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."

Comments

The question is ...

[didit]

... did they patent this new class of patents?

Re:The question is ...

[Nosajjason]

I would hope that you won't be allowed to "patent" this proposal because it is not "new type of patent."
In fact, IEEE's proposal parallels the system in Australia, which allows "innovation" patents to issue without review. http://www.ipaustralia.gov.au/patents/what_innovat ion.shtml

Australian Innovation Patents, as they are called, last a maximum of 8 years, are granted without examination within 1 to 3 months. However, before enforcement or even threatened enforcement of an innovation patent, someone (not just the owner of the patent) must request a formal examination of the patent.

These systems have their problems as well. See: http://news.bbc.co.uk/1/hi/world/asia-pacific/1418 165.stm in which a lawyer patented the wheel using this system.

Nevertheless, with sad state of affairs in this country, you probably could file an application and get a piece of paper back granting you a patent this "process." :)

[ Begin Rant ]

The problem with these types of "IEEE" or "innovation" patents is that they worthless.

First, without the initial review, the patent owner is left unaware if there are serious deficiencies in his patent until he tries to enforce it. Between 2000 and 2003 roughly 300,000 patent applications were filed each year. Between 2001 and 2004 roughly only half those applications matured into granted patents. http://www.uspto.gov/go/taf/us_stat.htm. During the examination process, there are ways to cure these deficiencies. For example, the inventor may amend the claims or file another application. The system currently proposed by IEEE does not serve inventors because it cannot forewarn applicants that there is a problem. (Of course, the current system is broken, but in other ways.)

Second, even if the owner has a valid patent, he would not be able to recuperate the costs of enforcing that patent. By giving a limited monopoly for 4 years, the patent owner can only recover damages for those 4 years. Take this example: Inventor A gets invents a widget and wants to bring it immediately to market (and can), so he gets an "IEEE" patent. Company B sees A widget and decides to reverse engineer and sell the widget. If it takes Company B a year to reverse engineer and market widget, then the soonest A would realize that B is infrigning is in the 2nd year of his patent's 4 year term. However, before he can even threaten B, he must have the patent reviewed by the patent office for validity. This might take 3-6 months (I am guessing). This puts him into his 3rd year. After a finding of validity, A then has to commence suit, which generally takes more than a year. So after everything is said and done, B only has to pay royalties for 3 years and can continue manufacturing the widget because A's 4-year patent term has expired by the end of litigation. What was accomplished by suing B? A expended hundreds of thousands of dollars in litigation only to gain 3 years worth of royalties, which probably weren't that much.

On the other hand, with a standard patent, the patent owner, A, could recover damages for 20 years and/or charge Company B a royalty for the remaining term of the patent. Now, if that widget was, for example, the iPod, then A would have benefited by obtaining a standard patent.

For these reasons, no major company will pursue an "IEEE" patent even if it was allowed.
[/end Rant]

So

[garrett714]

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?

Re:So

[fish waffle]

We already have enough BS patents out there...

Indeed; helping increase the volume of bad patents doesn't seem like a useful goal. The main problem with software (and other more abstract) patents is not the slow process for granting them, it's the fact that they keep granting idiotic patents that are very obvious to anyone even remotely skilled in the art. Searching and validating beforehand may be expensive, but is a lot cheaper than a court fight....at least in an overall sense.

On the other hand, if their intention is to fuel outrage in blogs and community websites (like /.), or provide even more material for people to make fun of them, this will be a great success.

Re:So

[alicenextdoor]

This has already been tried, in Australia. In fact, the law won an IgNobel prize for John Keogh and the Australian Patent Office for patenting the wheel in the year 2001. Apparently he did it to demonstrate that the new patent laws were pointless. I have no idea if his patent has ever been challenged in court!

Re:So

['nother poster]

Patent review processes that work. Patent reviewers that are skilled in the field of the patent being reviewed. Adjusting patent law back to the point where the patented idea must be nonobvious and nontrivial. Streamline the dispute process, for both sides of the dispute. I could go on, but it's lunch time.

4 year patents are different... why?

[192939495969798999]

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.

without the presumption of validity?

[Enigma_Man]

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

Re:without the presumption of validity?

[morgan_greywolf]

Exactly.

Imagine Acme Corp. files a 'limited patent' for Widget X and it's granted without examination. My widget, Widget Y does the same thing as Widget X, and it's actually got a real patent pending and has been on the market for 3 years.

However, Widget Y hasn't been selling very well due to my inability to market the product, and well, I can't afford good legal representation. So I can't sue Acme Corp. at all... worse, Acme Corp. notices my product and decides to sue me! Since Acme got their 'limited patent' first and mine is just pending, Acme wins!

Screw that. It sounds like a patent abusers' wet dream.

Clearly someon doesn't understand patent

[geekoid]

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

Re:Improve patent quality?

[timjdot]

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

Re:The only type

[symbolic]

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.

Reducing the time constant

[truckaxle]

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.

Teh /. summary left something out

[TubeSteak]

One thing the /. summary left out is this sentence:

Inventions not actually available in the marketplace would not be protected.

The main idea is to keep people from copying your work. It doesn't stop anyone with similar ideas but different implementations.

Incomplete summary

[Tethys_was_taken]

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?

Change the existing system, don't add to it

[burnin1965]

"would last only 4 years from date of first commercial product"

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/i ndex.html#whatpat

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

Clearly someone doesn't know the author

[werdna]

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.

Just FYI

[orac2]

In the proposed IEEE system...

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: (this is a repost of this comment)

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 /. is debating Prof. Hollaar's idea, just note that it's not an official IEEE proposal.

Re:Let's see....

[LaCosaNostradamus]

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: ....