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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."
When Amazon can patent simple online sales methods, you know there's a problem with the process.
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
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.
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.
Two problems:
At a quick glance, your seems like an OK idea. But I imagine it will make things harder for legitimate inventors and not affect the abusers. Much like the tired old saying, "if you outlaw guns, only outlaws will have guns." It will only just hurt the people who actually follow the rules.
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.
The applicant has way to much interest in failing to prove that it has been done for this system to work, and since they can not conclusively prove that it has never been done I really don't see how this would work at all.
What amount of evidence on the applicants part would convince you that their invention is in fact new, and that they are just ignoring that really good piece of prior art that they conveniently forgot to bring with them?
"I have a porkchop, you have a porkchop. I have a veal, you have a veal".
This is straight off the USPTO website, and is for the initial filing fee only. There are a host of other charges (such as requests for re-examination which run into the thousands), which I haven't listed because Slashdot's lame-ass junk filter keeps me from doing so.
Of course, if you mean we need to increase the penalty, consider that a lot of the submarine patents that have been wielded by evil companies like PanIP are generated by people who would qualify as "small entities". Discouraging frivolous applications is a good way of cutting down on the work load of USPTO examiners, but what we need is to eliminate bad granting of patents - giving them more time isn't necessarily going do the job if the patent examiner isn't well versed in the field that the patent is being granted in.
I'm thinking mandatory public/peer review is the key (think public probationary period)... If it isn't deemed original by a board of voluntary examiners drawn from the field, then it doesn't pass go. If someone objects with evidence of prior art during the 1 year public review period, the patent automatically goes back for reexamination. The other thing that needs to happen is the re-enacting the requirement that a working model of the invention MUST be demonstrated as part of the patent application. No more pie-in-the-sky speculative patents without any actual work to back them up.
The problem with prior art taken from the web is that it is incredibly hard to prove the publication date of some random web page. And since prior art must be published PRIOR to the applications effective filing date, most of the web is completely useless anyways.
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.
"Most ideas will seem obvious when you hear them, but that is not the test that is used to decide whether a patent is granted or not."
There is a difference between sounding obvious after I only hear the the goal the item accomplishes, vs. sounding obvious after seeing all the details of the solution. If a simple phrase that describes the concept of the alleged invention is sufficient for a practitioner in the art to build a working implementation in a short time without seeing any of the details, then yes, it is bloody obvious and not worth of the high standard that patents should be (but aren't) held up to.
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There is inferior bacteria on the interior of your posterior.
You're confusing patentability with infringement. If you publish something, someone else can't patent later what you've described, but whatever you described could be infringing on 10 prior patents. You could be the inventor of the pencil with an eraser at the end, but your new device will infringe another guy's patent on the pencil.
I think what the original poster was proposing was having the PTO issue freedom to operate opinions. These opinions are much more complex than patents--they can cost on the order of 50k-100k in legal fees, as opposed to 10-20k for getting a patent. So it's not a practical idea, but it's definitely an interesting one.
Of the FTC's proposals, the pregrant opposition is the one that's likely to have the biggest effect in practice, I think.
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.
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.