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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.'"
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.'
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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.
... 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
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.
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.
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.)
You forgot to mention the "otherwise publicly known". Supposed you had "one click shopping" on your page before Amazon. The idea is so trivial that every expert can see how it is implemented. This would probably get counted as "otherwise publicly known". If your invention was somewhat more substantial and you tried to hide it, say by obfuscating the web page source, and somebody else patented it later, you got what you deserved, IMHO.
I think this is olso good case for open source, because I am sure that having the source available with your software would count as making it "otherwise publicly known".
AccountKiller
'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?
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