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New Patent Reform Proposal Focuses on Education
CNet is reporting that a new proposal before Congress is attempting to increase the number of federal judges who specialize in patent litigation. From the article: "The proposal prescribes $5 million each year in federal funding over the next decade for "educational and professional development" programs for designated judges and to pay the salaries of new, specially appointed clerks with patent expertise. Under the bill, patent cases would continue to be randomly assigned to judges, but with a notable exception. Any judge who practices within a court district offering the pilot program but who chooses not to sign up for the extra training would have the option of transferring patent cases to a program participant." Techdirt also has a short writeup on why this specialization might not necessarily be a good thing.
It's federally-funded, but it'll likely be industry that does the education. I see lots of ways some careful "teaching" could skew the courts.
Don't just make patents lighter (like 2-3 years validity) or reduce the effect of patent trolls or make areform to reduce bad patents which are obvious and have lots of prior art. No. Don't even think about it.
Instead train more judges to handle all the cases, you may even throw in an education program to turn honest inventors and workers into patent trolls, libel case extortionists and DMCA abusers.
It'll make a for a whole lot better world!
PS: Why the hell are we training patent judges who can't tell a "cold fusion reactor with a working model" patent from a "1 click buy button" patent, and not train judges who have a clue of computer technology (the place where most of the patent trolls grow)?
The author of the article presents CAFC as if it were uniformly a bad experience. This is not exactly the case. Prior to CAFC the state of patent litigation was very bad - judges with no experience in patent law were making arbitrary decisions that arbitrary and inconsistent, venue shopping was the order of the day, many really valid patents and important were being overturned, etc.
While CAFC has resulted in some quite bad decisions, it has at least brought some consistency. Now that there is this consitency it is up to Congress to correct the patent law to exclude or refine the scope of patent law.
1- Let some problem annoy too many people until everyone ask them to intervene.
2- Introduce a solution that is worse than the problem, and only helps gov & friends.
3- when people complain, say "Hey, didn't you ask for it?"
That happened with CAN-SPAM, and now apparently will happen to patents.
I wonder how the government proposed "Copyright reform" would look like.
Because if the military and the social security system have taught us anything
it's that you can fix a bureaucracy by throwing more bureaucracy at it...
Error 407 - No creative sig found
If you do buisness with any American company, YOU ARE.
I don't just mean the $5 million a year (a drop of piss in the bucket of American government spending), but the entire patent issue at large.
For 'targeted' products, like the iPod, eBay, or Amazon, you're paying some money up front that the producer is setting aside to pay for lawsuits. After a ruling, the cost of that payout is being passed on to the consumer.
I'm not speaking against it, thats how capitalism works and I love it. It just seems that so often people cheer on a lawsuit without realizing what it does to all of us. There is a time and a place for severe financial punishment, but it is abused and I'm certain it affects all of us.
Any judge who practices within a court district ... but who chooses not to sign up for the extra training would have the option of transferring patent cases to a program participant.
It isn't clear that this has been thought out very well. Suppose an "untrained" judge does not opt to transfer the case to a "trained" one. Will that be grounds for appeal? Can a litigant request a "trained" judge? I think one can safely assume that the parties with deep pockets will game the system if it's possible.
In the UK the Judges are patent specialists. They are pretty smart too considering the wide range of subject matter they are able to assimilate. I recall reading that prior to one complex case on biotechnology a prof from one of the Oxbridge colleges came in to give the judges a crash course which they just lapped up.
One would hope the course content would be available for the public to understand/critique.
Apparently people didn't appreciate this thorough and scathing assessment of the patent system :)
The CAFC has led to more widespread patenting, both in terms of raw numbers of patents and in subject matter -- we went from Flook and Diehr to having all software be patentable, for example. And yet the reversal rate on appeal is still 50%.
Patent litigation has grown from a specialist niche, a side job of patent prosecution boutiques, into one of the very few areas of law where billing is practically unlimited. Good, cheap firms like Finnegan bill $4m for a case, good, expensive firms like Weil bill four times that much, and god only knows what the crappy firms are billing -- usually somewhere in the middle. Every law firm wants to chase these fees, for rather obvious reasons.
There's really no way for clients to know who they should hire. The big firms that do an adequate job with corporate work, which the GCs are familiar with, have zero experience with patent litigation. The clients can't even get a reliable estimate of cost, because they don't know if the prospective firm is lowballing because they're lying, lowballing because the prospective firm doesn't know what they're doing, or giving an accurate estimate. And if the client does end up losing, as half of them by definition must, the GC would rather tell the CEO and board of directors that they did the best they could, because they hired a big (in truth mediocre) firm with a recognized name than some hotshot litigation boutique in Palo Alto.
The number of patent cases has gone up -- just look at the size of the USPQ volumes over the last few decades. And of course the size of patent verdicts and settlements has gone up too.
While the law is in some sense more uniform, the decisions certainly aren't, and given the other changes I don't see how you can say this is an improvement.
With great power comes great fan noise.
Useful technology people make at least $100K annual salary, and cost at least twice as much to support in infrastructure, benefits, management, etc. Even if the government has economies of scale that means people cost $150K. $5M pays for 33 people. If the program suffers from typical government inverted economies of scale waste, it could pay for less than a couple of dozen.
Meanwhile, the patent system protects $TRILLIONS in annual income for American (and global) corporations. They've got less than half a percent of the take to fix it?
Sounds like they're spending $5M on "educating" the public with propaganda that they're fixing the debased system, rather than actually making it reflect how intellectual property works in the modern world.
--
make install -not war
that Congress is most likely widely uneducated about the patent system. You can't fix what you don't know about. The problem isn't the judges, it's how the patent system works to begin with. The USPTO just issues patents left and right and lets the judicial system deal with prior art. They should focus their efforts on fixing that problem first.
Fix a system that judges disputes between corporation by accepting help from...specific corporations.
Hire top notch people from the private sector for the USPTO instead? $50M a year to hire hundreds of PhDs and people with a decade or more of great experience in programming, biotech, etc.
They're letting judges voulenteer to take these cases and not be trained... but if they don't want to do thie voulenteer work, they can hand it off to others who ARE trained? America at it's finest.
So if you've got a crack in the foundation which undermines the whole structure of patent law and shows up as ugly cracks throughout the system, a little glue and paper will fix that right up.
If you post it, they will read.
It seems like this is only half of the equation. While I think training judges in patent litigation is a great step to make, I feel that what is even more necessary is to have the patent office reevaluate its system and methodology for giving out patents. I think then they wouldn't need to train so many judges, and the judges would just be a good backup for those patents that slip through (as well as the legitimate cases).
But I'm preaching to the choir here, I guess.
There are three straightforward problems with the patent system:
1. Business Prcoess Patents
If experienced Federal Judges weren't wasting their time looking at this abomination of the meaning of patent they would have plenty of time to research and rule on real patents like "The Cotton Gin".
2. "Self-Funding Process" whereby the Federal patent system rewards itself for making bad patent law. Is it more important for the Patent Office to do good patent analysis on truly novel inventions or to declare as many "ideas" novel as possible and thus garner more funding for itself.
3. Patent "portfolios" are used as sticks to beat down and stifle innovation by large corps against small innovative businesses (and against other large corps) rather than the original purpose which was to grant, for a limited time, exclusive royalties to those who put forth the effort to develop unique ideas and market them.
Of course, pointing out flaws in the US government these days is like shooting ducks in a barrel. Think Rome, circa 410 AD.
Most people in the patent industry [patent attorneys, entrepreneurs, corp senior management] agree that the single best reform would simply be more, and better paid examiners. Right now, the US Patent office is a profit center for the Federal Gov't. How about if it just got to keep (more) of the money it raises through filing fees? The current rules in place are 'reasonable.' The biggest problem is that rushed and weak examiners don't always do a good job.
I will create a sig when innovation restarts in the U.S.
Sure . . . except for the fact that most patent policy has been nearly single-handedly established by the judiciary for the last, oh, fifty years or so.
Between the establishment of the CAFC and Lehman's revamping of the USPTO as a PBO (yes, I know it didn't become a PBO until after Lehman, but he got the ball rolling as it were) I think the patent system might interestingly be considered captured by a burgeoning patent industry (as in, regulatory capture); i.e. is the USPTO fast becoming the 21st century's FCC?
As always, Congress completely misses the actual problem when working out a solution. Hey, if they didn't propose half-baked sollutions, they might actually have to do real work.
Here's what I don't get about this deal: as far as I can tell, judges who don't understand the technology are not the problem. If a judge doesn't know an inline for-loop from an EJB, does that really mean that he/she can't tell whether someone is infringing on the one-click patent? Furthermore, assuming that they are technically savvy, can they actually invalidate bad patents? Or would they just ask the patent office to reexamine it?
None of these things have anything to do with the main problems of the current patent process: patents for ideas, patents for things without implementations and patent trolls. This is just gonna be a band-aid with absolutely no effect on the patent trolls.
Those who can, do. Those who can't, sue.
Heck, by the time a judge sees a bogus patent, a lot of damage is already done. Why not just spend the money to educate (or better staff) the PTO's examiners to help keep a lot of these junk patents applications from ever seeing the light of day? (Besides, 'educating' a judge is largely the job description of an attorney.)
The law is not an ass. No really.
I hate to burst your bubble, but editors have unlimited mod points, "Mod Bombs" as they are commonly called.
.3 seconds of some guys life when he had to read the comment and hit the -1 button.
You probably only wasted
Patents on software came into existing through the small court door where the skill of abstraction manipulation was used to argue for it by those inherently skill at such, due to the nature of soiftware.
With this in mind, what needs to be taught so that this skill will exposed and seen through when it is being unfairly biased?
There is this issue of "state of the art" of what is supposedly "computer science" but then there is "Abstraction Physics" which applies to not only software but to anything we do with abstractions. This on the matter of non-novel.
http://threeseas.net/abstraction_physics.html
It took 300 for teh easier and more powerful hindu-arabic decimal system to overcome the roman numeral system of limited math. It took 350 years for the catholic church to openly accept the genuine scientific observation of Galileo (early 1990's the pope exonerated Galieo...for of course the benefit of the church, not long dead Galileo)
We gonna wait 400 years for what should be considered obvious in software creation, to be just that, obvious?
Or are we gonna recognize what we naturally do, unavoidably, sooner?