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.'"

Comments

Comments on the article...

[nebaz]

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".

I've got a better idea....

[leereyno]

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.

Re:I've got a better idea....

[shanen]

It's not a matter of psychiatry. It's a matter of remembering the principles that are supposed to justify patents in the first place. Patents are supposed to encourage innovation, but they are now used mostly in negative ways to block and control innovation. The "positive" goal is merely to maximize corporate profits with a special kind of monopoly, and the legal powers have been increased and focused on that objective. These days many good and innovative ideas are actually blocked either because people are afraid of infringing upon someone else's patent or because the idea is discarded as insufficiently profitable because it doesn't include any patentable aspects (with the resulting monopoly profits).

Monopoly IP profits was never intended to be the primary goal of the patent system.

There is a natural tendency for powers to become increasingly concentrated and self-destructive. Fortunately, such power systems finally break down. Unfortunately, the breakdowns are often disruptive, and sometimes even violent.

Oh boy...

[benjamindees]

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.

Call me cynical

[Mille Mots]

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.'"

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.

Prior art?

[Pig Hogger]

Will this make the USPTO search more effectively for prior art????

More importantly, will the changes be retroactive, thus throwing out the plethora of obvious patents we've seen recently???

Re:Prior art?

[st0rmshad0w]

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.

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?

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.

Prior art, in effect, as things are (theoreticaly) currently.

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.

Sounds like they have everything to do with prior art, one of them negates it. In the "first to file" scenario you pose, Inventor B _STILL_ holds the patent simply by being first to file, despite prior art by both Inventor A, and now, Inventor Z.

Make it better?

[Trip Ericson]

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.

Oxymoron

[Ungrounded Lightning]

... 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).

Quite true

[Sycraft-fu]

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.

This sucks - write you congress critter

[rolfwind]

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.