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

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!

[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!

[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!

[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!

[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!

[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?

Are they going to patent this new system?

[Anonymous Coward]

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

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).

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

[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.

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: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.

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.

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

[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: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

[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: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: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.

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

[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.

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.

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

[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.)

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.

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: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.

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.

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!

[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!

[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!

[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).

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.

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

[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

[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".

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."

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: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.

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.

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.

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.

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?

[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.

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.