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."

Comments

Be suspicious

[Anonymous Coward]

"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?

Re:Be suspicious

[Wm_K]

I don't think Microsoft likes the current patent law very much either. They get sued a gazillion times a year by small companies for patent infringement. Only yesterday they lost a patent case against some guy from Guatemala for a pretty trivial invention, it costed them 9 million dollar. Peanuts for Microsoft probably. But it adds up if you get such a lawsuit every week. Especially like the Eolas where they were ordered to pay 500 million for yet another trivial patent. Microsoft it taking part in this patent game themself of course. But it would be stupid for them not to. They're a company that wants to make as much profit as possible and with the current patent law they're probably losing more money than making it so they would like to see a change in the law.

Re:Be suspicious

[malkavian]

The problem MS has with this, is that software patents have been so badly screwed, that people have taken out all kinds of obvious and trivial patents, hoping to screw someone out of some money by holding them up in courts.

Having the ability to challenge the patent/get it closely examined is a step in the right direction.
MS, I think, are a little worried now, after having so many patent suits brought against them, that someone may well have a critical submarine patent that could apply to their core business tucked away somewhere.

Having it enshrined that you can actually challenge the patent before having the patent used to drain you dry could perhaps change the whole IP arena, and make the IP only hoarding companies much more expensive to maintain (no more fishing trips if they really have to pay for each patent they want to apply, and stand the chance of losing their cherished patent at the same time).

Yes, MS get to benefit from this. There again, so does the 'little guy'.
It may not cure all ills, but it stands a good deal more in the right direction.

The limit on time is a very good move also, as it prevents a 'big fish' from holding a valid patent holder in court forever and a day challenging their patent, and making it for all intents and purposes irrelevant.

9 months?

[yotto]

Why not forever? A bad patent doesn't instantly become a good one after it's been a patent for 9 months.

well...

[hamburger lady]

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.

Re:Peer Review - Solution

[Chibi Merrow]

So you let 100 peers decide--with a government sanction--who's allowed to compete with them? And once they've denied the patent, they turn around and implement the now non-patentable idea with a larger budget?

I think you need to look at the history of the Jeep.

How about 9 months after first challenge?

[jmichaelg]

My preference is for no software patents at all.

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.

No more patents for little guys.

[SSalvatore]

Big companies will be scrutinizing patents all the time and routinely file challenges against little guys when they feel that the patent might affect them.

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.

You want sweeping? I got sweeping!

[FunWithHeadlines]

""The bill will eliminate legal gamesmanship from the current system that rewards lawsuit abuses over creativity,"

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.

Re:Peer Review - Solution

[RationalRoot]

Hmmm, peer review.

I come up with a patent. It's gonna make a lot of money, much better way of doing X.

All the people who are doing X already get to decide if I get the Patent.

Am I the only one who sees a conflict of interest here.

And the possiblity of a Patent Cartel. If you're in the big five, we'll let you get a patent. If you're an independent inventor, then you have no chance. We the big five, will use our patents to keep competition out. And we get to decide who gets patents. Gimme some of that.

First to File

[ndansmith]

Provides that the right to a patent will be awarded to the first inventor to file for a patent who provides an adequate disclosure for a claimed invention; http://lamarsmith.house.gov/news.asp?FormMode=Deta il&ID=648

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.

Microsoft will challenge everything

[NigelJohnstone]

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!

This bill needs to be opposed

[cpt kangarooski]

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.

Re:This bill needs to be opposed

[cpt kangarooski]

No, not necessarily. Your invention isn't magically prior art -- it takes a little bit of work for it to be. You can see some of the conditions at 35 USC 102. Generally, it needs to be published, patented, or used, to be prior art.

But rest assured -- this bill will allow BigCompany to get a patent and keep you out, despite your having invented the widget before them. Right now, when there is a dispute about this sort of thing, the PTO has a process called an interference which determines who invented first. This would do away with all that. It's simple, but gets it wrong.

FUBAR

[Kirth]

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.

This is not the way to fix the patent system

[Anonymous Coward]

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

Read 2nd Part

[Ironsides]

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.