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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"
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?
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???
No, just with one click.
Analogies don't equal equalities, they are merely somewhat analogous.
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.
See Cringely's take from last week.
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.
(and heavily criticized) here.
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
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.
OH SHIT OH SHIT OH SHIT...EJECT! EJECT!
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.
Besides, in about an hour is Lensecrafters, isn't it?
... then again, I'm nearsighted and myopic.
(Oh who didn't see that one coming...)
Not me
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.
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.
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."
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.
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.)
Only on /. would a someone say a country is being "left out in the code"!
Similar to the upcoming US election results
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:
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.
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.
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
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.
'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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