Slashdot Mirror
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.
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".
"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.
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.
Contrary to the parent, it's the opposite of "generally lack the slightest clue" that is certain. You only have to read the posts to see that posters come from a vast range. The range certainly includes at least a few lawyers and PTO examiners and their equivalents outside the USA, as well as folk with a wide range of business experiences of patents, and yes, many folk with none, too.
To me, this breadth of points-of-view seems like a wonderful plus in any discussion. One of the things that can come out of it is some balance, sorely needed in an area where opposite interests really should be balanced out together. The USPTO experts/examiners alone can't produce balance. Most of them really don't know what is done/misdone with the patents they issue.
Saying "posts regarding failure of the US Patent system should be halted" (until everyone has learned from the USPTO people about their part of the system, which will be never) is like saying we should stop trying to learn from mistakes. Sheesh!
One of the pluses, to me, of the FTC recommendations is that they look like a move in the right direction to reduce current imbalances.