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Patent Reform Act Proposes Sweeping Changes
Geccie writes "CNet is reporting that Senators Patrick Leahy and Orin Hatch have proposed sweeping changes in the patent system in the form of the Patent Reform Act of 2006. Key features are the ability to challenge (postgrant opposition) with the Senate version being somewhat broader and better than the house version." From the article: "Specifically, it would shift to a 'first to file' method of awarding patents, which is already used in most foreign countries, instead of the existing 'first to invent' standard, which has been criticized as complicated to prove. Such a change has already earned backing from Jon Dudas, chief of the U.S. Patent and Trademark Office."
and guaarantee the freedom to innovate so true competition may exist? That way a small inventor won't lose his house when trying to compete with the large companies who buy up all the intellectual real estate on the monopoly board.
I predict that any bill that makes things through Congress will only change the system for the worse.
Wow, a bill that solves none of the many real problems with the patent system. Way to go lawmakers! Who votes for these fools?
Philosophy.
Sounds like an easy way to steal other people's ideas and patent them without having to do the work yourself. The people with the best lawyers and most money will win all the patents.
First to file rather than first to invent means that all pesky open source programmers will have to worry about patenting random parts of what they do or risk that some large corporation or patent troll patents them out of their invention.
Even people that uterly despise software patents will have no choice in the US.
On the other hand all countries that heavelly invest in public education under the idea that education should not be only for rich kids and insannely smart, but also for smart creative poor or just not so rich kids, should be happy to see anything happen that makes the US less interesting for creative minds.
And helps the ROI stay in the country that made the investment.
Of course, this is unconstitutional. The Constitution requires that patents only be granted to an inventor. An inventor is the first person to develop a discovery or technology. The second guy to do so, even if he does so independently, is ultimately just an also-ran. If someone who had been unaware of them spontaneously invented the wheel, why the hell would he deserve anything? Why would it matter whether he did so thousands of years after it was invented by the actual inventor, or a day?
If other countries want to do that, then that's up to them. I'm not going to tell them what to do. But not only is it a bad idea here, it is one that would be entirely unlawful. It's only in here due to a combination of laziness on the part of the PTO, since they could avoid having to run interference proceedings, and greed on the part of large, corporate inventors, since they can act more quickly than smaller inventors.
I haven't had a chance to look at the latest bill, but I doubt there's much good in it, if anything, if this is any indication.
-- This and all my posts are in the public domain. I am a lawyer. I am not your lawyer, and this is not legal advice.
It specifically gives legislative authority to congress only, but this didnt stop the formation of the FCC, or the nixon drug laws (which give some yokle at the fda legislative authority against any pharmaceutical agent).
It also called for limited terms to copyright, but we all know who won in eldred vs ashcroft (so instead of infinity, it's infinity - 1.. which only those educated in calculus or higher know is still infinity)
I learned through my history classes and especially current events not to count on the constitution shooting down unjust laws. I think that's one of the strengths of other developed western nations with less stringent constitutional protections.. the people have to stop it at the source actively because they cant count on the same kind of checks and balances.
VLC FOR MAC IS DYING! IF YOU DEVELOP, PLEASE SAVE IT!!
First to file still allows prior art - why wouldn't it?
Suppose first to file allows prior art. In the case of the person filing the claim not being the inventor, there would be prior art from whomever was the inventor.
The current statute is one year from first public disclosure. However, this only applies to U.S. rights...disclose the invention, and you're immediately SOL for the rest of the world.
The real problem with our patent system is not the first-to-file or first-to-invent rule. The real issue is the bogus patents. No solution will work until we stop funding the patent office based on the number of patents it grants. We have an big incentive for the office to NOT do their job. It would be like paying lawyers only if they lost a case!
yes, it does mean that, much more so then it doesn't.
.... what would be in this case, mob money payoff. The US patent office being the criminal organization in this case.
There is always a complication that man can inject. To assume that going with first to file is going to fix the problems of the first to invent is pretending that the grass is greener on the other side of the fence.
Software is a big issue in this, as it is actually fraudelent to allow software patents. But to allow it also means that first to file will cause a land grab of patenting all sorts of things that originate in human thought but evolved little past writting it down.
There is a great deal that has been created in software which has never had a patent application filled out and sent in because the creator or writter of the work didn't want it patented. And maybe even if only to assure it stay free in use, they couldn't afford the
With software the issue of fraud is in application, otherwise software would be disallowed patentability. The proof that software is not patentable is only being avoided and by both sides of the software development industry, the proprietary and OSS, each having their own individual motives or incentives or vested interest to blind themselves of the provable facts of the nature of software.
To use an analogy or metaphor, mathmatics was complicated at one time thru the use of the roman numeral system. You could not do advanced math with it. Then came along the hindu arabic decimal system with its zero place holder that after 300 years of resistance and denial by the elite accountants , the general poopulation adopted the easier and more powerful tools of the decimal system, and has since gone on to go way way beyond the limitations of the roman numeral tools, to create whole new industries and economies that the roman numeral system simple was not capable of even conceiving.
Programming is the act of automating complexity, typically made of complexity automations that someone else did earlier. The human characteristic that set us above all other known creatures, which makes it our natural right to do, to build upon the works of those before us. The purpose of programming to to simplify the use of a complexity, to make it have an easier to use interface. and thru the use of easier to use interfaces more of use can put things together for ourselves.
But enters the fraud of software patents and the incentive to say "No you cannot use" (which is really all they patents are intended to be).
Add to this the first to file and what you have is a growing man made constraint as to your ability to apply your natural rights to create and improve you own ability and productivity which in turn contributes to an improved environment for us all. For even if you came up with something to help your dfaily tasks then someone else copuld file it and prevent you from using it via man made laws. Laws where all things are now no longer possible.
Abstraction Physics proves software is not patentable. But in a corrupt world, who wants to acknowledge that?
People need to understand that patents are a lie, and pure evil. There are several reasons for this ....
a) Inventions are usefull, they are beneficial that's why there will always be a need for them with or without patents. The choice is not between patents and no innovation, the choice is between wether invention revenue will derive from a service model vs an invention control model.
b) When you have patnets that forces the market to center around invention controlls, when you don't have patnets that forces the market to center around invnetion services. So the notion that patents help small inventors, and incentivize invention is complete fraud.
c) Inventors are good at inventing things, big-business and government and lawyers are good at controlling things - patents do not help inventors. Patents help some large businesses, lawyers, governments, and anyone else who likes to control and deny other peoples liberties. They hurt inventors and do not promote innovation.
d) Patents are not a property right. Property rights exist because of natural scarcity, not because of human made scarsity. Slaves on the plantation were not a property right either. All the argument about incentive, business, commerce, and the wealth of America was crap back then and is now too.
e) Patents are a pure evil, and even genocidial. Those millions Africans who suffered and died of AIDS while pharmacuticals sued in the world court to forbid African nations from making generics - they suffered and died in the name of patetns. Those millions of people who died in auto accidents while patents held back air-bags and anti-lock breaks for 20 years - they suffered and died in the name of patents.
In sum, patents are a fraud, they are a lie, they harm inventors, they stiffle innovation, they are not property, they are anti free market, and they are evil to the point of genocide. We shouldn't be trying to reform them, we should be trying to kill them and hammer anyone else who dares try to impose them on us.
A tangible could be patented, an intangible not. That would certainly bring it back into focus and intent more. They had intangible "intellectual property" back in the olden days and specifically DIDN'T include it under something that could be patented. Copyright for that stuff works just fine.
The reason they want patents on intangibles is because they have delibarately gone about destroying the tangibles manufacturing base inside the US. so they need something else to replace it to sell. They aren't finished yet with the eradication of domestic manufacturing, but I could easily see a time where not much beyond military hardware is manufactured here. And maybe not even a lot of that. The big (mostly international now) arms companies don't care, they just want their expensive stuff used up as fast as possible so it can be replaced. Ka-ching! ka-ching! Rake in the dough! There's too much financial incentive to keep a slew of smaller and medium sized wars going for it *not* to happen.
I am a second year law student, and by fortuitous accident, I've had the opportunity to sit in on some high level meetings regarding new PTO changes. Generally, I believe IP is too strong and could probably get on board with eliminating business method and software patents, although there is convincing evidence that these aren't as harmful as people think. (e.g. patent analysis by C.S. Professors and "good" people in the industry finding that software patents have very little effect except in helping small companies who want to get bought out.)
The responses to this article demonstrate all that is wrong with slashdot. Knee-jerk reactions based on who is involved without understanding the underlying issues at all. I'll address them one by one.
Eliminate patents - Are you insane? How would new drugs be created? Do you not understand the R&D process at all? It takes a decade for a drug to get from conception through clinicals. What would happen if at the end of that process, some competitor could make it for the cost of production? No new drugs.
Prior art - This has nothing to do with prior art. If you try to patent something that was anticipated, you won't get the patent. This is even more true after these changes and the recent structural improvements at the PTO. Indeed, the public will have the opportunity to submit prior art and will be able to go argue with the PTO even after issuance. Isn't this what you wanted? All that first to file does is streamline the system and clear up a lot of the mess involving interferences. It is used by most other countries for a reason.
Trolls - I assure you, the people behind this bill, primarily the PTO under John Dudas, think about this problem all the time. Trolls are the one thing that almost everyone in the system, from OSS to companies to the small inventors, universally do not want. Overall, this bill helps this problem by only awarding small damages for a tiny infringing part of complex systems. This combined with the recent ruling allowing courts to use equity in awarding damages might do much to curb the troll problem.
Constitution - I noted an extremely low uid blabbing about the constitution. This doesn't award an invention to someone who is not the inventor. If you didn't invent it and there is prior art, you're out of luck. What it does is resolve annoying problems like "inventor X conceived on this date. 2 days later inventor Y conceived independently. inventor X took 1 year to reduce to practice, but inventor Y only took 8 months and filed first."
Overall, it is incredibly presumptuous to believe that after thinking about it for a few minutes in your spare time, you can actually have an intelligent position on the entire field of patent law. This system hangs on complex economic analysis, and there is money on both sides. That is, companies both want patents and want patents to expire and not clog the system so that they can use those inventions. This means that the end result is extremely efficient over time. Primary problems with the patent system:
1) The PTO is underfunded and hasn't been able to hire enough examiners or train them well enough to issue good patents. Finally congress is letting them keep all of their fees, so they are *doubling* the number of examiners by 2011 and jump starting the training programs.
2) New technology doesn't fit into the old model. Academia and the industry are working to solve this one, and it's getting better. You can't get a patent for "X, on the internet!" anymore, and even though some of those are still on the books (e.g. Amazon one-click), they aren't really enforceable.
3) Trolls. This is a complicated problem that has yet to be solved because it would be difficult to do so without hurting the small inventors who need to sell their patents to larger companies to exploit them. It's easier than you think for small inventors to get patents (and even easier under the new system), but the PTO can't change the fact that those inventors don't have factor