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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.
$DEITY have mercy on the first to patent the time machine.
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.
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?
In the current system, a person/company has some fixed amount of time (1 year? 6 months? I don't recall) to file a patent after the invention has been mentioned publicly. Some companies rely on this by shipping the product first, then worrying about filing the patent applications. "First to file" will likely delay many product releases, as the inventor will be required to get the patent application process started before release.
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®
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.
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..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.
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It mainly affects companies or individuals keeping innovations secret; in first to file, it's the first to file a previously _undisclosed_ invention who gets the patent.
For opensource it's probably slightly better, as it becomes slightly more difficult to submarine patents or futz the invention dates.
However, it doesnt affect the more real issues of overly broad claims, etc. Or the economic validity and usefullness of IP at all.
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.
This is great; I will patent the process of sucking air to live.
Or fire, the wheel, the screw, the inclined plane and the wing.
Hey, how about a patent on stealing the election through Diebold voting machines?
I am the unwilling control for my Origin.
An interesting tidbit, this was introduced in 2005 as well by Lamar Smith of Texas:
t _reform_p.html
http://patentlaw.typepad.com/patent/2005/06/paten
Not sure what the difference is between the two, because I'm still looking for the bill's number. It's almost as if people like to use the fluffy name and never really look at the bill - only reference it from other articles.
You are checking your backups, aren't you?
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!
"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
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?
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?
If Wikipedia is right: http://en.wikipedia.org/wiki/Orrin_Hatch
Mod parent UP as the post is on to something.
I guess the SCO group realizes it has no case so it is now influencing a change in law to change its case. Where is the SEC when you need them? Maybe this explains why SCO gets away with so much.
IBM/Linux should patent 0/1 (binary) since prior art no longer maters. Then countersue. I look at the bright side, the more of a circus they make of the patent system, the sooner it will fall.
i agree with your concern in general, but it's worth pointing out that one can, in fact, file a provisional patent which lasts up to one year. i'm not sure what the expense involved is, and you have to provide more than just a description (which is a good thing, in my opinion), but the bar is much lower than a full patent app.
i speak for myself and those who like what i say.
But, its supported by Orrin Hatch, same guy who is behind a lot of other nasty IP related bills that have appeared on Slashdot. Which automatically makes it bad. (since Hatch has shown time and time again that he is a shill to big corps with lots of investment in IP)
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 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