Legislation To Overhaul US Patent System

FutureDomain sends us to a PC World report on the filing yesterday of legislation to overhaul the US patent system completely. The US has the only system worldwide that tries to ascertain who first invented a thing — everywhere else the criterion is who filed first, and the new legislation would bring the US into line. Identical bills were introduced in both the House and the Senate by, in each case, bipartisan sponsors. The corporate roster of backers includes Microsoft, IBM, Amazon, and nearly everyone else. From the article: "The provisions of the Patent Reform Act would... restrict damages that patent holders can receive for infringement lawsuits, create a new procedure to challenge the validity of a patent after it has been granted, and boost resources for the US Patent and Trademark Office."

Comments

Yeah right, like this ever works

[killa62]

Nothing for you to see here. Please move along.

First Post!

[tygerstripes]

Er... I mean "Prior art!"

Re:First Post!

[halivar]

No, no more prior art. If you filed first, screw prior art. It's yours.

I think this is going to break it worse than it already is.

Re:First Post!

[XxtraLarGe]

Now I can finally put in my patent for fire!

Re:First Post!

[Anonymous Coward]

I mean "Prior art!"

Nothing to do with prior art - prior art invalidates patents in first-to-file countries* as well as first-to-patent countries.

It's more when two inventors develops something novel at the same time. Who gets the patent? First to invent - or first to file?

* Which include the Phillipines as well as the US?

Re:First Post!

[ThosLives]

I have to agree here - this is a horrible development.

In my view, the extreme solution is this:

1. No patents will exist as of 2025.
2. You can get new patents up to 2025
3. Any patent existing before 2025 will be in effect but expire on 2025.

A more agreeable solution would be this: Patents only last 5 years.

That will truly spawn innovation, because for anyone to make a buck, they will have to create new novel things. And the consumer will benefit, because innovations in manufacturing efficiency will mean that things take fewer resources to manufacture and last longer - differentiation will be in the product attributes, not in the patent portfolio. Sure, some people will claim they won't be able to recoup development costs or whatever, but that will just mean that development costs will have to come down or people will actually have to *gasp* do something truly innovative to get business. This is mostly Big Medicine, and if Big Medicine can't manage to be profitable at the prices the public is willing to pay (generic prices) without patent protection, then they (and the public) need to rethink the model: The public can either have new drugs and pay a lot to support the development costs, or have cheap generic drugs and no new ones. Supply and demand, free-market style (without the protectionism of patents).

Re:First Post!

[jguthrie]

Prior art determines patentability, not the determination of who the inventor is. Look, patents are issued to inventors. In order for that to happen, the inventor must be determined. Right now, the standard in the US is "first to invent", which means that the patent office has to examine the evidence and determine who invented the invention first. Now, since they obviously can't trust anyone's word on the subject, they have to examine evidence which is usually (always? IANAL) in the form of notebooks that have to be properly kept. In the absence of other evidence, the first person to file is declared the inventor.

Now, this is not to say that the bill would not break the US patent system any more than it already is, but one really can't tell that just from reading a summary. You should read the actual bill before concluding that it makes any problems worse.

Re:First Post!

[Sandbags]

OK, so have we're coming in line with the rest of the world where little inventors and small time research firms can get screwed because some inside guy leaked details and a major corp like Microsoft or Verizon throws a bunch of money at the idea to develop it first, then patent it before the small guy can even finish his write up and submit it. in other words, we're implementing a system where big corps can steal ideas for little guys who are too slow, too poor, or simply don't know how too file a patent, and then these small guys get NOTHING.

Re:First Post!

[ThosLives]

It's more when two inventors develops something novel at the same time. Who gets the patent? First to invent - or first to file?

Nobody, because it's "obvious to one skilled in the art"?

Actually, if two people develop it, it's no longer 'novel' by definition and so fails the validity tests.

Re:First Post!

[fyngyrz]

It's more when two inventors develops something novel at the same time. Who gets the patent? First to invent - or first to file?

It has never been first to invent anyway -- that's just a red herring. The entire question is, who has the money to defend the patent in court. Because if you don't, the odds are, you're going to lose it as soon as someone wants it. It's a corporate favoritism scam. It's always been a scam. It's not just a scam because of this, either. If we both invent something, you might take ten times the resources that I did, going about it methodically, where I might just stumble into it... an idea, a test, and viola! Your efforts are 100% wasted, even though you invented it just as legitimately as I did. Further, some wag down the line doesn't know about our work, and a year later, he invents it too. Boy, has he got a nasty surprise waiting for him. For all of these reasons, and more, the patent system is one that mainly spreads disadvantage. The underlying idea is false too - the idea that "we need to be encouraged." Tell that to the OO authors, the Gimp authors, to all the inventors and authors without patents. We don't need encouragement. We just need to be left alone!

As far as I'm concerned, the only legitimate use of an idea is to turn it into a product or use it to make more ideas. You can make money by selling just the idea now, because patents create artificial scarcity. Better if you sold something made from your idea, or just published for everyone's benefit. And before the pharma trolls come out of the woodwork, just take most of the damned legislation and regulation off pharma companies, and they'd be fine. We'd get new drugs at a much higher rate, and yes, just as happens now, sometimes there would be problems, despite testing.

If keeping an idea secret long enough to get it out on the market isn't enough to make you a decent profit with the aid of marketing... then maybe you should be flipping burgers and let the real entrepreneurs get to work.

Re:First Post!

[Anonymous Coward]

I think I'll patent life
and while I'm at it, sex.

Don't worry, only 1 cent per second for the former, and $1 per participation in the latter.

Re:First Post!

[dsanfte]

A short migraine is still a migraine. The patent system is a clusterfuck.

Re:First Post!

[mikeisme77]

I think it's already pretty clear that it will be bad as it will benefit patent trolls and hurt technologies developed by consortiums or open source projects (neither of which tend to patent their ideas--consortiums just establish standards that define the technologies, and open source projects normally don't waste the money on patents). For example, look at the Verizon vs. Vonage case where Verizon was the first to patent, but as of a Slashdot story yesterday it seems that a consortium of various IT companies actually met and established the standards/protocols/underlying technology of VoiP in question at least a year prior to Verizon filing for a patent.

Re:First Post!

[jdray]

Don't you mean "method for modifying the stable state of chemical compounds by rapid oxidization" ??

Re:First Post!

[CogDissident]

But then what about companies that spend MILLIONS of dollars making a product, with thousands of people having worked on at least a small part of it? Even if they did keep a secret, they'd only have a few months in the marketplace before some knock-off-vendor was making cheap copies or doing the same thing with their products.

Re:First Post!

[yog]

fyngyrz: "And before the pharma trolls come out of the woodwork, just take most of the damned legislation and regulation off pharma companies, and they'd be fine. We'd get new drugs at a much higher rate, and yes, just as happens now, sometimes there would be problems, despite testing"

If only that were the case. Patents are the least of pharma's issues. Liability is the number one reason that new drugs are not being developed or released. There is a whole industry of class action lawyers constantly searching for the next company to attack, and a drug's purported side effect can result in jury-awarded damages in the hundreds of millions of dollars. Get pretty Sally on the stand tearfully describing how this heart drug killed her poor papa. One contaminated batch is enough to put a company out of business.

This is the reason why U.S. pharmaceutical companies stopped manufacturing flu vaccines, resulting in a major shortage a couple of years ago.

Is it right that an entire company should be punished because of one technician's error, or because of a bad executive decision regarding test results? Legally, it it, because human life is assigned a very high monetary value in the U.S. and companies are legal entities with collective responsibility for their mistakes (inadvertent though they may be).

Is it generally good for society that this kind of liability is assumed? Probably not, because the marginal diseases end up not getting cures. Companies just can't assume the risks for drugs that have a tiny end market. Even major drugs are almost prohibitively risky today.

I think patents are absolutely necessary to keep drug development going, but liability has got to be limited in some way or no one's going to be doing the R&D regardless of patent reform.

The other major reform is for the Federal Government to get off its Christian anti-science kick and start funding basic scientific research again the way we did back in the '50s and '60s, when the U.S. left everyone else in the dust. Double the budget or triple it, create a market for science Ph.D.s and get the research going. The life changing innovations that come out of basic research will far outweigh any patent shenanigans we have to deal with.

Re:First Post!

[plover]

You should read the actual bill before concluding that it makes any problems worse.

I have two arguments against your statement, and I'm only half joking.

First, the bill is backed by every large technology corporation. The only bills large corporations ever approve of are ones that increase their profits, usually at the expense of smaller companies or individuals. And if both Microsoft and IBM agree to it, this trips all my warning alarms and signals about "bad ideas".

The other argument is that Congress is horribly, horribly broken, and I simply do not trust them to pass good or useful legislation. This country needs fewer laws, not more laws. In general, if they're passing a piece of legislation, it's going to be bad for us regardless of the topic.

That said, I'm actually looking forward to reading the bill. I mean the USPTO is already pretty screwed up, so this offers the faint glimmer of hope that it really will reform them. But I'm also prepared to be severely disappointed.

Re:First Post!

[ect5150]

Mostly big medicine? How long are any of Intel or AMD's chips in development before they reach affordable levels? Sure, dual core CPUs may come come out right before your 5 year mark, but how expensive were these? Its true that if its 5 years, you'd see generic dual cores and costs would come down. Intel and MAD would just quit making new ones because they could take their money someplace else.

Same thing with the game consoles market. How long was that Cell processor Sony was making in development? We've been hearing about it for 5 years, should Nintendo be able to make a cheap version of the Wii with the Cell processors in it? "Hey, we play Wii games and PS3 games!"

The worst part is, the above examples are just the tech industry. You mention 'big medicine' ... but big medicine typically takes a little longer to develop (and thus can be more costly) than 5 years. The patent system does need to apply to all industries.

Re:First Post!

[jguthrie]

I should clarify my comment. I wasn't intending to imply that I think highly of the bill or that the people here who have a deep suspicion of the patent system would lose that suspicion upon reading the bill. Instead, I was trying to give some general advice. What people say that a document says and what it actually says are often two different things. One should debate the contents of a bill rather than what pcworld says about it.

I agree that, solely from the list of the organizations that are in favor of the bill, it would seem unlikely that your typical Slashdot denizen will be in favor of it even after they read it.

Re:First Post!

[Anonymous Coward]

What do you mean "no more prior art"? Even if you file first, your application can still be barred by 102(b) if the invention was disclosed, e.g., in a printed publication, more than 1-yr before the priority date (e.g., filing date). Moreover, even if you "file first," prior art can still invalidate your patent when someone challenges it down the line (e.g., in defense to a patent infringement suit).

Re:First Post!

[Surye]

The public can either have new drugs and pay a lot to support the development costs, or have cheap generic drugs and no new ones. Supply and demand, free-market style (without the protectionism of patents).

I agree with sentiments of free-market in general. However, this is an example that the short sightedness and self-interest of the masses will end up screwing themselves over (the both aspects of humanity, second is even encouraged by a capitalistic market). Though I still don't think this form of regulatory action is the answer, I just don't know it.

Re:First Post!

[Hoi Polloi]

But if you don't have the infrastructure in place already it might take at least 5 years for some little guy just to get his idea to the market. Not everyone is a big business.

I'd support reducing the time for copyrights though.

Re:First Post!

[M8e]

Why not make the product first and then file the patent? Then you have 4-5 years of monopoly. and if it takes five years to get the idea to the market, I actually want that somebody else can make it in three.

Re:First Post!

[Anonymous Coward]

Conspiracy theorize much?

Re:First Post!

[mr_mischief]

The answer might be that we properly fund our universities and government research labs to tackle these problems at cost instead of for a profit. The, the governments charge a nominal fee for the agencies in charge (like the FDA in the US) to come in and certify the drug company's implementation of the manufacturing line. All new drugs are generic, because the research was done by the public sector for the public. The drug companies that want to keep doing their own research can, and can file patents, but they'd be competing with well-heeled groups doing the research with no profit motive. Ban governmentally funded groups from keeping patents or letting the students and professors have them, too. IF it was done under hire for the government, it's public property. If a fully private university wants to patent stuff, that's fine because they're private. Tax dollars would be much better spent before the profits are figured in instead of buying the drugs for the public from the drug companies with the huge markups.

I'm also all for anything written as part of a public school project or within a government agency falling under the "works for hire" idea for copyright. The incentive to create is already there, because it's a grade or a paycheck. That's all the incentive you need. A student or a government employee would still own anything they did independently away from school or work, even if it's related to what they do while there. This would keep things like tech startups with closed source software written as class projects from darkening the industry landscape. If you want to go proprietary, you should write it for the company. If you wrote it for school, it should be open source. Privately funded schools, of course, would be able to close source for the school or negotiate rights with the students or their parents.

Re:First Post!

[Coryoth]

For example, look at the Verizon vs. Vonage case where Verizon was the first to patent, but as of a Slashdot story yesterday it seems that a consortium of various IT companies actually met and established the standards/protocols/underlying technology of VoiP in question at least a year prior to Verizon filing for a patent. I don't know exactly what this particular bill says, but if it is at all similar to other "first to file" approaches it means that prior invention is enough to overturn/invalidate a patent, it just isn't enough to get the patent granted to you instead. In the Verizon v. Vonage case that means the prior art you describe would do the expected and invalidate the Verizon patent. All this change would mean is that the "consortium of various IT companies" couldn't demand to have the patent granted to them instead.

Re:First Post!

[DriveDog]

Yep, have to agree also. The only thing that threatens some of the ridiculous patents now (VoIP, for instance) is that one can usually find prior art. There's no way, between pharmaceutical and telecom and megasoftware companies, that any law reforming patents in a positive way is going to pass. The most meaningful and useful things to do now are 1) increase staff and professionalism and pay at the PTO, and 2) stop granting patents for obviously stupid things like Amazon's "one-click."

Re:First Post!

[NotReallyDrnuk]

I'm not sure where you got this idea of "Now, no more prior art." I can assure you that the concept of prior art will remain. A fundamental tenet of the patent system is that a patentee may not take anything out of the public domain. That is the theory, though it often fails, like so many other ideas when put into practice. But the theory remains and so, then, will the concept of prior art.

What the first-to-file system will do is align the U.S. with nearly every other nation in the world, which are almost all, if not all, first to file. The people who will suffer most from this are the patent attorneys that specialize in interference practice. Interference practice is unique to the U.S.'s first-to-invent system, as it is a legal proceeding designed to determine who invented first. Of course, the date of invention doesn't matter in a first-to-file system - it's just a race to the PTO. So, once the U.S. switches over to first-to-file like the rest of the world, interference practice is pretty much gone, but for a few quirks like determining who actually invented, rather than when the invention was created.

But, prior art will remain as a way to defeat a patent or patent application. In fact, it will be easier to find, as the critical date will become the hard and fast filing date, rather than the less clear "invention date" of today under 35 U.S.C. 102(a) (of course, art under 102(b) is based off the filing date, too).

Re:First Post!

[Hoi Polloi]

If it is based on who files first then what is stopping a competitor from stealing your idea and filing? You file to secure your rights. Many small startups based on cutting edge ideas take many years to get to a marketable product and that can be just the R&D part, never mind building the business end of it. In the mean time they need to protect their core invention. It simply isn't as easy for everyone as you make it sound.

Re:First Post!

[jbuda123]

I think patents should only be limited in use to preventing actual financial damage. So if you have a patent but no product, someone else's use of that patent causes you no financial damage, so you have no recourse. Or, if you have a patent and a product, and someone uses that patent in an unrelated work that does not compete with your product, again, you suffer no damage and thus have no recourse. This should put an end to much of the trolling, which is the real drain on the system.

In addition to this, there's a piece involving the broken American civil court system (which is broken in more than just patent law). Trials need to be sped up and costs need to be reduced to prevent the guy with the deepest pockets from simply draining the other guy until he gives up.

Re:First Post!

[mobets]

You have a good point. Making the limitation 5 years from the first customer ship date would fix that. Patent it and take as long as you need to develop it. As soon as you sell one, the 5 year timer starts.

Re:First Post!

[tsalaroth]

Why you aren't modded Insightful is beyond me. I think such an idea would need some more details, of course, but overall, it's probably the best of both worlds - patents to protect innovators, and public property for stuff developed with public funds.

I don't agree with the 5 year limit up the parent-chain, however. 5 years simply isn't enough for some inventions - and filing when you bring it to market can only lead to someone doing all the hard work to bring something to market, only to find that their "research partner" filed the patent the day before. I think a staggered system might be better - 10 years for developing patents, and 5 years "at market" patents. What I mean by that is, if you file a patent for something that still needs development time to bring to market, you get 10 years on it - encouraging rapid development to "use" that time for recouping costs. The 5 year patent would be if you have it ready to bring to the market, and just want to file for your own private monopoly.

Re:First Post!

[Ibag]

This is mostly Big Medicine, and if Big Medicine can't manage to be profitable at the prices the public is willing to pay (generic prices) without patent protection, then they (and the public) need to rethink the model: The public can either have new drugs and pay a lot to support the development costs, or have cheap generic drugs and no new ones. Supply and demand, free-market style (without the protectionism of patents).

I'm sorry, but what? Are you serious here? Let's say that the cost to research and develop new drugs cannot be recouped in five years, because the price of drugs would either be too high for them to sell or or too low to pay for development. When you factor in the cost of developing and testing drugs that don't make it to market, this does not seem too far fetched. What happens after five years? Other companies that don't have the development costs to recoup can afford to sell generic versions of the drugs at much closer to cost, which would force the original manufacturer to do the same, and thus, it would become impossible for the people who develop the drugs to be profitable.

What happens in this scenario? Because it makes no sense to develop new drugs (because the laws of supply and demand say so), no knew drugs get produced, except in the rare case that a university researcher happens to stumble upon something exciting. Even in that case, it is possible that the cost of testing and bringing to market such a product would still be prohibitively high. In this situation, a good deal of medical research is never done, and many potential cures for many ailments never materialize. While the drug companies won't get all the profits off the new drugs, and while many researchers would be out of jobs, the people who suffer the most are the people for whom life saving medication is never developed.

You glibly say that they should rethink their model, but what makes you so sure that there is a viable model out there to be found? Regardless how efficient you are, development has some sort of inherent cost, and without either a temporary monopoly or substantial subsides, it does not make sense to engage in such development.

Medicine is one of the few places where patents do make a whole lot of sense, and it would be a shame to kill off the work these companies do just because their model doesn't fit with your ideology. It has been said that America's reduction in basic R&D over the last 20-30 years is a large factor in why we are losing our technical superiority. Do you really want to put the last nail in the coffin?

Re:First Post!

[Anonymous Coward]

I of course didn't RTFA, but if we really wanted the patent system to help innovation (and not sacrifice the one for the other), we'd need the following two points:

1) Not first to invent, not first to file but first to implement. That means you can apply for a patent, it is checked for prior art, but it doesn't become valid unless you actually bring a product on the market. Otherwise, the invention just sits around and never benefits the public.

2) Legetimacy by specificity: If a patent is more specific than another patent, the holder of the former patent cannot stop the holder of the former patent from putting it to use - provided, of course, that the additional specificity is actual innovation, but not requiring that there is actually a patent covering the more specific concept. The idea is that this helps innovation because if one advances an idea, this usually takes the form of a more specific design, thus should not be held down by the previous patent holders.

At least that'd be my 2 Euro cents.

Re:First Post!

[Endo13]

You're assuming that most if not all products that cost "millions of dollars" to develop will be reverse-engineered in a matter of mere months. I find that very hard to believe. As for those "thousands of employees" working in development, any employer should have the foresight to make a contract preventing them from sharing their inside knowledge of the project for at least a few years.

There's plenty of things that can be done to make a new invention profitable, even in the complete absence of patents. The inventor just has to be more creative in how he markets it.

Re:First Post!

[Dan Ost]

If you filed first, screw prior art. It's yours.

That's not true. If it's published before you file, then you can't patent it.
All that's changing is that if two people who up until filing have kept their inventions secret, the first one to file is the one that gets patent protection.

Only things that are public can be used as prior art.

Re:First Post!

[CogDissident]

What? You need prior art for my argument that things can be reverse engineered and then mass produced quickly... Fine with me http://en.wikipedia.org/wiki/China

Re:First Post!

[Endo13]

Perhaps you hit the "reply" link in the wrong post? Because you're definitely not responding to anything I wrote.

Re:First Post!

[masterzora]

Then we get to the issue of people patenting everything, but never shipping so that they can hold on to the patent forever. After all, they may not need it, but their competitors might be able to get more use out of it, if only....

Re:First Post!

[M8e]

"If it is based on who files first then what is stopping a competitor from stealing your idea and filing?" A safe, encryption of files and big money to the employees (to prevent espionage and such). It's not stealing to come up with the same idea and file it first, it's a competition an you where to slow.

Re:First Post!

[0p7imu5_P2im3]

You can't patent life! I already patented breathing and in some cases that is necessary for life.

Re:First Post!

[yfarren]

Again, Sorry, but the people rating you insightful didn't bother to understand the legislation. So, if they wanted to rate you "+1 funny" that would make sense. Alternately, you should be just "-1 wrong".

The Proposed Legislation has nothing to do with prior art. Prior art, will still invalidate a patent. ANY publication of an Idea, including your personal web-blog, releasing it as an open source project on SourceForge, describing the idea in a Slashdot comment, even just talking about it with potential investors if you don't get an NDA from them, ANY public disclosure, prior to the filing of a patent (by anyone), will render a patent invalid. It may be granted, if the examiner doesn't know of the prior art, but, in a court case, if you can show that prior art, and you can show that the prior art was published before the invention was filed (in any country, there are treaties about if I have filed in one country, but not yet in the USA, then I can get depending on what I do, up to 3 years to file in the US, after I have filed in another country), then that invention is not patentable.

What the proposed legislation changes is (I give an example):

Person A, and Person B, both independently come up with an invention, and both file, with no public disclosure, to receive a patent.

Under the current law, the USPTO has to figure out, between A and B, who though of the Idea, first. This is a nearly impossible task, and generally comes down to who does a better job documenting.

Under the proposed law, with neither side having publicly disclosed anything (any such disclosure will make the idea unpatentable, for BOTH A, and B, and anyone else with the same idea), the patent office looks at the filing date (and time, if it comes to that), and based on when the patent was filed, determines who gets the Patent. That is IT. NOTHING to do with prior art, nothing to do with the validity of patents.

Re:First Post!

[OakLEE]

First let me address your no patents system. It's a horrible idea. The concept of a patent is basically a social contract. The inventor gets the ability to make a living of of his inventions by having the right to exclude others from producing them, and, in turn, society gets full rights to an inventor's work after the patent expires by requiring him to disclose his inventive work to the public. These outcomes are mutually beneficial to both parties. In a no patent system, one of these outcomes will not exist. Either inventors will be unable to make a living, and the rate of invention will slow down as they take other jobs; or they will keep their inventions secret if possible so that they can make money by excluding others from their knowledge. In the former case, society gets stagnant technologically (i.e., the Middle Ages). In the latter case, inventors keep discoveries secret, and society doesn't get to build off them to discover new things. The scientific method relies on the availability all known sources of information of information for science to progress. (If anything a no patent system encourages, quacks, snake-oil salesmen, and mysticism since all of those promise solutions based on secrecy.)

This is mostly Big Medicine, and if Big Medicine can't manage to be profitable at the prices the public is willing to pay (generic prices) without patent protection

You obviously have no concept of how the drug business works. It takes years (sometimes over a decade) and hundreds of millions of dollars to develop a drug. On top of that it takes sometimes up to five years to get FDA and USPTO approval to both sell and patent a drug. Couple that with the rule that patents are deemed to expire from a term starting at their date of application, and you have the current situation where most drug companies only effectively get 15 years of protection out of 20 year patent. Apply this to your situation, and drug companies will get almost no patent protection at all.

This completely ignores the cost of recouping research, which most companies amortize over the life of their patent. If drug prices are high now, with companies spreading out their research costs over 15-17 years, imagine how high they will be if a company has to spread those costs over 5 years. You think health care is an inequitable situation right now, wait until your system where only the super rich can get access to the latest advances.

Supply and demand, free-market style (without the protectionism of patents).

I'm as pro-market as it comes, but the market only works if there is a limited supply or demand for goods. The main flaw patents and other IP is that in its natural market state information has:

Supply = Infinity, Demand Price = 0,

because knowledge as a good is non-exclusive, and non-rivalrous. In that situation, there is no economic incentive develop new technologies. Sensible IP laws solve this by allowing a restriction of Supply to some quantifiable level (in economics this is called "internalizing externalities"). Want proof that this works? Just look at civilization as a whole. Since the first copyright laws were introduced at the

Re:First Post!

[fyngyrz]

If only that were the case. Patents are the least of pharma's issues. Liability is the number one reason that new drugs are not being developed or released. There is a whole industry of class action lawyers constantly searching for the next company to attack, and a drug's purported side effect can result in jury-awarded damages in the hundreds of millions of dollars.

So... which part of "just take most of the damned legislation and regulation off pharma companies, and they'd be fine" did you not understand? I mean come on, you even quoted me!

Re:First Post!

[mr_mischief]

I think if a research partner screws someone out of a patent, or someone files a patent fraudulently, they should be banned from selling all patented products for a certain number of years.

The government should invalidate all of the patent licenses they've bought, refuse to allow them to license new patents, disallow them to sell their own patented products, disallow them from obtaining new patents, and set a lowish fee that any party can pay to license the patents they hold. All of this for say, two to five years. Repeat offenders should be stripped of patents and have their patented ideas published open source or public domain.

If it's a research partner, the patent should be shared unless there were other contractual arrangements. Period. If there's proof one screwed the other, the above should happen and the research partner should get full use of the patent.

If someone spied on another party or hired away an employee and files a patent someone else has rights to, or if they knowingly file despite valid prior art, then the same ideas I think should apply. The rightful owner of the patent should get to take it over.

The wronged parties should also be able to sue for actual damages in civil court.

Hmmm

[Anonymous Coward]

Why don't they do something useful like void software and business method patents while they're at it?

Re:Hmmm

[fyngyrz]

Why don't they do something useful like void software and business method patents while they're at it?

They never do anything useful, you silly person. They're the federal government. They're operating largely outside the bounds of the constitution and their primary foci are to (a) consolidate power, and (b) accrue money and distribute it to the power holders. See their current "interpretation" of the commerce clause for details. I'll give you a capsule: The constitution says the feds can govern INTERstate commerce. The feds say that means they can govern INTRAstate commerce. See how that works? Black is white, white is black, and your complaints are double-plus ungood. Now go back to sleep like a good citizen.

Are they going to patent this new system?

[Anonymous Coward]

Are they going to patent this new system? or can I steal the idea!?

Re:Are they going to patent this new system?

[Ginger Unicorn]

only if you file the patent first

Re:Are they going to patent this new system?

[Anonymous Coward]

You could apply for a patent on the method or evaluation system before they publish details. If you can patent software as part of a general purpose computing device, you can patent anything. You just twist the meaning of words to suit legal precedent and are handed a 20 year monopoly thanks to the patent system. The entire patent system needs overhauling, this is an attempt to been to do something under the guise of "patent reform" without actually addressing the issues. Amazon, IBM and Microsoft wouldn't be supporting anything that attempted to actually fix the problems with the patent system.

Re:Are they going to patent this new system?

[Anonymous Coward]

awwww how cute! a unicorn replied to my post.

well, maybe I wouldn't be able to file the patent because they're in the middle of overhauling it :(

Translation ... Garage inventer will be screwed!

[ScrewTivo]

Big Corp mass patent departments will continue to swamp the USPO and now can do it without worry of prior art. Just shoot me now. (only kidding...eh?)

Oh, well, that changes things.... no, not really

[SpacePunk]

So, they want to change it so that it's 'in line' with being broken? It's like me throwing a pot on the ground, someone saying "Hey, that pot is broken", and me saying "No, it's a cracked pot, it's no longer broken."

Wouldn't this actually be a huge step BACKWARD?!?

[elrous0]

The biggest problem with patents right now is companies patenting all sorts of things, ideas, systems, etc. that they didn't invent. A great example is Microsoft trying to patent "spectator mode" in games (despite the fact that PC games have been doing it for YEARS).

This legislation basically sounds like a free pass for companies to do this, and throw out the idea of "prior art" altogether. It's little wonder the big IP corporations are behind this (since they have the resources to file scores of patents, strong-arming out the little guys who may have actually invented them). And it's little wonder the patent office is behind it (since it GREATLY simplifies their job). But, for the consumer in particular, and for innovation in general, this could be one of the biggest bonehead moves out legislators have ever made (and that says a LOT).

Restrict Damages

[abaddononion]

...restrict damages that patent holders can receive for infringement lawsuits...

I really like the sound of that. It seems to me like it's probably the most overdue thing here. Patents are there to protect the little man from being run over by big companies. Not to allow big companies an extra avenue to milk millions out of the industry by patent-sitting. If the amount of money you could get from having patents was dramatically reduced, it's entirely possible some of the nonsense in the industry right now might start to thin a little.

But, realistically, it's probably just a pretty ephemeral dream. Like Communism.

Re:Restrict Damages

[SpacePunk]

We'll see how much you like it when you invent something, and some asshole runs to the patent office to get a patent on it.

Re:Restrict Damages

[Rob T Firefly]

I really like the sound of that. It seems to me like it's probably the most overdue thing here. Patents are there to protect the little man from being run over by big companies. Not to allow big companies an extra avenue to milk millions out of the industry by patent-sitting.

That's precisely what this legislation seems to make a whole pantload easier. I, for one, really don't like the sound of this.

Re:Restrict Damages

[abaddononion]

What is your point? It's not as if this never happens under our current system. Or, even more likely, I invent something, but didnt know that some other company already had some really *vague* patent idea that allows them to cast a wing over what I invented.

The fact of the matter is our patent system IS getting abused. Left and right. And part of the problem there is that it has just become so profitable, and is really handy at trying to create a state of monopoly or semi-monopoly. Like how Verizon is trying to make certain that new technologies cant spring up to challenge the old archaic phone companies. And they're succeeding.

I think the idea of "restricting" the damages is a good thing. If the idea behind patents is to protect the "little" guy, then there's no reason that you should be able to use a patent to levy out millions and millions of dollars in damages against patent offenders, at least IMO. If I invent something, and then some other company steals my idea, and goes out and does something better with it, maybe because they had the capital to invest and I didnt... well, then, it sucks to be me. But it's GOOD for the industry, because whatever I invented is now out there, helping consumers. And yes, I do think I should be able to get some reparations. But do I think I should be able to grind that infringing company back into the ground, earn a vast majority of the profits when THEY did all of the work, and send the industry one step backwards so I can retire forever? No. Absolutely not.

And I never made any comment whatsoever about the other part, the "whomever patents first" notion, so dont presume to know my take on it, please. I was just saying that I dont think this reform is ALL bad. It may be bad overall, but at least there seems to be one nice element to it, IMO.

Re:Restrict Damages

[kidtruth]

That's not at all what the USPTO does, or is for. It's theoretically insensitive to the wealth of the person applying for a patent. The USPTO, and patent offices in all countries, are made to give inventors incentive to create and profit from their creations. It allows you a 20 year period of protection to sell your invention exclusively, before everyone can sell it (public domain.) Patenting works in the interest of society as a whole, and doesn't limit mega-corporations.

Re:Restrict Damages

[BadMrMojo]

..restrict damages that patent holders can receive for infringement lawsuits...

I really like the sound of that. It seems to me like it's probably the most overdue thing here. Patents are there to protect the little man from being run over by big companies. Not to allow big companies an extra avenue to milk millions out of the industry by patent-sitting. If the amount of money you could get from having patents was dramatically reduced, it's entirely possible some of the nonsense in the industry right now might start to thin a little.

The problem is, if they reduce the damages enough to protect the little guy, they're removing the deterrent that prevents the big guy from just flagrantly violating the patent and going on his merry, cash-strewn way.

Why wouldn't a big guy steal a little guy's idea if the penalty for doing so was less than the money they'd make from stealing it? Sort of like when auto companies compare the cost of a recall for a deficient car vs. the cost of getting sued by not issuing a recall and just letting people die.

Re:Restrict Damages

[Anonymous Coward]

The PTO hasn't done a really good job up to now figuring out if a patent application is any good. Maybe it's best to just stop pretending that they can do a good job.

Re:Restrict Damages

[SpacePunk]

----------------
The fact of the matter is our patent system IS getting abused. Left and right. And part of the problem there is that it has just become so profitable, and is really handy at trying to create a state of monopoly or semi-monopoly.
----------------

The solution isn't to make it easier to abuse the system. The solution would be to make it harder to get a patent in the first place.

Bizarroworld

[N8F8]

This only magnifies the problem with the existing system where only the big guys can AFFORD to file patents and actually enforce them.

Re:Bizarroworld

[operagost]

It costs only $150 for a "small entity" to file a patent, and it doesn't take a patent lawyer to present the documentation to the court. If it exists, the patent holder can provide the documentation. The problem lies with inventors who don't patent their work, believing (often correctly) that it is obvious and unpatentable, but the patent office grants one to the "big guys" anyway.

Re:Bizarroworld

[Anonymous Coward]

The problem is that patent law is very complicated, and you need significant experience to write and litigate patents. Writing patents can be done on a budget, but don't expect to get an enforceable patent through the PTO on less than $8k. Also, the cost of patent litigation is quite high, however, if you have a good patent and targets with lots of money, then you can likely get a patent lawyer to take it on a contingency basis. However, the regular legal fees for a patent case are almost always in the low seven figures if not done on a contingent basis.

Re:Bizarroworld

[kidtruth]

Very correct.

Re:Bizarroworld

[Belial6]

I have heard this kind of thing before. Do you have any links that might better educate us how to file our own patents at such a low cost? If it is really that cheap and easy, it would do a lot of good if more people knew the process.

Re:Bizarroworld

[N8F8]

The actual costs for properly documenting a patent are MUCH higher. IANAL and YANAL so look into it sometime. And even if you get one you have to be able to spend the money and time to defend it.

Re:Bizarroworld

[Jtheletter]

Other responders have already said as much, but being an engineer with a few of my own ideas I've looked into filing on my own "on the cheap." The fact is the fees for filing amount to more than $150, more like $400. Then this assumes you know how to frame the language of your patent correctly, and if you don't then your patent is worthless as soon as a real patent lawyer shreds through it in court. So now you're talking about minimum another $600 to get someone to frame your claims in an ironclad way. Also, if for some reason the patent has a claim rejected or otherwise needs to repeat part of the process you have to pay some of the fees over again, and probably pay someone to help you sort it out. In the end I determined the very cheapest a layman could get a usable patent through is somewhere around $2000 if you're lucky. More like $5,000+. And if it's a highly technical invention expect north of $10,000. And good luck when someone with deep pockets decides to challenge your patent in court. Your choices will be similar to what the RIAA offers.

Re:Bizarroworld

[mcguiver]

The other problem is that the big guys have lawyers that just hang around patent offices and wait until they get the details sent to them to file the patent. Even if I had an idea 6 months before the big guys it would take me that long to figure out how to file the patent and I would still lose.

Re:Bizarroworld

[Tablizer]

The problem is that patent law is very complicated, and you need significant experience to write and litigate patents. Writing patents can be done on a budget, but don't expect to get an enforceable patent through the PTO on less than $8k.

Its kinda like making a database-driven commercial website. Technically, you can do it for only about $15 a month and "Websites for Dummies", but in practice to do it "right" you need some technical and design expertise.

Re:Wouldn't this actually be a huge step BACKWARD?

[SpacePunk]

It would vindicate the entities in the U.S. that 'filed first', and in the present system didn't invent the item which makes their patent illegal. I smell large amounts of money, and am wondering which person in Washington D.C. suddenly has a huge wad of cash to spend.

Overhaul?

[Anonymous Coward]

Sounds like a minor tweak, where's the 'PRIOR' art test or the 'OBVIOUS' or the 'TECHNICAL APPLICATION' test? Where's the independent check of those?

Usually these laws are written by patent lawyers to benefit patent lawyers and I bet this one is no different. Check, does clause 29384.23.21 mean they don't have to read the patent before rubber stamping it and cashing the check?

And are they going to lower the costs of this?

[WindBourne]

It is nice that it is file first, but the costs have to be low enough that plain folks can file. Otherwise, it is the larger and richer ppl who win out.

Re:And are they going to lower the costs of this?

[fyngyrz]

It is nice that it is file first, but the costs have to be low enough that plain folks can file. Otherwise, it is the larger and richer ppl who win out.

It has nothing to do with the cost of filing. It is the cost of defense that you should be concerned about. Compared to that, the cost of filing is nothing.

Re:And are they going to lower the costs of this?

[WindBourne]

Defense costs will not change. They will still be high as long as we have lawyers. Still need the ability to get the patent.

Re:And are they going to lower the costs of this?

[NormalVisual]

It is the cost of defense that you should be concerned about.

Exactly. A patent doesn't do a bit of good when you file suit against an infringer and in response the first thing they do is drop 50 pounds of documentation on your desk. You're looking at thousands of dollars for your lawyer and his staff just to sift through it before you can do anything else, and that's just to keep the court from dismissing it out of hand. If you don't have that cash on hand, you're done.

Re:And are they going to lower the costs of this?

[Eivind]

Doesn't matter. Even if you *could* file and obtain a patent, you'd still be screwed. The day you notice some megacorp abusing your patented technique, one of two things happen, depending on if you actually release product yourself, or if you're just a patent-troll.

If you release product yourself, then something similar to this will happen:

• You send a letter, demanding that abuse of your patent stops, or that royalties are paid.
• You get a response: We don't agree that what we are doing is covered by your patent. And even if we did, your patent is invalid. And even if it wasn't, did we mention that your product uses 137 techniques that are patented by us ? And even if none of this was true, do you have the time and money to figth a 10-year legal battle to prove it and extract a single cent ?

If you don't, then it's similar, the only exception being that then they cannot claim that you are using their patented techniques, so you're no more likely to actually win, but atleast you're a bit less likely to lose in the inevitable counter-claim suit.

Re:And are they going to lower the costs of this?

[fyngyrz]

Defense costs will not change. They will still be high as long as we have lawyers. Still need the ability to get the patent.

No, you're confused. There are four possible cases:

1. obtaining and defending are affordable. Patent is worthwhile.
2. obtaining is affordable, defending is not: Can't defend. Patent is worthless.
3. obtaining is not affordable, defending is: Can't obtain. Patent is worthless.
4. obtaining is not affordable, defending is not either. Can't do anything. Patent is worthless.

Look into the costs as they stand now. You'll soon realize that only someone with very deep pockets (and that includes large corporations, of course) presently fits into category #1. So until #1 is the default condition for any person with a legitimately patentable idea, the system is unfair based on the inventor's resources rather than when he invented, or when he filed. This of course ignores the unfairness of two or more people who independently invent. But the point is, the system cannot even do what it says it is supposed to do (protect those who are first to invent, or file if these changes go through) as long as the costs are allowed to set the limits for who can play the game for either obtaining or defending.

Frankly, this worries me

[xiard]

I think I understand the rationale for changing the law, but as an application developer it worries me. I'm not interested in trying to patent software that I create, or any of the techniques that I use. I'm more interested in creating applications that are so compelling that they set a high standard that is difficult for competitors to meet, and then continously innovate to stay ahead of them. However, I have always felt like I could rely on the fact that I would be able to prove that I had "invented" the software techniques I use in my applications by keeping good records of my design documents, source code control history, etc. My worry with this new proposed law is that someone could take advantage of the fact that I don't care to go through the hassle of patenting aspects of my software and swoop in and patent the concepts themselves. It almost seems like it could foster a new age of "patent squatters" similar to URL squatters. Opportunists took advantage of the fact that many companies didn't acquire their trademark URLs in the web's infancy. I could easily see a similar technique arising with patents. All you would have to do is: - pick some successful web sites - check to see if they're doing anything remotely worth patenting - see if there's a patent yet for that - file the patent if there's not - blackmail the web site, threatening to shut them down if they don't pay you a royalty/settlement for the use of "their" technique. Am I off base here? Of course, I haven't read TFA yet, so I very well could be.

Re:Frankly, this worries me

[xiard]

Damn, I knew I should have previewed. And now, a more legible version.

I think I understand the rationale for changing the law, but as an application developer it worries me. I'm not interested in trying to patent software that I create, or any of the techniques that I use. I'm more interested in creating applications that are so compelling that they set a high standard that is difficult for competitors to meet, and then continously innovate to stay ahead of them.

However, I have always felt like I could rely on the fact that I would be able to prove that I had "invented" the software techniques I use in my applications by keeping good records of my design documents, source code control history, etc. My worry with this new proposed law is that someone could take advantage of the fact that I don't care to go through the hassle of patenting aspects of my software and swoop in and patent the concepts themselves.

It almost seems like it could foster a new age of "patent squatters" similar to URL squatters. Opportunists took advantage of the fact that many companies didn't acquire their trademark URLs in the web's infancy. I could easily see a similar technique arising with patents. All you would have to do is:

• pick some successful web sites
• check to see if they're doing anything remotely worth patenting
• see if there's a patent yet for that - file the patent if there's not
• blackmail the web site, threatening to shut them down if they don't pay you a royalty/settlement for the use of "their" technique.

Am I off base here? Of course, I haven't read TFA yet, so I very well could be.

Re:Frankly, this worries me

[Anonymous Coward]

Under current US patent law, keeping detialed records of your designs and inventions is only useful if you intend to patent them, and then need to prove the invention date to get priority for your patent application over some other guy's application. Detailed records don't do squat if you don't file patent applications for your work.

If you aren't filing patents, then the only way to protect yourself in the current system is to publish your work (thus making it "prior art"). Regardless, someone could later file for a patent and claim that they invented it before your publication date.

In the "first to file" system, publication is still the way to keep yourself safe. Published inventions cannot be patented. What's better in the "first to file" system than the current "first to invent" system is that once you have published something, then it cannot be patented any more, unless someone managed to file their patent application while your publication was still in print (thus getting a filing date before your publication date).

The key point is, you need to publish your work to be safe from patent trolls.

Re:Frankly, this worries me

[dcgator]

There is a (legal) problem with your current premise of being able to protect your IP. The problem is that if someone tried to patent your invention, and you show up at the PTO with documents showing that you indeed invented first, you will still lose. The patent system exists in order to foster innovation by granting a monopoly to an inventor, IN EXCHANGE for full disclosure of the invention to the public. Thus, since you did not make an effort to patent your invention (legally, you 'abandoned' it by not being 'diligent' in patenting it), you will lose out to the patent squatters (provided your software wasn't published earlier than their filing date, i.e., the public could see your software. In which case they can't get a patent, but neither can you since you published before filing. Unless it published within the last year).

The new legislation will bring us closer to the ideal of the patent system: full disclosure to the public of inventions. If the law shifts to granting patents to the first to file, inventors will be motivated to file an application for a Patent ASAP, and if not, to PUBLISH (which only needs to be a website showing your invention... no need for journals, etc.) their inventions so that others will not be able to patent their invention.

It almost seems like it could foster a new age of "patent squatters" similar to URL squatters. Opportunists took advantage of the fact that many companies didn't acquire their trademark URLs in the web's infancy. I could easily see a similar technique arising with patents. All you would have to do is:

pick some successful web sites
check to see if they're doing anything remotely worth patenting
see if there's a patent yet for that - file the patent if there's not
blackmail the web site, threatening to shut them down if they don't pay you a royalty/settlement for the use of "their" technique. The problem with this supposition is that for them to 'squat' on an idea, they would have to find the idea first, which, if I understand your logic, is on a website that is 'public.' If that's true, then they lose all patent rights because it's already published. Of course, this won't keep squatters from doing it, but it is much much easier for the original inventor to just say: "Look at the way-back machine dated prior to the patent application filing date" and it wouldn't even make it out of the patent office's interference proceedings. Whereas, if we keep the 'first to invent' system, it begins to get harder because the squatters can start to dig up memos, emails, flow charts, etc. which could even remotely read on the patent. In response to which, the inventor will have to spend loads of money on lawyers and investigators to find properly documented memos, emails, flow charts, etc. in order to antedate the squatters.

The bad thing is that if you're an inventor who truly invents something novel before someone else, but they file before you, you get screwed. So long as they didn't steal the idea from you, that is.

Overall, though, I think it will result in a more streamlined system that cuts down on patent squatters. Not perfect, but a step in the right direction.

Re:Translation ... Garage inventer will be screwed

[Carewolf]

No. Prior art stays the same. If anyone has published a the same idea before it is not patentable (in theory, in practice USPO will still not check it),

The old system just had the option of companies not filing patents and not publishing their results could come in and claim they invented the idea first.

The new system is much less corrupt and more open.

Good news, bad news

[Dachannien]

There's a lot of good news in this bill. The bad news is that with statutory limitations on infringement damages, large companies who are experts in the art of accounting for legal judgments as just another business expense (cough, Microsoft, cough) won't let a little thing like a patent stand in the way of profit.

Still, if Big Pharma is against it, it's probably a good thing overall.

Re:Wouldn't this actually be a huge step BACKWARD?

[daeg]

It also means that every company, big or small, will have to try to patent EVERYTHING. If you don't, you risk becoming an infringer later. The law will make patents a necessity for operating even the smallest of business, and could easily render nearly every business out there an infringer.

The horse had a bad broken leg before, now we're going to add a bullet through its skull and still try to ride it.

Re:Translation ... Garage inventer will be screwed

[Bastard of Subhumani]

Where in the article does it say that prior art doesn't count?

Re:Translation ... Garage inventer will be screwed

[Anonymous Coward]

Probably yes, and companies coming up with new serious inventions. Now is the time to lobby congress to put a cap of 10% of the sales price of the item for patent licensing. This will improve the lot of garage inventors; companies trying to do mobile innovation (disclaimer: I work for one); and Free software developers.

Pork for the big companies

[btarval]

"The corporate roster of backers includes Microsoft, IBM, Amazon, ..."

Each of these companies is well-known for abusing Software patents; the first two in order to maintain their monopolies. Usually "reform" by these folks means "give me a bigger piece of the pie in order to stifle innovation and keep the little guys out".

Pardon my suspicions, but I doubt this so-called "reform" is here to help us. TFA isn't clear on this, but it sounds like this is just to establish the first-to-file basis of patents, rather thna first-to-invent. First-to-invent is advantagous for the little guy, so it's no wonder the big companies are behind this dubious "reform". This is not good legislation.

If they really wanted to reform the system, it would be better to either toss out Software Patents (and harmonize our system with much of the rest of the world) or at least require a working prototype before a Software Patent is granted.

Re:Pork for the big companies

[thebdj]

Each of these companies is well-known for abusing Software patents; the first two in order to maintain their monopolies. Can you please tell me what monopoly IBM has? Are they a HUGE multi-national corporation? Yes, but a monopoly they hardly are. What share of the PC market do they own? Oh right, all that was sold off to Lenovo. What percent of the server market? Unix Market? Now, what percent of the OS market is Microsoft? Go re-read the definition of monopoly first. As for abusing patents, Microsoft and IBM have not sued anyone with their patents that I am aware of. In large part because the computer industry would be destroyed. There is sort of a *wink*wink* agreement within the computer industry as it relates to patents. I will give you that Amazon is basically abusing their really shitty patent for 1-click.

Usually "reform" by these folks means "give me a bigger piece of the pie in order to stifle innovation and keep the little guys out". Actually, some of the reform these guys have proposed and the briefs they have written for SCOTUS cases have been in favor of things that would REDUCE the number of patents. At least one item would probably destroy half of their patent portfolios. It is actually kind of funny, but the people who always seem to be on the opposite side of the technology companies in these sorts of reforms are the big pharmaceutical companies. Makes you wonder who is the bigger evil.

Pardon my suspicions, but I doubt this so-called "reform" is here to help us. TFA isn't clear on this, but it sounds like this is just to establish the first-to-file basis of patents, rather thna first-to-invent. First-to-invent is advantagous for the little guy, so it's no wonder the big companies are behind this dubious "reform". This is not good legislation. First to invent is a mess. Speaking as a former patent examiner, it is not pretty and creates about as many issues as it would ever solve. It is out-of-line with the entire world, which allows for other countries to issue the exact same patent to another company than who it was issued to in the US. It also allows companies to come back to back-date their date-of-invention to circumvent prior art, something they would no longer be able to do with the current system. It would also get rid of interferences, for the most part, something that takes up the BPAI time instead of working on appeals, which is far more important to the overall process.

If they really wanted to reform the system, it would be better to either toss out Software Patents (and harmonize our system with much of the rest of the world) or at least require a working prototype before a Software Patent is granted. Um, working prototype is currently a requirement FOR ALL PATENTS. You do not patent an idea, you patent an invention, the actual item. It is actually within the right of the USPTO to ask for a working prototype if the functionality or existence of an item comes into question. This is very rare, but it can be done. So, for a Software patent to be issued, it would actually have to be in some form of use. Removal of Software patents and more importantly business-method patents is important. It would truly create harmonization with the rest of the world, since the US has failed multiple times to convince other nations to allow patentability of software.

Re:Pork for the big companies

[kidtruth]

"Um, working prototype is currently a requirement FOR ALL PATENTS. You do not patent an idea, you patent an invention, the actual item." Incorrect. You must only reduce your idea to practice, which means you can make a detailed list or explanation of your invention rather than a working prototype. You can patent something that doesn't exist, or doesn't work. It only must THEORETICALLY work. Of course, if the language is not extremely specific as to what the invention does, the patent claims will not protect against anything. This is a protection of the USPTO to protect those who don't have millions to spend on R&D.

Re:Pork for the big companies

[thebdj]

Um, no. 35 USC 101. I cannot remember how many times they told me you had to have the actual invention. None of this theoretical BS goes. If so, people could get away with patenting their "theoretical" anti-gravity machines and perpetual motion machines. They can exist in theory but they do not really exist.

Re:Pork for the big companies

[ciggieposeur]

Can you please tell me what monopoly IBM has?

For a former patent examiner I am quite surprised that you don't know the history of IBM's monopolies in both mainframe and PC computing, and the fact that they used their patent portfolio very aggressively to protect those monopolies. Though AFAIK they were never convicted of legal monopoly status.

It took serious money for Compaq to reverse-engineer their BIOS enough to run MSDOS on their first PC clone. For years afterward there were various BIOSes that had differing levels of compatibility with the IBM PC BIOS such that applications were listed to run only on "100% IBM compatible" PCs.

Re:Pork for the big companies

[thebdj]

And again I repeat, in the current world, not the world of almost 20-30 years ago, what monopoly does IBM have?

Re:Pork for the big companies

[Anonymous Coward]

If the invention only works theoretically and not in practice, then enforcing the patent becomes impossible because no invention could duplicate it.

QED

Re:Pork for the big companies

[btarval]

"Can you please tell me what monopoly IBM has? Are they a HUGE multi-national corporation? Yes, but a monopoly they hardly are."

Certainly, since your claimed expertise isn't technology, I'll repeat this again. IBM has had a monopoly for over 50 years in the mainframe business. There was an anti-trust case taken by the U.S. government back in the 1950's IIRC against them. Contrary to popular myth, the mainframe business is very much alive and well, and in Q4 last year, it was their largest growth segment.

I say "almost all" because there's a small startup which is selling mainframe-class computers which runs IBMs software directly. IBM didn't like this, so they filed a Software Patent lawsuit against the company.

The company is called "Platform Solutions", and they are apparently using Linux to achieve their emulation.

So, in short, IBM has filed a Software Patent lawsuit against a Linux company. Here's some Press Coverage:

"IBM's decision to sue Platform Solutions is another indication that the company is becoming more aggressive about defending its intellectual property in an effort to extract more revenue from its extensive patent trove."

IBM has a VERY long history of patent abuse in the mainframe business; software patents are only the latest variation on a theme. Please check Wikipedia if you want to learn more about the Consent Decree that IBM had to operate under until possibly recently.

"Actually, some of the reform these guys have proposed and the briefs they have written for SCOTUS cases have been in favor of things that would REDUCE the number of patents."

Prove it (but you can't). The standard argument is that first-to-file INCREASES the number of patents, since large companies find it easier to generate more patents than small companies do.

"First to invent is a mess."

And First-to-file stifles innovation. It is pure pork for the big companies. The patent system was supposed to be about encouraging innovation, not stifling it. I agree the whole system needs to be redone. But First-to-file is neither necessary nor sufficient to bring about the changes that are needed.

"Um, working prototype is currently a requirement FOR ALL PATENTS. You do not patent an idea, you patent an invention"

Really? Do you mean all those patent trolls who never ship any product have a working prototype? I'm a little surprised to hear this claim from a supposed Patent Attorney. I can think of several Troll companies which don't have a working product. This is usually their standard operating procedure.

A copy of the prototype binary and source code ought to be a part of any current Software Patent, IMHO.

Re:Pork for the big companies

[NearlyHeadless]

http://www.uspto.gov/web/offices/pac/doc/general/i ndex.html#model

Models or exhibits are not required in most patent applications since the description of the invention in the specification and the drawings must be sufficiently full, clear, and complete and capable of being understood to disclose the invention without the aid of a model.

A working model, or other physical exhibit, may be required by the Office if deemed necessary. This is not done very often. A working model may be requested in the case of applications for patent for alleged perpetual motion devices.

When the invention relates to a composition of matter, the applicant may be required to furnish specimens of the composition, or of its ingredients or intermediates, for inspection or experiment. If the invention is a microbiological invention, a deposit of the micro-organism involved is required.

Re:Pork for the big companies

[Anonymous Coward]

Mainframes, you idiot. They are the only one left in the mainframe biz. Where do you think they get much, if not most, of their money?

Re:Pork for the big companies

[Anonymous Coward]

Can you please tell me what monopoly IBM has? Get your head out your ass. When has IBM EVER paid to use a patent? NEVER!

Re:Pork for the big companies

[Anonymous Coward]

My original wording might have been a bit bad, but the poster was implying something only had to theoretically work and could be submitted untested. This is not true. So, my wording is a little off. A prototype of an invention to some degree would actually need to exist, but the working model is not needed by the USPTO and is rarely requested. Though, if it were requested some small inventors might get bit if they didn't actually make what they claimed to have made.

Re:Pork for the big companies

[mavenguy]

Is this covered in by statute, rule, or even the MPEP? A quick online search didn't come up with anything of the Office requiring a working model. Relevant portions of the MPEP appear to 706.03(a) and 2107 et seq.

Re:Pork for the big companies

[Anonymous Coward]

How many mainframe systems are still in use? Also, how many patents strictly for mainframes do you think IBM has? Comparing IBMs "monopoly" in mainframes to Microsofts in OS is absurd.

Re:Pork for the big companies

[tsalaroth]

Can you tell me how it is, then, that Sony has a couple of patents for a device to directly beam experiences into the neocortex??

Here's the two relevant patents:

• 6,729,337
• 6,536,440

I'd post links directly to the USPTO pages for them, but search links seem to break the USPTO sites because of session information or somesuch. You can search by patent number here.

Re:Pork for the big companies

[Anonymous Coward]

Last year IBM hit $22 Billion dollars in sales in a single quarter. Microsoft is about half that per quarter.

Here ya go:
http://www.itjungle.com/big/big102406-story01.html

Note the "resurgent market for mainframes". Mainframes are what run lots and lots of the key infrastructure in the country. It ain't Linux and it ain't Windows.

You're right the comparison is absurd. IBM has their business locked up tight, with absolutely no competition anywhere. They make Microsoft look like Open Source.

Re:Pork for the big companies

[ciggieposeur]

And again I repeat, in the current world, not the world of almost 20-30 years ago, what monopoly does IBM have?

Besides mainframes, not much.

Except that this thread is about how monopolizers abuse the patent system. That IBM did so for years is relevant to this discussion.

I'm not sure I get it

[glwtta]

And I'm sure I won't be the only one to ask this.

There are many things broken with the current patent system, but how exactly is a first-to-file system better? Seems like this only makes it easier to patent the useless and ridiculously broad crap that the current system is clogged with.

Re:I'm not sure I get it

[Bastard of Subhumani]

The advantage of the 'first to file' rule is it prevents the situation where A patents something and B goes "Oi! I thought of that last year. Honest. Ask my cousin C and pal D". Big companies have an advantage in that kind of trick: 'Sure we did, just ask employees E1 ... En.

It has no bearing on patenting beer, the sky or sex, which ought to be covered by other rules (novelty and non-obviousness to start, but also the fact that they naturally exist). Or at least it shouldn't have... this is the USPTO we're talking about.

Re:I'm not sure I get it

[Anonymous Coward]

because it's European. Not American. Get it?

Rest of the world - Good, You - Evil!

Learn to put up with it.

Re:I'm not sure I get it

[glwtta]

Well, I'm not American (I just live here), so yeay for me, I guess.

Re:Translation ... Garage inventer will be screwed

[Bastard of Subhumani]

Great! Replace a system that's wrong with one that's bureacratic, cumbersome and unworkable. And wrong.

You'd have to be INSANE to support this.

[mumblestheclown]

Those of you reading for my posts know that I am often accused of astroturfing for various companies or being a hack or whatever because of my generally pro-copyright views and (since 1997) general lack of enthusiasm for the scalability of OSS. However, on this one I cast my lot with the No Logo, penguin-on-a-black-t-shirt crowd and call this out for what it is: an attempt by very strong corporate interests with large in-house law departments to do an end-round on the prior art of small inventors who have not filed. the result? Anything from a Japan-like insane number of defensive, speculative, and useless patent filing jamboree to a Europe-like devaluation of the value of the inventor in lieu of the mba-like hacks (full disclosure: I have an MBA from a top school, but I also have my bona fides :). The USA may be wrong on the war on Iraq and still using Imperial measurements, but fark the crazy idea of 'whoever files' in this case - it's anti-consumer in every way possible.

Re:You'd have to be INSANE to support this.

[Anonymous Coward]

n attempt by very strong corporate interests with large in-house law departments to do an end-round on the prior art of small inventors who have not filed I can honestly say, that Microsoft has filed for patents using multiple law firms, none of them in-house. There is a whole other array of stuff to handle for patent law and in-house lawyers for simply filing and maintaining patent cases is not overly cost effective. It also is a pain since all patent lawyers have to be registered anyway. Also, the prior art of small inventors who have not filed, is not prior art if it does not meet the definitions of prior art under 35 USC 102. Also, if you sit on your hands and do not file, I do not think you deserve protection by the first-to-invent system. It doesn't work in the rest of the world, why in the US.

Anything from a Japan-like insane number of defensive, speculative, and useless patent filing jamboree to a Europe-like devaluation of the value of the inventor in lieu of the mba-like hacks What do you think the current system is? There are tons of useless patents filed. There are probably just as many defensive ones filed. I actually have read better Japanese issued patents, if you read past the bad machine translations. I really do not get the de-valuing of the inventor. Those with assignee's are already getting nothing or next to nothing. The small inventors already make up such a small part of the patent process any more that I do not see this being an issue. Also, the companies supporting it do not exactly have many small time patent filers in their fields.

Re:You'd have to be INSANE to support this.

[mumblestheclown]

What do you think the current system is? There are tons of useless patents filed. There are probably just as many defensive ones filed. I actually have read better Japanese issued patents, if you read past the bad machine translations. I really do not get the de-valuing of the inventor. Those with assignee's are already getting nothing or next to nothing. The small inventors already make up such a small part of the patent process any more that I do not see this being an issue. Also, the companies supporting it do not exactly have many small time patent filers in their fields.

The above paragraph makes me wonder if you know ANYTHING AT ALL about the patent process, the current realities of patenting in Japan, etc, or are you speaking completely out of your ass. I mean really. The above paragraph shows such a fundmental misunderstanding of the current situation in patents i'm sitting here trying to figure out if it is intended as some kind of joke.

Only Country . . .

[Dausha]

The statement "only country" belies an argumentum ad populum. When we acknowledged the woman's right to vote, we were the only country (or one of the only). So, was that wrong? We are one of the few countries to use the common law system; a system of law that proved its success for over a 1000 years and derived from the rights _rich_ Romans got (such as jury trial), which the peasants did not.

There's nothing wrong with being the only country, especially when we're right.

Re:Only Country . . .

[ohearn]

I have no problem if they want to go to a first to file. It does at least simplify the system a lot. Maybe in the process Congress will also realize we are the "only country" (or at least one of a shrinking number) that supports software patents as well. Maybe if we reduce the number of things that can be patented then this will be a good thing over all and people can go back to just using trade secrets.

At least the bill does seem to give the patent office additional resources to get thier job done.

Re:Only Country . . .

[Anonymous Coward]

"When we acknowledged the woman's right to vote, we were the only country (or one of the only). "

When the US acknowledged the woman's right to vote, the following countries had already granted that right, about 20 years earlier:

New Zealand,
Australia,
Finland,
Norway,
Denmark,
Iceland,
Canada,
Netherlands,
Austria,
Estonia,
Georgia,
Germany,
Hungary,
Ireland,
Kyrgyzstan,
Latvia,
Lithuania,
Poland,
Russian Federation,
United Kingdom,
Belarus,
Belgium,
Luxembourg,
Sweden,
Ukraine.

I make that 25, most of the other civilised countries of the world. So perhaps you've been reading an American history book? You know, the ones which say that America is best, first and only, and that the rest of the world does not really exist?

Do you know how far behind in most spheres of human endeavour you really are?

Re:Wouldn't this actually be a huge step BACKWARD?

[elrous0]

And, that in turn means that innovation will stagnate because it will become impossible for any small company of individual to invent ANYTHING which doesn't infringe on some big corp's patent. Only the most powerful corps (with the connections, reciprocal patents, and $$ to make deals with OTHER big corps) will be able to innovate. The little guy (like the guys who founded Netscape, Google, YouTube, etc.) will be completely shut out of the game.

We will see how this proceeds through Congress

[SamShazaam]

The USPTO has been a laughing stock for years and any effort to reform it should be applauded. Still, this is only the starting point and we will have to wait and see how it changes as it goes though the legislative process. This reform has been needed for quite some time.

More like fine-tunning

[Aceticon]

Judging from the article this does nothing to limit the "Doing something that everybody has been doing for years ... over the Internet"; "Doing something that everybody has been doing for years ... wirelessly" kind of patents.

Or the "Get a bunch of specialists in a room and ask them 'How would you solve problem X' and then patent the solutions" approach to "innovation".

Not to mention that the change from a "Prior-art has precedence" system to a "First to patent wins" one means the anybody that has loads of ideas but no money to patent them will loose against "Big corp with loadsa money for whom the costs of filling a patent are short change".

Couple this with the ability to patent business methods (whether encoded as a software/hardware mix or not) and you'll see things like "selling ice-cream on a beach" being patented.

The real revolution would be dropping patents for business methods (software encoded or not) altogether.

The fact that BSA is for it (read: the big boys in the software world), should be ringing alarm bells in everybodies minds.

Re:More like fine-tunning

[hey!]

Judging from the article this does nothing to limit the "Doing something that everybody has been doing for years ... over the Internet"

Well, how do you distinguish that from an actual invention, which usually takes two or more ideas that already exist and combine them in novel ways?

The problem is equivalent to distinguishing originality from opportunity. As wireless communication becomes cheaper for example, it becomes economically feasible to do things wirelessly that were not feasible before. Eventually somebody realizes this. Somebody has to be first with this realization, but we wouldn't necessarily count that as creative. If wireless had been dirt cheap for the last fifty years, you could have a reasonably safe presumption of originality, but in an era of rapid technological advance in a field, it turns the patent process into an artificially generated land rush.

What is needed is a definition of non-obviousness -- or maybe a test of non-obviousness -- that can distinguished between opportunistic timing and originality.

Re:More like fine-tunning

[thebdj]

Or the "Get a bunch of specialists in a room and ask them 'How would you solve problem X' and then patent the solutions" approach to "innovation". I am assuming you are going for an obviousness angle on this, and this IS NOT HOW OBVIOUSNESS WORK! I cannot say that enough. Do you not think these companies had a room of specialists to solve a problem and then work to file a patent? More than one person or one group of people might have the same idea, but that does not make it obvious and it should not make it unpatentable. The only exceptions to this are pretty minimal and usually so absurd they are not work discussing.

Not to mention that the change from a "Prior-art has precedence" system to a "First to patent wins" one means the anybody that has loads of ideas but no money to patent them will loose against "Big corp with loadsa money for whom the costs of filling a patent are short change". Just don't buy it. I really do not see this as the problem people make it out to be. Can someone show me real stats to prove that there are even that many small inventors now?

The fact that BSA is for it (read: the big boys in the software world), should be ringing alarm bells in everybodies minds. Look who opposes it, big pharmaceuticals and you will see this is a great idea. Most software companies want to limit the number of patents, because much of what they hold are defensive patents. The big software companies want patents to be better defined and want to limit some of the junk patents that get issued. Look at the support big software gave in the Teleflex v. KSR case. Software patents are basically in a state where they would mutually destroy each other if lawsuits started flying over patents. The people with the most to lose from their patents are big pharmaceuticals who make a killing on those drugs our doctors give us.

Re:More like fine-tunning

[Aceticon]

These kind of patents are filled before it becames economically feasible to do so.

It's a bit like officially staking ownership to a piece of land on Mars and then waiting until people get there.

The thing is, in IT related areas, given the speed of technological evolution and the way too long duration of a patent, wild land grabs before the necessary technology exists are a viable business model since technology will often catch up before the patent expires.

Reduce the length of a patent on IT to 2 years and all these parasites will go away.

Beter yet, eliminate patents for business methods altogether.

At the moment, in the US, the concept of "doing something" is patentable. Instead, patents should only be awarded to "the mechanics of a solution that allows the doing of something". If somebody else comes up with a beter solution the patent doesn't cover them, but if they tune or tweak your solution they have to pay you to sell their version of the solution.

This is how you get innovation instead of stagnation.

That means that "One-click shopping" would not be patentable but "An implementation of one-click shopping" would be patentable. If your implementation is sofware then it's already covered by copyright, the only reason you would need a patent for this is if hardware was involved.

For whatever is left, the "obvious to a specialist in that field" test would provide a good test of "inovativeness". If i try and patent "A mechanism for asysnchnously sending and receiving text messages over a TCP/IP network" and you go and ask a couple of specialists in the field "How would you do a mechanism to asysnchnously sending and receiving text messages over a TCP/IP network" and one or more come up with the same mechanism as me (by the way, that would be e-mail), then that mechanism is an "obvious solution" and thus not patentable.

Re:More like fine-tunning

[russotto]

I am assuming you are going for an obviousness angle on this, and this IS NOT HOW OBVIOUSNESS WORK! I cannot say that enough. Do you not think these companies had a room of specialists to solve a problem and then work to file a patent? More than one person or one group of people might have the same idea, but that does not make it obvious and it should not make it unpatentable.

Of course it should. If when given the problem, some substantial proportion of experts in the field would come up with the patented solution, the solution is either not novel (the experts knew it already) or obvious (given the problem and their expert knowledge, the solution immediately followed).

Re:More like fine-tunning

[dkf]

[The] change from a "Prior-art has precedence" system to a "First to patent wins"

In a first-to-file system, prior art can still make a thing unpatentable. It's just that if you've got two competing patents for the same thing, the patent office can determine which one to grant based on their own (presumably accurate) records instead of the (possibly falsified) ones supplied by the applicants.

means the anybody that has loads of ideas but no money to patent them will loose against "Big corp with loadsa money for whom the costs of filling a patent are short change".

The real advantage that a big company has is that it can get a reasonable number of smart people together and support their inventing; that advantage doesn't go away under any fair system. OTOH, lots of small companies get patents now (under both systems - first-to-file is used elsewhere in the world) and lots will in the future. Next strawman argument, please!

Re:Wouldn't this actually be a huge step BACKWARD?

[JTL21]

In the rest of the world published prior art still disallows patents.

Filed first is just the decider when two applications are made for the same invention (which was secret until the applications).

In most of the world the person who gets to the patent office first gets the patent and the one who gets there second gets nothing. In the US you can claim that you invented it before the other party and try to prove it with dated notes etc. which were previously not published. In theory the first to have the invention gets the patent not the first to file. This leads to messy legal fights.

In the rest of the world the incentive is to file (and therefore publish) first which gives a clearer decision on this issue.

Joseph

Re:Wouldn't this actually be a huge step BACKWARD?

[neoform]

That's exactly what I was thinking when i saw that headline..

I've got a bunch of ideas I wouldn't mind patenting, but haven't a clue how to do it, nor the money to waste on lawyers..

With this new system, companies would be able to set themselves up doing nothing other than watching smaller companies, then patenting their ideas, only to use those patents to sue the actual creator. That being their entire business model.

Yet again

[chuckymonkey]

Poor legislation that does nothing, is nothing, and lines more legislators pockets with corporate money.

No, you don't want this

[geekoid]

IF you think Patent abuse is bad now, this won't only hurt inventors, it will remove any recourse they have when they have been ripped off.

This is not reform we need, it is reform large corporations need.
Yes, the patent system needs some changes, but that is no reason to accept ANY change just for the sake of change.

What the patent needs is to remove business methods and software patents. The rest of it is pretty good, expcially compared to other countries.

Contact you legislators and tell them no, this isn't broken.

Re:Translation ... Garage inventer will be screwed

[Aladrin]

It would award patents to people who first file for the patents, instead of those first to invent, it limits damages patent holders can collect in infringement lawsuits, and it creates a new procedure for those questioning the validity of a patent to challenge it after it's been granted. - FTFA

Right there.

A invents X.
B invents X.
C invents X.
C files for patent.

Under the current system, C can't have the patent because A and B have prior art. (Assuming the USPTO does its job.)

Under the proposed system, according to the article, C gets the patent and A and B are screwed.

This is, of course, assuming the article has ANY clue what is really in the proposed legislation.

You can argue that the USPTO is not doing its job all you want, but there's no evidence that it will start with new legislation. If the only 2 options are "make the USPTO do its job" and the new legislation, the former is a LOT better.

Re:Translation ... Garage inventer will be screwed

[MrNJ]

No. Under the current system, the first to invent has 1 year (I think) to use the invention without worrying about "race to the Patent Office" that exists in the "first-to-file" countries. If anything, changing the system to the "first-to-file" rule would result in more filings because companies would be pressed to file as soon as possible to establish priority. Instead, the Congress should clarify the non-obviousness requirement and perhaps require USPTO to hire examiners with experience in the software development to review software patent applications.

From TFA

[DramaGeek]

Ronald Riley, president of the Professional Inventors Alliance, called large tech companies "patent pirates that pillage others' property." Large tech companies such as IBM and Microsoft!

Please... mod this guy up.

[not-admin]

He knows what he's talking about.

Woohoo!

[mwvdlee]

The patent system is broken in many ways.
This particular "prior art" rule, wasn't one of them.
The US patent system just got worse.

Worse than before

[Random BedHead Ed]

This makes patent trolling far easier. It "solves" the patent problem by making any legal recourse impossible. I need to get elected dictator.

Yes, especially...

[Anonymous Coward]

since the bill does NOTHING to limit patent terms or scopes. Period. You better believe this is a free pass for large corporations, higher-paid USPTO management, and greedy politicians looking for election time contributions. Meanwhile, the citizens can smell the K-Y getting warmed up.

Prior art will no longer matter. USPTO will rubber stamp patent applications and be able to fire many researchers who are no longer needed because a computer awards based on timestamp. The shark feeding frenzy over patent application has only been a foreshadowed to this point. Realize how many applications will flood the computer banks when the only rule of law is He Who Files First Gets Ownership for Decades.

Follow the money. Which scumbag politicians are leading this particular charge? And what are their respective past trackrecords?

First to file

[paulxnuke]

So if I invent something, can't afford to pay thousands of dollars for a patent, and someone else finds out and patents it, I'm screwed? I can either keep my invention a secret and hope no one thinks of it, or let it become known and wind up paying a lawyer for the right to use it?

The new procedure for challenging validity (whatever it might be, and if it addresses such cases at all) is likely to cost even more (requires a lawyer, where it's at least theoretically possible to get a patent without one for only a few thousand in filing fees.)

Unless they also get rid of software patents (ha!) this sounds from the article like it simply hands the whole system over to the large companies, rather than the current arrangement that forces them to at least pay some legal fees to rip inventors off.

Re:First to file

[Anonymous Coward]

So if I invent something, can't afford to pay thousands of dollars for a patent, and someone else finds out and patents it, I'm screwed? I can either keep my invention a secret and hope no one thinks of it, or let it become known and wind up paying a lawyer for the right to use it?

Or you publish a technical disclosure, in effect burning the bridge for ANYONE to patent it and continue using it freely relying on your ability to produce it faster/better/cheaper than the competition.

Re:First to file

[paulxnuke]

How does this work when the standard is "first to file?" It sounds like prior art is irrelevant, which seems to be at the root of most of the fears I see on /. My understanding of "technical disclosures" is that they place information in the public domain - does that make a difference in this case? If it does, then we do have a weapon of sorts. It's probably much cheaper to publish than pay patent filing fees, let alone lawyer fees.

Re:First to file

[ip_vjl]

First to file is the method in use in countries outside of the US. It doesn't mean that prior art is irrelevant. It simply means that if a patent application comes in that is valid (new, non-obvious) it is granted to the party that submitted the application first. This is unlike the US where I could file my application a month AFTER you, but if my lab notebooks show I was working on the invention before you were working on it (even though we knew nothing of each other) I would be awarded the patent.

Prior art still comes into play in the initial evaluation of the patent. It can also be used to challenge a previously awarded patent. Going to first to file would just put the US in line with the method used by the USPTO (and just about everywhere - if not everywhere - else in the world.)

The only problem you would face is the typical Slashdot view that disclosures don't matter, as the patent examiners will "rubber stamp" anything they get - but part of that depends on how you publish your disclosure. If you put it on your own website, it is unlikely to be seen. If you publish with one of the high visibility journals - you're more likely to be seen.

(Full disclosure: I used to work for IP.com which does this sort of thing. So I've had a fair amount of exposure to the workings of patents and disclosures.)

a problem

[WingedEarth]

This could be a problem for software developers. Someone might want to develop a new system or business method and put it out in the public without claiming any monopolies, but now he'll have to worry that a competitor will copy his idea and file it with the Patent Office first. Why are we trying to be in line with other countries? Aren't we supposed to be better? Maybe they should be more like us. Congress used this being in line with other countries argument to extend the copyright term to ridiculous lengths, and now they want to also mess up our patent system with the same bogus argument. What's the matter with our leaders?

Re:a problem

[Anonymous Coward]

"Why are we trying to be in line with other countries? Aren't we supposed to be better? "

No, you're not. You pretend to yourselves that you're better. Big Difference!

In fact, you need to spend about 50 years getting up to the level of the big boys in human culture. Some honor and caring less about the dollar would be a good idea. Stopping lying to yourselves would be a good start, but I don't see any chance of that happening soon.

April Fools?

[TravisO]

Looks like April 1st came late this year

first to file system

[PatentMagus]

We already have places where folks propose solutions to stuff and then patent what they dream up. Filing a patent app is called "constructive reduction to practice". Individuals who do this are called "patent trolls". Businesses who do this are called "businesses". go figure. This legislation won't do a whole lot to change that business model.

A first to file system keeps folks with trade secrets from challenging a patent. Currently, you can defend yourself against an infringement suit by showing that you invented first and were diligent. Invented first means before the patenter invented, not before they filed. Diligence means you kept at it and didn't go off to do something else. Also, one person can't use a different person's trade secret to defend against an infringement suit.

In the end, this cuts down on a lot of the discovery in a law suit.

Re:Translation ... Garage inventer will be screwed

[kidtruth]

This is not entirely accurate. If inventor "C" actually thought it up first, or "reduced it to practice" in the form of a list of workable steps, and has adequate proof (published documents of any kind usually will do) he could be awarded a patent. That's the difference between the American system and all other patent systems (A lot of people have gotten this totally wrong.) In ALL countries other than America, the person to file for the invention (Or simply file a Notice of Disclosure) would be allowed the patent.

Re:Wouldn't this actually be a huge step BACKWARD?

[fyngyrz]

I smell large amounts of money, and am wondering which person in Washington D.C. suddenly has a huge wad of cash to spend.

It isn't just money, you know. It is the promise of jobs after government employment. Low-rate loans. "Speaking" engagements. Lecture tours. Book deals. Boats. Houses. Sex. Vacations, junkets and "fact-finding" missions. Access to people in power. Tips - market and otherwise. All manner of free dinners and drinks. Power for its own sake. Oh, and of course - money.

There is no more corrosive environment than a political position in Washington DC. It's a wonder our representatives don't outright grow horns the first day on the job. Sadly, a 100% corrupt person looks just like one that isn't.

Re:Translation ... Garage inventer will be screwed

[Bastard of Subhumani]

Under the current system, C can't have the patent because A and B have prior art. (Assuming the USPTO does its job.)

And assuming they published it.

Not a prior art problem

[PatentMagus]

The same prior art applies in a first to file system. If it is out there and published/used/known, then it is prior art and can be used to reject patent claims.

Trade secrets, however, get a good hosing. If you keep something secret and someone else patents your secret, you could suddenly find yourself paying royalties.

Re:Translation ... Garage inventer will be screwed

[mOdQuArK!]

Unless A & B published their work before C filed, in which case the published details would serve as prior art that could be used to invalidate C's attempt to file (or more likely, could be used to challenge C's granted patent after the USPTO completely overlooked A's & B's published work).

Re:Oh, well, that changes things.... no, not reall

[Anonymous Coward]

No pun intended! he he

BSA

[BigDumbAnimal]

But several tech trade groups and companies ... Business Software Alliance (BSA) -- praised the sponsors for reintroducing the updated bill. If the BSA is for it, I'm against it. They are by definition anti-consumer and anti-business (not named Microsoft).

uh oh

[Ryan Monster]

Although this idea sounds great because it brings us in accordance with the rest of the patent systems in the world, there is a problem. The problem is that first to file systems, as opposed to first to invent, promote sloppy, careless filing. If you have to file first to claim your patent right, you will be inclined to broadly, generally claim your invention just so you can file it before anyone else does. It will increase the paperwork in the patent office to amend the poorly drafted original claims. That's how I see it.

Re:uh oh

[cpt kangarooski]

Although this idea sounds great because it brings us in accordance with the rest of the patent systems in the world

What the hell makes that 'great?'

If it's a good idea, then it needs to be good on its merits. It cannot become a good idea just because it is a popular one. In fact, it happens to be a bad idea, and probably unconstitutional in the US, since it rewards early filers, and not the actual inventor. (The second guy to 'invent' something is no more the inventor than the one millionth guy; I could come up with fire or the wheel right now and it wouldn't mean anything to anyone)

Trying to standardize the laws has been a major factor in ruining the American copyright system. I have no confidence at all that it could possibly help the American patent system to merely try to do what everyone else does. This is not to say that our system could not be improved, and indeed those improvements might happen to be similar to elements of other systems in other countries. But it should only be a coincidence that they're the same. There is no value whatsoever to deliberately making them the same.

Re:uh oh

[Ryan Monster]

I should clarify: I was thinking (and should have been typing) that it sounds great to politicians and policy-makers.

Re:uh oh

[kidtruth]

A world-patent system is probably a good idea, though. Our laws need to advance to keep up with the rapidly changing way that business works, and business is more often than not international.

Re:uh oh

[cpt kangarooski]

Not really. Each country has an obligation to serve the interests of its own populace. What is good patent policy for one country might very well be bad policy for another.

Re:uh oh

[Bastard of Subhumani]

The second guy to 'invent' something is no more the inventor than the one millionth guy

If he gets to the patent office to file it first he must have invented a time machine. Either that or the first guy was too slow, which is hard luck when it comes down to it. So it goes.

Damage Caps Suck

[Bob9113]

The provisions of the Patent Reform Act would... restrict damages that patent holders can receive for infringement lawsuits

Ahhh, I love that. So it's going to be enough for the big guys (who are all backing it) to kill upstart competition. But if the big guys think they can ship a lot of product, they can simply; ignore the little guy's patent, bury him in lawyers if they do get sued, and in the unlikely event that the little guy can withstand that onslaught, the most the big guy risks is one quarter's worth of profits. Excellent.

Legalized theft!

[VernonNemitz]

That's what it means, if filing first is all you need to do. Just steal somebody else's idea and file it first.
Also, I'm curious to know what provision there is, if somebody deliberately puts something into the Public Domain, and somebody else applies for a patent on it afterward.

Re:Legalized theft!

[Snotman]

It sounds like the patent office wants to put open source/public domain out of business. OS/PD projects will have to hire lawyers to scrub OS/PD for patents for protection from future legal action. I would estimate that the only way OS/PD will be able to compete is to be given time from a lawyer to do the work. I do not think many OS/PD projects have the budget to hire lawyers. And I am not speaking about copyright. If OS/PD projects do not do due dilligence, I imagine they can be threatened by someone that has been granted a patent on some "innovation" that was realized in the OS/PD.

A smart person would scrub open source for patent ideas and start patenting away. Shoot, scrub commercial products for innovations that exist that others may have not seen previously. Now, if someone could lift out some patents from MS products, Amazon, etc that the respective companies hadn't thought of, we can patent their hard work and send them a bill for all the money that was made as a result of said patent.

Re:Legalized theft!

[zymurgyboy]

No. OS/PD projects are copyrighted not patented. Whole different animal.

Re:Legalized theft!

[0p7imu5_P2im3]

I agree with zymurgyboy to some extent, but he's forgetting that already copyrighted software can have it's use pulled out from under it by patents.

Snotman, what your forgetting is that this makes first inventors equivalent to prior art. This punches holes in any patent that is "stolen" by filing first. It does make it so that the original inventor can't get a patent, but the patent thief is rendered void by the fact that the invention existed before he patented it.

Re:Legalized theft!

[skarphace]

No. OS/PD projects are copyrighted not patented. Whole different animal.

However, since US patent law provides for patenting software, wouldn't you be able to patent someone elses code 'ideas' overlapping the copyright?

I realize someone couldn't go and copy the code, because that's infringement, but it seems to me they could patent the way it's done or the end result.

Re:Legalized theft!

[hedwards]

So in the case where somebody else patents an invention, would the invention just not have a patent? Or would the first inventor have a shot at patenting it later?

Re:Legalized theft!

[yfarren]

I have mod points, and was looking for some-one to point out that the parent and grandparent are not insightful, just wrong. There really needs to be a -1 wrong Mod.

Anyhow. This legislation makes it much MUCH easier for open source projects. Instead of having to write something, and then find out someone else claims to have invented it, and they filed a patent before you published, you just have to search filed patents. If it isn't there, publish your general idea, and write your open source project.

Similarly, both the parent and grandparent seem to totally miss that you most definitely cannot patent something from an open source project, as, anything which is available as open source, is already published.

Here is the thing. Any public disclosure (prior to filing) invalidates a patent. Now, I am allowed to talk with a friend, to further developement, but, to cover your ass, you really should get him/her to sign an NDA before talking about it, because simply talking about it constitutes a public disclosure. Proving that public disclosure can be an issue.

Now, what this legislation does is, it says that between 2 people (corporations, groups, committees, whatever) who have the same idea, and both try to patent it, provided that neither has published anything, and it is a useful, non-obvious idea, we will give the patent to the one who files first. This eliminates confusion about who should gt it, with both parties "no, I had the idea first. So, for the most part, to avoid infringement, you just have to search relevant patents. There is still some time, between when a provisional patent is filed, and when the USPTO accepts (and publishes) it that you could have various "submarine" patents get into an open standard, or your open source project, but this legislation doesnt make it possible, at all, for some-one to take your OS project, and start filing patents based on it. Parent and GP are crying wolf, without understanding what they are talking about.

Re:Legalized theft!

[Dan Ost]

If the idea is public before you patent it, then unless you were the inventor (and can back that up with lab notes or something), you aren't allowed to patent it.

This changes nothing. Open Source still has all the same protections that it always has.

Re:Legalized theft!

[zymurgyboy]

Prior art and non-obviousness should take care of that and its consideration in the application process is provided for in the draft bill (PDF, with apologies). It seems to me that anything already residing in the public domain or a copyrighted work would be prior art.

In the case of public domain materials I can't see how someone could possibly patent, copyright or otherwise stake a claim on them. By definition, they are no longer owned by anyone, save the "the public." A business process that employs the use of them is a separate matter entirely.

They protect two different things and one does not trump the other. Copyright the code. Patent the process.

Re:Legalized theft!

[0p7imu5_P2im3]

Unfortunately, it looks like in this case the patent thief succeeds in that he can still use it, because it becomes void and unpatentable due to the prior art. The first inventor will most likely lose interest and not perfect the patent, but on the bright side (what little there is in a patent theft) anyone can come in and finish the idea. Generic drugs would get a boost from such corporate espionage, but I don't see any other group benefitting from actually thieving patents.

Re:Legalized theft!

[0p7imu5_P2im3]

I agree with your on-topic assessment of the situation:

Published ideas are by definition prior art.

As to your off-topic comment, you have misunderstood the entire purpose of the slashdot moderation system. I've been personally burned by such misunderstanding, so you'll probably never read this. The moderation system is not for rating whether you agree or disagree with a poster. It is for rating whether or not the post continues the discussion in a meaningful way.

There isn't a "-1,wrong" because there is no wrong statement when the purpose is to discuss a topic.

There may be statements that are off-topic, rude(troll), or contentious(flamebait), but there is no such thing as a wrong idea. Ideas, while conceivably wrong in a moral sense, can not simply be wrong to exist. If that were the case then history would be nothing but wrong and banned from public schools like it were pornography.

Re:Legalized theft!

[yfarren]

No. There are things, which are, factually WRONG. Not Morally Wrong. Not positions I disagree with. Just simply factually wrong. An Example:

The GGGP ( The GP of my original post): "if filing first is all you need to do. Just steal somebody else's idea and file it first." OK. So he is using a question to make a statement. Yay. His statement is just so terribly misleading. Look, If I have a friend who tells me in confidence about his Idea, then his scenario is Plausible. I would be committing theft, if I did it, and sometimes theft is hard to prove. The proposed legislation does nothing to affect this situation. His next comment (again, a Suggestive Question, the recourse of cowards and lazy Journalists) is very simple. The Patent would get thrown out. In both cases, his proposed scenarios are irrelevant, or stupid, and unfortunately, problematically suggestive, to someone not versed in patent Law. Take For example the post I commented on. He takes the GGGP's post, and goes with the GGGP's train of thought: "A smart person would scrub open source for patent ideas and start patenting away. Shoot, scrub commercial products for innovations that exist that others may have not seen previously." Well, no, that would already be prior Art. Wouldn't work. Just wrong.

Now, the GGP Does say something interesting, namely: "Now, if someone could lift out some patents from MS products, Amazon, etc that the respective companies hadn't thought of." Well, If I can come up with a specific way of using your product, in a non-obvious, but Useful way, then yes, I can Get a patent on it. Somewhat the way AZT is patented for its use in treating AIDS. AZT was created sometime in the 50's. However its use to treat Aids was discovered in the late 80's Early 90's. Some Drug company did Millions and millions of tests on known compouds, and found that one had a use, no-one had previously known about. And then AZT got patented for use in treating AIDS. Note that shortly AZT will fall into the public domain (if it isn't already). Also, consider that tens of millions of Dollars were spent investigating various existing chemichals, that would not have been spent, if a company couldnt recoup those expenditures. So, in Having a patent system, somone went and found out AZT was useful against AIDS.

If, for instance, I found a way to use Microsoft Excel, to turn my laptop into a cheap Radio Telescope, I could absolutely patent that. Anyone wanting to use my method of making the Excel Radio Telescope would have to get liscenced from me, AND Microsoft. In fact, I couldnt use my method, without paying for my copy of excel (well, I just use OOMath. When I bother with spreadsheets. Which I dont do. Mostly I use PostgreSQL and some PHP.). However, you could do that. Patenting Excel to make a spreadsheet, however, wouldn't work at all, as that is what is was made to do.

In short. Some things, that are based on facts, can be wrong. To say "there should be no wrong, everything is just an opinion, and all opinions should be respected eaqually" sounds real nice, but is, in fact a bunch of crap. The proposed legislation doesn't affect what is patentable, and to suggest that it does, is simply "wrong".

Re:Legalized theft!

[thePowerOfGrayskull]

Could you post a link to where this additional info comes from? All I see in the article is the new system would be first-to-file; and that the US is the only country with a first-to-invent system. With the information given, yes anybody who wants to can file a patent on any idea that is not already patented -- including OS/PD software.

This is contrary to what you are saying the new legislation will do: that is, anything in the public domain is not patentable. I'm not disagreeing with you, I would just like to know what your source for this is, since it is clearly not the article itself.

Re:Legalized theft!

[falconwolf]

That's what it means, if filing first is all you need to do.

That's, first to file, is the first problem I see with this "reform". The second problem is it doesn't repudiate, bar, software patents.

Falcon

Re:Legalized theft!

[StikyPad]

This sentence should have a comma in it but you used them all.

Re:Legalized theft!

[cloud1494]

you're partially right on this subject, but I'm actually scared of this new legislation. If someone were to invent something and not have the money to patent his idea, there's nothing to protect him from someone or some company coming along and taking his idea and making money off of it. All this is is just another step towards letting our country becoming run by corporations. Who says America has to be like the rest of the world anyway? This country was created because we didn't want to be like the rest of the world, now we want to be like it?

Re:Legalized theft!

[yfarren]

Ok, how does this legislation change that? If I have an Idea, and I dont have the money to patent it (for an individual, patenting something, for the first go round (the first 5? 7? years) ) in the united states runs about $1500) how am I currently protected? If I publish, I cant, and no-one else can patent it. That isnt effected by the current legislation. If I don't publish, and someone else patents it, I can sue, to get the patent (If I file before their patent is published/granted) but, otherwise, They will get the patent. If I don't file, and someone else does, they will get the patent. That doesnt change. The major changes are just if two people independently file. How does this change the "small guys" protection?

Re:Legalized theft!

[justzisguy]

If you can manage to steal someone's idea, sign the oath saying you invented whatever it is, and obtain the patent, it will probably still fall apart in court when you go to enforce it. 35 U.S.C. 102(f) bars you from obtaining a patent for something you didn't invent.

Moving to a first to file system would do away with the issue of someone publishing an idea into the public domain and less than a year afterwards, another person filing a patent application for the same idea (along with an affidavit establishing prior inventorship. Currently, you may not obtain a patent if

(a) the invention was known or used by others in this country, or patented or described in a printed publication in this or a foreign country, before the invention thereof by the applicant for patent, or
(b) the invention was patented or described in a printed publication in this or a foreign country or in public use or on sale in this country, more than one year prior to the date of the application for patent in the United States.

Part (a) may be overcome as previously mentioned, but (b) is a statutory bar.

Now if you want to place something into the public domain (good for you!), make sure it is readily searchable and has a solid date of publishing attached (i.e., the Internet Archive can archive it).

Re:Legalized theft!

[justzisguy]

What changes in moving to a first to file is the removal of interferences (figuring out who invented what, when) and swearing back of a reference. See MPEP 715 and 2300.01 for details.

One minor correction with the parent's post, the open source publisher (or anyone else for that matter) cannot look at unpublished (still kicking around at the USPTO) patent applications. There's usually an 18 month delay between filing and the application (not the patent) to be published. There's no good way I can think of around this situation. The inventor needs time to file his/her applications in other countries, and therefore the patent office can't be immediately publishing those applications.

Re:Legalized theft!

[thePowerOfGrayskull]

Thanks for the info -- but the MPEP deals with current procedures. I was looking for information about the proposed legislation that would explain where GP got his info from -- specifically, that public domain material could not be patented. From everything that I've read, it seems that the opposite is true.

Re:Legalized theft!

[justzisguy]

Alright, more digging. From the Patent Reform Act of 2007,

102. Conditions for patentability; novelty
(a) Novelty; Prior Art.—A patent for a claimed invention may not be obtained if—
(1) the claimed invention was patented, described in a printed publication, or in public use or on sale—
(A) more than one year before the effective filing date of the claimed invention; or
(B) one year or less before the effective filing date of the claimed invention, other than through disclosures made by the inventor or a joint inventor or by others who obtained the subject matter disclosed directly or indirectly from the inventor or a joint inventor;

With the exception of the inventor publishing something and then filing for his patent in less than one year from publishing (e.g., publishes a paper with the IEEE), the public domain material would qualify as prior art under (a) (1).

Re:Legalized theft!

[Anonymous Coward]

If it's already published it can't be patented.

Nowhere, I repeat, NOWHERE in the article does it say that the prior art rule is abolished.

Change is good - don't be a fucking idiot all your life. That goes for every other moron whose reading and comprehension skills are lacking or missing too.

Re:Legalized theft!

[0p7imu5_P2im3]

Sorry for the late reply. Ironically enough, the moderation system prevented me from responding yesterday.

I understand your point and I concede that one can be both factually and morally wrong.

However... My point was that moderating something "-1,wrong" suggests that it should not have been posted in the first place. Such a suggestion could not possibly be further from the truth even if it were on opposite ends of an infinite Universe. (Gotta love hyperbole :p)

If he did not post it, you would not have had that wonderfully successful opportunity to debate the idea and many /.ers would be continuing in their misconceptions about the issue.

I agree with you, but if you had just moderated him "-1,wrong" that would have hurt the discussion much more than you just posting your opinion, which has helped the discussion.

Moderation is for keeping out of the discussion those who would hijack or murder the discussion, not for punishing people for incorrect or implausible ideas.

Re:Translation ... Garage inventer will be screwed

[Tony Hoyle]

Actually you have that backwards.

In most of the world publishing is valid prior art on the day it happens. You can try to file a patent on something like that but it'll be struck down on the first challenge.

In the use publishing is *not* prior art unless you've been published for at least a year. That means if you for example you release a program that does something cool you *must* patent prior to release or lose it - hence you end up with the clusterfuck that is the US patent system, because damn obvious stuff gets patented *after* it's been on the market.

No more prior art? I think not.

[vtcodger]

***No, no more prior art. If you filed first, screw prior art. It's yours.***

I'm pretty sure that's incorrect. Prior art should still hold in that you can't patent something that was described by DaVinci, Ben Franklin, Alexander Graham Bell, Erosthanes, or some dude in Ohio in 1998 on his web site. What first to file means is that the USPTO no longer needs to flip a coin when it gets three applications for the same thing and needs to determine who made the invention when.

See http://www.heise.de/english/newsticker/news/86141 which makes if pretty clear that Germany -- a first to file country -- considers prior art in judging the validity of patents.

Of course, I'm no patent expert, and the US Congress with a little help from the lobbiests is capable of coming up with absolutely abominable legislation . But I'd keep an open mind on this one at least for a while for a while.

Ingenious

[nagora]

Who said that they couldn't make the system any worse?

That takes more than a lack of intelligence or a lack of common sense, it takes a lack of that something special that sets politicians apart from the rest of us.

TWW

Why

[The Cisco Kid]

is this a good idea? So lets say someone invents something, doesnt have the money to produce it large scale and doesnt patent it and instead publishes it and tons of people use it and impplement it individually, then ten years later some megacorp patents it, now all of a sudden those tons of people are violating this corps patent? I call bullshit. Placing something in the public domain, or actually implementing it, should trump a later 'filing' of a patent on it.

Also patents shuld be for actual inventions, never for 'ideas' or 'methods'. Unless you have a prototype in-hand *and* no one else has already done what you are doing, no patent for you.

Re:Why

[kidtruth]

Wrong. If you publish something and fail to patent it within one year of its date of publication, and no one else patents it, it enters "public domain," and anyone can use it. The only way this would be true is if said "mega-corporation" had developed it BEFORE the small inventor, but kept it as a trade-secret. Then if they later came forward with documentation proving that they had thought of it first, they might be able to obtain a patent. Still, they would have to individually litigate against everyone who was using their invention, which would be massively expensive with almost no return.

Patents should definitely be for methods. Patents aren't for just "ideas," unless they have been reduced to practice (either made into a prototype or basically a manual for how to make it if you wanted to.) What about new chemical compositions? Chemists simply combine existing elements and substances in order to make new ones, so the METHOD of making and using the composition must be patentable.

Re:Translation ... Garage inventer will be screwed

[IAmTheDave]

No. Prior art stays the same. If anyone has published a the same idea before it is not patentable... The new system is much less corrupt and more open.

Define "publish" - because in theory anything I put on paper is copyrighted, but trying to get a plagiarism suit proven based on my napkin scribblings of a kid wizard at a school named Frogwarts is gonna be tough.

I suppose prior art is a type of "publishing" but this makes it even harder for a patent to get overturned. Most of the headaches of the current system are exactly what this system is proposing - the first to the gate in filing a patent wins it. That's exactly the nightmare we're dealing with now - Garage Inventor has idea A but Big Company files a patent for it. When Garage Inventor starts to get big, Big Company says "whoa, we have a patent on A" even though Garage Inventor has years of prior art.

In my mind, this solves nothing.

Re:Wouldn't this actually be a huge step BACKWARD?

[Tony Hoyle]

No you wouldn't because you just publish and it's valid prior art.

Except in the US under the present system prior art has to be published for 12 months before it's valid.. which is what needs fixing first. Hopefully the new rules will fix this as well.

Re:Translation ... Garage inventer will be screwed

[Anonymous Coward]

No. Prior art stays the same. If anyone has published a the same idea before it is not patentable (in theory, in practice USPO will still not check it)

Translated: companies can still patent whatever they like, USPTO will grant it, and small inventors will have no way to appeal, because the patent is there.

The old system just had the option of companies not filing patents and not publishing their results could come in and claim they invented the idea first.

i.e.: you mean companies actually did NOT patent whatever they had? They did NOT prevent others from using those free ideas? For one thing I can't believe that, and secondly, that's GREAT. Let's keep the old system, then, as this use of inventions (as prior art) is purely DEFENSIVE, unlike patents which are offensive in prohibiting others to use fricking IDEAS.

The new system is much less corrupt and more open.

How so?

Re:Wouldn't this actually be a huge step BACKWARD?

[cpt kangarooski]

Of course, this is why it would be unconstitutional to go to a first to file system: the Constitution only permits patents to be granted to inventors, not to johnny-come-latelies. Yes, interferences can be messy to conduct, but it's the only way, and frankly, it's probably the best way; no one ever said that a fair patent system would be easy.

As for what the rest of the world does, who the hell cares? First, standardization is not something that makes a patent system achieve its goals better. Second, just because all the other countries have jumped off of a bridge doesn't mean that we should too. Just look at how attention to foreign implementations has been fucking up our copyright laws.

Re:Translation ... Garage inventer will be screwed

[SnowZero]

The whole point of the GP's example was that C was last. In that case, you seem to support the GP assertion. Please explain if the following scenario is accurate:

A invents X
A publishes X
B invents X
B files patent on X
A files patent on X
B gets patent, A is screwed

Why wouldn't B get the patent, thus screwing original inventor A? Where does prior art even come into it in first-to-file? If B doesn't get the patent, shouldn't it really be called fist-to-publish rather than first-to-file? Of course, it's not like the patent office ever notices prior art anyway, since they've come out and said that they will rubber stamp just about anything and let the courts figure it out. Perhaps I am wrong (I certainly hope so), and if so please explain why, preferably with some sort of link to back it up.

this is what court orders are for...

[Anonymous Coward]

you are a small inventor. you own the patent. you may not be able to get large damages, but as the patent owner you will get a court order to stop someone from using your stuff. if they ignore the court order then that would contempt of court. and the judge can pretty much do whatever (or nothing) to them.

    i have mixed feelings on this, but i see some daylight here.

eric

First to File

[dunstan]

I remember when this method was in development. We knew that what was being done was so unusual as to be almost sure to be unique, but needed a way to protect our right to use the method. We were correctly advised by our UK patent agent that our only options were to either publish or file for a patent. As we were in the middle of a contractual negotiation, we absolutely couldn't publish, so had to file a patent application to lay down a prior art date.

First to file does work, but it means that from your prior art date you only get ~18 months before your work is published. But a UK patent filing is relatively inexpensive, and at least provides a means of levelling the playing field - a lapsed patent application is still prior art.

Re:Wouldn't this actually be a huge step BACKWARD?

[Snotman]

I think something you allude to in your post indicates something more positive about not having patents. Let's pretend that "spectator mode" was novel at the time of submission for MS and it was patentable. We can only imagine that a tax would be applied to all other games that used this mechanism and life would go on. But that wasn't the case and who ever was the first to develop the feature of "spectator mode" did not patent the idea. We see that the market thrived with that new feature and we saw it make it into new games all over the place without a special tax or threatening letters to sue, etc. Amazing! So, patents are supposed to give an exclusive right to a holder to develop an idea. This right is supposed to help the marketplace by encouraging innovation because without protecting your investment into innovation, what would encourage you to innovate? But that is not what we see at all in this case. Innovation happened without patents for "spectator mode". This leaves me feeling that there are definitely areas of innovation that are questionable as to patentability and the so-called benefit that extending exclusive rights to the holder to affect the marketplace. What percentage of patents fall into this category? The opposite effect of patents is to use patents as a club to chill innovation. Evidence of this exists because patent development has become an aspect of business development for many companies - not innovation. And the return on investment for investing in patent development is the power to chill the marketplace in order to extract a tax. And that is considered innovation?

honest reform = kill all patents

[argoff]

Yeah right, like this ever works

He's right, it never does, it's like slave reform. Any "solution" that puts off complete elimination only openes itself up to the next level of abuse. Patents are arguably more evil than slavery. Like 15 million impovrished Africans being sued in the world court not to purchase generic AIDS drugs from India, like safety devices in cars held back 20 years while over a million people died in auto accidents. Like 20 million elderly being subjected to overpriced drugs that have unknown chemichal distortions only because safer classes aren't patentable. It's amazing the number of people we are willing to torture and kill in the name of fradulent property rights. People say "well, we would never be so barbaric as to allow fradulent use of the word 'property' to justify the torture and murder of innocent people like they did in 1850, we would never be like those idiots who just wanted the slave states to get along with the free states". NOT!

Last time they did "patent reform" they created a patent court. But being a patent court means they had more incentive than ever to expand their influence by expanding the scope, role, and influence of patents. It totally blew up in our faces. This time it will probably mean that all the small company innovators who can't hire a staff of lawyers to file first are going to get screwed. Yeah, they may have prior art, but yeah they will need to hire an army of lawyers to defned it.

The bottom line is that innovators and scientists are good at inventing things. Lwayers and governments and conglomerates are good at controling things. Think about it. Patnets punish people who share and collaberate, and now with first file that will be more true than ever, who will share R&D when that very sharing could lock them out and screw them. If people think R&D costs are high now, just wait, and watch .... then they will say "wahhh, we need more patnets because R&D costs more than ever". The phrase, "the bad tree bears bad fruit has never been so true as with patnets."

Re:honest reform = kill all patents

[AndyG314]

Imagine a world without patents though...
There would be limited insentive for anyone to invent anything new. The people who spent the time, and invested the money in inventing new products and developing new ideas would have to live with anybody comming along and releasing a knock-off of their product. Honest inventors who developed new things would be very limited in their ability to capatilize on them. Patents allow for people responsible for something to get a head start to market before the patent expires (you might argue that currently they get too much time, and I might be persuaded to agree with you there).
You talk about the drug companies, and how evil they are. But regardless of anything else they invent things that extend and improve our lives, don't they deserve to make money from it? Perhaps a tiered pricing model, which would allow people who can't afford it to buy their meds at a lower price would be a good thing, but at the end of a day, they deserve to make back their investment in the research to create a new drug, and patents allow that to happen. Without patents there would be much less incentive for research companies to invest all that money in new drugs, which means no future drugs that could improve our lives.
There is more to the patent system than abuse, and just because some people abuse it doesn't mean that we should dismanle the entire system.

Re:honest reform = kill all patents

[lantenon]

I dunno. Was the wheel patented? Or Fire? Seems like your argument is akin to the argument some companies use against open-source that you "can't make money at it because it's open." You still can... just have to think a little harder about how.

Re:honest reform = kill all patents

[darkwing_bmf]

Patents are arguably more evil than slavery. Like 15 million impovrished Africans being sued in the world court not to purchase generic AIDS drugs from India... It's amazing the number of people we are willing to torture and kill in the name of fradulent property rights.

Hyperbole doesn't help your case. First of all, AIDS is a preventable disease. Second of all, agricultural import quotas and export subsidies by developed nations... coupled with poor property rights for Africans themselves (some of the countries are better than others, but just look at how Mugabe destryed Zimbabwe by taking away land from one group of people to give it to another group) hurt more Africans than patents do because they prevent (economically speaking) them from developing their own farming industry which would provide both food and enough income to purchase drugs legitmately. Besides, patents grant limited (only 20 years last time I checked) monopolies that allow profits to be made and THIS encourages investment in innovation. We would NOT be better off if it became unprofitable to develop new drugs in the first place.

Re:honest reform = kill all patents

[jfengel]

But regardless of anything else they invent things that extend and improve our lives, don't they deserve to make money from it?

Not for just making copies of the same drug over and over. They can make their money from the merchandise and live diagnoses.

Re:honest reform = kill all patents

[Znork]

"There would be limited insentive for anyone to invent anything new."

Not granting exclusive monopoly rights does not mean not paying for the research. The damaging monopoly aspects of patents, such as litigation warfare, overincentive for marketing, reduced competetive pressure for efficiency and slowed down dissemination of new products in the market can be removed while we could still very well pay the actual innovators as their products get used.

"But regardless of anything else they invent things that extend and improve our lives, don't they deserve to make money from it?"

Of the money society is currently spending on pharmaceuticals, less than 20% gets used for R&D. This means we could get _FIVE TIMES_ as much research for the money we're spending today. Ask the people who could have been cured if those 80% werent wasted on marketing and inefficiency what the pharmas deserve. Can you even imagine what kind of extensions and improvement we'd have today if we'd had that kind of research levels the last thirty years?

"There is more to the patent system than abuse"

Yes, there's also inefficiency, corruption, market failures, duplicated effort, slowed development, etc. Take a look at former communist run factories at approximately how streamlined industry becomes when it's protected from competition.

Re:honest reform = kill all patents

[bonefry]

There would be limited insentive for anyone to invent anything new. Oh, shut the fuck up.
All current inventions, big or small, are using the work made by others.
The only reason human kind still invents anything new is because all the work we have in public domain right now ... otherwise we'd be screwed.

And big companies that have thousands of patents will always have the ability to duplicate your work, simply because sooner or later you'll be infringing on their patents.
Just ask IBM.

Re:honest reform = kill all patents

[mattcasters]

I just can't believe that your post is being modded insightful...

So what you're saying is that countries where half of the population has AIDS, need to pay up or wait 20 years for medication?

Mmm, I wonder why they don't agree with your view of things... They must not be very well educated, such as yourself for example.
Or is it perhaps because these countries risk milions of deaths and total collapse?

Your reasoning for cold blooded capitalism without any regard for human life is simply put disgusting. Citing some other problems these folks have over there as an excuse for this blind cold "cash" point of view doesn't make it any better either.

Enjoy your lunch,

Matt

Re:honest reform = kill all patents

[glindsey]

True, so here's a solution: tie patents to individuals rather than corporations. Make them non-transferable, and make corporations ineligible for owning patents (and throw out the rest of the archaic, railroad-boss-purchased "corporate personhood" bullshit while we're at it).

Then perhaps the patent system can return to the way it was when it was designed.

Re:honest reform = kill all patents

[tilde_e]

I challenge you to list 5 famous, successful inventors who's primary focus was reaping profits as they designed their inventions.

True inventors fit the open source model pretty well, IMHO, they want to take on a challenge for their own enrichment and they want their products to be used by whoever will find them useful but they also do it simply for fun.

I think you're missing the spirit of patents that they are designed for and by those that simply want to, as you put it, capitalize on them. Any inventor that puts on the hat of a patenter is no longer an inventor, he becomes a business man. Certainly, an inventor may want credit for his work, but there must be other ways receive due credit without owning a patent.

Re:honest reform = kill all patents

[iminplaya]

You, too, are propagating the same lie that the pharmas do. The patent system, and all other IP law is designed to provide control, not innovation. Things will be invented out of need, with or without the patent system. We're not just going to sit around and rot. We don't need it. Only the pirates needs such things, so they can "sell refrigerators to the eskimos".

Re:honest reform = kill all patents

[darkwing_bmf]

So what you're saying is that countries where half of the population has AIDS, need to pay up or wait 20 years for medication?

What you're saying is people should risk millions of dollars in development costs without being compensated?

Compromises that don't involve stealing inventions can be made that would help both parties. One of these would be giving an exemption to the "You must sell to us at the lowest cost you sell to anyone else" clauses that some developed nations helth care systems put into their contracts with drug makers. That way the drug companies can offer dirt cheap meds to poor countries and still make up their development costs and profits (incentives to risk developing new products) in richer countries. Abolishing the patent system is neither necessary nor prudent.

Re:honest reform = kill all patents

[darkwing_bmf]

Would you be willing to risk everything you own to find out if something can or can not make a fire? Researching new drugs costs a LOT of money. Especially when you incorporate all the FAILED attempts to come up with something better. No reasonable person/company is going to bother with that kind of research if they are guaranteed to lose money on it. If they discover something that doesn't work, they lose their investment without getting anything in return. If they discover something that DOES work, someone else takes it and gives it away and they still lose their investment without getting anything in return.

Re:honest reform = kill all patents

[nahdude812]

Of the money society is currently spending on pharmaceuticals, less than 20% gets used for R&D.

Just out of curiosity, what's your source for that figure? Lots of people like to toss around "more than half is spent on marketing" style figures but 20% is the lowest I've ever heard.

Re:honest reform = kill all patents

[bloodstar]

Millions in development costs? You seem to think that somehow that is a lot of money. Please, let me correct you on where the real costs for drug companies are.

Think of the implications of the 100 plus million spent in lobbyists to get new bills passed. http://skeptically.org/polrec/id14.html

Or the nearly 5 Billion spent in advertising, which averages to an average TV Viewer sitting through 30 hours of drug ads per year.http://www.wtop.com/?nid=106&sid=1117765

While profits aren't a dirty word, your millions of dollars in development costs pales to the 8 billion plus *increase* in profits the pharmaceutical companies had in only 6 months since January 1, 2006, http://oversight.house.gov/Documents/2006091911562 3-70677.pdf (PDF Warning!)

Re:honest reform = kill all patents

[MojoRilla]

We would NOT be better off if it became unprofitable to develop new drugs in the first place.

Much AIDS research is publicly funded. In fact, a key AIDS drug, Norvir, was publically funded. Tell me why it is that I should pay for drug development with my taxes, then pay incredibly high prices ($8.57 per day) just because someone holds a patent?

Re:honest reform = kill all patents

[masterzora]

I'm curious, too. I did some (quick) searching and got this link, which says the number is 15% and links to some financial reports with R&D expenditures, but I don't understand the reports enough to figure out what those expenditures are relative to total or anything.

Re:honest reform = kill all patents

[zenyu]

First of all, AIDS is a preventable disease.

Let me guess, if we gave all those 8 month old rape victims guns they could fight off their 25 y.o. attackers?

just look at how Mugabe destryed Zimbabwe by taking away land from one group of people to give it to another group

Yep, and that group inherited their land people who stole it from the other group with a lot more death and destruction than Mugabe's policies have resulted in. Isn't Mugabe just enforcing your property rights above all else mantra by taking the land away from land thieves, er, I mean land pirates?

We would NOT be better off if it became unprofitable to develop new drugs in the first place.

The cost of developing drugs is plumeting to the point where anyone with access to a few computers can come up with a dozen candidate drugs in a few weeks. It is the safety testing which still costs some money, but even this is much less than it used to be because there are plenty of poor people in the world which will take experimental drugs for a few $ a week. If we shortened patent lengths to compensate for this they would be shorter than the first mover advantage, so what is the point of maintaining this phantom property right at the expense of real property rights? Why not let the guy in India or Brazil with a chemical factory create, test and market drugs without an artificial monopoly right? He is already willing to do it without the monopoly because he makes lots of money doing it. Just because some old-pharma companies haven't joined the 21st century we are going to prop them up with phantom property rights which haven't made any sense economically for years now?

Re:honest reform = kill all patents

[hackingbear]

Like 15 million impoverished Africans being sued in the world court not to purchase generic AIDS drugs from India, like safety devices in cars held back 20 years while over a million people died in auto accidents. Like 20 million elderly being subjected to overpriced drugs that have unknown chemical distortions only because safer classes aren't patentable. It's amazing the number of people we are willing to torture and kill in the name of fradulent property rights.

True, but without patent, we can still ensure the same millions that are dying now + many many more millions would have died, because the inventions you have mentioned + many other expired/non-expired patents would have never been created.

Don't believe that? Patents + the enforcement of IP are the reasons why most of these inventions are created in the U.S. rather than in India or China, even though they have lots of highly educated scientists as well. (They have patents, just lack the enforcement.)

Re:honest reform = kill all patents

[Znork]

"Just out of curiosity, what's your source for that figure?"

From the pharmaceuticals public figures. The breakdown for most of them is something around (generously rounded off) 40% production/cost of sales, 40% marketing and administration, 20% R&D. Some spend as much in dividends as they do in R&D.

Pharma cloners often manage to produce their sales at less than a tenth of the (end consumer) price, suggesting endemic inefficiencies within the production/marketing/administration parts, and clearly indicating that they're not necessary for the successful production and sales of the medicines in question.

The conclusion that can be drawn is that we could get the same R&D for a fifth of the price and the production of medicines at a tenth, by simply paying for the R&D and letting the cloners produce in a competetive marketplace. Or five times the R&D that we're getting now.

Re:honest reform = kill all patents

[DMUTPeregrine]

The point of patents is NOT to provide an incentive to invent. The point of patents is to provide an incentive to share inventions and the processes used to make them work. This is why all patents are public and have limited terms: so that the patent becomes public property after the term is up, and anyone can use it. Patents could be implemented as a pure incentive to invent, with the actual methods the patent uses kept secret by the patent office, but they were designed specifically not to do this.

Re:honest reform = kill all patents

[darkwing_bmf]

The cost of developing drugs is plumeting to the point where anyone with access to a few computers can come up with a dozen candidate drugs in a few weeks. It is the safety testing which still costs some money, but even this is much less than it used to be because there are plenty of poor people in the world which will take experimental drugs for a few $ a week.

You are more than welcome to start your own company if this is the case. I'm sure you'd get plenty of investors too if you had a solid line up of researchers working for you. My view is I don't know jack about making medications, so I let the professionals do it on their terms. And, btw, its not the patents holding back selling drugs to the poor. It's rich countries' health care systems negotiating with the pharma companies that say you must sell it to us as cheap as you sell it to anyone else. Therefore, in order to maximize profits, they have to have a certain base price. If they were allowed to tier their pricing according to ability to pay, they *would* sell cheaply to certain areas.

Re:honest reform = kill all patents

[yfarren]

Right. Sure. And who is paying for the research? With the patent system, essentially, Adam Smith's invisible hand pays for the Reaserch. Under your system- ? who? The Government? Who decides what research to Pursue? Can Anyone Get a grant for Anything? Right now, if I think I have a good Idea, I pursue it, and get a patent on it, and can then use my Idea, for 17 years, without competition. I believe in My Idea, so I work at it. Under your system, I ask ... somone ... for money, and if they think it is a good idea, they give me money to do research. I get paid, as long as I haven't completed my idea. There is no incentive to finish my research, as, once it is done, I stop getting paid (well, we could make a tiered system. The more research you complete, the more your get paid. Well, I would just "complete" my reasech and find out the idea wasnt very good. Well, no, you get paid more for successful Ideas. Successful according to who? To the guy doaling out the research bucks in the first place?)

Re:honest reform = kill all patents

[yfarren]

Without patents, who the hell would find out the AZT is effective against AIDS? Who would sit and do test after test after test to find out that a previously known compound, which was originally developed to treat Cancer, but, didn't work, and has nasty side effect, helps to treat Aids?

You want to trust the government to do all the research? That the government should decide what research is worth pursuing, and what research isn't?

Sure, without the patent system, a lot of things will get invented, because of need. But many of those things (more so with the more useful ones) will never see the light of day. I will make more money by hoarding my nifty new way to do something, and selling it in small quantities, than I will by allowing wider distribution, knowing full well that wider distribution will make it known how to do my nifty new thing. I find out Drug A works against disease X? Well, I wont sell you Drug A, I will allow you to come to my office, and I will administer it to you.

Big Pharma makes lots of money, and overcharge for their drugs. They promote them to doctors. 17 years from now, those drugs will be in the public domain. Harsh now? Yes. Driver of innovation? They need new Drugs every 17 years! Drug trials often take 10's of years!!! Your "need" would find those drugs, with no research? Or you would have all reaserch sponsored by the Government? How long would that have taken, with a governmet that Barely recognized Aids until 1989, and then thought "it's Just a Gay Man's Disease"?

Are there Major problems with the Pharmaceutical Industry? Sure. Are patents the root of all evil? I think there is more to it, then just a commmunistic (not a sarcastic usage, more that, under communism there isn't private property, and you want to do away with the notions of IP property altogether) knee jerk reaction of "all information wants to be free".

Re:honest reform = kill all patents

[OakLEE]

True, so here's a solution: tie patents to individuals rather than corporations. Make them non-transferable...

That would be a horrible idea. Have you ever heard of a concept of economies of scale? If you prevent corporations from owning patents, then they will no incentive to fund research because their sole purpose of existence is to make money. Things like new drugs and new CPU's take tens to hundreds of millions of dollars to create. Who's gonna fund that research if a corporation cannot? Rich people (so only rich people can obtain patents now?)? The government (who has clearly demonstrated the ability to fund efficient and successful programs like social security, the war on terror, and the war on drugs)?

Making a patent nontransferable is a horrible idea, because then you only limit the inventor to the ability to make money, and many of them cannot do that without a significant investment in capital. That's what the corporation brings since it is the only business entity in existence that can take small contributions of many non-rich people, and utilize them together to get the purchasing power of one "rich person."

Incidentally, all of you anti-corporation people, should take some time to actually read up on the corporation. It's not as malevolent of an entity as you guys make it out to be, and its existence in its current form is tied to much of the Western World's development over the last 200 years.

Re:honest reform = kill all patents

[argoff]

Patents kill collaboration in a way that drives up the cost of R&D, get rid of them and things become easier to invent, hot harder. India recently has had more R&D than the US - yet their patents are far weaker. Historically Germany had more when they had no patents, and Italy had more when they had none. Ironically, even the US had more when we weren't respecting European patents - all the companies came here to do their R&D uninhibited. Also, most technology is incremental and progressive, saying that it would never be invented anyhow is false.

Re:honest reform = kill all patents

[argoff]

Killing patents would increase innovation, not decrease it. As an inventor in a world without patents - I may loose monopoly over one invention - yet gain access to ten million others. It would spawn an immediate invention services industry. As I said, inventors are good at inventing, lawyers, mega corps, and governments are good at controlling things.

Also, what you're saying doesn't pan out in the real world. When IBM and Intel lost their patent lawsuits about the x86 compatible PC - did invention and innovation dry up as people refused to invent and capitalize businesses? No, just the opposite happened, the x86 boomed and a trillion dollar industry popped up around it.

Re:honest reform = kill all patents

[argoff]

"Hyperbole doesn't help your case"

Well, then you obviously haven't herd the pro-patent side.

Also, what are you saying - that because of all the other evil things in the world, it's OK to beat them down even more.

"We would NOT be better off if it became unprofitable to develop new drugs in the first place."

Nonsense, as I said patents kill collaboration and drive R&D costs thru the roof. Historically most drug innovation and R&D has happened in western countries without patents. India today, Italy yesterday, Germany before that, and ironically even the US (for European companies) which for a long time refused to respect European patents.

Re:honest reform = kill all patents

[falconwolf]

True, so here's a solution: tie patents to individuals rather than corporations. Make them non-transferable, and make corporations ineligible for owning patents

Wrong, if I own something I should be able to sell it!!! And that includes patents. Now as to whom patent may be assigned, that should depend on a number of factors. If a person invents something on their own they shoud get to patent, however if they invent something as part of their job and they are work for hire then the employer should be the one that owns the patent. With the inventor being credited for the invention.

"and throw out the rest of the archaic, railroad-boss-purchased corporate personhood"

AGREED!!!

Falcon

Re:honest reform = kill all patents

[cyber-vandal]

Your argument would have more force if it wasn't for the fact that the government already pays for a lot of medical research that is available to the pharma companies.

Re:honest reform = kill all patents

[darkwing_bmf]

I challenge you to list 5 famous, successful inventors who's primary focus was reaping profits as they designed their inventions.

Bell, Westinghouse, Eastman, Eddison and the Wright Brothers. And many people working for companies that file patents primarily for profit that wouldn't have done the research if they weren't being paid for it.

Re:honest reform = kill all patents

[yfarren]

the fact that the government pays for SOME research doesn't impact much on my argument. Now, if you were to show me that the government pays for most research that turns into usable products, that might well catch my attention. Or, if you wanted to argue that any research that is government sponsored, should not be patentable (a thing I would probably support, though I haven't really thought it through enough), that would certainly be interesting. But, simply saying "hey the government supports some medical research", as far as I can tell, doesn't impact the viability of market forces, or individual commitment, to determine what R&D is valuable.

Re:honest reform = kill all patents

[iminplaya]

You got it wrong. The patent system is what provokes hoarding to keep the competition at bay. Just wait till IBM and Microsoft drop the bomb. If we don't get AZT, we will get something else not simply produced for marketing. And probably a lot safer and more effective. By the way, how well is it working in Africa? They have a real good market there, NOT! Nobody can afford the stuff, so it's not helping them one whit. I'm not impressed. To think that big pharma has a major influence on human lifespan is ludicrous. They did nothing of the kind. It's a lie, and you're swallowing it up. Their contribution is insignificant at best, and has actually slowed real progress due to patents. And look at prozac, a "solution" looking for a problem. We invented things before patents, and we will continue to do so. The only department that will suffer is marketing. Well, they're a fifth wheel anyway. Good riddance to 'em.

...and you want to do away with the notions of IP property altogether...>

Damn straight! It's an absurd concept. Property has a physical container. The law is trying to create out of thin air, and it's bogus. Your "intellectual property" is only yours while it remains contained in your brain(in Spain). The moment you spill it out, you can't just mop it up and try to bottle it. The bottle is full of holes. There is no bottle. It steals from the rest of us for a tiny group with too much influence. They even have you convinced. You have been hoodwinked. And too bad you disparage those who try to show you. I understand. It's difficult to admit that you have been taken advantage of. So instead, shoot the messenger. It's an easily identifiable conditioned response, devoid of all reason and logic. You can't fool mother nature.

Big Pharma makes lots of money, and overcharge for their drugs.

And people are dying because of it. I fully support the countries that ignore their IP and produce the drugs to save lives as opposed to simply providing to the highest bidder(what the market will bear) Somebody may have had an effective treatment but big pharma beat them to the patent office. You think AIDS is the big killer? What's with malaria. Why is interest devoted to its research being diverted to more lucrative markets?? I believe you know the reason. Meanwhile much of the present research is under IP lockdown so nobody can use it. This is no way to run a circus. IP law exists to benefit a very few people. Advocating it is like advocating Trickle Down theory. Yes, we should be happy with the crumbs, right? We should be grateful that they don't shoot us while picking them up? Jesus, the more I think about it th e madder I get. I'm signing off and going to go fire up a fatty.

Re:honest reform = kill all patents

[hackingbear]

If you confuse between Outsourcing and R&D, you must be working for the marketing department.

Re:honest reform = kill all patents

[zenyu]

You are more than welcome to start your own company if this is the case.

Actually I got out of bio research, there is very good money in it for a programmer, but I'm hate dealing with medical researchers on a personal level. Too skeevy.

My view is I don't know jack about making medications, so I let the professionals do it on their terms.

The problem is the big lumbering giants of the past are getting in the way, and they are still dominating the debate. Today it makes sense to give a company some protection for the first three years after they get it past the regulatory hurdles in first world countries. But there is no point in fighting for this because by the time you won that battle three years of protection would be way too long. The whole house of cards will come tumbling down soon enough. In fifteen years you will have a little machine on your desk which will synthesize any chemical you want, folded the way you want it, and there will be a wikipedia entry with a dozen unapproved but patent free drugs you can synthesize for your malady. There will be still cries of medicinal piracy echoing in congress, and news stories every night about the dangers of making your own drugs. It will be an interesting time, but a strong dose reality and millions of men and women will reshape the law to fit reality.

The strong IP protections that pharma has now were shaped 50 years ago when they created a single pill that you took with water and it cured you. It didn't matter that the pill cost $10 rather than $2, when it saved you a $1000 of suffering or saved your life. The miracle stage of this industry is long gone.

It's rich countries' health care systems negotiating with the pharma companies that say you must sell it to us as cheap as you sell it to anyone else. Therefore, in order to maximize profits, they have to have a certain base price. If they were allowed to tier their pricing according to ability to pay, they *would* sell cheaply to certain areas.

Tiered pricing on equivalent medicines invites arbitrage, this is why big pharma doesn't do it unless the rich countries promise to send anyone who buys low and sells high to prison. The rich countries have done this for certain AIDS drugs, but it is just as stupid as when cities subsidise sports franchises and when they raise taxes on startups to subsidise established businesses to 'save jobs'. If you take away the monopoly protections the prices will be low everywhere, without subsidies or state violence, because capitalism will then be able to work its magic. With monopoly protections it's up to the central goverments to steer the markets and they usually go with the best bribe; the best bribe comes from those who had the best ideas in the distant past, not those who have the best ideas now. The way big pharma does tier their pricing is by selling less effective drugs in poorer countries, so when I spent some time in Peru I took bigger anti-biotic pills for more days when I was sick. If I tried to buy the drugs I was used to I usually couldn't find them in the pharmacies and in the rare cases when I could find them they cost just as much as they do in New York City. Of course, on the public health level this just breeds anti-biotic resistant stains that quickly spread the world over.

In an ideal world all medical and software patents would be voided today. Ghandi broke the patent on salt production, someone equally charismatic might break these patents. But unless that person shows up soon I think we will see this system lumber on a decade or two before collapsing in a most spectacular way.

Note: I don't cry for all the countless millions who will die, countless millions die all the time for much stupider reasons. I actually do understand why people think medical patents are useful, they were increadably useful. I know that making this arguement now is not going to convince many people, but the case against medical patents will only grow. A year ago I made an exception for medical patents potentially

Re:honest reform = kill all patents

[drsmithy]

True, so here's a solution: tie patents to individuals rather than corporations.

I've got a better idea: tie patent length to the cost involved in creating the invention. One year after the cost has been recovered, the patent expires. Copyright terms should be subject to the same system.

Re:honest reform = kill all patents

[drsmithy]

First of all, AIDS is a preventable disease.

You sound like one those "only teh 3v1l gheys get AIDS !!" idiots.

Which part of catching AIDS from a blood transfusion or rape is preventable exactly ? Not to mention the only-slightly-grey area involving consensual sex in an ostensibly monogamous relationship where one (or possibly even both) participant is unaware the other is infected.

Re:honest reform = kill all patents

[Bastard of Subhumani]

So the more that's spent in inventing it, the longer the patent lasts, i.e. the better it is from the patent holders P.O.V. Wouldn't that be a bit of a disincentive to efficiency? What next, legally mandated profit margins? It's in the same spirit, equally ridiculous in concept and probably just as unworkable in practice.

Re:honest reform = kill all patents

[Bastard of Subhumani]

If we don't get AZT, we will get something else not simply produced for marketing.

So your plan basically involves replacing the whole R&D department of every company with magic?

Nice idea, but don't try to patent that - there's prior art

Re:honest reform = kill all patents

[Bastard of Subhumani]

You miss the point. Whatever the cost of R&D, collaboration or no, it comes down to this: if it's not profitable to develop new drugs, they won't get developed. So when darkwing_bmf (178021) wrote "We would NOT be better off if it became unprofitable to develop new drugs in the first place" he may as well have written "We would NOT be better off if we had no new drugs at all", since that's the logical outcome.

Still look on the bright side - if nobody has them, rich or poor, black or white - at least everyone's equal.

Re:honest reform = kill all patents

[Znork]

"And who is paying for the research?"

How about the same that are doing it today? Tack a sales tax on drugs and use it to finance R we're _already_ paying for it through medical insurance or socialized medical systems.

Adam Smiths invisible hand is utterly crippled with monopolies. Which is why they're not considered a useful part of a free market economy.

"Under your system"

You file for a patent, if it's granted, you will automatically get paid from the R&D funds as the patent in question gets used.

There are various versions of systems possible, but it all comes down to this: We already pay for the research. We're doing it indirectly for monopoly rights, but we're _still paying_. And we're not getting our money's worth. We're getting less than 20% of the research we could get from a more efficient system.

Re:honest reform = kill all patents

[drsmithy]

So the more that's spent in inventing it, the longer the patent lasts, i.e. the better it is from the patent holders P.O.V.

This is offset by the fact that a popular, highly profitable patent will "recover" its development cost relatively quickly and, hence, reach the end of its patent protection relatively quickly.

Wouldn't that be a bit of a disincentive to efficiency?

Not really, no. If you have a *good* invention - ie: one that everyone wants - your "development cost" will be very quickly recouped by its popularity (unless, of course, you sell it at a very low level of profitability - and why would you do that?; Or, if the development cost was truly astronomical - in which case the inventor is reasonably due their reward for taking such a risk) and your patent will expire similarly quickly.

In short, "good" inventions will run out of patent protection quickly, encouraging the inventor to create more to remain profitable. "Bad" ones will not, offering a disincentive to "bad" inventors.

(The same would apply to copyrights in my system - popular works enter the public domain quickly, offering both an incentive to the artist to create new works and a good source of "inspiration" for other artists.)

What next, legally mandated profit margins? It's in the same spirit, equally ridiculous in concept and probably just as unworkable in practice.

Ironic. The typical criticism of my idea is that it doesn't allow creators *enough* potential profitability, not that it grants them too much.

Personally, I disagree with copyrights and patents on a philosophical level. However, I also recognise that, while flawed, in principle they represent a the best economic tool we have yet been able to devise for "intellectual property" (as they appear to be the only way to lend scarcity - and hence value - to a resource class with inherently infinite supply). I consider a system that ostensibly allows a creator to, at the very least, recover the expenses they incurred creating their invention/work, to be as equitable as our current social technological and social structures allow. Additionally, such a system also wouldn't disproportionately reward "one hit wonders", like the current one does.

My system would never be implemented, of course, because it offers essentially no opportunity for the gross profiteering that has become the defining aspect of modern "intellectual property" law. I believe it is, however, fair, equitable and incentive-laden for everyone involved.

(There is at least one valid criticism of this idea: the increased bureaucracy needed to keep track of the "development costs" and relate them back to the creatoe - however, I believe that to be a completely reasonable tradeoff for the increased levels of creativity and innovation it would facilitate - the obvious place to do it would be integration into the tax system.)

Re:honest reform = kill all patents

[iminplaya]

Nope, simply to reduce the undue influence the pharma has on politicians and resulting legislation that protects their stranglehold on medicine. No magic needed. Just good old competition and the elimination of speculation and hoarding of stolen property, which is what the concept of IP is. People who think IP is a good thing are simply acting on conditioned response from all the propaganda being thrown at them, and are taught that to consider taking it away is absurd and would destroy the economy, and they need to be de-programmed. The real intent of the law is quite clear to anybody with one eye open and one working brain cell. The rest are only repeating the government/corporate mantra that we only exist to serve them as opposed to the other way around. Hence I understand why you ask such silly, meaningless questions as a futile attempt to discredit the only solution to this problem. It's the last line of defense against reason and logic. And as is usually the case, the FUD and emotion win out due to the above mentioned conditioning(indoctrinating, brain washing). I suppose we ought to play it the same way in order to increase our chances of bringing about the desired result.

Re:honest reform = kill all patents

[argoff]

"Still look on the bright side - if nobody has them, rich or poor, black or white - at least everyone's equal"

This is property rights talk, it is only true because not everybody can control the same resource at the same time. With invention they can. If a researcher looses one patnet monopoly, but gaines access to 10 million others - then that will be a net gain for R&D no matter how you look at it. Research will not dry up without patents, but rather will boom as there is more cheap access to invention, and as the market would shift around invention services instead of invention controls, and as companies would shift to first-mover advantage rather than patent advantage.

Did the internet dry up because nobody could stop others from copying information they created? Did Linux dry up because anyone could copy freely? Did the x86 dry up when IBM and intel lost their big patent lawsuits in the courts? No, they all boomed beyond belief.

filed first vs. invented first compromise

[davidwr]

How's this for a compromise:

First to file is presumed to be first to invent.
2nd to file gets no rights but can cancel the patent.
Fraudulent first-files don't count. The next guy in line is the first to file.

• If I invent before you do and you file your independent work before I do, it's evidence that the invention is "obvious" and nobody gets the patent. This won't apply if you got wind of my invention. In the case of overlapping applications, only the unique parts can be patented.
  
  
• Once you get wind of my invention, you must prove you invented it before you heard of my invention if you hope to invalidate my application using your work. You must also prove you intended to publish the details or file a patent within a reasonable time of the date of the invention. In other words, if you mothballed a project before publicizing it you can't use it to invalidate someone else's later identical invention.
  
  
• Fraudulent applications are criminal offenses. If you steal my invention and file a patent before I do and I can prove it, you go to jail for patent fraud. If I can't prove "beyond a reasonable doubt" in criminal court but I can convince the patent office, your application is voided. The first non-fraudulent filer gets to be the "first to file."

What I'd like to see...

[syukton]

What I'd like to see is a sliding scale for patent protection duration. If a patent is filed by an individual or a small business (defined by some amount of annual revenue), the protection would be maximized in order to allow them the time to develop and market the invention and profit from their idea. A bigger business, though, would be able to more rapidly develop and market an invention to a wider audience, and I think that their protection should be minimized. This would keep big companies from monopolizing the market for too long while still allowing profit to be generated on an idea which is contributed to the collective consciousness.

I also think that software patents, while somewhat evil, could be useful over a very brief period of time, say one year. One year isn't a huge bottleneck in technology development, and it's absolutely nothing compared to the 20 years (I believe it's 20 years) that a patent can currently last for.

Re:Oh, well, that changes things.... no, not reall

[Anonymous Coward]

You're a crack pot! You're no longer broken!

Re: Publishing Defense?

[TaoPhoenix]

Does this mean you can publish Alpha-Null versions of TurboJunk that "SortaWorks" to prove your key concepts, even though it has a thousand other bugs?

And is there a fast & dirty way to "publish" that's free?

Seems to me this could be a great sneaky gift to OSS types, who LIKE publishing their work.

Question: Can we outrace the Closed Source shops until "all the good stuff is open?"

Re:Translation ... Garage inventer will be screwed

[kidtruth]

My comment was a bit skewed because I didn't realize the variables were listed in a linear fashion =p Sorry.

Unfortuanetly I don't have a link to back myself up. Everything I'm pulling is from the "Intellectual Property - The Law of Copyrights, Patents and Trademarks" Hornbook on my desk - I work as a paralegal at an Intellectual Property law firm and deal primarily with patent litigation all day.

First, when you file a patent you are expected to provide your examples of prior art. You don't have to, but later if someone claims you were being underhanded with your claims, which will invalidate your patent (Say, B wrote a letter to the same magazine that A's article was published in, proving he read A's research/idea first.)

Second, the patent examiner uses various patent search tools mainly to make sure that the new patent doesn't confuse another established patent. The patent examiner usually holds a B.S.A. or higher degree in whatever field he is examing patents in.

As a last form of protection (and this is a tool that worries me about the new legislation, which seems to limit them) "Re-Exams" can be filed. As of 1998, with the introduction of Inter-Partes Reexams, this has become very popular. When someone requests a reexam, they introduce evidence of prior art into the file of the patent in question and the patent examiner decides whether this new evidence invalidates the patent. This is a method to regain the use of your patent that is considerably cheaper than civil litigation, which will basically be 50k+. Unfortuanetly it's still going to run you several grand to do.

The patent office can afford to be wrong now and then, because our entire system of laws and justice is built around court interpretation of legislative laws. There is still an avenue open to correct the mistake if a patent is wrongly or unjustly filed, because you can sue.

In this case, IF B was awarded the patent first, and A can prove that he was diligent in processing his patent, then B's patent can be reversed by the USPTO during a Reexam. Of course, this is a time-consuming process. Or, you could take it to court.

I'd like to reiterate that the purpose of the patent system is to benefit society as a whole, not corporations OR small inventors. If you aren't diligent in at least filing a Notice of Disclosure, which gives you patent-pending status for a year and protects your patent for further filing, then the public should not suffer for it. Whoever can bring it to the public fastest probably SHOULD be allowed to profit from it.

It's a slow day at the office, so feel free to ask more questions.

Re:Wouldn't this actually be a huge step BACKWARD?

[Shadowfire3000]

The U.S. Patent System needs more then an overhaul. It is the reason that innovatioon and creativity is failing in America. As well as small business.

Small companies have no true avalibility to compete with corporations on a level playing field because of the Patient system. It is designed to help people such as the corporations who have deep pockets.

This new patent system overhaul will only promote big company to sow large amounts of money into patients for items that they never tried out, invented, use or will use. Case in point - Microsoft purchased over 6000 patients in a sum of so many years, I can tell you they are not even using most of them, nor are they legit to the workings of Microsofts exsistance for it's business models.

Corporations will only use this new systen as road blocks to styful other company's, projects, products, creativity, and workmanship. Thus taking from the community, public domain and small business. Only further hurting community, public domain, and small business and causes them to fail.

As far as this Patent stuff, it has never helped anything but to pad the wallets of big company's and law firms.
Lets go back to allowing true innovation and creativity through not having to reinvent the wheel over and over again.

Most things in the market place have derived from one invention, idea, product or another before it. This tells me that the patent system will never work. In reality it was never put in place to help the true nature of competitive business or good business. It actually works against it.

From The Bill

[Anonymous Coward]

This is not good. If you file for a patent then immediately, upon being granted the patent, sue me for infringement, we have to go through a costly (and lengthy) court hearings and appeals concerning infringement BEFORE I get a chance to oppose the granting of the patent, even during the time allotted for opposition. This just continues the whole litigation as a business model that is so appalling.

From TFB:

`(d) Stay of Opposition- If the owner of a patent files suit alleging infringement of the patent before the expiration of the 9-month or 6-month period for filing an opposition request under section 321, the Director, if requested by the patent owner, shall stay the opposition proceeding until judgment in the suit, and all appeals thereof, have become final.

Re:Wouldn't this actually be a huge step BACKWARD?

[InvalidError]

You can still use prior art for defense and file to get the patent scrapped.

If someone patented something and you possess prior art items, you could still get the patent invalidated but you would not be able to claim the patent for yourself anymore.

Re:Wouldn't this actually be a huge step BACKWARD?

[Prof.Phreak]

It's a wonder our representatives don't outright grow horns the first day on the job.

"Anyone who is capable of getting themselves made President should on no account be allowed to do the job."-Douglas Adams

Re:Wouldn't this actually be a huge step BACKWARD?

[radtea]

As for what the rest of the world does, who the hell cares?

We care because a lot of people here are saying "This couldn't possible work! I can imagine it will lead to all kinds of bad effects like this..." and they then go on to describe something that is known to not happen in the rest of the world where first-to-file has been the norm for decades.

These people remind me of nothing so much as a Renaissance mystic's response to Galileo's observation of the Jovian moons. He said that because there were seven seas on the Earth and seven openings in the human skull, there must be only seven planets in the heavens, so Galileo must be wrong. It "just made sense" to him that extra planets were impossible.

Empirical evidence is always the final arbiter of reality, and should be the final arbiter of policy, and the people here who are basing their beliefs about the consequences of first-to-file on the contents of their imaginations need to start looking beyond the end of their own cerebral cortex.

Just look at how attention to foreign implementations has been fucking up our copyright laws.

Actually, speaking in my capacity as a foreigner, what is happening is quite the opposite. The US is continually trying to bully us into adopting your crazy copyright system.

Empirical fact. It's not just for scientists any more.

Re:Wouldn't this actually be a huge step BACKWARD?

[Waffle Iron]

If you came up with something independently and without knowledge of others' work, you're still an inventor. You've gone through the exact same effort and used the exact same brilliant mental processes regardless of whether the other guy did his work. The Constitution doesn't specify that the patent must awarded strictly to the earliest inventor. In fact, many times people from the patent industry have posted here pointing out how under technicalities certain prior art fails to "teach" some claim or another even though everyone here in the real world knows the prior art was clearly the same invention. In these cases, the USPTO routinely awards the patents to inventors who were not the first to come up with an idea.

But this just points out how the entire patent concept is fundamentally unfair: it penalizes people who independently invent things, presuming without evidence or proof that they *must* be guilty of copying ideas simply because a patent exists, and punishes them by taking away the ability to use their work. Never mind that with tens of millions of patent claims currently in force, many of them intentionally obfuscated and vague, odds are pretty slim that anyone is aware of any particular patented invention.

With many of the obvious patent claims that are being granted today, a single patent can penalize hundreds of people who would have independently come up with an idea, depriving them of the fruits of their labors for 2 decades, just so that one lucky guy that spent time filling in paperwork for bureaucrats can be rewarded with a monopoly. It's a self-serving government entitlement program that's gone completely out of control.

Patented already

[dzerkel]

I'm afraid you are all infringing on my patent on "Whining in a long, well thought-out post on slashdot about pending legislation, but never finding the time to email your representative."

License terms to follow.

Re:Patented already

[mavenguy]

This year's version of the legislation are identified as S 1145 and HR 1908 for those who want to track the progress (or lack thereof) of these bills on Thomas.

I shouldn't even bother commenting...

[tknn]

but I can't help myself. The whole point of patents is to encourage public disclosure of the idea. It protects the person who discloses their invention so that they will do so. Otherwise people would merely rely on trade secret and contract. Imagine if you bought a computer and you had to sign a contract promising you would never open the thing up or be liable for millions of dollars for theft of trade secret. Now, instead, you can open the thing up to see how it works and tinker with it all you want, but you can't profit off the inventor's ideas. Our current system actually discourages this by allowing people to keep secret what they have invented for a while and then claim to have invented it first. The first-to-file will encourage quicker disclosure of inventions, and reduce court costs as it will be a lot easier to prove who was first. This will reduce the cost of litigation for small companies, as it will be obvious who filed first most of the time. What I would like to see is public review and challenge of patents. If the USPTO is too busy to prior art search. Let patents be easily challengeable on the basis of prior art. Put up the patent, a comment thread to point out prior art, and should the patent-holder try and enforce the patent, let that thread be examined for prior art to see if the patent is valid. So we presume a patent is valid (since this is what happens anyway), but we make it a thin presumption. To encourage only valid patents, we can just make the invalid patentholder responsible for returning all sums gained from the invalid patent plus all costs incurred in disproving the patent and government court costs. The costs of patent battles are absurd, but this is a prisoner's dilemma where everyone has their hand in the cookie jar. New regulation is the only way to break out of the impasse, and this, at least, should be a bit better.

Re:I shouldn't even bother commenting...

[kidtruth]

I like the cut of your jib.

It's not too terribly hard to object to a patent right now, even with our current system - granted, you will need to hire lawyers. Such is the cost of an incredibly complex legal system.

Re:No more prior art? I think not.

[halivar]

If previous public publication of an invention can still invalidate a patent, then I completely retract my comment. I'll need to read the text of the draft first, though. Comments made within the article seem to connote that this law will empower opportunistic patent filers and ignore prior art. We'll have to see.

Re:Correction to parent post

[ip_vjl]

... would just put the US in line with the method used by the USPTO ...

Meant to say: "would just put the US in line with the method used by the EPO"

It's simpler, raise the threshold of "innovative"

[GNUALMAFUERTE]

Patents are not that bad ... only need two important modifications:

Patents like "We have a way of doing X that has 2000 variables that describes how it's done. Each variable has 100 different possible values. I patent a method of doing X exactly like it's currently done only that variable number 1347 takes the value number 238 and i apply it to this particular field".

There are certain concepts that come from common sense or are too similar to existing concepts applied to other areas that shouldn't be patentable. If, in the example above, we patented every possibility, we would have 2000 x 100 = 200.000 different patents. Let's say that to create a complex tech device you use 100 different components, and each is covered by 5 patents, you could have 100 million possible patents filed that cover what you are developing.
Patents too general or too specific shouldn't be allowed. Also, there is an important difference between discovering and inventing. Inventing is combining different existing concepts in a new way that has enough differences to other invents to be considered innovative. Discovering is finding out that something exists or has a given set of characteristics or can be explained in a certain way. You shouldn't be able to patent e=m.c2, or what a chromosome does. That's why we have patents and copyright. Certain ideas that are either very general or very specific should be used to build some product or explained in documents and those can be copyrighted. When you have some idea that is truly innovative, then you can get a patent.

If we accept patents for just anything that may be thought off that is a little bit different from something else, or hasn't been worded in that way before, we will end up by having everything patented.

Think about this:

  - I patent the nail as "a cylindric piece of metal with a sharp edge that is inserted into other objects to hold them together."
  - I patent the nail as "a cylindric piece of metal with a sharp edge that is inserted into other objects."
  - I patent the nail as "a cylindric piece of metal with a sharp edge."
  - I patent the nail as "a cylindric piece of metal."
  - I patent the nail as "a piece of metal."
  - I patent the nail as "something."

Those ideas are inclusive. As i progress to more general definitions, i could progress to more specific definitions ad infinitum.

In order to fix the patent system we need to:

  - Set clear time limits for patents.
  - Define how specific an idea has to be in order to be considered for a patent.
  - Reject ideas that would actually stop innovation (for example, patents so simple and broad that could be applied to many things in many areas).
  - Reject ideas that are just an application of common sense, existing laws or formulas, or applications of ideas from one are in other areas.
  - Reject ideas that are so obvious, that it's just a matter of time that they appear.

Call your congressmen!

[novus ordo]

If there was a time where it was possible to get rid of software patents it is NOW! Once this goes through it will be another 50 years of bitching on /. until something of this magnitude comes along and you will probably be dead by then.

Re:Wouldn't this actually be a huge step BACKWARD?

[cpt kangarooski]

We care because a lot of people here are saying "This couldn't possible work! I can imagine it will lead to all kinds of bad effects like this..." and they then go on to describe something that is known to not happen in the rest of the world where first-to-file has been the norm for decades.

True, but this is still not an affirmative reason to adopt first-to-file.

Actually, speaking in my capacity as a foreigner, what is happening is quite the opposite. The US is continually trying to bully us into adopting your crazy copyright system.

I wish. You need to look at the big picture. What has happened is that a combination of publishing interests and European governments pushed Berne on the US, a system which we had no input into making and which we were bullied for about a century into adopting. Seeing how successful it was to avoid domestic objections to radical enlargements of copyright by using international pressure (i.e. you could do most of the work through fairly anonymous members of the executive branch in quiet meetings abroad, rather than legislators acting fairly publicly in DC, and then bully the legislators by saying that we needed to fulfill treaty obligations and enact laws to comply with the treaties) this method has been used to 1) force even more laws on the US by setting up treaties that mandate them, and 2) to use the same methods elsewhere, as the US rapidly outstripped the rest of the world in bad copyright laws.

Europeans have been fully complicit with this, however, and the initial effort was still based in the horrible Berne Convention, which Europe deserves the blame for. And many of the worst features of our current law (life plus terms, copyright upon creation, etc.) come directly from Berne and are not of US origin. Don't just blame our special interests.

Re:Wouldn't this actually be a huge step BACKWARD?

[cpt kangarooski]

The Constitution doesn't specify that the patent must awarded strictly to the earliest inventor.

No other interpretation makes sense, however. It is clear that it is a limit on the patent power, but if we allowed Congress to pick and choose its favorite from a pool, then it would be virtually no limit at all. It's not far from there to the playing card fiasco.

The only sensible interpretation is the initial inventor. As I said, if you invent something second, who cares? It's getting there first that is important, not getting to the patent office first.

OSS Provision

[novus ordo]

Some people will appreciate this:

In other provisions of the bill that could directly benefit open source proponents, a patent could not be obtained for an invention if it was found to have been in general use more than one year before the date of the invention, or if it was to have been used at all except for purposes of demonstration within that one-year period. Such a provision would give prospective inventors a one-year window of opportunity to demonstrate their inventions to interested parties, have their proposals rejected, and still obtain patents before the rejecting party beats them to the table.
Open source advocates may appreciate the amplified language that would prohibit any organization from claiming patentability over a concept that was "in public use or sale" (note the distinction) prior to the claim. Read: death of software patents. I doubt it will survive a full frontal IBM and Microsoft assault though...

Re:Wouldn't this actually be a huge step BACKWARD?

[bcharr2]

In most of the world the person who gets to the patent office first gets the patent and the one who gets there second gets nothing.

If two individuals file for the same patent at almost exactly the same time, assuming one party did not "borrow" the idea from the other party, then shouldn't this mean that no patent should be granted? I mean, if two separate parties are arriving at the same conclusion at nearly the same time... then to me the idea is one that is obvious enough that most experts attempting to solve the same problem would arrive at the same conclusion. In my mind patents should only be granted on innovative ideas that completely shatter the status quo, not for simply being the first person to attempt to solve a particular problem.

MOD PARENT DOWN - not a patent examiner

[Anonymous Coward]

This guy isn't a patent examiner. He doesn't know the first thing about patents based on his statements.

Re:Wouldn't this actually be a huge step BACKWARD?

[Waffle Iron]

As I said, if you invent something second, who cares?

I do, if I invented it independently. Why should I be deprived of the fruits of my labor?

Like I said, the entire patent concept as it exists today is fundamentally unfair. At the very least, the burden of proof should be on the patent holder to prove in each case that an "infringer" had prior knowledge of the patent holder's work before any injunctions or damages are made. The benefit of the doubt should go the person who is being potentially subjected to intrusive government action.

Re:Wouldn't this actually be a huge step BACKWARD?

[cpt kangarooski]

I do, if I invented it independently. Why should I be deprived of the fruits of my labor?

That has more to do with what a patent should be, how large the monopoly should be, etc. First to file won't change that; you'll still have one person shutting down another. At most it will merely be a reversal of roles. That's not more fair, it's just the same thing shuffled around a bit.

If you're actually concerned about independent inventors then what you want is an exception to the patent for all independent inventors after the first. Of course, this too has its downside: everyone will argue that they're an independent inventor, rather than an infringer, and every suit will have an interference-like proceeding.

That's why the answer to your question at present is: Because barring you from using the invention that someone else came up with first and obtained a patent for is how we create an effective enough monopoly to make the patent a sufficient incentive to spur inventors to invent, market, and disclose their inventions, so as to promote the public interest in having more novel nonobvious inventions invented, marketed, and disclosed. Admittedly it runs counter to the public interest in having no, or minimal patents, but then, that's the tension that lies at the heart of the system anyhow. What's important is that it serves the public interest, not any one person specifically. And btw, sweat of the brow has no constitutional support. It is not part of our copyright or patent policy and the argument might as well not even be brought up for how pointless it is.

Re:Wouldn't this actually be a huge step BACKWARD?

[Waffle Iron]

What's important is that it serves the public interest, not any one person specifically.

Then why do you care at all about first to file vs. first to invent? Both equally and arbitrarily shaft some individual(s) or another, and both equally serve your alleged public interest. If you're going to have a stupid and unfair system, why not pick the simpler one?

Re:Wouldn't this actually be a huge step BACKWARD?

[cpt kangarooski]

First, because if it's going to be granted, it ought to be to the actual inventor, and not a second-ran. That's not really arbitrary; in fact, it removes some arbitrariness. Second, because the Constitution mandates that patents be granted to the inventor, and not to anyone else. Persons 2 through n who also come up with something aren't the inventor, and I don't see that the patent clause can be read otherwise.

As for it being 'stupid and unfair' that has little to do with this aspect of patent law. I can think of some desirable reforms to patent law, and I'm sure a specialist could think of some more still. I'd love to see patent law improved, but the part you find objectionable is a different part. Make your case, maybe you'll find supporters.

Re:Wouldn't this actually be a huge step BACKWARD?

[kilgortrout]

But then the whole impetus would be to file as early as possible so you don't get beat to the uspto door. In short, the net effect would be to increase the number of filings by those that can afford to do so(big corporations) and screw the small inventor with less funds that really can't afford to file a patent on every idea that crosses his mind even if he comes up with the idea first.

Real reform...

[PortHaven]

Limited short term rights.

No enforcement in educational, charitable aspects or if end product is not done for profit. (ie: In other words open source software would not have to pay licensing for patents. A non-profit company that does charitable work would not have to pay patent licensing. Thus could allow even commercial products to reduce the cost of educational/non-profit versions of software or equipment.)

Have you ever noticed..?

[Anonymous Coward]

Have you ever noticed that the overwhelming majority of people who want open source software are people who aren't writing any of it?
Forget about HP, MySQL, etc. and just tell me how I, as a developer writing out of my kitchen table, can make money at my job if I'm not going to charge for my work.
Are you going to provide me with your labor for free in return for me providing you with my labor for free? Because I could use a good electrician, a good mechanic, a good lawn care provider, etc. who aren't going to charge me for their labor.

wave goodbye to FOSS

[plasmacutter]

for all intents and purposes, first to file means "oss gets strangled".

most oss projects, in leu of patenting (because they dont have the financial resources), will publish their proofs of concept as prior art to prevent patent trolling.

I fully expect the EFF, FSF, and many other public interest groups to assure it goes nowhere, and if they dont pull out all the stops to prevent this law being passed, well they will have betrayed us nearly as much as the corporate schills who printed out this bill with patented "blood of the innocent" print cartridges.

Re:Translation ... Garage inventer will be screwed

[mavenguy]

I'm not sure I understand you. In the current US system you have one year from the date the invention is described in a publication, in public use or one sale in the US to file or you lose patent rights (35 USC 102(b)); this is a "statutory bar." The publication, use, or sale can be by the inventor or others; the result is still a statutory bar.

It's the case where others have known about or used the invention in the US, or patented or described in a printed publication anyplace before the invention by the inventor where the inventor may be able to go back beyond the filing date (35 USC 102(a)). The date of invention is presumed to be the filing date, but can respond to a rejection based on 102(a) prior art by filing a showing under Rule 131 (37 CFR 1.131) to "swear behind" the reference(s).

Of course, there's one other situation where date of invention comes into play; that's where two or more inventors claim the same invention, and an interference exists; in this case 35 USC 102(g) usually comes into play and the claim(s) are awarded to the earlier inventor, subject to some other requirements.

This doesn't look right

[PPH]

FTA
 

The US has the only system worldwide that tries to ascertain who first invented a thing. everywhere else the criterion is who filed first, and the new legislation would bring the US into line.

Maybe it tries in theory, but in practice, it pretty easy to get a patent on prior art.

The way I understand it, some other foreign countries patent systems have a process by which experts in the field (as opposed to overworked patent examiners) can provide input as to an application's technical merits and prior art. The US system has no such provisions (before a patent has been granted) and the only recourse others have is to defend themselves against a charge of infringement once the patent has been granted.

One of the major problems with the US patent system has been congress past insistence that applications be processed in a 'timely' manner (i.e. rubber stamp the quickly) without providing funds for proper research into current art.

Stop worrying!

[NotReallyDrnuk]

That website that you are ripping off would be prior art under at least 102(a), and more likely under 102(b).

You CANNOT take things out of the public domain like that. If you really want to make certain that no one "steals" your idea by patenting it, then broadcast it to as manny people as you can, as publicly as you can. Once an idea is known to the public it becomes, in principle, impossible to patent - unless the patentee can prove that he invented the idea before you published it to the world.

Patent limits

[kenfhughes]

Large corporations, which have lots of resources, would be able to patent anything imaginable with this system provided they do it first. It's to their advantage in order to stifle competition. I think the legislation should instead put a cap on the number of patents any entity (corporate or individual) can be awarded in a given year. This would force large corporations like Microsoft or IBM to concentrate on what they really think is innovative and likely to be worth licensing and only patent those; if they just throw up a bunch of patents to see what stick, they risk patenting something trivial or worthless and losing potential patents later on truly valuable intellectual property.

Software development was faster prior to patents

[John Bayko]

The advance in the state of the art for software was more rapid before patents were introduced. Granted, there are other pressures now as well, such as Microsoft, standardization, and so on, but one example is data compression - research into lossless data compression vitrually stopped once the LZW patent became a barrier. Although 50% is about the point of diminishing returns, there was ample room to improve speed, robustness against errors, and some compression improvements which were never pursued.

In the intervening period, researchers moved to other fields so that even with the patent expiry, research hasn't resumed. In addition, compression is less important now, but this only means that the benefits of compression technology were lost exactly at the point where it was important.

Basically, the software experience has shown very clearly that invention increased when the incentive is pure competition (or cooperation), and not government granted monopolies.

Would this kill prior art??

[Eric Damron]

"everywhere else the criterion is who filed first, and the new legislation would bring the US into line."

Yeah, like this is fair. Open Source developers with little money will be allowed to develop software that large corporations with lots of money can then patent. They can then sue the developers who actually innovated. Sounds just fine. Legal claim jumping. Great bill.

I hope I don't understand how this works because I honestly can't see how fairness enters into an arrangement like this. Perhaps a lawyer out there can explain how this would be a good thing.

The patent system needs fixing!

[91degrees]

I mean clearly this is the major problem with the system. That and they need to standardise whether it's pronounced paytent or a pattent. Also the stadard font used on patent application forms needs to be made slightly nicer and the layout more aesthtically pleasing.

But the ability to patent a trivial modifiation to an existing idea, patent trolls, and the fact that in many cases patents retrict innovation aren't reall important are they?

Re:It's simpler, raise the threshold of "innovativ

[wmelnick]

You seem to have missed the point here. All of those things exist. They are just not being enofrced properly. You are not supposed to be able to patent "common sense", such as the patent on creating a cursoe on a 1-bot field by XORing the bits. The problem is that the people in the patent office aree not qualified to look at that and say "duh, of course that's how you would do that".

If you look at a patent application, it actually works the opposite of the way you showed above. It would look like this:

Patent of the nail as:
(1) A piece of metal
(2) The claims in (1) where it has a sharp edge.
(3) The claims in (2) where it is inserted into other objects.
(4) The claims in (3) where the purpose is to hold them together.

Then you would have three things after that talking about other similar things. Generally if you read the claims in a patent it is the claim right in the center that they really care about. Anything other than that is gravy. The patent is written expecting that certain claims will be thrown out. Unfortunately the idiots at the Patent office just rubber stamp these thing, after a short wait of 3 years these days.

Patents are 17 years renewable for another 17.

As for the drug companies. In the large majority of cases, by the time they actually get the drugs to market, 15 years have passed. Reduce the patent time and you will cease to see R&D done. They will find other places to put their money.

Oblig. car analogy

[Anonymous Coward]

The horse had a bad broken leg before, now we're going to add a bullet through its skull and still try to ride it.

This is Slashdot. Here, I will fix it for you.

The car had a flat tire before, now we're going to add a bullet through its engine and still try to drive it.

Corporations are not people

[Anonymous Coward]

How about only allowing citizens to have patent protection? That'll make the corps have to work hard to steal control away from the inventors, leaves the door open to additional laws, and helps to undermine corporations being legally 'people'.

Process (software) patents must be stopped!

Without prior work-- we should patent all processes and software related to fund raising and give them a taste of their own stupidity... If amazon can do one-click...

anyone have the current id/text of the bill?

[plasmacutter]

the only entries i can find from thomas matching 'patent' is the old bill from last session.

anyone able to dig up the bill from this session?

i cant mail my congrescritters without giving them the bill they need to attack.

This law isn't for you

[wuice]

This law doesn't exist to repaire the patent system of all the problems that you, the little guy, sees with it. It is a handout for big business, who will always have the resources to file first. The problem with the patent system as the big boys see it is that it isn't easy enough to strongarm the little guy who actually comes up with the idea. How many David v Golaith patent cases have David been winning lately? In the eyes of the big boys, that needs to change.

And so it probably will.

modding

[Original Replica]

There really needs to be a -1 wrong Mod.

Try useing "Overrated"

Re:modding

[0p7imu5_P2im3]

Did you even read my post? Allow me to help you:

As to your off-topic comment, you have misunderstood the entire purpose of the slashdot moderation system... The moderation system is not for rating whether you agree or disagree with a poster. It is for rating whether or not the post continues the discussion in a meaningful way.

There isn't a "-1,wrong" because there is no wrong statement when the purpose is to discuss a topic.

...Ideas, while conceivably wrong in a moral sense, can not simply be wrong to exist. If that were the case then history would be nothing but wrong and banned from public schools like it were pornography.

Re:modding

[Harmonious Botch]

Try using "Overrated" No. Try posting.
Try posting your explanation of why the previous poster is mistaken. Take a fucking risk.

Re:modding

[0p7imu5_P2im3]

Thank you for expressing succinctly what I tried to express by appealing to logic. I need to start remembering that everyone assumes that one is attacking them him or her one corrects him or her, which throws logic out the window.

Re:Software development was faster prior to patent

[0p7imu5_P2im3]

So it seems that the best way to fix this problem is to severely shorten the life of patents in time-conscious industries or limit the scope of patent infringement so that it can only be litigated in such situations that it is not significantly improved by the defendant's invention or use.

Re:It's simpler, raise the threshold of "innovativ

[yfarren]

Wow. I don't know where to begin. The proposed law isn't talking about what makes something patentable, rather, how we decide who should get a patent, between 2 different competing parties. Currently the US tries to figure out "when was it "invented"". The rest of the world says "when did you file". When did you file, is so much easier to answer.

On to the rest. The reason you cant file "overly broad" claims, is that, in general, an "overly broad" claim, will cover something that is prior art. If a claim covers something that is prior art, that claim is thrown out.

Ones goal, as a patent writer (and this is the reason you hire a Patent Agent/Patent Attorney) is to write the claims in such a way, that they carve out the largest chunk of intellectual space possible, while hitting NO prior art.

Listen, there are a whole bunch of parts to any given patent, but generally, one is interested in the 2 meaty ones, Namely:
1. The Description of the Invention
2. The Claims

The description of the invention is the part where the inventor describes in sufficient detail, such that someone who knows about the general technology the patent relates to, could implement the patented Idea. There are rules about how full a description must be, and in general, one isn't worried about them (unless they are incomplete).

The Claims. These are the things with legal weight to them. They have to be written in a single (often Very Long with many subclauses) sentence, which describe the components of, and relational elements of, your invention. Until you understand that they claims are the Meat of a patent, you shouldnt complaing about overly broad patents.

And you cant patent E=MC**2. Or what a chromosome does. You can patents ways of USING that information. You could patent a method of releasing nuclear energy. You would have to describe your method, and then, no-one could use that method (or, you could patent an apparatus capable of using that energy).

You bring up the problems of "innovative" and non-obvious. And these really are problems. Here is an issue. Many, Really Good Ideas, in hindsight, seem obvious. One example is the disposable razor. It is cheap, stays sharp, and is easy to manufacture. The technology to make disposable razors had been around for a while. It seems like such an obvious Idea. And Yet, Gillette came up with them. Got a patent, and build a company, which brought these things to Market. Today, we have many companies making disposable razors.

The problem is, who gets to decide obvious? The Patent office's general answer is, courts/Juries. It isn't a good answer, as courts and Juries are terribly fickle. However, how do you standardize what is Obvious? Well, there are a couple of things that ARE standard (simply combining two different technologies, is not, usually, sufficient to get a patent, which is why you don't see patents on CameraPhone's, although, if you had a novel way to do it, which had some unexpected benefit, then you probably could get one. However, if your MECHANISM for combining them is, interesting or useful, then you could probably patent that). But what is a better answer? Having the individual patent agents decide? Well, to some extent they do, but, usually only within certain guidelines, and believe you me, that Patent attorney's know those guidelines cold, and are very adept at writing around them. How would you handle "obvious". What seems obvious to you? What seems obvious to one "well versed in the Art"? Which well versed in the Art person, cause I guarantee you the plaintiff and defendant of an expensive infringement case are both going to have Armies of expert witnesses, saying opposite things. This is why, the Patent office relies so heavily on prior art. Prior are is quantifiable. Who is going to decide on your criteria of "overly Broad"? Listen, if I have a general Idea, which can be implemented 2M ways, then I can get a patent on the Idea, provided my idea is novel. Just because there are millions of ways of doing something, you would say that should invalidate a patent? I mean, you are using lots of pretty words, and noble ideas. (well, some would thing them noble). But how do you implement those Ideas?

Yup that's the patent process for ya

[0p7imu5_P2im3]

The only problem is that that's already the way the patent system works.

Corporations basically do and end-run around the "individuals only" requirement by contracting with the individual to give up his or her rights to the the patent in any and all situations. Since individuals usually can't compete otherwise, they do so willingly in most cases. At the last company for which I worked, there was a man that invented something on his own time (granted using company tools) who got a patent and then my company forced him, through litigation, to sign off his entire rights to the patent. (Needless to say, as soon as I found out about that, I started looking for a new job.)

So that man still has a patent in his name, that he paid to push through, but he has no right to either use or litigate it. This is our patent system. A way for corporations to "stick to the people."

Re:Yup that's the patent process for ya

[Austerity Empowers]

The part of his comment that had the teeth tho was making them non-transferable, and only ownable by a person. Thus the company can't take ownership. I think this is actually a reasonably good idea, as it allows individuals to have incentive to innovate, regardless of where they work. Right now if I invent faster-than-light travel or something else earth shattering, my company owns it. I'll get my paycheck plus the $20K patent bonus we get (if it is approved by both the business AND lawyers, very hard to do) once, and that'll be all. My company however, will get a lot of money. Thus although I consider myself a creative and innovative person, any ideas and thoughts I have are usually lost in 16 hour workdays to pay the mortgage and put food on the table.

CORPORATIONS never innovate anything at all, they just fund the results. Individuals do the thinking and develop the ideas.

Re:Yup that's the patent process for ya

[falconwolf]

CORPORATIONS never innovate anything at all, they just fund the results. Individuals do the thinking and develop the ideas.

Ah but since businesses including corporations fund the research they should be able to make a profit off the research they fund. Admittedly the actual person, or people as usually it's a team effort, should get a big chunk of the money though.

Falcon

Oh Hell No!

[Irvu]

The Filed first system is horrible as it makes a case for people who didn't invent something but got it to the office first getting th most. It was just such a loophole that allowed AZT to be "patented" in England by a private company even though it had already been invented here (by our tax dollars). This isn't reform and it won't fix the underlying issues in the patent system (vis bad patents getting accepted). All it will do is further hand support to the patent-trolls of the world.

An Example "Why First to File" is a good thing

[innot]

So far most comments I have read say that "first to file" is a bad thing. I think it is a good thing because it will prevent some patent trolls and submarine patents.

For example: I have written in my lab journal 45 applications for a anti-gravity device (like "lifting something" and "lifting something with people inside" etc.). So i am the first to invent them.

Problem is I have no idea how an anti-gravity device is suppose to work. Doesn't matter because someone else will invent this eventually. I won't patent them now because it is somewhat unlikely that an anti-gravity device will be invented in the next 15 years.

But as soon as someone has finally invented a anti-gravity device I will file my patent on all possible uses for anti-gravity. The original inventor might have the same 45 applications for anti-gravity in his patent, but I was first to invent these applications. So the real inventor can build as many devices as he wants, but if he wants to use them for anything useful he has to pay me.

"First to File" means that inventors and corporations can not safely sit on their inventions until it is the most profitable time to file them. They have to publish their inventions while they are still unique and non-obvious (and then the 15+ year clock starts ticking).

Just my 2 cents

Re:An Example "Why First to File" is a good thing

[belg4mit]

No. This is not a benefit of first-to-file, it's a drawback of granting patents for nonsense and fill-in-the-blank templates.

Re:Wouldn't this actually be a huge step BACKWARD?

[jinxidoru]

People on Slashdot seem to be pretty anti-government as a whole. People are always claiming how corrupt our government is and so on and so forth. I encourage any of these people to go visit some countries outside of the US. That certainly opened my eyes to how effective and not-corrupt our government is here in the US. Sure, there are problems, but as a whole I think our government does a pretty good job. We all, for the most part, live a comfortable, safe, prosperous life. Because of these laws that everyone hates so much and because of these congressmen that are so awful, we have roads, universities, freedoms, and so on. God bless America. It's a great place to live. It could be better. And that's the great thing about this country is that we are the ones who can make it better.

US copying the rest of the world

[Anonymous Coward]

That's gotta be a world first. An international standard being adopted in the US!

Now while you're at it, may I suggest a few more? Like metric, Kyoto agreement, ...

Re:US copying the rest of the world

[belg4mit]

Howdy Mr. Ignorant troll, nice to meet you.

The U.S. does use metric and has for some time. It just so happens that we use the old
Imperial system as well, and this is in more common use by the public. As for Kyoto:
we signed it but Congress did not ratify it. Such are the joys of a system designed not
to accomplish things.

Nevermind the question as to whether this change is a Good Thing (doesn't seem to be)
or the fact that are other aspects of the the PTO which are more deserving of attention.

this does not disallow prior...but if it did...

[3seas]

... then the new peer to patent http://dotank.nyls.edu/communitypatent/ and FLOSS as prior art http://osapa.org/wiki/index.php/Main_Page efforts would be in the clearest sense, intent to deceive as they would then be used as a resource for filing.

There is a requirement of proof of inventorship that does not go away with first to file.

Prior art still applies, but this reform is supposedly designed for hair splitting decissions.

We shall see. If its about deception then it will end the patent system.

That's what the patent system originally intended.

[0p7imu5_P2im3]

Look, I totally agree with your sentiment, and especially the sound byte at the end, but you don't understand the patent system.

The patent system is already nontransferable and only individuals are allowed to use it.

When you invent something and patent it, your company doesn't own it. You own it. The company owns the rights, by contract with you, to the monopoly that patent provides. I understand that there are no alternatives, but you agreed to give up your rights by signing that contract to work there. I did, too. Almost everyone working for a corporation did.

The only way to keep the teeth is to make it illegal to sign away one's patent rights by contract. Anything else would be more fodder for corporate lawyers.

Term reduction

[gr8_phk]

If this would simplify the work of the PTO, shouldn't they also reduce the length of time the patent is valid for? Remember, they extended from 17 years from date of grant to 20 years from date of filing because the process takes so long. If the process is going to get simpler, shouldn't we see a reduction in the term? Yes yes, I know. The big guys sponsoring this would probably prefer a longer term - that's why we need to proactively find justification for a shorter term :-)

Patents are arguably more evil than slavery

[falconwolf]

Patents aren't evil, patents are tools. Tools which encourage people to invent things. Why in the world should I go through all the trouble, tyme and expense and whatnot, to invent something if I can't get a limited monopoly on making and selling it so I can recover my expenses? Sure some invent to make something better or new, but that does not put food on the table. Actually not having patents are more like slavery than having them!

Falcon

Re:No more prior art? I think not.

[OakLEE]

I think grandparent's main assertion was not that prior art should be considered, it was that the first-to-file system is better than the first-to-invent system, because it reduces the litigation over prior art. Currently the US system uses the rule that priority of invention goes to the person who (1) is the first to conceive of the invention, and (2) the first to diligently reduce it practice (i.e., make or describe how to make a working invention). This test is a significant point of litigation (i.e., costly) because it turns around proving factual issues of conception (i.e., when did the apple strike the inventor's head), and diligent reduction to practice (e.g., does the fact that InventorOne had to stop work on his invention to take care of a terminally ill relative bar him from having priority because it cause him to reduce the invention to practice later then InventorTwo?).

Deciding these issues place a significant burden on the USPTO, and use time that arguably would be better spent looking at a patent's novelty or obviousness (the issues slashdotters complain about the most). A first-to-file system would be better in this respect because litigation over diligence and conception would be irrelevant. Priority for a patent between two deserving patentees would go to the one who filed an application first, no questions asked.

Adam Smith and patents

[falconwolf]

With the patent system, essentially, Adam Smith's invisible hand pays for the Reaserch

Actually Adam Smith hated and didn't believe in patents. Instead he believed anyone should be able to make whatever they wanted. Then those who offered the best quality and/or lowest price could make profits. Patents are an enlargement of government and he hated government, wanting it as small as possible if not nonexistent. Patents are the one thing I disagree with him on, I believe a person should be able to try to make a profit off of what they spend their tyme and money trying to invent without someone else taking their idea, product, or whatever and making all the profits. However it should be for a limited period. Same with copyrights!!!

Falcon

Re:Adam Smith and patents

[yfarren]

I didn't say Adam Smith liked patents, merely that with a patent system the invisible hand of the economy drives research.

Also, you have to understand, when Adam Smith doesn't like patents, he is talking about something very different that our current patent system. Under that patent Law, of the English Crown, at the time he was writing, a patent was a limited monopoly, given out by the king, in a given region, almost arbitrarily (well, to whoever paid the king the most for it). Parliament had been adopting some moderation on the kings abilities to grant patents, (and one of the restrictions that came into being was that the king should only give patents on new things, or he should only extend already existing patents. That limitation on the kings rights eventually grew into a general right that everyone had, as it was seen to foster development, and publication of those developments -- part of a patent, remember, is the description). So what Adam Smith was objecting to was the king profiting off of limited competition. I don't think he talks about the issues involved in Intellectual property, per se (although it has been 8 years since I read The Wealth of Nations, so I could be forgetting) And it is hard to know what he would have had to say about it (unless he did, specifically, in which case I look kinda silly). Bu, it is worth being aware that when he says "patents" what he is talking about is quite different from what we think of as patents.

The point of patents is NOT to provide

[falconwolf]

an incentive to invent.

You're right, the purpose of patents, and copyrights, is to encourage the progress of the arts and sciences.

with the actual methods the patent uses kept secret by the patent office,

Hiding the methods can lead to a dead end. If they are hidden then someone else can't improve on them, not legally. The reason to issue patents is so others may be able to learn how to do something. If you're going to hide something then why do you need a patent?

Falcon

Utterly And Completely Horrible!

[MCTFB]

The problem with first to file is that you could be working on something while trying to get seed capital at the same time for your idea, and then some unscrupulous VC firm or individual takes the general concept of your idea (even though they have not spent any time coming up with a working implementation like you have that you are still working the kinks out of), they file, and you are screwed. They don't need to show that they actually came up with the idea or have any proof of when the patent was invented or who actually had the expertise to create it. They just have to file some vague description of what you said the invention did and you are hosed.

This is common practice for many inventors who shop around their ideas to a larger company to market the product for them, but at least if they get ripped off they can sue the entity ripping them off. Now, they don't have that option.

This forces the small inventor to patent anything and everything they do just to be safe before they talk to anyone about it (and really what prevents your business partner/associate from copying your work and filing in his name only). Unfortunately, that can get expensive and very time consuming for the small guy, while large corporations have a patent mill for any hair brained idea that comes from their engineers.

Patents should last 10 years (not 20), and there should be some proof of concept demonstration tied to the actual process that proves the inventor actually is serious about doing something useful with the patent as well as a vague business plan for developing the patent. If no progress at all has been made in 5 years in developing the patent into something commercially useful, then the patent is null and void.

Re:Utterly And Completely Horrible!

[hidave]

I really like your idea expressed in the final paragraph. Very logical; therefore, it can't possibly be adoopted! But you know, almost all of us have had ideas, some even written down, that are interesting and potentially profitible, that years later someone else had and also had the energy, time, and finances to get a patent and find a manufacturer and distributor. I thought of roller blades as a teenager, probably so did thousands of others, but not until 40 years later did someone come up with them, so that risk-taker deserves the bounty. I understand the motivation to change from what one writes down to what risk one takes to garner possible gain. Your solution is perfect I think.

Patents vs. The Free World

[N3wsByt3]

When a system is borked like our current patent system, it's ludicrous to think all (or even any) problems will be solved by just making it a 'who filed it first' (which is the biggest improvement talked about in TFA). We have it in europe, and it didn't do squat. In fact, one can argument that, while it is more *pragmatic* (easier for the courts to determine), it is equally true that it is *less fair* for the one inventing something.

But then again, the whole notion of patents is rather unfair, because, even when two inventers would invent something at the same time, independend of eachother, the one filing first got it, and the other one gets aboslutely nothing. Why is that? didn't the other party invest at least as much in it? In fact, couldn't it be that he was the first to invent it, but due to say, a traffic jam, he got second in filing it - where's the fairness in that?

But, even that wouldn't solve the problems with the current patents and copyright-system. I would refer you to http://newsbyte.blogspot.com/2007/04/patents-vs-fr ee-world.html , and if people feel there are other links that could be placed there, feel free to point them out.

A Cautionary Tale

[SheldonLinker]

A few years ago, we (a small company of 3 people) and hundreds of other companies (including Microsoft) were sued by EFI. EFI's claim was that we had violated their patent. The algorithm in question had been unpatented when I saw at work at JPL in 1971. I later included it into a product in 1994. In 2003, they sued us for using the algorithm, which they claimed that their 1989 patent covered. I did a full patent search, but found nothing previous, since EFI was the first one to claim a patent on it. Luckily, a local bookstore had a copy of Descarte's book on the subject on display, which described the algorithm in 1736.

The current law states that the patent must be a new invention or discovery, and not obvious to a practitioner of the art. If we change to this new patent law proposal, then anyone can patent anything and sue you over it, purely because they were the first to file a patent for it.

I wonder if sleeping in a bed had been patented.

Mugabe and Zimbabwe

[falconwolf]

just look at how Mugabe destryed Zimbabwe by taking away land from one group of people to give it to another group

Zimbabwe used to be the breadbasket of southern Africa, allowing them to grow enough food for the country with plenty left for export, but Mugabe turned it into a basket case. By as you say taking farms away from the farmer, who knew how to grow food, and giving it to his cronies, who knew nothing about farming. If Mugabe had really wanted to help Zimbabwians economically what he could of done was to to require the farmers who wanted to sale the farm to sale them to the government, who would then give or sale the farms to those who wanted to farm, or to other Zimbabwians then hired them to teach the new owners how to farm. Perhaps pay X for the farm then pay Y to teach to farm. But only if they wanted to sale.

Falcon

Fixed Fee -- Freedom to Produce

[Tablizer]

I think the only way to fix the patent system is charge a fixed percent "innovation tax" for every product, and then let the inventors bicker over who gets what share. This would shift the complexity and uncertainty burden away from product producers. You could manufacture or distribute something without fear of surprise patents because the fee is known up-front.

The music business has something similar to this. DJ's keep a log of what they play, and it is all allocated in a fairly clean way. I think they have a better model.

drug patents

[falconwolf]

Much AIDS research is publicly funded. In fact, a key AIDS drug, Norvir [wikipedia.org], was publically funded [pubpat.org]. Tell me why it is that I should pay for drug development with my taxes, then pay incredibly high prices ($8.57 per day) just because someone holds a patent?

I think you're mixing up two different things, issues, public funding of research and patents. If a business pays it's own costs for research they should be able to get a patent. If however the goverment pays for the research then it should be released to the public and whoever wanted to manufacture said drug would be able to use the research.

Falcon

Only one solution

[AlgorithMan]

as far as i can see there is only one solution to all this:
WE ALL EMIGRATE TO FINLAND!

they have the best school system
they have the coolest copyright law
if we all vote pirateparty the copyright and privacy laws will become REALLY cool
It's not so hot in summer
plus linux was invented there

over there we will enjoy our life among geeks in liberty... use free software, listen to creative commons music... and give a big F**K YØU to those crazy dictators with their "we need total observation against copyright infr-ERRRR political enem-ERRR........... terrorism!" in usa, germany, england, russia, etc...

Re:Wouldn't this actually be a huge step BACKWARD?

[fyngyrz]

A: My neighbor is a murderer

B: Well, my neighbor is a mass murderer!

A: Oh. I guess my neighbor is nothing to worry about, then.

See the problem with your reasoning now? Our government is corrupt, operating outside the bounds of its constituting authority, and no pointing fingers at other countries can make that OK. The only thing that will make it OK is to curb the illicit behavior.

Sadly I don't think it would work

[KKlaus]

The one obvious good about corps is their ability to concentrate large amounts of capital. So in the case of research for the next evolution in chip architecture or a new automobile, the private inventor is way over his head. So a group of wealthy people would have to get together to fund it, and they would share the patent... and you see where I'm going? It would wind up that the corporation was removed in name only. I think the solution is to change the amount of time a patent is good for depending on the speed in which the field it has been issued for moves. Maybe electronics move slower than drugs, and need 7 years instead of 4 or so.

And to those that say "but a new drug costs 800 million to develop and they need 20 years to recoup that loss" I say you're mistaking a problem with the drug development process with an intellectual property problem. IF the price of drug development needs to come down, it needs to come down. If that means more dangerous medicines and the need to educate consumers on new risks, so be it. But since more likely it means less price gouging I think there's great room for improvement.

Re:It's simpler, raise the threshold of "innovativ

[justzisguy]

That is the way claims are written. A good patent attorney will write out a broad range, causing the examiner to reject some, but hopefully not all of his claims. The species reads on (is prior art and therefore rejects) the genius.

My pocket knife is a piece of metal with a sharp edge where it can be inserted into other objects. While it doesn't read on your claim 4 (we won't get into the problem with claiming uses), it did read on claims 1-3. Therefore, you'd have to combine all 4 claims together to get around my prior art of a pocket knife. Any more specific claims (say dependent claims 4-8, written in a similar fashion) only matter so much as they will still give the inventor of the nail some rights to his invention (5. The manufacture of claim 4 wherein the piece of metal has a helical grove running along its length) after someone produces a thumbtack during an infringement case.

And patents last 20 years from filing if they are fully renewed.

Re:Wouldn't this actually be a huge step BACKWARD?

[jinxidoru]

One word: absurd

Re:Translation ... Garage inventer will be screwed

[Anonymous Coward]

Holy ape balls, Batman! Someone actually talking sensibly with the facts on their side. And 1.131 at that! Mod parent up!

Re:All moving to Finland

[SheldonLinker]

Reminds me of the latest Python song:

Findland, Findland, Finland
That's the country for me...

Yes, your reasoning is absurd. So:

[fyngyrz]

Why don't you admit that the government is operating outside its constitutionally derived authority, and that such operation represents` major problems we need to fix? No matter what your reasoning, if you can't present a cogent case for it, you're going to be ignored and relegated to the ranks of the confused.

Will you say "absurd" if I take the time to lay out the major constitutional violations that are currently ongoing? Will you say "absurd" if I show, right here, that all that underlies legislation which is unconstitutional, is coercion, the 100% illegitimate use of force by government? If "absurd" is all you have to rebut with, then you have nothing. Which in turn means your blind faith in the government is misplaced.

You think you have the facts and figures to take down my position? Let fly. Otherwise, we both know who is being "absurd." That'd be you.

Re:Yes, your reasoning is absurd. So:

[jinxidoru]

I was saying that your analogy was absurd. It was a complete logic fallacy. Now you are trying to take my reply to your analogy and apply it to your other views. Thusly you are trying to imply that I said absurd to all sorts of things that I did not. Secondly, I do not have blind faith in the government. I have never said that. I like America; I like our government. I have not said that they are flawless though. They've got plenty of problems. I want those problems to be fixed. But, overall, our government does a pretty good job. Tell me of a government that did not have any corruption in the past, or that had less than we have now. I don't think you can, because corruption has always gone hand-in-hand with governmental authority. The beauty of our day-and-age is that corruption is less than in previous times. Our corruption is far less rampant than most countries and I don't see that corruption increasing, I see it decreasing. Look at some of the things Bush has tried to do, and we just won't allow it. I don't think you would have seen the same things happen 100 years ago when the country was in the fierce grips of the political machine. My first comment was a comment of optimism, not ignorance. Lastly, once again, I never denied that the government is operating outside its constitutionally derived authority. The place where you and I would disagree is in regards to whether or not that is a good thing. I personally believe that one of the strengths of the constitution is its ambiguity on many points. Let's face it, the constitution was not a very precise document. It defined the government in fairly broad strokes. This is not a weakness, but a strength. Because the framers designed the SCOTUS to actively interpret the constitution (I'm sure we'll disagree on that last point, oh well, let the firestorm begin) as times change. The founding fathers could not have anticipated cars, the internet, air-flight, and so on. So clauses were left vague so that later generations could interpret them as befits that day-and-age. That is my view at least, though I have no doubt that you find this ridiculous and absurd. That all said, I am interested to hear what you think to be examples of "the government... operating outside its constitutionally derived authority." I highly doubt I will agree with you, but I am interested in hearing what you think to be a problem. In fact, that really underscores the difficulty that you, and others like you, have in fixing these so-called "problems." I am someone who will probably fight against these "problems." I believe that one of the biggest problems with America is that it doesn't have socialized medicine. Of course, I doubt you would agree with me on that issue. And that's what makes our country so great. The end result is influenced by a bunch of disjoint viewpoints. I like that.

Re:Yes, your reasoning is absurd. So:

[fyngyrz]

I was saying that your analogy was absurd. It was a complete logic fallacy. Now you are trying to take my reply to your analogy and apply it to your other views. Thusly you are trying to imply that I said absurd to all sorts of things that I did not.

Your initial response was absurd — and that, of course, was the point of the analogy, which was indeed, also absurd. Let's take these events apart.

You wrote that you had been overseas and that you had consequently observed that other governments were various degrees of "bad", which observation you then inverted to claim that our government is "good." More specifically you said, in response to my post which pointed out some of our government's shortcomings:

People on Slashdot seem to be pretty anti-government as a whole. People are always claiming how corrupt our government is and so on and so forth. I encourage any of these people to go visit some countries outside of the US. That certainly opened my eyes to how effective and not-corrupt our government is here in the US.

My responding post, "A" in the analogy, was saying that the neighbor was a murderer - IOW, I was pointing a finger at a problem just as I had at the US, which prompted your reply.

In response, you post a paragraph that does not hold up actual virtues of the US or address the claimed problems in any way; instead, you point elsewhere, and say that problems where you are pointing are worse. In the analogy, this is "B" saying "Well, my neighbor is a mass murderer!"

Clearly, the intent of your pointing elsewhere was to somehow defuse my observation, and in the analogy, I complied, with "A" remarking "Oh. I guess my neighbor is nothing to worry about, then." Which is indeed absurd, and so demonstrates in compact form precisely what was wrong with your post.

I closed the post containing the analogy by remarking that the problem with your reasoning should now be obvious to you (because of the analogy's 1:1 correspondence with your actions), and by bulwarking my initial position that the country has major problems (specifically, it is operating outside its constituting authority.)

Finally, you responded with "absurd" which can only be accurate in this context if it is taken to describe your reasoning — which is what the analogy uses.

Tell me of a government that did not have any corruption in the past, or that had less than we have now. I don't think you can, because corruption has always gone hand-in-hand with governmental authority.

Look: Again, you appeal to the defects of others to justify the defects at hand. That's not going to fly. The defects at hand are serious and we need to address them because they are serious, the defects of others are not our problem or responsibility and are entirely irrelevant to the issue at hand.

I don't see that corruption increasing, I see it decreasing.

Then I would simply call your attention to the following laundry list of problems, most of them new government problems, or problems that are getting worse, without being fixed or being made legitimate by the appropriate constitutional modification procedure:

• Constitutional violation: Interference with intrastate commerce (article 1, section 8)
• Constitutional violation: Ex post facto laws (article 1, sections 9 (fed) and 10 (state))
• Constitutional violation: Suspension of Habeas Corpus (article 1, section 9)
• Constitutional violation: States taxing purchases made elsewhere (article 1, section 10)
• Constitutional violation: Failure to amend (section 2, article 5)
• Constitutional violation: Restrictions on free speech (1st, 14th ame

Re:Yes, your reasoning is absurd. So:

[jinxidoru]

You wrote that you had been overseas and that you had consequently observed that other governments were various degrees of "bad", which observation you then inverted to claim that our government is "good." More specifically you said, in response to my post which pointed out some of our government's shortcomings: I did not claim that other governments being bad makes our government good. I just stated that we should be grateful for what we have. To put it another way, imagine that you have a cold and your neighbor has cholera. You're grateful that you're better off than your neighbor, but that doesn't mean that you shouldn't get treatment. Just as with your analogy, yes, a murderer is better than a mass-murderer. I have yet to claim that we shouldn't fix the problems we have here in the US.

Now, if you'd like to discuss any of the above issues, I'm more than willing. Failing such discussion and subsequent successful argument against my assertions on these points, I will assume that you either agree with the above accusations, or do not understand them in each of the above indicated illegitimate actions of the state and federal governments of the USA. I'll take option #3: I don't feel like wasting my time perpetuating an irrelevant correspondence with a pompous douche.

I will also assume that you now understand that perceived faults of other governments and nations do not in any way excuse any fault of the government of our nation. Seriously, do you read this stuff before you write it? I choose option #3 again.

Please explain, in as much detail as you can, how it can be a good thing that the government is operating outside its constitutionally derived authority. My explanation is that I like how things are here in the United States. Apparently a lot of other people do as well. Oh yeah, and I would like to invoke option #3 again.

Re:Yes, your reasoning is absurd. So:

[fyngyrz]

Right. So in other words, your position is indefensible, you are unable to argue any of your claims, and you take refuge in ad hominem. Good job!

Re:Yes, your reasoning is absurd. So:

[jinxidoru]

Once again, I refer to option #3. If a crazy person comes up to me on the street and claims that the world is going to explode in 5 minutes, my refusal to deign to respond does not imply that he is correct or that I have no rebuttal. It simply implies that I have no interest in carrying on a dialogue with said persona. If you weren't such a douche, I might consider continuing this conversation. I have already wasted far too much of my life talking with you as it is.

Seriously though, as a friendly note, you come off as a huge jerk. It doesn't matter if you're right or not, but when you talk in the way that you have, you alienate people and no one wants engage you in discussion, unless that person is also a jerk. I imagine in real life you are actually a very nice person, but if you truly wish to share your ideas with other people, you need to allow at least a small portion of that niceness to shine through. Your writing style is very pompous and confrontational. Telling someone that by not replying they are implying their agreement is simply ridiculous. It really is a shame because I would have liked to engage you in discussion. In fact, I even suppose that we would agree on quite a few things. For example, I am very alarmed by recent examples of the suspension of habeas corpus. But the caustic nature of your writing style is repulsive to me. I imagine you'll probably disregard this but know that this last sentence was written in an earnest attempt to give some honest advice. Sorry if I have offended.

Re:Yes, your reasoning is absurd. So:

[fyngyrz]

You have not offended me in the least, despite your continuing use of terms like "douche"; that kind of behavior just makes you look bad. I am only interested in discussing the subject at hand. With regard to that, you have failed to make any reasonable presentation of your position. Your skin is far too thin to be debating substantive issues, as near as I can figure out. It seems to me that you are one of those people that when backed into a corner by the facts or an argument you cannot refute, resorts to name calling in an attempt to distract those following the discourse from your failure. Perhaps you should work on that. In the meantime, my points stand.

Re:Yes, your reasoning is absurd. So:

[jinxidoru]

With regard to that, you have failed to make any reasonable presentation of your position. There's a difference between failing and not bothering. I have chosen the latter. I am quite capable of making a cogent argument, I just have no interest doing so. If you don't believe me, I encourage you to read other comments I have posted or read my blog.

Re:No more prior art? I think not.

[Anonymous Coward]

So shut the fuck up until you've done that, mmmmkay?

Re:No more prior art? I think not.

[Bastard of Subhumani]

In one sentence: first to file isn't necessarily fairer - that's subjective anyway - but it's simpler and a darn sight easier to administer.

Re:Wouldn't this actually be a huge step BACKWARD?

[Bastard of Subhumani]

You've gone through the exact same effort and used the exact same brilliant mental processes regardless of whether the other guy did his work.

I bought a lottery ticket too. Why did he win and I didn't?

Re:Wouldn't this actually be a huge step BACKWARD?

[Waffle Iron]

Good analogy. The patent system as it exists today is about as meaningful as a lottery.

Re:Translation ... Garage inventer will be screwed

[Bastard of Subhumani]

Right there? The bit in bold doesn't even contain the words "prior art". Try again.

Re:No more prior art? I think not.

[Anonymous Coward]

I'm still not convinced that "first to file" is a good or fair system.

How does this interact with current trade secret practices? As I understand it, if you commercialize your invention as a trade secret rather than patenting, and someone else were to reinvent the same thing, neither of you could get a patent. Under a first-to-file system, if you sell a device incorporating the trade secret (and don't publish it), and someone else later patents it, you would lose the right to use your invention.

First-to-file also seems like it penalizes the perfectionist who wants to work all the bugs out of their invention in favor of someone who's willing to bring in a half thought out idea that may or may not work.

Anyways, I'm not sure I see how this helps anyone who isn't a patent lawyer.