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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.'"
So, this means Amazon.com can get their patents in about an hour, huh?
So if you can't afford $30,000 in patent and lawyer fees, you bette not bother coming up with any ideas?
And even if you do, your lawyer better handle it faster than the lawyer for a multi-billion dollar multi-national with 100,000 employees and more resources than most nations?
Yeah. This totally seems fair and entirely within the spirit intended by the originators of the system. *cough*
I like the idea in general, but there are some things that need addressing:
1) How will the system handle cases where an idea is stolen from an employee by a corporation or by another party?
2) Because of the implementation of method patents, how will the USPTO handle prior art for business or coding methods?
3) Will the bill also put the USPTO fees in a lockbox to stop patent examiner losses?
4) What little abuses and other nastiness is hidden within the bill?
if some of thoughs pass, do you think other countrys will honor the patent if it was proven someone else created it before hand? just they didn't happen to have the $30,000 to file the patent on it yet.
It appears that with the new rules, it may be essential to at least attempt to patent every new idea because if the competition files first, then your "invent first" defense may not work anymore. I wonder how that conflicts with other free trade rules. At least this is good for companies that are throwing thousands of patents at the patent office. I guess they are going to get their moines worth.
Flamebait? It's true. The US Tax Code is a steaming pile of crap because every few years or so, someone runs for re-election and gets a hardon for fucking with it to fool idiots into voting for them and even stupider idiots into forking over campaign dollars. Hell, if the megacorps and the guys who are saving for their 50th rolls royce just convinced the bastards in office to quit playing with the tax laws like they play with themselves, they might even save money on not having to hire fleets of tax lawyers and accountants.
You can bet when this bill is said and done and gone through all the layers of bullshit and amendments said bills go through, we'll have some totally random bullshit in it's place, like say "technological" patents will stay in force for 50 years (after all patents cause invention, so a 50 year long patent must create a lot of inventions!)... of course, "technological" won't be defined, so when the patents should expire there'll be a whole shitstorm of lawsuits over whether a given patent was "techy" enough for the long view.
Hmm, yes.. This will probably do WONDERS for this "prior art" thing I keep hearing so much about, if those with the prior art don't file a patent. So much for prior art, I guess.
Really, I mean this as an honest-to-goodness suggestion, not as flaimbait. Of course it will never happen, but spend a few minutes thinking about it, for a real SANITY check.
For starters: The patent system was supposed to originally protect the individual inventor. Those days are LONG past!
Anyone who thinks that the lack of a patent system would mean no more viable businesses is simply not applying their imagination. It would truly create an even playing field. YES businesses would need to change, but that does not mean that there would be no more drugs, or software, or whatever your version of "the sky would fall" is. All of these things would continue but the WAY they would continue would be completely different. For me I would like access to practically free prescription drugs.
Unfortunately, most who read this "crazy idea" will not "get it", but I'm putting it out there anyway.
Visual IRC: Fast. Powerful. Free.
I think that the idea of the open source community owning enough patents to scare the the big guys is a good one and seems to be the basis of this plan:
e nsource/0,3800004943,39151281,00.htm
http://www.silicon.com/research/specialreports/op
If MS and all others are clear that filing a patent suit against and FOSS project will result in 10 claims against them for infringment of patents owned by the community it will stop this nonsense. Realistically, almost any FOSS project can manage at least one patent of at least the quality of most of the recent filings, so let's get off the stick an file them. It's not selling your soul, it's just making sure that the system collapses sooner rather than later.
Patents are supposed to encourage innovation, but they are now used mostly in negative ways to block and control innovation.
Wrong. Patents were supposed to encourage disclosure of innovation so that others can build on it. A blanket "encourage innovation" idea has been used to argue that it should provide control for people to make a lot of money which was not the goal.
LedgerSMB: Open source Accounting/ERP
Want to fix? Start here.
1) Patents should have no predetermined time limit.
2) PTO operations must be conducted independent of PTO financials. PTO must be publically funded, but can be derived from private sources (see 3).
3) All patents are given value according a publically traded exchange. If value falls belows a minimum for an extended period patent is automatically public domained.
4) Majority election by patent share holders reserve the right to public domain a patent at anytime. Once done can not be reversed.
5) Rigor in application of first-to-invent, prior art and diffentia; and limits on corporate ownership of employee's inventions (i.e. legal minimum of personal share ownership.)
:T:R:A:N:S:
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.
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.
It's just my opinion, but "first to file" looks like a good way to screw small inventors, of which I know quite a few.
Small inventors are already screwed under the current system; first to invent may help small inventors a little bit in a few cases, but it's a band aid on severed artery. In fact, you can bet that companies are already gaming the system with it, and that it's only going to get worse.
If we want to help small inventors (and I'm all for that, being one myself), we need to rethink fundamentally what we want patents to do and what we want patents to be. But a good first step is to make patent law more rational, and this bill seems to do that.
Let's have a think about a sample case.
I'm writing a game. Off and on. For the last five years I've been mulling through the ideas around characters in an RPG who have emotional reactions to things, and those reactions change their actions. Eventually they get back to normal, and their actions are unaffected by unusual or heightened emotional states.
My goal is to make a game with characters who behave more realistically, and who seem to have deeper lives.
That bit's all true. I'm so far from done it's not funny, but let's enter Hypothetical-World.
I decide one day (after a severe blow to the side of my head) that I want to patent my ideas on emotional-character interaction. They seem pretty unique to me, and I can't see why I shouldn't. After all, physics libraries are popping up (eg Havok), so why not an emotions library? I can see uses and all sorts of things. Maybe I can even make money! Maybe not though.
Let's take a chance.
To patent it, I have to spend lots of money. I can't afford that, so I need to either present my work to someone else (eg Electrogames Are-us, or 'EA' as I'll call them from here) and work for them, or develop it, licence it then patent it as quickly as possible.
Both options are risky, but I decide on a third route. I go to EA and show them what I've got. I say that I'll licence to them, thinking that with the money I get I'll be able to patent.
EA seem interested but decline the idea. I'm a bit stumped so I look into selling assets because I'm convinced this can be a success.
Six months later I go to file, but the concepts have just been patented by EA! I read the documents and see all my own work patented by someone else.
What are my options then?
Under first-to-invent I should be able to appeal. Under first-to-file I lose, and years of my own work are lost. I can't even continue working on them, because anything I release will then be a patent violation. Of course under the new laws I can force EA to licence to me, but then I'm paying to use my own ideas.
Back in the Real World (patent pending) I can see this happening more and more. In fact, a company can even file a bunch of speculative patents on software methods and then later on worry about developing them safe in the knowledge that no-one else can use those ideas.
Is this going to encourage good invention? Is this going to spread wealth more evenly than the present system? Are small businesses or individuals protected from predatory companies under the new laws?
Disclaimer: No patents were hurt or abused during the writing of this post. I believe that software patents can work, but only when we consider the vast array of prior work up to now, and when we also consider what an obvious method is. 'Electrogames Are-us' is wholly ficticious and any perceived similarities to existing companies is wholly your own issue. Read at your own risk. In fact, reading to the bottom of this statement legally transfers all your IP to the author. And your firstborn child, unless they're whiny little turds.
Whether "first to file" or "first to invent" is better is not exactly the problem as much as it is the wording of the "Prior-Art" section of TFA.
Because of the wording (ex: "the claimed invention was patented, described in a printed publication, or otherwise publicly known") you aren't really doing anymore than making bad patents more ironclad.
For example, if I were to invent a new type of object banking (for a distributed system, a decentralized version of something like CORBA... if that makes any sense to you) and then proceed to use it in an application, I would have to have either patented it first or published in some type of journal (ACM, IEEE, etc). Uh... problem there professor! Half of the "software patents" are just on things that the inventor never thought to patent. He may have been first but it seemed like an obvious thing. If you don't think that is the case, then ask yourself "How does Amazon have a patent on one click shopping?" Then some company [cough] Kodak [cough] (read the Sun case here) buys the patent and gets rights to my product (so I have to pay them).
This introduces a sort of stranglehold on innovation because I can't just make something, I have to wade through thousands of patents to see if one matches my idea, and if not, patent it! Due to the flexible nature of software design, software patents hurt innovation and ultimately the United States as a whole. I don't think they need to be abolished (software patents), but if you are going to offer them, you need to be sure that they are worth it! Perhaps that is the flaw of patent law in general, failed engineers who become patent lawyers miss the obvious differences...
Politicans are ruining the U.S:
I'll take first-to-file with one condition: if anything the patentholder claims infringes on their patent can be shown to have been described either to patentholder or in public prior to the patent's filing date, the patent's automatically invalidated. If the patent application disclosed the prior description, only the claims alleged to have been infringed are invalidated. If the patent application failed to disclose the prior description, it's considered evidence of bad faith and the patent's invalidated in it's entirety (but remains on the record and counts as description for purposes of other patents).
I'd also add a patent filter process. The end result (not the methods) described in the patent is presented to a randomly-selected half-dozen or so people competent in the field. They get 5 working days to come up with ways to achieve that end result. If any of them come up with the method described in the patent, without having seen the patent's description of the method, the patent is denied on the grounds of obviousness.
A lot has been said here and elsewhere about the idea of taking away the rights of "imaginary people" (aka Corporations) to own patents. I like this idea, but it also doesn't really work out (Those imaginary people are, after all, just slaves to the real people who own them!).
:-)
This got me to thinking about the number of real, honest to gosh inventors that get screwed by big Corporations. If you work for a Corporation, you typically sign away all of your rights to invented technologies to that corporation (at least, when they're invented on company time).
So here's an interesting proposal, and y'all can debate it at will:
* As stated, remove the ability for Corporations to hold patents.
* Allow individuals to file patents on things they've invented while working for a Corporation (don't flip out just yet, I'm not trying to screw the Corporations, either!).
* In exchange for the above right to file for the individual, they MUST assign perpetual, free-and-clear USE RIGHTS to the Corporation. These rights, however, are non-exclusive: the actual inventor of said technology may license the technology to anyone else he or she chooses, absent a specific signed contract stating otherwise. By law, the contract must specifically mention the patent number involved.
* Make it illegal for the above mentioned specific contract to be a condition of employment in any way, shape, or form.
The end result that I'm trying for here is simple: individuals invent things. The company can use them. But if the Company wants exclusive rights to the intellectual property that said individual developed, they must PAY FAIRLY FOR IT.
I think this would have the following effects:
* Eliminate corporate patent abuse, as they can no longer hold patents.
* Transform corporate IP litigation into much simpler Contract/License litigation.
* Compensate brilliant employees fairly for their work, thus better distributing wealth where it belongs.
There are (obviously) some potential issues with such a system that would have to be dealt with, but this is just my dinnertime brainstorm presented as text.
Have at it, flame me if you must.
--S
[reading this through, I wonder if maybe we just need to prevent corporations from FILING patents, and still allow them to OWN the patents. Then they can just purchase them from the actual inentor...]
-- sigs cause cancer.
Patents were supposed to encourage disclosure of innovation so that others can build on it.
Ummm... to build on something, you first need to use said something. But using it means infringing on the patent... which means building on it is either a losing proposition, or an impossibility... at least for 20 years.
Mind explaining what I'm missing here, please?
Patents were originally a means of rewarding favors by a despot. The despots used to take land from people who didn't have the power to resist the theft and give it to those people who did something for him. But once all the land had been given to his warlords he needed something else to give to these people. The idea of granting monopolies on the import or manufacture of stables such as salt then occured to one of these despots and the patent was born. Later when patents were choking the economy, the warlords banded together and forced the despot to limit their granting of patents to goods that were new to commerce and patent legislation was born. When the insurgency in the English colonies wrestled power away from the government and won their independence, the capitalist faction in the new power structure couldn't get patents eliminated completely but won the language in the U.S. constitution today. They believed by restricting patents to those things that would encourage innovation and limit the time a patent could be granted for it would eliminate the threat of patents to the free market. They were wrong, the 'encourage innovation' language has been considered so vague by the courts that they have left it up to the federal legislature to interpret the law. Of course this means that the law is completely meaningless. Combined with the high level of corruption in the U.S. legislative and executive branches this results in laws by and for the patent grantees; essentially the economic leaches are writing the law to maximize their ability to extract every last drop of blood from the productive industries.