Slashdot Mirror
Patent Reform Bill Introduced in U.S. House
kanad wrote to mention a ZDNet article covering the introduction of the Patent Reform Act of 2005 to the U.S. House of Representatives. From the article: "Probably the most sweeping change would be the creation of a process to challenge patents after they are granted by the Patent and Trademark Office. 'Opposition requests' can be filed up to nine months after a patent is awarded or six months after a legal notice alleging infringement is sent out. The bill is supported by the USPTO and Microsoft who have been recently asking for patent reforms ." More details of the bill are available at the Congressman's website."
"The bill is supported by...Microsoft who have been recently asking for patent reforms."
Everybody should immediatly be very, very suspicious of this bill if that's the case. What do they stand to gain then, exactly? You can bet it isn't immediatly obvious. Has anyone checked all the sub-cluases on this thing yet?
Why not introduce a peer review process by which a patent in a particular industry is reviewed by patent holders in the same industry? In this manner, a frivolous patent could be easily circumvented with a simple review request. A few hundred peers simply review the patent and then decide if it is legit.
The same method could be used to avoid costly court battles. This seems like a no-brainer. What am I missing?
More
Why not forever? A bad patent doesn't instantly become a good one after it's been a patent for 9 months.
Pulp Audio Weekly - Geek News and Reviews
Probably the most sweeping change would be the creation of a process to challenge patents after they are granted by the Patent and Trademark Office. "Opposition requests" can be filed up to nine months after a patent is awarded or six months after a legal notice alleging infringement is sent out.
reexamination works pretty well, but there's a backlog. of course, this new system is gonna get backlogged REAL fast.
Another major change would be to award a patent to the first person to submit their paperwork to the Patent Office. Currently, patents are awarded to the first person who concocted the invention, a timeframe that can be difficult to prove.
i dunno about this. 'first to apply' has major disadvantages.
---
Is this the MPAA? Is this the RIAA? Is this the DMCA? I thought it was the USA!
...that the same people that accepted a stupid patend in the first place would be the one to read a reasonable request to why the patent is to be removed?
It sound like this is a perfect plan carried out in the worst possible manner..
Scully: Should we arrest David Copperfield?
Mulder: Yes we should, but not for this.
Should be interesting to see just why MS is stepping into this fight. Do they simply want to challenge their competitor's patents for personal gain or do they genuinely want to encourage innovation? Given that their own patents will also be placed under the same scrutiny, it is hard to imagine how they would stand to gain more than anyone else in this situation.
Failing that, how about starting the patent challenge clock when the patent holder issues a claim instead of starting the clock when the patent is issued. It'd deal with submarine patents as well as eliminate the need to look over the patent office's shoulder on each and every patent they issue.
Then the little guys will have to fund their own patent defense. The big guys have a clear edge here because they have more resources.
They already have the ability to do that in a litigation case, but this gives them the ability to do it preemptively. That last word is becoming increasingly popular.
Sounds good. Or is this one of those bills where it does the opposite of what it sounds, the way the Clean Skies initiative leads to dirtier skies?
"said Smith, a Texas Republican.
Never mind, I can guess the answer now.
"The Business Software Alliance was quick to praise the bill,"
Well, there's a strike against it.
"saying in a statement that it goes a long way toward "improving patent quality, making sure U.S. law is consistent with that of other major countries and addressing disruptions caused by excessive litigation."
Uh huh. Whenever they trot out the "Let's make sure our laws are consistent with other countries," you know the fix is in.
You want sweeping? Here's sweeping: No software patents. Period. They are already protected under copyright law.
In other words, just because you were the first person to invent a device, it doesn't mean that you can rightfully own a patent for it. So if some young inventor creates something and some other company swipes it, it is a race to the patent office. I am guessing that a big company's lawyers know a shortcut or two.
Bill info on Thomas
It has no provision regarding eliminating "business method" (read: software) patents. This bill won't do anything but clog up the patent office more with so-called opposition requests.
It would be interesting if the Judiciary committee could be swayed to eliminate software patents. If your congressman is on the committee, let them know how you feel.
What do expect?
Letting a Congress full of lawyers make the laws is like putting the drug companies in charge of creating diseases.
IMHO a bicameral legislature is ok, except they did it wrong. One branch should be in charge of making laws, and the other repealing laws. AND it should take a 2/3s majority to create a law, but only a 1/3 vote to repeal a law.
1. So they'll have a whole department sitting like hawks watching the patent office and challenging everything remotely connected to their markets, and you and I will not have a department challenging every BS patent Microsoft submits.
When you come to challenge it, they'll say "well he didn't challenge it within the alloted time...."
2. "Another major change would be to award a patent to the first person to submit their paperwork to the Patent Office. Currently, patents are awarded to the first person who concocted the invention, a timeframe that can be difficult to prove."
No need to invent now, just have to have a patent office ready and waiting to patent other peoples invention! And best of all its completely legal!
The central problem is that it's unconstitutional in that it no longer would award patents to the first person to actually invent something, but rather to the first person to file for a patent. The Constitution permits Congress to grant patents to inventors, not mere filers.
Additionally, this is probably more likely to harm the rare, but important small inventors, since it can take them a bit longer to muster the resources to file.
It also harms the public, since it ignores the decision of an inventor to not get a patent, and thus allow the invention to lapse into the public domain right away. If this passes, not only would the inventor have to decide not to seek protection, but so would any other johnny-come-lately.
First-to-file, as opposed to first-to-invent, is a stupid idea. As usual, it was pioneered abroad (much like a lot of the stupid copyright laws we've been seeing for the last few decades) and is being pushed on the US for no good reason other than to standardize on whatever everyone else is doing. That all the other kids are jumping off cliffs is no reason for us to do it too. Our laws should be based on good policy, without regard for what other countries do.
-- This and all my posts are in the public domain. I am a lawyer. I am not your lawyer, and this is not legal advice.
That's what patents are in the first place. And not just software-patents.
We're being swamped by genetically modified whatever, just because some company managed to get a patent on it and thus has no incentive to keep its bacteria in the tank. So what if the whatever just produces some disaster like polluting fields of non genetically modified crops? Its patented, you can sue the victim of the pollution.
And even better, some companies managed to patent parts of viruses (which they didn't invent, of course) -- now, whoever wants to identify them in something like a HIV-test has to pay royalties. The international red cross who wants donated blood checked for instance..
Now talk about "growing costs in health-care". The whole affair is just stacking up costs everywhere, in the judical system, taxes, health-care, ecology, you name it. Patents are a frigging financial catastrophe.
That's fucked up beyond any repair, the whole thing has to be ditched.
"The more prohibitions there are, The poorer the people will be" -- Lao Tse
Then said "young inventor" needs to keep his/her invention (and other supporting materials) away from prying eyes. Oh wait, that's how it is now too!
"Ask not what your country can do for you." --John F. Kennedy
Read this very carefully. It appears to be an attempt to shift the power in the system from independent inventors to large corporations.
I understand that Microsoft wants to eliminate patent shops, but many provisions in the proposed legislation do more than that. The simplest way to eliminate EOLAS-type lawsuits would be to demand that the invention be implemented within five years of being filed and raise the bar so that only very or highly non-obvious applications are accepted.
Clearly, Microsoft doesn't want to raise the bar because that would invalidate many of their own patents. What Microsoft wants to do is make patents the exclusive domain of well established corporations and eliminate any threats that startups might pose to them.
Again, read it carefully. There are many ways to solve these problems, but these provisions are specifically aimed at decreasing the power of independent inventors.
Proposal: Lowering the penalties for willful infringement.
Result: Encourages willful copying without paying inventor.
Proposal: First to file rather than first to invent
Result: With this provision, Microsoft and/or IBM could make regular passes of SourceForge and file patents on all innovative work there. On hearing of any new product from a startup, they could patent the techniques used in that product immediately. Note that even if they didn't receive the patent, there would be no penalties. In fact, they would benefit because by filing first they eliminated the possibility that the original inventor could receive a patent.
Proposal: Allowing judges rather than the patent office to review challenges,
Result: I'm not sure what this means because the details aren't spelled out. In the best case, it is a needed fix because it catches mistakes made by the patent office when a bad patent slips through. What worries me is the choice of forum. In the worst case, it is shifting challenges from the patent office to a courtroom. The same thing could be accomplished without moving it to the courtroom by simply funding the patent office. The purpose of moving it to the courtroom - which is more expensive for the government - could be to allow large corporations to crush independent inventors or self-funded startups who cannot afford the legal costs. Or it could be to make it prohibitively expensive for the open source community to challenge bogus patents by Microsoft. Either way, the specification of forum is of some concern. The patent office may not be effective, but its best aspect is that small inventors can afford it.
There is a need for patent reform, but the brief description of this legislation sends up warning flags. Raise the bar on what can be patented and fund the patent office so it can spend more time reviewing. Allow patents to be challenged if the inventors haven't creating a prototype within five years of filing. These and several other approaches would be far simpler and more effective at solving the current problems than Microsoft's proposals.
-- N
altho it may seem strange, patents are very cheap by corp stds - diy for a few Kbucks, and in a well run company, even with the attys, it is 50 Kbuck to file a patent - this is small money for even small companies (think about the cost of hiring 10 programmers, with fringe + office space).
HOwever, if you allow oppositions, then you get into court type appeals, and the cost skyrocktes, so only very large, well heeled companies can afford to do battle. For example, say MS does not like a patent on how to handle wierd fonts. They can afford to fly in experts from all over the world, gets hundreds of hours of video testimony, do studys, etc. How is a small company going to fight that ? not to mention the years of delay, which always work in favor of hte big guy with cashflow.
NOt to say that the patent system isnt full of problems - there are certainly a lot of patents out their that should never have been granted.
HOwever, if you want to do something for the small guy, change the system from date of invention (which requires record keeping to a std to satisfy attorneys) to date of filing, which is obvious. this would really help the small guy
Why not review the patent application critically BEFORE awarding the patent (much more critically than the current process)? The post-award-review process is nice 'set up' for people with lawyers on the payroll and not for the "inventor."
Just the fact certain big companies support the bill should give the normal people reason to pause and examine this bill critically. It looks like another band aid solution than "Probably the most sweeping change... " hype.
No software patents. Period. They are already protected under copyright law.
No, they're not. Implementations are protected under copyright law. Patents are supposed to protect truly innovative methods of solving some particular problem, and I see no reason why those involving physics or mechanical engineering are more deserving than those involving information processing. The problem isn't software patents. The problem is stupid patents, whether they be one-click shopping (software), or swinging on a swing sideways (hardware).
Anybody notice anything strange about this? Look back about 8 /. posts.
See it yet? The post titled "Your Rights Online: Microsoft Found Guilty of Patent Infringement"
Microsoft gets hit for patent infringement and suddenly is behind a bill to reform patent law?
Hey, if they pay enough money and get this bill passed fast enough, they may still be within the 6 months they have to challenge!
In the left corner weighing in at $60Billion dollars we have William 'Bill' Gates. In the right corner we have Patent Reform 'Bill'....
Someone has been reading too much Heinlein...
Any sect, cult, or religion will legislate its creed into law if it acquires the political power to do so.
The bill proposes that third parties may submit prior art challenges for up to six months after the date of publication.
Why only six months? Why not forever? After six months of a patent's existence, only the person with prior art could file an objection.
If the interest of the law is justice, then it shouldn't matter when an error is discovered. It also shouldn't matter that some company has made an investment in a particular technology based on the belief that their patent is good.
If you didn't think of it first, you shouldn't get a monopoly on it, ever.
sigs, as if you care.
or six months after a legal notice alleging infringement is sent out.
So if I decide to challenge someone in court after the 9 months are up, anyone can choose to try to kill the patent for the next 6 months. Basically, as long as I don't try to sue anyone, the patent would be able to stand after that 6 months. As soon as I try to sue someone (which is what we really care about) there are 6 months for someone to initiate proceedings against the patent every time I try to sue.
Fly me to the moon Let me sing among those stars Let me see what spring is like On jupiter and mars
I don't see it far fetched if small to midsized IT companies formed an organization to keep a eye on the patent office.
Remember folks, slashdot doesn't have a -1 "disagree" moderation!
No, sweeping would be no patents at all, not just no software patents, no patents at all!
I think software patents must go NOW because they simply won't work in the information age, but lets make no mistake about it. All patnet monopolies are evil.
Consider for instance the way that large pharmacutical industries acted when they sued African countries in the world court for attempting to make generic AIDS drugs.
If I said (like them) that I have no incentive to make AIDS drugs without owning patents, and I said like them that I was kind with charitable programs to the Africans - how is that really any different than saying "I have no incentive to grow cotton without slaves on the plantation, and I am kind to my niggers"?
Don't worry. After heavy pressure, the pharmacuticals dropped the lawsuit and got the US govt to buy 13 billion of patented ADIS medications for Africa at the taxpayers expense instead.
It's called USPTO, and it is loosely based on Magic the Gathering. I for one got a bad manna shuffle.
...
"Ah, more zealotry. The entire planet is first-to-file EXCEPT the US,"
Not true, the entire planet is first to file ONLY IF THE INVENTION IS NOT DISCLOSED BEFOREHAND. The USA on the other hand doesn't require you to keep the invention secret before filing.
European company X invents something but discloses it.
American patent scam company Y comes along and patents it in the US.
The only thing preventing this now is that American company Y has to be able to show they are the first to invent it, and anyone can point to the European companies product as prior art.
This would remove that obstacle permitting non inventors to receive patents for things they didn't invent.
This is my concern with this reform. The prior art search and requirement under section 102 seems that it would be pointless. If I am the first to file something, EVEN though I didn't invent it first, what the hell is the point of even doing a prior art search. There is none. This will, as it seems on its face, not only change who can receive the patent, but also change a large chunk of the MPEP (Manual of Patent Examiner Procedures) which dictates how patents are to be researched before being issued. What this will effectively do is limit prior art ONLY to issued patents. If it is not an issued patent, even if it has been published, disclosed, or even in a pending status, it will not prevent someone from filing. Finally, provisional applications would be useless now as well because provisionals are used to hold a date. I believe (not 100% sure) that provisionals are published. If that is the case, any company with oodles of cash could rummage through provisional apps which are actually filed yet, file them, and screw whoever filed the provisional. All in all, it seems as if this bill is more sweeping then they allude to. This could change much more than opposition requests and who can file, but also the way patents are examined.
"You mean that Europe does not check who invented something first before awarding a patent for it?"
Before the patent officers started screwing around with patents it worked like:
1. You have to keep your invention secret. (NDAs etc.)
2. You have to be the first to file for the patent.
3. If the invention has already been disclosed it cannot be patented, even if you can show you are the inventor.
4. If you don't patent it promptly you can't patent it.
However, I do agree that the first to file system is a bad idea. The rest of the world (that is, just about every other country) does not.
Laws affecting technology will always be bad until enough techies become lawyers.
"unless they modified 35 USC 102(f), which requires the applicant to, in fact, be the inventor of the subject matter for which the patent is sought."
European company invents "Magic wheel 2000".
US patent scam company comes later to patent office with "Wonder wheel 3000", which they simply designed by looking at Magic Wheel 2000, understanding how it worked and writing a patent.
You have no way of telling that they are NOT the inventor, because you could never know if they read up on the "Magic Wheel 2000" before time. You cannot read minds.
At the moment you have a crude test, the "Invention date", if they can show they invented it first, then they could not have simply copied the Magic Wheel 2000 because time flows forward.
You are about to remove the only test (and it is a piss poor test at that) that the person is the inventor.
"Why not forever?" I can imagine one malicious scenario that could be exploited with a challenge-at-any-time system (check my logic and let me know if I messed up):
Under a time-limited system where a patent wasn't being actively litigated, this couldn't happen.
Note also that the provision that allows for a challenge after the patent holder litigates makes it possible to challenge a patent after the initial 9 month window for any patent that is being actively enforced.
(So, this concept doesn't seem bad to me, but that doesn't mean I like the bill as a whole -- it's soundling like it tips the balance too far in favor of big corporations.)
..wayne..
Did you even read what I wrote? I said software should be protected by copyright not by patent. Your argument about OS copying was about copying the OS *whole cloth*, not about copying bits and pieces and using algorithms. That's protected under copyright not patent. Talk all you want about open source and Linux, but a hobby project that's grabbed a whopping .7% of the desktop OS marketplace isn't exactly what I call "a giant success". Those lawsuits were about people literally stealing/reverse engineering the operating system, rebranding it and selling it as their own product. I know -- I was already working in the industry back then. They'd take 20 man years of someone else's work, and 15 minutes later they'd be selling their own CASH-DOS for $5 less than Micro$oft. Sorry, but no matter how much you hate Bill Gates, that's still theft, and those lawsuits were about fixing copyright law to close the software loopholes, not patent law.
I think software patents are bullshit. How can you patent a shadow casting algorithm based on a text description of it? You can *copyright* specific code, but the algorithm itself is too intangible to be patented. You can patent a hammer, but not how you swing it.
On the other hand, solid, mechanical or chemical devices don't fall into this category. They represent real cash outlay to devise and develop. This costs money. If it didn't there would be "Open Source Cars" on the road right now, and "Open Source Microwave Ovens" in the kitchen that you walk into the "Open Source Store" and pull off the shelf for free.
If anyone has a premise that's broken, it's you.
And as for R&D costs, I happen to know people who work at pharmaceutical companies, and my sister-in-law works at 3M (another big R&D firm). It's not unusual for 3M to spend $10 million to develop a new type of adhesive that's "just a little stickier" then their current one. Research is *DAMNED* expensive. Drug research is doubly so, because you are looking at a 7-15 *YEAR* cycle of testing through the FDA. Fast-tracked drugs might cut that down to 3-5 *YEARS*. That's time where your R&D is complete, all the money is spent, and you can't make a penny of profit, because you can't sell a thing. *NOR SHOULD YOU* as the drug has not proven to be safe. At the end of a cycle of R&D, Testing, Studies, Review, Testing, and finally Marketing (and yes, marketing is part of drugs in the modern market. It's part of every other market, why are Pharmas *evil* for daring to market?) the costs can *easily* be in the Billions of dollars.
You cite insulin as a drug "discovered by accident". Well, if you consider "by accident" as 5 years of lab work, 10 years of refinement and testing, and hundreds of man-years in the succeeding decades to improve, perfect, and synthesize the drug as "an accident" then you're right. Read about how insulin was discovered. Yes, the "lab assistant" found the insulin link "by accident" (in a controlled study with hundreds of tests, etc., etc.), but it's not like they were selling it over the counter the following Tuesday. So, you want to call bullshit, I call bullshit on you.
I've watched the patent process first hand when my dad developed a (we'll call it a widget, since it's for a very specialized and technical field) widget. He designed it, developed prototypes, tested it, showed it worked, put the protoypes into the hands of the industry experts in order to improve it, perfect it, and finally, after spending about $250,000 of his own money, he went on to patent it. He was able to negotiate with an industry company to manufacture and use the widget, but unfortunately passed away (from cancer) before he could make one red cent of profit from it. The company has since started manufacturing the widget without owning the patent and my mother (who now owns the patent) has started the process to sue them for patent infringement.
Explain how that makes my dad or mom evil?
Life, the Universe, and Everything... in my image.
From what the /. write-up says, this sounds good (well, except for Microsoft backing it, that worries me), but what about reforming/fixing copyright? There's just no need nor justification for copyrights lasting as long as they do, nor for the things the DMCA does to people who just want to watch movies how they want to, not how the media corporations want them to.
All I know about Bush is I had a good job when Clinton was president.