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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."
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).
SJW: Someone who has run out of real oppression, and has to fake it.
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.
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.
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.
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.
The best way to predict the future is to create it. - Peter Drucker.
I have to agree here - this is a horrible development.
In my view, the extreme solution is this:
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).
"There are a dozen opinions on a matter until you know the truth. Then there is only one." - CS Lewis (paraprhase)
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.
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.
SJW: Someone who has run out of real oppression, and has to fake 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.
I've fallen off your lawn, and I can't get up.
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.
I've fallen off your lawn, and I can't get up.
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.
Gamingmuseum.com: Give your 3D accelerator a rest.
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.
Read my blog posts on usability.
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.
Stop-Prism.org: Opt Out of Surveillance
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."
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.
John
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.
Blasphemy is a human right. Blasphemophobia kills.