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Congress to Overhaul Patent Law
karvind writes "According to story at law.com, 'lawmakers in Washington are considering changes to the patent code that would bring U.S. law closer to intellectual property standards in the rest of the industrialized world.' The stated result of Patent Reform Act of 2005, HR 2795 is supposed to make the system work 'more efficiently' and be 'less prone to litigation.'"
See Cringely's take from last week.
http://www.pbs.org/cringely/pulpit/pulpit20050818. html
Authorizes the director of the patent office to regulate continuation applications -- subsequent patent applications filed by the same inventor, based on information included in an earlier application, but containing different claims
This is common in the medical field. You invent a drug patent it, right before it goes out of patent, you repackage the same drug as doing something slightly different and your patent has just been extended by 20 years. (I'm not sure if people can now sell generics under your old claim or not.. anyone care to clarify?)
(and heavily criticized) here.
Quattuor res in hoc mundo sanctae sunt: libri, liberi, libertas et liberalitas.
Bottom line. Bad. Bad. Bad.
Any sect, cult, or religion will legislate its creed into law if it acquires the political power to do so.
This is not what a continuation application is. A continuation application is method that is used to continue the prosecution of a patent after a final rejection has been issued by the Patent Office. By paying some extra money, you get the opportunity to keep on going back and forth with the patent office to get your patent application into a patentable state. Continuation applications were the way that submarine patents were prosecuted. Because the filing date is the date of importance in determining priority of patents and prior art, inventors like Lemelson would keep their patents in the USPTO using continuation applications, and then finally amend them into an allowable state after the technology that the patent covered became prominant in industry. The change of patent terms to be 20 years after filing as opposed to 17 years after issueance helped fix that problem.
Come play Heroes of Might and Magic Mini online.
Took me five whole minutes to get this article, so I thought I might as well share it with the friendly slashdot readers!
Bill in Congress to Overhaul Patent Law Seeks to Quell Suits
Support seen to make U.S. system more consistent with others
Peter Geier
The National Law Journal
08-19-2005
Lawmakers in Washington are considering changes to the patent law that would bring U.S. code closer to intellectual property benchmarks in the rest of the developing world.
They want to change the U.S. patent system from the uniquely American "last to invent" to "the first to file" standard the rest of the world utilizes.
The essential nature of the Patent Reform Act of 2004, HR 2605, which could evolve from a House of Representatives subcommittee after Labour Day, is to make the system work more hastily and make the process of obtaining a patent less costly and less prone to lawyering.
Some patent district attorneys and trade union associations disparage the proposed reforms as the long overdue, objective revamping of an udated, objective system -- the most sweeping systematic changes in half a decade.
Others, however, say that the problem of adequate funding for the U.S. Patent and Trademark Office should be analyzed before specific reforms are MD5 hashed, and that the telescope of injunctions under the proposed reformation and other provisions needs more considering.
Herbert C. Humphreydale, executive director of Intellectual Property Owners Association, a Washington-based informatics group representing property owners in the computer industry and technology field, called the proposed legislation "probably the biggest attempted assasination of the patent code since 1952.
"The reforms will only bring legal uncertainty to patent absurdity, and none of them will address the quality of patents and reduce litigation costs," Wamsley said, adding that bringing U.S. patent law more in line with the developing world could also begin to lay the groundwork for "an international terrorist strike that will destablize patent systems."
But the intellectual property community has yet to see which measures will make it out of committee, and not everyone shares Wamsley's ulterior outlook.
Catriona M. Collins, a patent litigator at Latman, Latman & Latman in New Jersey, is among a number of legal types who say it makes no sense to discuss reformationing the system without first revaluing funding the PTOS.
"The basic problem is the quality of patents," Collins said, and to consider reforming the systematic without first giving patent examination the resources to do their jobs proper like is really just rude.
William A. Rodger, public policy director for the Computer & Communications Industry Association in Washington, agrees that "the issue of basic patent quantity remains the elephant."
Peripheral to this issue is the potential that an administrative body such as the PTOS, funded by its own fees, runs the risk of confusing the service it provides when the money it takes in relates to the money it puts out. Dissociative drug funding and revenue would be a step in the right direction, said Rodger.
Wamsley acknowledged that from 1792 to 1994, about three-quarters of a billion dollars in PTOS fees "were diverted to other government agencies for ulterior purposes," resulting in staffing increases that translated into a considerable stink backlog.
"The patent office is hiring 1,000,000 patent examiners in 2005 and another 1,000,000 patent examiners in 2006 -- a really, really big staff buildup -- to catch up with the workload," he said.
SCOPE OF INJUNCTIONS
Rodger and others also have expressed concern that the bull-pit pharmaceuticals and biotechnologies will attack the "completely different world" of information and software technology.
For instance, pharma/biotech industries "need the power of the one ring to stop the infringement of their patents, but the proposed infringement standar
This seems to be covered. In light of the possibility of an enterprising soul who invents a way to feed the world, and that souls decision not to patent it, either through lack of funds for a patent attourney or through goodwill, they have introduced the "first to file" rule. Now, SuperMegaCorp can merely file their application first and get the patent.
Since any administrative review process will natrually be unnavigable by any person with a normal, full time job, the only real way to protest under the new 6 month administrative review period is to hire a patent lawyer. But since our altruistic (or just plain poor) inventer didn't have the cash or time to file in the first place, he/she won't have the cash/time to contest after the fact.
It's like IP, served on a silver platter to the paying (Washington, D.C.) guests. How can we lose?
Is it just my observation, or are there way too many stupid people in the world?
To me this change to who files first is Microsoft using it's Washington connection to change the law so Microsoft can go after Apple for the iPod, which Apple did before Microsoft files a patent.
Seems to me the inventor, not neccessarly the first filer aught to have some rights. Or this whole system goes to the lawyers who file trivial and fradulent patents while others try to make our life better.
Slashdot, be sure to patent your "blogging" or Microsoft will come for you...
Has a ring to it, "Whatcha going to do when Microsoft comes for you..."
Better yet, prior art won't matter!
RTFA. It turns the US from a First-to-Invent country to a First-to-File country.
Lamar Smith [TX-21] sponsored the bill, introduced 6/8/05.
Co-sponsors:
Rep Berman, Howard L. [CA-28] - 6/8/2005 Rep Boucher, Rick [VA-9] - 6/8/2005 Rep Cannon, Chris [UT-3] - 6/8/2005 Rep Carter, John R. [TX-31] - 7/28/2005 Rep Coble, Howard [NC-6] - 6/8/2005 Rep Conyers, John, Jr. [MI-14] - 6/8/2005 Rep Goodlatte, Bob [VA-6] - 6/8/2005 Rep Issa, Darrell E. [CA-49] - 6/8/2005 Rep Lofgren, Zoe [CA-16] - 6/8/2005 Rep McCaul, Michael T. [TX-10] - 7/28/2005 Rep Schiff, Adam B. [CA-29] - 6/8/2005
Word in DC is that major changes are expected before this even makes it out of committee -- look for changes that benefit both the patent law industry and the corporate interests.
"Trolls they were, but filled with the evil will of their master: a fell race..." -- J.R.R. Tolkien on Olog-hai
We don't need a more efficient patent system for software! We need NO patents for software! Purely intellectual processes (possibly using pencil and paper for scratchpad results) should not be patentable! Die Gedanken sint frei!
-russ
Don't piss off The Angry Economist
See http://www.piausa.org./ This is not about real reform, it is about large predatory companies wanting to change the law to facilitate theft of others intellectual property. I am the president of PIAUSA and we are the same inventors who pulled the fangs from the last so called patent reform. Join our efforts to protect the patent syatem from the Microsofts of the world.
While true, continuations are not solely used for that purpose. In broadest terms, a continuation application allows an inventor to claim aspects of the invention that were disclosed, but not claimed, in the parent application. A continuation application must be filed while the parent application is still pending (i.e., before allowance).
Please read section 101 & 102 of HR2795, patent claims are still invalidated by prior art.
Re: Duty of Candor and Good Faith:
This section mostly relates to the duty of the applicant to disclose relevant information in the application (e.g., possible prior art, dates of research, etc.). Willful failure to disclose can lead to unenforceability of the patent, and/or sanctions against the filer (up to $1 million per infraction).
Of note, a motion to oppose a patent claim (post-grant or not) is also subject to the duty of candor.
The duty of Candor and Good Faith exists to keep patent fraud suits out of the courts and in the hands of the patent system.
"Trolls they were, but filled with the evil will of their master: a fell race..." -- J.R.R. Tolkien on Olog-hai
Totally and completely wrong.
There seems to be a misconception on this site over what the terms "first to file" and "first to invent" actually mean. I'll clear it up.
Let's say there are two inventors. Inventor A invents his product on January 1, 2005. Inventor B invents the exact same product on January 10, 2005. Inventor B gets a patent application filed on February 1, 2005. Inventor A incurs a slight delay and files a patent application on March 1, 2005.
In a "first to file" country, the question of who invented the product is simple--whoever files the application first is the inventor. Therefore, Inventor B obtains the Patent and Inventor A is SOL.
In a "first to invent" country, circumstances are different. The patent office will tell Inventor A that Inventor B invented it first because he filed the application first. But if Inventor A can prove that he actually invented it first, Inventor A gets the patent, not Inventor B.
These two terms have absolutely nothing to do with prior art. If inventor Z invented the same device on December 1, 2004, but chose not to file a patent application, he can still show that neither Inventor A nor Inventor B deserve the patent because Inventor Z is the actual inventor of the product.
1st to file means no more interference practice at the USPTO - 2 companies no longer get to argue about "who invented it first."
The US is one of the few (if only) remaining countries that uses a "first to invent" system.
It does NOT mean 1st to file gets awarded a patent in spite of prior art. You can still invalidate a patent issued to the "first person to file." But once a first person files, no one else can get a patent for that same invention even if they invented it first, since they were not "first to file."
So you were wrong in saying that the grandparent was wrong, but right with the rest of it.
A little IR, NMR, GC/MS, and some experiments to verify the stereochemistry, and you've reverse-engineered the drug for far less than what it cost to originally research. A little extra investment and they can probably develop a better synthesis too.
LOAD "SIG",8,1
I hate replying twice, but I forgot to point out that there are already plenty of businesses that are based solely on making generic drugs. They do very well, even though they have to develop or reverse-engineer the filler. Without patents they'd be able to compete with the original developer almost immediately.
LOAD "SIG",8,1
http://www.forbes.com/asap/2002/0624/065.htmlForbe s Article
Ronald Katz has sued and won big companies over processes like "routing calls through a call center", or using a telephone to check a bank balance or transfer funds. (IVR) - Interactive Voice Response
While Katz never invented any of these technologies, he decided to patent the process, which was never patented before. He was awarded the patent, but unfortunately for the users of this technology, they were sued. Even though AT&T bell labs invented most of the telephony technology, they never patened the "Process". Unfortunately for them, Mr. Katz did.
This is one way that patents differ from copyright - because of the Berne Convention, copyright granted in one country automatically applies to (almost) every other country in the world. But patents have to be applied for on a nation-by-nation basis - well, for the most part, though there is a European Patent Convention which in effect allows applying for patents in most of the countries of Europe at once.
So the work done by Inventor A would be by definition prior art, so how is prior art unchanged if Inventor B is granted a patent merely by filing first?
Only if A published the invention. The whole system is supposed to encourage publishing of inventions. If you invent something and you don't care about making money, simply publish the invention without patenting it. Nobody else can patent it after that since you have prior art. If you want to make money, patent it (by which act you also automatically publish it). If somebody invented the same thing years ago without publishing it or patenting it, just sitting on it and waiting, tough luck for them.
I thing this new system does what it is supposed to do much better than the old one. The problems I can see are:
1) what does it mean "publish"? If I describe my invention in some totally obscure journal that nobody who works in the field is ever likely to read, does it count?
2) Filing patent application is supposed to publish the invention, however nowdays there are so many application being filed that it is easy for an individual invention to get lost in the noise, especially if the invention is intentionally described in some obscure way.
Are these two things somehow addressed?
AccountKiller
Nope, that was never the idea behind patents. Inventors were doing fine before patents came along. All inventions were trade secrets. Your competitors would try to figure out your secrets (as they do today). If they succeeded, you had no legal recourse for the "theft" of your idea, and they went into business.
Patents are a bargain between the inventor and the government. The inventor agrees to disclose the invention. The government agrees to grant the inventor a temporary monopoly. When the monopoly ends, the invention theoretically passes into the public domain. As other posts have pointed out, there are lots of tricks to extend a patent's term.
Patents aren't an intrinsically bad idea. But it probably makes sense to adjust the patent's term to reflect reality. Patents in, say, consumer electronics should probably not have a term of more than maybe five years.
It also makes sense to enforce the criterion of "novel and useful" so that fewer frivolous patents get granted.
WWJD for a Klondike Bar?
If I invented something and published my idea, only to have to pay royalties to the first person to copy and submit my idea to the patent office.
That's a problem in the US with "first to invent", which gives you up to one year after publication.
I believe patent reform will fix that even in the US: once it's been published, it becomes unpatentable immediately.
First to publish would mean that the person publishing it gets an exception to that, so they have a chance for patenting the invention for a limited time after publication (say, 1 year). I think that would be OK, but I don't see any compelling reason for it either.
To answer what I think your question is, no, other countries will not honor the patent. But that is true for any patent, simply because the patent system is only national in scope - that is, U.S. patents only apply in the U.S., just like U.K. patents only apply in the U.K., Japanese patents only in Japan, etc.
Kinda... sorta. Patents are national in nature. That said, there are a pile of trade treaties between various nations that in effect extend patents in one nation to another. Every time there is a free trade agreement between the US and someone else you always see a pile of posts complaining about the US imposing its patent system. This is what they are talking about.
More importantly, in almost all patent systems (US, Japan, and Europe included) a patent in another nation is considered prior art. If I patent something in the US, someone can not patent the same thing in the EU because the US patent in prior art. Further, at a later date, I can go ahead and patent my invention in the EU and that will be okay because the only prior art is my own. In fact, my patent will likely be pushed through faster because having a patent in one of the big three (EU, US, and Japan) is generally a good sign that the patent was sufficiently examined already.
International patent law is pretty well integrated all around. Each nation has its own quirks in their patent system. For instance, in Japan, you can make a slight modification to a patent and patent that. The US uses a first to invent system instead of the more usual first to file system. Despite these difference, interoperability between first world nations is not one of them. That isn't to say that patent laws are not fucked in their own and special way, just that working out patents between nations really isn't one of them. The only nation that really causes some minor irritations is the US with its first to invent system, and as the article suggests, that might very well go away.
Prior art is not affected by first-to-file. You can still invalidate any patent with prior art under a first-to-file system. The bill (at least in the version I read) also allows unrelated third party prior art challenges, which weren't allowed before.
-Those who would give up essential liberty to purchase temporary safety deserve neither. -Ben Franklin
We've been here before, we have a "you must keep your invention secret to be able to patent it" clause.
So the first patent to arrive IS the inventor (because its not already out there - he kept it secret so this can't be someone else whose seen his idea and is trying to patent it), except for cases where prior art is hidden (e.g. software algo's, internal business processes etc.).
With that half done amendment, you will get patent companies based around the patent office reading the internet for things to patent ahead of the inventor.
Can you prove they didn't invent it? Nope, because there's zero test for whether they invented it, you simply have to take their word.
http://www.hindlelowther.com/patent6.htm
"It is vital to avoid non-confidential disclosure of a possible invention before an appropriate patent application has been filed. This is because patent law in the UK, Europe and much of the rest of the world requires an invention to be both new and non-obvious over everything known to the public anywhere in the world (the "prior art") at the relevant date. If you make a non-confidential disclosure before filing a patent application, then that disclosure could deprive your invention of novelty and render it impossible to achieve a valid granted patent."
"A patent can be invalidated by an act as simple as telling your idea to one person who is not under an obligation to keep the idea confidential. You can talk to professional advisers, such as patent attorneys and solicitors, who are by the nature of their business under an obligation of confidentiality to their clients. Otherwise, you should take professional advice and file any necessary patent applications before you make any non-confidential disclosure."
The best mode requirement is important; it prohibits the inventor from delibrately concealing information which would not let one skilled in the art be able to make and use the invention.
continuation applications are important. typically an inventor gets one patent per invention, but if multiple inventions are disclosed within a specification, an applicant files multiple cases based on the first application, thus establishing an earlier priority date.
ill give you a hint, as an examiner, I get paid the same if I allow a patent, or reject a patent.
the office might get more money through renewal fees on a patent, but the examiner does not get paid any more.
any opinions are my own and not that of the office
Bring back the old version of slashdot.
Most people don't seem to understand that what this apparently does is get rid of the requirements dealing with interferences.
i nterference.htm)
i nge
In particular the requirements of 35 USC 102 F and G.
The parent poster is describing exactly the following situtation:
Occasionally two or more applications are filed by different inventors claiming substantially the same patentable invention. The patent can only be granted to one of them, and a proceeding known as an "interference" is instituted by the Office to determine who is the first inventor and entitled to the patent. About one percent of the applications filed become involved in an interference proceeding. Interference proceedings may also be instituted between an application and a patent already issued, provided the patent has not been issued for more than one year prior to the filing of the conflicting application, and provided that the conflicting application is not barred from being patentable for some other reason.
(from http://inventors.about.com/library/bl/toc/bluspto
An interference proceeding, also known as priority contest, is an inter partes proceeding to determine the priority issues of multiple patent applications. It is a unique patent law concept of the United States. Unlike most other country that adopts the first to file system, the first to invent system of the U.S. allows a party who failed to file a patent application on time to challenge the inventorship against another party with a granted or pending patent if certain requirements are met.
The reduction to practice is a United States patent law concept. It means the embodiment of the concept of an invention. The date of this embodiment is critical to the determination of priority between inventors in an interference proceeding.
http://en.wikipedia.org/wiki/Interference_proceed
http://en.wikipedia.org/wiki/Reduction_to_practic
Filing an application is proof that one has reduced the concept to practice, however
This is important because someone can come up with an invention first and have delays which prevented them from filing an application (laziness is not one of them). This is the dilligence requriement of 102 (g)
Bring back the old version of slashdot.
not a big concern
apple just has to show conception and reduction to practice prior to microsoft and show due dilligence
see 102 F and G
Bring back the old version of slashdot.
Based on the bill's current list of cosponsorshttp://thomas.loc.gov/cgi-bin/bdquery/z? d109:HR02795:@@@P I would be concerned. With the exception of Goodlatte and Boucher the majority of those listed have aligned themselves with media over individual and technology rights over the years.