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Congress Tackles Patent Reform
nadamsieee writes "Wired's Luke O'Brian recently reported about Congress' latest attempt to reform the patent system. In the article O'Brian tells of how 'witnesses at Thursday's hearing painted a bleak picture of that system. Adam Jaffe, a Brandeis University professor and author of a book on the subject, described the system as 'out of whack.' Instead of 'the engine of innovation,' the patent has become 'the sand in the gears,' he said, citing widespread fears of litigation. The House Oversight Committee website has more details. How would you fix the patent system?"
This gives us several benefits: 1) it's more analogous to a physical invention where all the parts have to be described in detail; 2) the source code to enable an invention would be free and public knowledge at the expiration of the patent; and 3) it's useful for others to understand exactly what the inventor is trying to claim as part of his patent. The public would benefit from a better description of the invention, competitors could determine exactly what a patent is supposed to do, and the patentor would not have to face the specter of business method or software patents being eliminated in their entirety (which I'm sure more than a few people will call for).
1. Get rid of the "presumption of validity". Patents, once issued, are assumed to be valid unless proved otherwise, but actually doing the legwork on every single patent to make sure it's good before approving just isn't feasable, so lots of bogus patents get passed.
But courts still defer to the patent office unless the case is unambiguously bogus.
Move to something more like the copyright system, where having a copyright issued only proves that you had a claim as of a certain date and that your paperwork was in order.
The burden of proof would then be shifted to the patent holder to prove that their patent was valid as part of an infringement lawsuit, back where it belongs.
2. Get rid of or at least weaken submarine patents. The obvious way to do this is to make it so that no damages can be collected for actions before the patent holder files an infringement lawsuit.
Need a Python, C++, Unix, Linux develop
I'd add a new kind of FOSS patent, where the idea immediately becomes public domain and anybody can implement it. Useful to defend ideas from commercial interest patents.
...) standards. If grantee belongs to standards bodies, they must disclose all patents granted and pending, or their behavior is tort fodder for competitors.
For commercial interes patents, this is what I'd do:
1) Patent gives grantee a monopoly for three years, then it expires and becomes public domain. You've got three years to make your killing, then you have to compete on a level field.
2) Be stricter about giving them out - patent really has to be for something professionals of the field hadn't already thought of.
3) Make it easier to challenge patents; if a challenger can produce prior art, patent is immediately voided, and grantee is barred from applying for new patents for ten years. If grantee had won any civil judgments regarding the patent while it was in force, any monetary judgments must be completely refunded, along with losers' legal fees.
4) No patents may be granted that could prevent other entities from implementing official industry (IEEE, IETF, ASME, NIST,
Disallow patenting an idea of how to do something. Proof of concept must exist. Limit software parents to 10 years and require that the source code and all source code for updates and/or patches be given to the USPO. After the 10 years expires the source code becomes public domain to be used by startups, students, and competitors.
Deny all patenting of genetic and biological technology.
If a company cannot make a profit off an idea that they have sole access to for a decade, then that idea or company is faulty to begin with anyways. Let somebody else have a chance to make the idea work.
- I voted for Nintendo and against Bush
company. The truth is that large companies regularly steal ideas and then BEG you to sue them. If you do, they grind you into the ground. You think that SCO vs IBM is long winded and expensive? Not even close. There are suits that take a decade. and the small guy always lose because they have to settle for a fraction (or sell out to somebody with DEEEEPPPPPP pockets).
I prefer the "u" in honour as it seems to be missing these days.
Here's how I'd approach the problem:
(1) Every year, a patent recipient names the price of an unencumbered license, $X.
(2) Every year, to renew the patent, the patentor pays $X*(2^r) for r being the number of previous renewals.
(3) As soon as a patent is not renewed for a year, it ends.
What this means:
(a) It is not practical in the long term to use a patent to prevent something from being built -- a high $X means a high renewal fee.
(b) Patents that are genuinely useful get renewed; patents that are just so much legal cow-dung will not be profitable to renew for as long.
Problems with this scheme: The exponent constant might need to vary by field; the scheme would have to be revised for design patents and plant patents; might conflict with various treaties; might be preferable to restrict the ability to use a small X one year and a larger one the next year (require X to be non-increasing?).
My first item is simple common sense, at least to anyone on /..
Second item would restore patents to individuals. The concept of patents was not designed or intended to foster large portfolios wielded by legal entities with mountains of cash and armies of lawyers. It was not even designed with Edison in mind. Restore patent holding to the actual living, breathing inventors, and let their employers have first refusal on any patentable item developed with company funds.
Third, business moves a lot faster than it did 50, 100, 200 years ago. Allowing patents to last 20 years is absurd in today's market.
Public Universities should not be allowed to be complicit with large corporations in holding patents hostage, especially in the science and medical fields. Actually, this could be made irrelevant by #2.
In general, reform the entire system to be oriented toward individual inventors, rather than Corporate innovation squatters.
If Congress does anything about this, it won't be caused by any domestic forces. The EU is gaining strength in these areas and pushing lots of reforms through. If the US wants to continue trading with Europe, many of America's draconian laws will have to be updated, including patents.
Right now, a patent can only be rejected if it is obvious, if there is prior art, or if it doesn't describe the invention in enough detail. If a patent examiner is handed a patent that is precise but incomprehensible, he has no grounds on which to reject it. I propose the following be added to the policies of the USPTO:
A patent shall be rejected if it either
- fails to use standard terminology where appropriate, in a way that makes reading of the patent more difficult
- describes aspects of the invention which are minor or irrelevant but not novel in excessive and unnecessary detail, or
- is in any other obfuscated, in the opinion of the examiner.
The typical patent is a very long description using precise but completely non-standard terms. Patents spell out in detail things that a person in the field would use one or two words for, and as a result, patents are hard to read, hard to search and hard to judge. Bad patents slip through the cracks not because the patent examiners don't know what they're doing, but because the patents themselves are extremely difficult to read.
A number of posters are arguing that the patent period needs to be reduced to some rather short interval, typically around 5 years. The problem is, it often takes about that long just to get the financial backing to turn your patented widget into a viable commercial product. A too short of a patent period and no one would be stupid enough to fund a patented project. Just wait a few years and you can skip paying the inventor his share.
The problem has never been how long a patent lasts. The 20 year period is actually quite reasonable. The problem is how easy some really stupid shit can be patented, and how much of a pain it is to get a bad patent revoked.
Unfortunately, I'll bet money that Congress will do to patents what they did to copyright, make a bad situation worse. (bad for the little guy, wonderful for the megacorps).
-- Will program for bandwidth
This is pure undiluted horse shit. Code is covered by copyright not patents. Method patents (of which software patents are a subset) should be abolished! If you have a patent on software, you should be required to relinquish any and all copyright claims to that code. Why should software methods be protected by both copyright and patents?
And that is how I would "fix" the patent system. Abolish all future method patents and give current holders the choice of continuing their current patents with no copyright protections after expiration or simply converting them to copyright where they belong. The choice would be theirs to make.
While I'm on a roll here, if you can also remove the assumption of validity of patents, that alone would go a long way to stopping the patent trolls.
B.
This is a sig. This is only a sig. Had this been an actual sig you would have been informed where to tune for more sigs.
If you're one of those people who're on the fence about software patents and think they should kept, then drop the term to seven years or so. Considering how fast the computer and software field move, seven years is a lifetime.
You're onto something there: Different terms for different fields. Software would probably work well at 7 years, but something like a song would be longer, say somewhere around 50 to a 100 years. Let completely different industries be treated differently.
Linux, you magnificent bastard, I read the fucking manual!