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IEEE Proposes New Class of Patents
cheesedog writes "The IEEE Spectrum proposes a new type of patent that wouldn't require formal examination, would cost significantly less than traditional patents, would last only 4 years from date of first commercial product, and which wouldn't carry a presumption of validity. These 'limited patents' would be attractive to innovators in the fast-moving high-tech industry that can't wait 18-24 months for patent approval, and would help improve patent quality by populating the USPTO's prior-art database more efficiently. Additional commentary on this proposal is available."
... did they patent this new class of patents?
I can just imagine what it will be like when a patent dispute happens. We already have enough BS patents out there clogging up the patent office that slow them down, how is this going to help any? I agree that patents need to be granted more quickly, but is giving out patents without formal examination really the answer?
This is a very good idea. My current patent application was filed Jan '01 and is still being reviewed!
TimJowers
Expect Freedom.
So a 4-year patent just means you have to pay them 4 times, and then you have procured the patent for the approximage 17 years of a regular patent. Or, perhaps longer... assuming pressure from all the companies to whack this once it goes into effect, so that they can keep their patents for cheaper. Any patent system's original rules will be altered by pressure from the largest patent holders. What we need to have happen is to force accountability for patent fees, i.e. force some kind of license limit on the amount you can ream people for off of them.
stuff |
So all the people that have been submitting crap to the patent office that actually gets qualified as "valid", even if it isn't will have a field day patenting everything then? If the onus is on everybody else but the patent-holder to prove that it isn't valid, that kinda sucks.
-Jesse
Nothing says "unprofessional job" like wrinkles in your duct tape.
A fee? That sounds counter-productive to encouraging prior art submissions.
First, while you are in patent pending, you are protected.
Second, Patents are not expensive, paten lawyers are. You can file a patent as an individual for a few hundred dollars.
Third, a patent is a way of saying you had it first, but there are other ways.
Forth, This would be even more abused then the current system
The Kruger Dunning explains most post on
Check out http://www.shouldexist.org/. ShouldExist is a superb place to anti-patent ideas. I will not be surprised if a fair number of software patents being filed have been already mentioned on ShouldExist.
TimJowers
Expect Freedom.
As far as software is concerned, and perhaps some other idiotic types of IP (like copyright on the "appearance" of a building in a public location), is to ELIMINATE it. Their absence is what got us where we are, but for some reason, people feel like they have to squeeze every last bit of "value" from something that is often completely intangible. The only thing it's doing is slowing things down and increasing costs. I imagine that not too long from now, the "leaders" in the US government will be scratching something, wondering why the US continues to either lag behind, or give up ground to, other countries in important areas like science and technology. The current patent system has shackled and menacled our ability to remain agile, and I fear that we will pay dearly for that over the long term.
The current patent duration of 20 years was established in the prior revolution, the industrial revolution. It is way to long and benefits the major corporate holds the most. A patent in todays faster moving world should be short as is being proposed. That would reduced their importance and significance. Is an "innovative" idea like one click shopping significant enough to lock up for 20 years? I don't think so. The whole idea behing the duration is to to help an inventor recover the cost of an invention and capitalize on it. Today's entrepreneurs can recover an investment much more quickly than in the past.
[Fuck Beta]
o0t!
First off, a better view of the article(plaintext, one page).
What the submitter failed to mention is that the patent claim is validated only when the patent owner attempts to sue an alleged infringer of that patent. FTFA: "Should the patent owner try to sue an alleged infringer, an examination for novelty would be the initial step in any litigation." And goes on to claim that this is better because the alleged violator will have to provide prior art to invalidate the patent.
This seems to increase the amount of time developers will have to spend in courts, attacking and defending, while reducing the burden on the patent office. Less chance of mistakes, but probably not a viable option for smaller developers without the resources to spend on litigation.
Also, the other linked article claims that "Novelty could be challenged at any point by someone submitting prior art and paying a small fee." Anyone have any idea where this information comes from?
StrayByte.Net
Microsoft and its lackeys did tons of lobbying to get this done... just a guess. *Less* technical review for software patents? That's the worst idea I've heard in years. Most patent reviewers for IT patents are already approving the most ridiculous things... (before I get flamed, by all means, put the word "patent" into a search here for /. stories)
Ex nihilo nihil fit.
"would last only 4 years from date of first commercial product"
i ndex.html#whatpat
This part I can buy, and I would go further and change the entire patent system to limit to 4 years on ALL patents from date of first commercial product. After all, the original objective of the patent system was to advance science, industry, etc. in the United States, it was not intended as a means of leeching cash from a productive industry or building monopolies. Shorter terms would force the hand of patent holders to put up or shut up.
I would also implement stricter rules on acceptance of patents. Today we hear over and over the excuse that lame patents are accepted because the office is overworked. I've read the rules on the uspto.gov website and several of the questionable patents that have been in the news and from what I've seen every one of them should have been rejected in the first 5 minutes of reading the abstract and claims.
The rules are simple and most patents don't pass muster. The patent office should be pushing back on those who file patents to submit applications which easily pass the initial tests:
"The patent law specifies that the subject matter must be "useful." The term "useful" in this connection refers to the condition that the subject matter has a useful purpose and also includes operativeness, that is, a machine which will not operate to perform the intended purpose would not be called useful, and therefore would not be granted a patent.
Interpretations of the statute by the courts have defined the limits of the field of subject matter that can be patented, thus it has been held that the laws of nature, physical phenomena, and abstract ideas are not patentable subject matter.
A patent cannot be obtained upon a mere idea or suggestion. The patent is granted upon the new machine, manufacture, etc., as has been said, and not upon the idea or suggestion of the new machine. A complete description of the actual machine or other subject matter for which a patent is sought is required."
http://www.uspto.gov/web/offices/pac/doc/general/
And from these basic rules it becomes obvious that SOFTWARE IS NOT PATENTABLE, you use copyrights for software. And just to add to the rant, a reimplementation of a concept or idea by someone else is not infringement of a copyright. I suspect that is why we have this big mess with software patents. I also suspect that part of the problem is interference from lawyers and lawmakers who have beaten the USPTO into submission, but at some point we need to stop all this stupidity.
burnin
You don't know what you are talking about. Professor Hollaar has an intimate understanding of these issues. He is a blue-chip expert in this arena, and your suggestions to the contrary are wholly unfounded.
Lee Hollaar is one of our nation's most brilliant non-legal scholars regarding intellectual property issues. Lee has been active in intellectual proprerty matters for decades, and is the author of the BNA publication "Legal Protection of Digital Information," which you can read for free online (complete with hyperlinks to case law!) at the AUTHOR's insistance. Although he is no doubt an IP maximalist, his is frequenty a reasoned and well-informed view.
He is the author of or worked closely with the authors of highly influential amicus briefs that led the United States Supreme Courts to decisions in landmark intellectual property law cases. He worked on the hill as a staffer, and also as an advisor to the Federal Circuit Court of Appeals. And he has served as technical expert and special master in many important IP and technology law cases, including United States v. Microsoft.
As it turns out, I do not agree with Lee on the necessity or benefits of his "petit patent" proposal, and might agree with a more critically worded and substantive revision of the poster's remarks. Unlikely many on this forum, I find Lee to be open to new ideas and revisions of his old ones when confronted with solid argument. This flexibility toward truth-seeking rather than lockstep ideology is one of the principal reasons he is such a formidable opponent at a debate on IP matters, and why his opinions, even when they are wrong, are highly influential.
But I would Never, NEVER suggest that the proposal was founded in ignorance. Professor Hollaar has enormous gravitas in the IP community, and his influence is well-deserved. Right or wrong (I often disagree and spar with him), your suggestions about his understanding are wholly unfounded.
Mandatory licencing via a maximum 15% tariff on patented goods would solve the problem.
Right now the little guys get eaten alive having the burden of getting their goods to market without the propper resources to do so. With the 15% tariff all they need to do is patent their invention and the market will reap the profits for them.
Yes, big pharma might get lowballed for their R/D costs, but on the bright side they wouldn't have to spend billons on those drug ads that appear during prime time.
Also, software patents wouldn't be a problem because paying an extra 15 cents on your $1 software download isn't going to hurt much.
bash-2.04$
bash-2.04$yes "Don't you hate dialup connections?"| write USERNAME
Everyone on /. consistently bashes the current IP/patent system and the PTO, always offering heaps of reasons why it sucks.
This guy, an actual *professional* in that field, comes up with some ideas and spends the time to think them through, document them, review them with peers, and even has a huge body (IEEE) behind him.
Yet 90% of the posts on here are negative, with absolutely no substantial suggestions that would improve the situation.
-David
I submitted a correction to /. about this, but The Powers That Be didn't bother to fix the headline, so I'll try do it here:
/. is debating Prof. Hollaar's idea, just note that it's not an official IEEE proposal.
I'm the IEEE Spectrum editor of this article, and for the record the IEEE has made no such proposal. To quote the disclaimer we run with every issue: "The editorial content of IEEE Spectrum magazine does not represent official positions of the IEEE or its organizational units."
Prof Hollaar's article is funtionally equivalent to an Op-Ed -- as a respected, knowledgedable, and articulate individual, he was given space in the magazine to share a proposal we found noteworthy. We've actually run a lot of articles on the "What To Do With Patents" theme recently, as our contribution to the patent reform debate, with authors advocating ideas ranging from replacing software patents completely with copyright, to more-or-less leaving well enough alone. I think it's great
"Just once, I'd like to meet an alien menace that wasn't immune to bullets." -- The Brigadier, Dr. Who
In the proposed IEEE system...
/. about this, but The Powers That Be didn't bother to fix the headline, so I'll try do it here: (this is a repost of this comment)
/. is debating Prof. Hollaar's idea, just note that it's not an official IEEE proposal.
I submitted a correction to
I'm the IEEE Spectrum editor of this article, and for the record the IEEE has made no such proposal. To quote the disclaimer we run with every issue: "The editorial content of IEEE Spectrum magazine does not represent official positions of the IEEE or its organizational units."
Prof Hollaar's article is funtionally equivalent to an Op-Ed -- as a respected, knowledgedable, and articulate individual, he was given space in the magazine to share a proposal we found noteworthy. We've actually run a lot of articles on the "What To Do With Patents" theme recently, as our contribution to the patent reform debate, with authors advocating ideas ranging from replacing software patents completely with copyright, to more-or-less leaving well enough alone. I think it's great
"Just once, I'd like to meet an alien menace that wasn't immune to bullets." -- The Brigadier, Dr. Who
I betcha I can come up with a method of posting even faster than THAT, using an innovative mechanism derived from non-obvious technological advances. Claim#1: ....
[You have a stable society when some nut guns down a schoolyard and the law doesn't change.]
even has a huge body (IEEE) behind him.
/. about this, but The Powers That Be didn't bother to fix the headline, so I'll try do it here: (this is a repost of a comment I've posted elsewhere)
/. is debating Prof. Hollaar's idea, just note that it's not an official IEEE proposal.
I submitted a correction to
I'm the IEEE Spectrum editor of this article, and for the record the IEEE has made no such proposal. To quote the disclaimer we run with every issue: "The editorial content of IEEE Spectrum magazine does not represent official positions of the IEEE or its organizational units."
Prof Hollaar's article is funtionally equivalent to an Op-Ed -- as a respected, knowledgedable, and articulate individual, he was given space in the magazine to share a proposal we found noteworthy. We've actually run a lot of articles on the "What To Do With Patents" theme recently, as our contribution to the patent reform debate, with authors advocating ideas ranging from replacing software patents completely with copyright, to more-or-less leaving well enough alone. I think it's great
"Just once, I'd like to meet an alien menace that wasn't immune to bullets." -- The Brigadier, Dr. Who
I see a lot of comments from people that obviously didn't read the article. Some have made some good points, for those that did.
After reading the article, the solution proposed is a good solution IMO. A patent granted through this system solves many of the problems with the current patent process.
1. Eliminates the upfront burden on the patent office.
2. A patent is only enforceable if a commercial product is produced by the patentee. That's a biggie. This gets rid of the current batch of "IP" companies, whose sole existance is pumping out patents and litigating. No product, no enforceable patent.
3. The first step in any litigation is an examination by the USPTO.
4. These mini-patents can be challenged via prior art with a small fee.
5. It will help build up the prior art database, which should allow the USPTO to be quicker in making prior art determinations in any examinations they have to do.
Although people might bemoan the fact that this would grant a lot of trivial patents, those same trivial patents also mean that prior art has been established. Those trivial patents are meaningless unless a commercial product is produced. And if it's trivial, then chances are it will be easily refuted upon a full USPTO examination. Which means you've now established both prior art and refuted the patent, both of which can be referenced by the USPTO directly for later patent examinations, which should help them make determinations for prior art quicker.
Since the fee involved with one of these patents is small, it will also mean that people would be free to submit patents for the sole purpose of establishing prior art, even if they have no intent of bringing a product to market. This could be used to actually prevent folks from taking out trivial patents in the future, making a product, and then trying to enforce it, since a prior patent had already been issued. Even if that prior patent is not enforceable, it still establishes the prior art, thus invalidating the subsequent patent.
Would love to see someone's reasoned arguments as to what the pitfalls might be under such a system.
First, while you are in patent pending, you are protected.
You are only protected after your application is published, and only if you have not substantially altered the scope of the claims while you're before the USPTO. A published claim must have substantially the same scope as an issued claim, or there is no practical protection. This not necessarily an easy task when there is extensive prior art. If you file an application blindly (also relevant to your second point below), it is practically impossible.
Second, Patents are not expensive, paten lawyers are. You can file a patent as an individual for a few hundred dollars.
The filing fee is $395 for an individual, assuming that you qualify as a small entity. The filing fee cannot get you a patent. If you prosecute the application perfectly, meaning everything you need is in the specification (no affidavits or declarations), you argue allowable claims within two office actions (not an easy task, it is not uncommon for an examiner to be wrong, and they do not tend to "roll over" as some suggest), and you ask for no extensions of time to make your arguments, the typical patent itself will cost you an additional $1000 (issue fee and publication fee).
If you file an application without performing a patentability search and analysis, you are almost guaranteed to obtain an inferior patent (no pre-grant protection, claims that can only be interpreted literally) or no patent at all. A search costs ~$500 in a simple case. The time spent analyzing the results will at least equal that, unless your opportunity cost for your time is $0.
Patent lawyers are expensive because patent law is hard. The USPTO offers free copies of past patent bar examinations with answers here. You need to score 70% or better to pass, i.e. be minimally competent, and you need to complete the examination in 6 hours or less. Good luck.
Third, a patent is a way of saying you had it first, but there are other ways.
True. But most people seeking patents claim that they are not only seeking notoriety. Patent grants rights. Publishing your paper on the internet grants others the ability to copy you mercilessly. People who come up with truly novel and non-obvious inventions typically prefer to obtain rights.
Forth, This would be even more abused then the current system
I don't have an opinion on this, at least not yet. Many European countries have had petit patent systems for historically significant periods of time. Literature discussing the experiences in those countries would be a good place to being if you want to form an informed opinion.
Why not outsource the whole courtsystem? With todays teleconferencing tech, the jugde could come from India and a couple of Canadians could provide security in the courtroom....
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