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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?
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.
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.
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.
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