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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."
Er... I mean "Prior art!"
Meta will eat itself
Are they going to patent this new system? or can I steal the idea!?
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.
This only magnifies the problem with the existing system where only the big guys can AFFORD to file patents and actually enforce them.
"God fights on the side with the best artillery." - Napoleon, Marshal of France - speaking truth to power
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.
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.
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.
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.
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.
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
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.
Only three things are certain; death, taxes, and apocryphal quotations - Ben Franklin.
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.
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.
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.
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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.
You can't see ANYTHING from a car, You've got to get out of the goddamned contraption and walk...Edward Abbey
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."
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.
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.