Slashdot Mirror
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.'"
Just like the tax code.
First to file?!? So Microsoft and IBM are going to own everything that other people invent, who don't have the budget to patent?
Fucking assholes.
Here are some nice points at the end of the article, and my thoughts on each...
Changes the current "first to invent" standard to "first to file," which means patent rights go to the first inventor to file for a patent who can provide sufficient evidence for a claimed invention.
Biggest mistake, in my opinion. All of the patent infringement cases that I have heard of in the news as of late have not been by an inventor that has thought that another person had stolen his idea, but rather
by companies, with questionably vague patents, suing infringers, or rightful blatant patent infringement, usually perpetrated by larger companies.
Eliminates the subjective "best mode" requirement from 112 of the Patent Act, delineating objective criteria that an inventor must set forth in an application
This seems fine to me.
Imposes a duty of candor and good faith on parties to contested cases before the patent office, eliminating inequitable conduct as a defense of patent unenforceability.
Don't know what this means exactly. Kind of scary that you'd have to legislate "duty of candor and good faith though"
Reduces the scope of willful infringement by raising the standard of proof required, and limits the amount of damages a patentholder can collect from an infringer
Like any damage caps, this is good and bad. Good for the little guy getting sued by MegaCorp., terrible for the little company MegaCorp. is doing patent infringement on.
Limits patentees' ability to get injunctions, directing courts with jurisdiction over patent cases to stay an injunction pending an appeal if it finds that the stay neither will cause irreparable harm to the patent owner nor the balance of hardships from the stay favor the patent owner
Like the previous step, good and bad, like any legislative tool.
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
I don't understand this, why should there be continuation applications at all? New claims? New patent. Old patent should not expire earlier.
Establishes a new post-grant opposition system in the patent office
How does this work? Can anyone file to get a patent looked at? How does this lessen patent litigation?
Allows members of the public to introduce new information to the patent office up to six months after the date of publication of the patent application to challenge the patent and to provide a final quality check (10).
Might be good to allow this any time a patent litigation suit is brought. Avoids submarine patents.
All and all, it is good that Congress is looking into this, but I think some of their remedies here are dangerous, and also, that the article has it right.
More money for patent examiners, and not allocating money based on patent acceptance/rejection (thus giving them an incentive to accept all patents) would
be a better use of their time and money. Not to mention, more enforcement of things like "obviousness".
Rhymes that keep their secrets will unfold behind the clouds.There upon the rainbow is the answer to a neverending story
How about we just bring the patent system a little closer to SANITY instead?
We don't need lawyers to solve this problem, we need psychiatrists.
Muslim community leaders warn of backlash from tomorrow morning's terrorist attack.
They'll save us from 'litigation' by creating a new bureaucracy of patent dispute resolution within the executive branch.
Same story, bankrolled by the taxpayers instead of the corporations, with no juries, no appeals, and thus no risk for said corps.
"I assumed blithely that there were no elves out there in the darkness"
Five bucks says the unstated continuation of that reads '...to make the system work more efficiently and be less prone to litigation, on behalf of our benefactors and major contributors to our campaign coffers. With any luck at all, the proletariat won't make the connection.'
--
When we fear the .sigs, the .sigs have already won.
More importantly, will the changes be retroactive, thus throwing out the plethora of obvious patents we've seen recently???
I, for one, don't like the first-to-file system, because it is easy for something like the recent Apple/MS iTunes interface thing. Apple CLEARLY introduced it first, and yet MS has filed for a patent. I wonder, if a case like this went before the Supreme Court, would they say that Apple had the right to the patent after all?
That would suck, some person working for years on a new device, only for someone to learn about it and file a patent first and get away with it.
We should be tackling the real issue, which is allowing patents for "a method to put numbers in a box" and the like. Obvious patents should not only not be granted, but if it's blatantly obvious, they should be fined or at the least admonished for wasting time and resources on it.
(also negative) here.
In short, the bill is bad. It reflects the worst kind of special interest law-making that hurts us all. And I mean REALLY hurts us because it will only act to discourage inventors. Record and movie companies beating-up on music and film pirates don't save or cost lives, but discouraging new medical inventions literally does cost lives.
Quattuor res in hoc mundo sanctae sunt: libri, liberi, libertas et liberalitas.
... Patent Reform Act of 2005, HR 2795 is supposed to make the system work 'more efficiently' and be 'less prone to litigation.'
Since a patent is nothing more than a license to sue, making the system "work 'more efficiently'" implies making it MORE "prone to litigation".
IMHO if they want to "harmonize" it with the rest of the world's systems, they should start by making both business methods and software unpatentable.
We also need a rule: A program which simply automates or simulates a well-known process (absent something truly novel and innovative about the WAY it automates that well-known process) should fail the test of being novel and innovative. Straightforward automation and simulation are techniques "Well known to people versed in the art" (of computer programming).
Bantam Dominique roosters crow a four-note song. Once you've heard it as "Happy BIRTHday" you can't NOT hear it that way
That's nice. How do you expect drug companies to survive when it costs about $1 billion to develop a new drug?
Maybe the current patents last too long. But no patents at all will destroy private research. That's a bad thing.
LOAD "SIG",8,1
Abolish the patent system altogether. The only ones that lose are lawyers and patent trolls.
Patents aren't supposed to be blanket rights to your invention. The constution is quite clear about it. The section that authorizes congress to create things like patents reads: "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;"
The real key there is "To promote the progress of". The whole reason they are allowed to make IP law is to promote science and the arts to progress. The reasoning being, we are a capatalism, and so there needs to be a profit motive. For that, you can't have people simply copying your work at no charge.
However the other end of that is an obligation for you to make your work available. To simply use it as a tool to keep your work for yourself isn't helping progress.
That's one of the things that annoys me about many people (including many politicians) is they seem to think the constution is some quaint little document to be ignored when they don't like what it says. No dammit, it's the supreme law of the land, the one to which all others must subordinate. Well, often powers that are deligated are done with limits. It doesn't say congress has the right to establish laws to give people unlimited rights to their IP, it says they can give them rights for limited times, and only those such as to promote the progress of the arts and sciences.
Personally I'd like to see a use-it-or-lose-it clause for patents. That if you file a patent you are obligate within a reasonable amount of time, say a year, to either bring a product to market that uses the patent, or license it out to those that want to. You can't just patent something and sit on it, hoping someone else will make something and then try to sandbag them when they do.
I'd also like to see it changed to you have to enforce your patent, or you lose it, like a trademark. So if someone brings a product to makrket that you should reasonably be aware of (meaning it's not like only sold in one small store or something) you are obligated to enforce your patent. You cannot wait until they have a huge established market, and then attempt to extort them. You have to be up front about it, or you lose the patent.
For starters: The patent system was supposed to originally protect the individual inventor. Those days are LONG past!
Bullpuckey. Plenty of individual inventors get patents today. My brother-in-law patented a new type of bow fishing system and collects royalties on it. Without patents forget it.
that does not mean that there would be no more drugs...
The answer to your question is simple if you go back into history, or look at how non-patentable ideas are protected today. Trade secrets and licensing would rule the day. This would generate far more litigation than the current patent system, plus restrict the flow of information because no industrial researcher would ever be able to publish again. With patents you have protection if you publish, without the only answer is a black hole of secrecy.
Patents were instituted just before the start of the industrial revolution, and a case can be made that it was cause and effect; patents made it profitable for inventors get funding to market technological innovations.
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.
Considering all the wisecracks around here about how the USPTO will grant a patent on just about anything, I'm surprised I find myself having to say this, but: You can easily get a patent without an intellectual property lawyer. There are books about how to do it ranging from lawschool texts to "for Dummies" level material. If you can afford the stamps and the filing fee and you're willing to take the time and cozy up to your legalese dictionary and go back and forth with edits at the examiner's whim, you can obtain a patent.
The only thing an IP lawyer can do that you can't is reference off the top of their head what patent case law exists that means you should word your patent one way and not the other for maximum protection.
Ok, lets allow people to file patents on stuff that already exist then extort money from the true innovator.
God spoke to me.
This is BS - first to file means the innovators of the future will be patent secretaries who'll file vague claims to for a litigation friendly future.
I'm for going further away from standard "world practice" and going back to the 19th century Patent Office where you have to provide a working model along with the application. How it used to be. No more BS-ridden unreadable application that want to change your paradigm of life by synergized the future. Just cold hard proof of either a new idea or not.
Why don't they just say "first to publish"? It'd really suck 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.
OK, I'm going to give this post one and only one follow-up, after that tear me to shreds at your leisure.
I'm going to deal with the drug issue first:
- Firstly: please try to be imaginative, here's a way to try to frame this experiment: Imaging a world without printed or minted money,credit cards, or any type of wealth proxy. I am not proposing this, I am simply trying to get to to engage the exercise. If you could IMAGINE such a world then you could probably IMAGINE a world without patents. If you cannot, then feel free to ignore my post.
-Secondly: In response to the "where would the money come from?" types of questions: I'm going to first answer this by general principle then I will try to offer a possibility (that will be shot down in flames, I agree, but at least I'm TRYING to be IMAGINATIVE, what the ACTUAL solution would be I probably cannot predict).
The economy is like any Eco system in that vacuums get filled. The vacuum would be the empty space in the economy from the collapse of the "intellectual property" hoarders known as pharmaceutical companies of TODAY. By removing the patent system as a crutch for modern business would not eliminate the demand for the products produced by these companies only the means that they employ to make their money.
I never said, and will never say, that the elimination of the patent system will preserve things as they are, they won't, they can't. Personally I would like to shake things up, hence the proposition.
What would emerge in the new environment would be new ways to get the drugs developed. Does that mean that every chemist currently employed by pharmaceutical companies would transition into this (what ever it is) new way? No, certainly not. But because the demand would still exist for health drugs the demand will be filled, that is almost a certainty.
There will be a new breed of business person capable to being profitable in such an environment. The nice thing is without patents (legal short-term monopolies) there will likely be many such persons.
So here's a W.A.G. about how this could be done:
Let's start with the sellers of drugs: I could envision a collaborative effort on the part of drug sellers (pharmacies) to contribute some amount of monies (dues) to a fund that underwrites the development of new products for them to sell. A portion of the monies go to existing research projects at universities and a portion goes to independent researchers in the form of grants. When promising drugs emerge a portion of the pool funding would go to "bringing the product to market" meaning two things:
1. Funding the clinical trials portion of the research.
2. the development of cost-effective/high quality and large-scale production of the drug.
Now there are questions about how this pool gets administered: Since ultimately the general populace would be the consumer I would suggest regional boards of elected folks for that would manage the allocation of grants. Elected I mean elected by the general population. With term-limits subject to external audits, etc.
This vision is incomplete, in this response only, but I do have more pieces of the puzzle filled in.
The basic principle is this: we can actually live, yes I do mean live, even thrive in a world without patent protection. But is requires political will and an understanding that it can, in fact, work.
>>OK, onto "Bullpuckey"
One anecdote don't a trend make. Yes, I know a few people with "personal" patents as well, but such evidence is trivial. The vast majority of patent holding is with corporate entities and holding companies.
>>RE: "Trade secrets" they go as well. Open up everything. Complete transparency. I prefer to know thins than not to know them. I would argue that in a world where you can not sue because of "trade secret" or "patent infringement" is a world where we know more in general.
>> "Patents were instituted just before the start of the industrial revolutio
my question would be: what took them so long?
Maybe they didn't *WANT* to pay money for disclosing it? Maybe they decided that it wasn't really patentable, and that it would be dishonest to try to patent it.
The mistake in your logic is that you believe that everybody who invents something is going to want to file a patent, and that everybody who files a patent has something that's honestly innovative (think about Amazon's "one click" BS.)
Now, as for "first to invent", that's just bad policy. The patent system is supposed to encourage disclosure of inventions; if you don't disclose, you shouldn't get patent protection. But "first to invent" lets people sit on their ideas without disclosing them, and then sue people who actually went through the trouble of getting a patent. That just plain sucks.
If you have something you've invented do you have the $10,000 or whatever it takes to file for a patent? What if you don't have the money to file? Or what if you've been working on something for years to get all the bugs out before you patent only to find someone else beat you to it by days, weeks, or months? Look at Philo T. Farnsworth and RCA.
FalconShould there be a Law?
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.
Given iPods were shipping and easily accessable before the application, Apple basically "published" the invention. So prior art still stands.
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.
The flip side is arbitrating who invented something first, which is much messier. Imagine having to sift through emails, notes, and various other paperwork and trying to figure out when the invention was actually made. You can invent something and not have a final design. So then you're trying to arbitrate where in the evolution of the invention it actually had some or all of the parts covered in the patent application that are being infringed upon by the other invention.
D6 63 0D 70 89 81 BB 8E 7B 7C 5F 5D 54 EA AB 73
That is the main problem of any opposition against an excess of "rights management" laws.
The lobbyists from globalistic large corporations are seen as respectable persons that represent economic wealth and growth. The representatives of small companies and citizens, who are against such a system, are seen as activists and idealists whose voice you should hear but not necessarily take serious.
There has been a victory in the case of european software patents, but no doubt they will be back. Lobbying in the individual member states and also finding a new way to enforce their ideas upon the european parliament.
In the long run, there is no way "we" can keep defeating those who have the money on their side. Governments are not very much interested in civilian rights and the wellbeing of small businesses, that has been shown over and over again. Politicians cannot please everyone, and they more like to please those that bring the economic growth they are accounted for, and their next job after their political career is over, than they like to please the 4-man company or the man in the street.
Cringely: "Of course, much of the rest of the world also ignores or gleefully violates patent law."
You: "First of all, "the rest of the world" has had strong patent protection a lot longer than the US; US companies were infamous for flaunting patents."
It appears that the uninformed, arrogant flaming is yours. Cringely's comment is absolutely correct. "Much of the rest of the world" does EXACTLY what he said, as he said.
If you had simply added that there were countries that had had strong patent protection longer than the US, that would have been correct and even informative (to some).
But that wouldn't have contradicted Cringely at all, much less proven his ignorance or arrogance. Nor would it have had the tone of anti-US moral outrage that seems to matter to some people more than factual correctness.
So to get the outrage part right, you spout off that the rest of the world had strong patent protection before the US? "The rest of the world" in your claim either refers to all of the rest of the world, or some of it.
If it means all, it's wrong. If it means some, then it doesn't contradict Cringely, who was talking about the rest. (He was also referring to the present, not the past.) I think it's meant to *sound* as though it means all to meet the requirements of expressing outrage at Americans ("all of the rest of the world is better than the US"), while still giving you room to retreat to the some meaning if challenged ("Some of Europe had it, and Europe is in the rest of the world, therefore the rest of the world had it.") Yeah, some did, and much of the rest of the world still doesn't, which is exactly what Cringely said.
And your comment that "US companies WERE infamous for flaunting patents" is true but irrelevant. The US WAS infamous for slavery, too. Both were generations ago. But Cringely's sentences that you quote are in the present tense. To counter, your rebuttal would have to be about the present, too. It's not--that would be obviously incorrect--so you make do with a critcism of the past and hope no one will notice.
So, since you can't actually contradict him without being obviously wrong, but you have a need to make a show of indignant outrage at the US, you do the best you can, right?
Who's the ignorant, arrogant flamer?
"Those who have never entered upon scientific pursuits know not a tithe of the poetry by which they are surrounded."
US Constitution, Article I, Section 8 Clause 8: [The Congress shall have Power] To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries; It seems to me that if the 1st guy to file is the inventor leagaly you are protecting the inventor. But in reality you are robbing the true inventor of the right to use his own ideas simply because he didn't have a good lawyer. This is an obvious step toward big business and away from small time inventor. From reading the empowering clause in the constitution I imagine the Supreme Court would rule any law as unconstitutional that robbed the true inventor. IMHO: The US Patent and Trademark office is no longer used to promote the progress of science and useful arts. Instead it is used to restrict the use of a particular science or useful art. Somewhere along the line the inventor's and authors stopped getting the lion's share of the rewards. Those rewards are now eaten by large corps and lawyer gangs. I'm not sure how you fix this problem but I do know the 1st person to say "I got Dibs!" is not a valid legal stance.
q[Both companies will still go on profitting well enough to continue existing for a very long time, look at Pepsi and Coca Cola (and all the other generic Cola makes).]q
Oh, I didn't know that it cost Coke a cool billion plus to make a new drink, or even reformulate one of their current ones. Taste testing isn't exactly the same thing as multi-tiered drug testing with controls. If Coke's scientists guess wrong, people end up with a bad taste in their mouth. If a drug company's scientists guess wrong people can end up dead. Coke doesn't really have to worry about interactions with other foods (not even pop rocks, since that's an urban legend). Drug companies most certainly do have to worry about potential interactions with other medications that may be taken at the same time.
Is there a large amount of overhead in the FDA drug testing process? Sure. But there's also a huge risk here, especially as we get more and more advanced medications. The countries that don't have their own drug testing get away with it because they rely upon the US/Canada, Western Europe, etc. who do extensive testing.
And, frankly, I don't want people self-diagnosing and treating. I don't want people to be buying things like antibiotics OTC. All it will lead to is a sharp increase in the AB-resistant infections -- and those are already becoming a problem under the current system.
What we have now may not be perfect, but it's a helluva lot better than the anarchy that many people here are suggesting.
Isn't that just a little too much info? I think we would have gotten the picture without the bulb and the tube. Thanks for the bad image.
'more efficiently' => 'patents go through even faster and cheaper, now with less review!'
'less prone to litigation' => 'no one can sue over ridiculous patents anymore'.
Maybe I'm just a pessimist; I can only hope I'm not a realist; does that make me an optimist?
Nathan's blog
Yeah, any sophomore chemistry student can "reverse engineer" a drug. I imagine it never occured to them how generics are made?
The naivete of these people absolutely astounds me. Matched only by the certainty that they actually know what they're talking about.