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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."
I'm the first to say if another country does something better than the US, but just because other countries do it differently doesn't mean it is better. I consider "first to file" just promoting patent trolls even further, as they just keep an eye out for what everyone else is doing and patent what the other guy didn't really consider worth patenting. This provision is useless - yes, first to invent is hard to prove, but that is why keeping some type of traceable records is a good thing and you can't be locked out of the market just because patent troll X decided to file paperwork before you did.
Brent O. Hatch is one of SCOs many lawyers. One wonders if any part of the new law would be of any help to SCO grabbing the work on many Linux programmers?
When you publically disclose something in order to put it into the public domain, it can take up to six months before the idea cannot be patented by someone else due to the fact they can claim to have invented it first. The "first to invent" thing. Will this new scheme make the effect of public disclosure a little more immediate? Or will it just increase the use of provisional patents which are not published?
Oh dear God, not Orrin Hatch again! Seriously, this idiot was the man who introduced the DMCA and look how wonderful that piece of legislation was.
As usual, follow the money....
Orrin Hatch received $126,918 from the entertainment industry in this last cycle. Not to be outdone, Leahy received $251,970
By my calculations that means that congressmen can be bought for less than $400K. My, my, my what an insanely great ROI.
America, the best government money can buy®
It's dead obvious that they will. This is the attitude that troubles me the most:
> 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.
Basically, they're saying that since the useful solution that is easy to justify (if you believe in patent theory) is too hard to implement (and causes too many problems), then the obvious thing to do is to pick a useless solution that is impossible to justify (through patent theory) because it's easier and will allow the patent office to process new patents quicker (and cause even more problems).
This reminds me of the old joke. It was midnight at the parking lot and a policeman saw a drunk looking for something near a lamp post. The policeman asked what what the drunk was looking for. The drunk said "I lost my car keys in the dark alley a half a block away, so I'm searching for them here." The police said it didn't make sense. The drunk replied, "It makes perfect sense. It's too hard to find my car keys in the dark, so I'm looking for them where there's some light".
The key difference between the drunk and Congress is that the drunk didn't make the problem worse through his useless solution.
..as two of congress's biggest sock puppets to moneyed interests, so there is no surprise theyre the ones comming up with this, and it's also a slight relief to know this is what some of the worst of the worst are comming up with, because if not this it would be something much much worse.
Anyway, this is designed to "reform" the system by clearing the courts of many cases by simply awarding the sneakiest party. This law would result in the legitimizing of those "patent parasite" firms who snag patents, then ambush companies just as theyre going to market. It would reverse the apple v creative case too. This is definitely at the expense of the inventor, and would also make invalidation of obvious patents much harder, since prior art would no longer apply. In that way it is playing to moneyed interests, but even moneyed interests would incur great expense to these parasites mentioned above.
The hatch/leahy duo are the perfect illustration of how partisan grandstanding only serves as a red herring, and that corruption extends beyond party lines.
In addition to the horizontal axis of left and right, there is a vertical axis nobody in the media or politics wants the public to pay attentin to, moneyed elitists vs populists.
voting one party or the other does not guarantee the politician's position along this vertical axis, and that axis in this nation is the one which is more important.
VLC FOR MAC IS DYING! IF YOU DEVELOP, PLEASE SAVE IT!!
Patents do work, especially in the medical area. Pharmaceuticals would be prohibitive to develop (without direct state involvement) without patent protection.
I hear this a lot. Is this really true? Drug researchers often research native cultures and find what traditional remedies they have used. Then the drug company finds a way to mass produce or synthesize it. And don't forget decommoditizing it so they can guarantee profits. So what they are doing is patenting little known prior art and marketing the hell out of a protected derivative.
"The bill would also establish a "postgrant opposition" system that would allow outsiders to dispute the validity of a patent before a board of administrative judges within the Patent Office, rather than in the traditional court system. The idea behind such a proceeding, also endorsed by the Patent Office, is to stave off excessive litigation.
The Senate version appears to give broader leeway for such challenges, offering up to 12 months--as opposed to the House's nine-month window--after the patent is awarded for challengers to file a "petition for cancellation." That time period could then be widened even further, with a second window available if the petitioner "establishes a substantial reason to believe that the continued existence of the challenged claim causes or is likely to cause the petitioner significant economic harm." Challengers would be limited, however, in the issues they could raise after that first year expires." from the article
Economic harm, seems to be potentially a way of blocking a large number of interested parties even the original inventor. seems that gpled software could be vunerable to this, it's free therefore no economic harm and no standing to challenge the patent. who can fight back in this situation ?
I will leave it upto someone else to explore the pitfalls of that little idea
Blarney Quality Restaurant, Plants
It's done in Japan all the time. In fact, they are known to peruse a US PhD thesis, then file stuff based on it. Now US companies could do the same. Still sound good to you? Oh, gonna claim that the thesis was prior art? Bzzt, been tried. Didn't work. Usually there's just one copy sitting on a shelf in a library, so it gets treated as non-public.
I wonder how well the following would work:
In order to sell a drug, a company must have proved that their product is effective and safe (as the original researcher has to now) - whether they researched it or not. With just that, every company has to perform all the safety tests for what they want to sell themselves, making it cost them larger amounts straight off. The cost for the safety tests will be less than the total development costs, but with enough others buying the certification they should be able to cover enough of the money they would not now get from selling the drug directly.
Then have a way for a company to buy safety certification from the original company, depending on the research already done.
With that, every company that wishes to sell the drug in question must either spend large amounts of money on proving the safety of the drug, or must pay the original researcher for their safety research. The original researcher, as long as they ask for enough less than the cost of the trials, should be able to get payment agreements from all other interested companies.
I can see flaws - for one, a company may decide it's more profitable just to do their own safety testing and then sell certification to other to cover their costs than to buy it from the original researcher... There are probably others.
But if you have to have either this safety research or certification to be able to sell a drug in all developed countries, then maybe it would be possible to provide much cheaper drugs - strictly at production cost only - to those that need them desperately. (AIDS/HIV drugs for those in poor countries where AIDS is rampant, for example)
The obvious problem there is that people may try and bring the cheap overseas drugs back into the country - but if they're willing to break the law already, on a large enough scale to be significant, what's stopping them making their own drugs without permission from patent holders at the moment?
General, you are listening to a machine! Do the world a favor and don't act like one.
I would actually argue that first-to-file has very strong "theory" justifications, in addition to being far simpler to administer. Consider two people who invent the same invention. The first "invents" first, but keeps it a secret. She is slow to work out all of the details (to "reduce to practice" in patent parlance), to turn it into a commercial product (or else she would run into section 102 statutory bars against later filing her patent), or of course, to file the patent. Perhaps she has problems with finding the time or the necessary funding; perhaps she is simply lazy. (Of course, she can't be too lazy. The law requires that she be "diligent" in reducing to practice and in filing a patent, or else she loses out to the later inventor who is diligent and files first.)
The second inventor invents the same thing two month later. She did actually invent it entirely independantly of the first inventor, or else she can't get the patent under either first-to-invent or first-to-file. The first inventor, remember, has kept the details of the invention secret. Inventor two works hard to reduce to practice and promptly files a patent. She also quickly brings the product to market, all while inventor one is dawdling.
Who deserves the patent? I would say inventor two. Of what use are inventor one's efforts to anyone? Sure she "invented" the thing first, but why would I want to reward people who invent quickly, but then just sit on their inventions? Of course, you can come up with other stories that might shift the argument one way or the other. The point is that there is a value to having people make their inventions public quickly (so that others become aware of the idea, so that others know that a particular problem no longer needs to be solved, and so that others become aware that a patent is likely to cover a particular area in the future), and filing a patent does this, as patent applications generally are published 18 months after filing. (The patent reform proposals would increase the number of applications that must be published after 18 months, by the way.)
This isn't about making it easier to process new patents quicker. Relatively few patent applications become involved in "interferences," two or more inventors attempting to patent the same invention. Where this change would make the biggest change is in the courts, where inventors claiming the same invention fight it out or where patent defendants try to invalidate a patent based upon a later filing that was arguably invented first. These court cases are pretty messy. First, the question of when an "invention" is made is often not clear cut. Years can pass between when you first get the idea to try something and when you know it works and have worked out the messy details. When during this period does "invention" occur? Second, these questions often are very difficult to prove, since much of the relevant work goes on largely within the mind of the inventor.
Perhaps the bigger reason for the change, however, has to do with international harmonization. Every country on the planet other than the U.S. has switched to first-to-file. If further harmonization of patent laws is to occur, the U.S. is clearly going to have to switch as well. What the U.S. hopes to get as quid pro quo, however, is a switch by Europe to allow a "grace period" between when you publish details about your invention and when you must file the patent. Current European law says that if you make your invention public before you file, you lose the right to file the patent. The U.S. lets you file up to a year after you make your invention public. Japan gives you six months and is otherwise a bit more restrictive than the U.S. The lack of a grace period in Europe means that inventors interested in the worldwide market e
> Yes, it is true. It cost many millions of dollars to take a product from inception (whether it's a compound created in a laboratory, or a plant natives have been using forever) through all the preclinical and clinical trials that are necessary to obtain regulatory approval. Not only that, it often costs nearly the same, or sometimes even more, for products that get near the end of clinical trials, and present a side effect that all the preclinical trials failed to display (whether it's because the preclinical subjects were unable to tell the researchers about the side effect, such as something severe that only represents itself seldomly but with no visible signs, or because the non-human test subjects simply didn't experience the side effect).
Critics claim that the pharmaceuticals spend 10x as much on advertising as they do on research. Ultimately the patent merely fuels the saturation advertising that hits you every time you turn your television on to check the news.
Also, patents notwithstanding, the pharmaceuticals aren't interesting in developing drugs that address some very serious health problems, if they don't think the market will be big enough to give them a big ROI for the development.
The system is broken in ways that patent reform isn't going to fix.
Sheesh, evil *and* a jerk. -- Jade
So by your standard, Calculus is obvious?
Yes. If you travelled back in a time machine and shot Newton and Leibnitz before they revealed any of their discoveries, it is my belief the Calculus would have been "discovered" almost "on schedule".
The subsequent pissing match over priority tended to obscure rather than enlighten. Not to diminish the accomplishments of Newton or Leibnitz, but the basic concepts underlying differential and integral calculus were known to the Greeks as early as Euclid. What was awaiting discovery is the broad application of those concepts to so many purposes. One thing that may have hindered this discovery was the existence of suitable notation. You try doing serious engineering calculus without arabic numerals and trying to frame everything in terms of geometric constructions.
In fact, notation is so important to the usefulness of calculus, I'd consider placing Euler's contributions to calculus on par with Newton or Leibnitz.
Post may contain irony: discontinue use if experiencing mood swings, nausea or elevated blood pressure.
So then the best business stategy would to spy on the competitors, and then quickly create "evidence" of prior R&D to make it look like both companies came up with it first.
In which case, nobody gets the patent. Which is unfair to one inventor. However when an obvious patent is created, it is unfair to every engineer who plans to work in the field for the next two decades.
Under the current system, you still have the incentive to spy and lie, but the payoff is bigger: you not only get to use the inventor's idea, you deny him the use of his own idea.
I think I see the noble ideal you're driving at, unfortunately, I do not believe it to be an achievable one.
On the contrary, I think it is the only practical one. We live under an impractical system now, that only works because people avoid researching prior art: with so many bad patents being issued, you're bound to violate something. It also works because there are so many fish in the pond, hopefully you can grow to a defendable size before a parasite leaches onto you.
The only reason the current system seems "practical" is because we don't know what practical would feel like.
To my way of thinking, having a simple, objective challenge for "obviousness" is the most practical solution conceivable. Sure, people may perjure themselves. That's true under any patent system. But the game itself is much tougher, and therefore less attractive to unscrupulous people out to make a quick buck.
Post may contain irony: discontinue use if experiencing mood swings, nausea or elevated blood pressure.
"Yeah, it goes to the shareholders."
I'm REALLY tired of all of the people bashing corporations and acting as if it's a sin to for anyone to make money. Shareholders, huh? Okay, do you have a pension plan? 401K? Interest-bearing bank account? Car loan? Mortgage? Life, car, home, or health insurance? Student-loan? SBL?
Where do you think that money comes from? Did you know that half the stocks in the US are owned by... us, in the form of pension and retirement funds? Or that business and corporate taxes on profit fund the lions share of the money the government runs on?
No.
Is the system perfect? Also no. But while it's easy to say that the system should be smashed, I've yet to see anyone work through the alternatives and come up with something better.
BTW, I've also noticed that many of the same people who cry about how "unfair" the system is cry even louder when their Welfare check is late...
Any sect, cult, or religion will legislate its creed into law if it acquires the political power to do so.