended the tool to be used in that way.
-- $G
And this costs HOW much to apply for? One problem is that the government made the PTO into a profit center by allowing their income to fund other spending/pork. This gives congress a reason to keep the "patent anything" system as-is.
There are inferior bacteria on the interior of my posterior. Bacterium is the singular.
.sig replies, and this is both. Nevertheless, I had to say it.
I know, not only are grammar nazi posts off-topic, but so are
I found the meaning of life the other day, but I had write-only access.
Except for Labor, every economic sector spoke with its money saying Bush would serve its interests better. They were proved right when the anti-trust case against Microsoft fell apart. They were proved right when the EPA got eviscerated and polluters got free rein. They were proved right when Cheney visited the CIA to say "you aren't looking hard enough" to agents who couldn't find the evidence to support the case for a war for the energy industry's benefit in Iraq.
No, Gore wouldn't have been perfect. But in this election, as in the last, I'll be voting for any breathing organism that has a chance of beating Bush. You "all politicians are alike" people have the freedom to continue in blissful ignorance if you must, but please understand that some people feel obligated to pay attention to the facts of what's going on, and that's what makes it an emotional issue for us.
Al Franken's book is full of well-documented evidence. The outrageous title is a parody of the outrageous titles Ann Coulter chooses for her books. I read Franken's book, and found only one statistics abuse in the entire thing. Calling him crazy is the only avenue you have left; his arguments are quite solid. I'd suggest you expand your "wide variety of sources" to include Franken's book.
When Bush said we had enough evidence of existing WMDs (not just WMD programs), Democrats believed him. That was a huge mistake, and I hope they don't repeat it.
I'll also take Kennedy to task for opposing renewable energy in the form of windmills off Cape Cod. I'm a registered Democrat because the mathematical reality is that our government is a two-party system; there's strength in numbers. Democrats are the lesser of two evils. Folks like Nader need to win the Democratic Party first, and then take on the nation.
...who take a bulk of money from the **AA's, not to mention a HUGE bulk from the legal profession in general.
I'm not saying the Republicans are any better. They might be, but I don't know how you can honestly sit there with such shock as to how this administration might disagee with an oppressive policy that happened to be installed by the last administration and happened to benefit the last administration's contributors. (It's right there on OpenSecrets.org)
Can you break out of the political dichotomy for a second to recognize that there are good and bad things about both political parties, as well as good and bad things about this administrations.
I know it's hard to see the good this administration did, especially with all those fuckups looming over thier heads, but you should atleast make an effort to be objective.
Lastly, Do you realize that by attributing every government decision to "The Man", you discredit every other valid point you make. People will stop listening to you, and you will stop any valuable insight you might have from spreading.
The moral: Don't give away objective thinking for political ends.
"Communism is like having one [local] phone company " - Lenny Bruce
Not to rain on the prade, but IMHO patents are evil and provide a false sense of security. Even worse, they are murderous, just ask any child dying of AIDS in Africa - why there are no generics available to treat it? Yeah I know soneone is going to invariably going to respond "well, no cure would be invented to begin with if not for patents spew ..." but that is simply a crock and is like saying noone would develop free software either.
Also, as soneone who is in an "innovative" company - I just want to say for the record that patents don't help innovation. In fact, it would be more accurate to say we are forced to get patents so we can defend ourselves against frivolous lawsuits, get into cross-licensing agreements rather than sit and get screwed over by large corporations who lock us out of all the latest technology, and make sure someone else dosen't patent what were doing first and then proceed to screw us over.
In truth, I feel like that in order to work with technology, work in a decent environment, and support my family, and be innovative - I half to participate in a system that is morally repulsive. I bitterly resent that.
I have an even better idea. Declare that software is nonstatutory material for a patent. Patents on systems that include software should be evaluated solely on the novelty, etc. of the non-software parts of the system.
Great idea, huh? Actually, it wasn't mine. The US Supreme Court thought of it first. How the USPTO and lower courts managed to ignore it is beyond me. If Europe legalizes software patents, it will be the first place in the world to officially do so.
This is headed in the right direction, all these problems have come to a head recently in so many cases. Would like them to do more though.
The imminent threat of existing WMDs mandates immediate action, without necessarily gaining international support first. WMD programs allow more time to gain support, and/or more measured responses. There's an important difference. That's also why Republicans are lying when they say Clinton made the same claims Bush did.
Please provide a specific link to opensecrets.org that doesn't contradict your main claim.
I half to participate in a system that is morally repulsive.I bitterly resent that.
I think its all about the duality of man.
You know, conflicts involving obligation to self and society.
I think Adam Smith covered it.
Use greed to spur innovation (nobody has found a better method).
Your bitterness is primariliy inflicted on self.
Sometimes it just beees that way.
a) through c), plus:
d) Publish all denied patent applications. That way a company will likely opt for trade secret protection over a patent if the company has any doubt that a patent will be rewarded.
Seems interesting to read. All these patent issues seem to be flaring up all of a sudden check this out.
Thanks for the complete transcript, confirming that Clinton didn't say that Iraq currently held weapons of mass destruction.
Where in Bush's speech do you see him stating that Iraq was not an imminent threat? I only see him implying that Saddam had actual weapons, and that they could be used at any time, i.e. terrorists don't announce their intentions.
Why not just go back to the days when software was nonstatutory material for a patent? What bad effects would that have? I think it would work great. After all, as US Supreme Court Justice Stevens wrote in 1981,
I hope you don't suffer from the same dilusion the parent poster does about the president controlling everything.
Here ya go:
Top Industries
From that, you'll see that both Lawyers give 3 times more to Democrats than Republicans, and the Entertainment industry gives almost 4 times more to Democrats.
More important than that, you should really get to know who the House and Senate committee leaders are, and check out who's giving them money.
It's interesting to how each respective party campaigns under vague, divisive, and meaningless issues like Abortion, Gays and Lesbians, Taxes, and Social Security to win votes, and people eat it up!
I especially love the notion of "liberal" and "conservative" as if each party is trying to save you from the other's excessive spending (R: Military, Homeland Security) or the other's special favors to big business (D: DMCA, Legal Industry, Securities + Investing).
Next time you cast your vote, I suggest you look at each canidate and figure out who's giving them money, and then ask yourself:
Do I want to prop up the Securities and Investment industry or the Insurance Industry this year?
"Communism is like having one [local] phone company " - Lenny Bruce