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Patent Reform Bill Approved by House Committee
Alex Forster pointed us to this PC World story that opens, "The House Committee on the Judiciary approved far-reaching legislation to reform the nation's patent system Wednesday.
The Patent Reform Act of 2007 largely reflects the IT sector's lobbying effort to curtail lengthy, expensive patent infringement lawsuits, but Wednesday's committee deliberations centered on finding compromises acceptable to opponents — namely the pharmaceutical and biotechnology industries, manufacturers, and large research universities — so that the bill could win approval.
Committee Chairman John Conyers, D-Mich., described the current patent system as inefficient, bogged down by inappropriate litigation rules, unreliably funded, and resulting in patents of "questionable quality." The bill would make it harder to secure a patent and easier for rivals to challenge one, and it would change how courts determine an infringed patent's value."
..would have been a better title. No real reform here. Just business as usual.
This bill is a small tweak of the system that cures the worst symptoms but does not fix the disease. It's at best a recognition that the US patent system is not perfect, and at worst a band-aid that will delay real reform.
There's no substantive changes, no change of the economic incentives that drive specialists to claim every plausible invention in the name of speculative future profits. As long as experts can claim exclusive ownership of the software commons, the patent system is broken, and it'll continue to punish real innovators by creating unpredictable risk.
Real innovators don't even seek patents. 80% of VC-funded software firms don't claim patents within four years of being funded. The whole patent system is a fraud, a tax on the consumer, and a blight on high-tech industries. This bill just perpetuates the fraud a little longer.
What is needed is a total review of what patents are for, why society should grant them, and how this should operate in a post-industrial world. Compare, for example, the trademark system (an industrial-age protection) with the domain name system (proper digital age protection of the same thing), and you see what could be possible.
My blog
1. Patent the patent bill.
2. Sue the government.
3. Profit!
Dear employee:
It has come to our attention that Congress will soon make it more difficult to patent out innovations. Under the new rules, some of our innovations such as our "two click on-line shopping" invention and our "three click shopping for healthcare" invention would be unpatentable.
Although shocking, our legal staff tells us that it is very unlikely that our existing patents will be nullified. We'll still have patent rights on three-click healthcare.
Please note that this is the time to ramp up the filing while we still have the chance! This week, Robert is planning to file "combination TV remote and firearm", "Fuel pump/ATM combination device", "guitar with integrated video display", and "Retail sales of iPod accessories made after 2008". People, PLEASE talk to Robert to get your filings in ASAP - because otherwise, we'll have to really innovate, and that will damage our bottom line.
Check out this article about how the Supreme Court earlier in the year revived the obviosness standard. This was one of several decisions that went against patent trolls, and leads me to believe that the justices actually read the newspaper. Now if Congress took less money from the trolls, perhaps there would be stronger legislative reform.
He managed to cut out step 3. and go straight to profit!!
If only the parent was on some advisory committee!!!
The "questionable quality" part refers to Microsoft's 235 patents.
Hope is the currency of fools
Sheesh, evil *and* a jerk. -- Jade
Thus spake the article:
The bill moves the patent system from a "first-to-invent" to a "first-to-file" system, but in another nod to large universities, the committee clarified a grace period on filing patent applications for inventors who disclose or publish inventions in advance of seeking a patent.
Does this mean that prior art can no longer invalidate a patent if the creator of the prior art never filed for one?
I recently saw an add for a razor, you know, the kind you use to shave with. Not electric mind you, just a plain old shaving razor. The advertisement said that this particular "new and improved" razor had 20 more patents that the previous model.
Seriously, how do you get 20+ patents out of a razor?
I think the math pseudo-code works like this:
IF [1 razor] >= [20 patents] THEN {ACTUAL-PATENT-VALUE} = {TRIVIAL}
Yet, the value of an "infringed" patent can be hundereds of thousands of dollars in court (if not millions).
Therefore, while I do believe the original idea of the patent was to protect honest innovation, it appears that all we are really doing these days is creating a litigation industry. The more patents you can attach to something, the greater the likelihood of generating additional revenue in court.
I'm not opposed to the idea of a patent, but it seems to me that businesses are simply "gaming the system" here....or am I missing something?
A goal is a dream with a deadline
Strictly speaking it is true that Microsoft has a big presence in the lobbying world but how do you figure that Microsoft would benefit from reform in the patent system? One of their main tactics for bullying smaller competitors (read all competitors) has been to use there vast library of vague patents to sue. Who would be the chief beneficiary of a bill like this?
In the long run I don't care who lobbied for a bill if it benefits the greater good (I don't know if this does or not, I am not a lawyer), which may be why I find your cynicism disturbing.
I don't give a damn for a man that can only spell a word one way.
Mark Twain
There will be no real reform of the patent systems as long as congress is bought and paid for by campaign contributions.
And real reform means eliminating all software patents. And that will never happen as long as:
Microsoft Campaign Contributions: $8,907,025 (1999 - Present)
And I'm sure there are many other companies in the industry that throw dollars at congress. Source
FAQs are evil.
The Senate Judiciary Committee passed their own version of the bill (S. 1145) yesterday afternoon. The bi-partisan bills now move to a vote in the full House and Senate. Trolls beware...
Uhh, Microsoft have stated their reasons for wanting patent reform. They're the biggest target for patent trolls.
How we know is more important than what we know.
Maybe they should have lobbied for the removal of software patents instead. Major companies only use them defensively for the most part, and the ones who have a legitimate claim who sue infringers are mostly buried by defensive patents instead.
I read the whole text of the bill at thomas.loc.gov today. It's long, drawn out, runs circles around itself, and really does nothing. You can tell that mercantilist businesses helped write it -- it will still make things worse.
If you want to reform something, you don't do it with steps like this. You don't write new laws to amend old laws -- it leaves loopholes and gaps that you and I can not find, but that patent lawyers are aware of and can help manage through IF you can afford them. It makes it more difficult to defend yourself pro se in a trial where your "patents" are infringed upon.
I'm anti-patent, of course, but I also would be happy to see a return to a Constitutional patent system. I have a recommendation for Congress to make the patent system more level:
1. Pass a bill into law that scraps ALL previous laws, amended laws, and riders to laws that cover the patent system. Declare all of these in that very bill. This would mean the old laws were fully sunset and removed from power. I'd also include a complete firing and deconstruction of the USPTO along with it. Might as well kick those cronies to the curb.
2. Work on a new bill that is easy to understand, and doesn't provide for loopholes. Have no exceptions.
3. Produce a VERY limited amount of time for the power of the patent. 7 years sounds good.
4. Develop a "previous art" website that is the first step to produce a new patent. Allow the average netizen to go and provide proof of prior art, at which point you can knock the patent out of the running. Provide for LARGE penalties for those who submit patents that are rejected.
The current Indian government is a coalition, and the Communist Party of India are one of the major members, without whose support the coalition would collapse.
Though I am staunchly in favour of the free market, I still must thank the communists for one thing - they made algorithms (mathematical and non mathematical), programs, business methods/models, and software in general unpatentable, by including it in the 2005 Patent Amendments Act.
Before that, software was patentable in the limited sense of it being a component of hardware - like the microcode of a chip, for example - basically at the point where the differences between hardware and software became a bit blurred. Now, however, it falls under the list of things which are explicitly unpatentable.
I find it extremely ironic, and a bit sad at the same time, that it is the Communists Party of India which essentially stood up for freedom and a truly freer market.
Wednesday's committee deliberations centered on finding compromises acceptable to opponents -- namely the pharmaceutical and biotechnology industries, manufacturers, and large research universities -- so that the bill could win approval.
I wasn't aware that the biotech industries, manufacturers, and large research universities were the ones voting on it.
Your sig(k) has been stolen. There is a puff of smoke!
I'm anti-patent, of course, but I also would be happy to see a return to a Constitutional patent system. I have a recommendation for Congress to make the patent system more level
Your suggestions seem nice in the abstract, but saying you want to strip down the patent system and start from scratch is completely unworkable. The US is party to several international treaties that make a complete overhaul impossible, for starters.
The current bill is certainly not as far-reaching as most reformers would like, but is a start. The change to first-to-file alone will be a huge change. It is tempting to say that you must have all or nothing solutions, but politics is about compromise. I'd rather have slow change than no change at all.
Read the EFF's Fair Use FAQ
The patent system will never really be reformed. Any legislation claimed to be patent reform will be cleverly written to have the opposite effect and enhance the present woes of the patent system instead of having the desired and claimed effect. This is simply one piece of the government sponsored corporate welfare standard of operation today.
Note the standard corporate business model of today:
1. Take a half assed product. No not a good product, a half assed product.
2. Patent the hell out of technologies used in it through trivial and voluminous patent and trademark submissions. Claim copyright on any and every copyrightable aspect.
3. Exert the least amount of effort to productise the idea. Buggy sw, unreliable parts, frequent but temporary outages of service, etc. are perfectly acceptable. As long as there is a flashy skin on a plastic box, blinky lights and/or graphics and slick well crafted product packaging you are golden.
4. Spend millions of dollars on slick advertising campaigns and pay off major industry rags for glowing reviews and endless hype.
5. Release product under great fanfare and press.
6. Ignore the high volume of complaints of a half functioning product by utilizing a phone support service in a foriegn country which requires 20 button presses to get through and 30 minutes of hold time. All this to talk to a person who knows nothing about the product, can barely speak english and cannot cancel the customers account.
7. Make sure the default pay option is through automatic checking account or credit card deduction (advertised as an exceptional service feature that you can probably even charge extra for). Make any other pay options obscure and/or difficult to sign up for. Never stop periodically charging the account regardless of account status. Just simply never stop charging under any circumstance. The customer will have to cancel the account to terminate paying you.
8. Pay off press and media to keep the tidal wave of customer discontent at bay or covered up. Legally attack any internet source that attempts to uncover the truth of your corporate evil ways with the threat of endless litigation. File any suits as necessary. Make examples of anyone who fights. Make the legal process a cash-plus division and use agressive offensive legal tactics where possible.
9. Pay off any and all politicians who will work to continue your corporate welfare status. This is accomplished through legislation that favors your ability to continue to screw customers and be given default monopoly status. Make deals with local and state legislators (under the guise that you provide jobs to the locals and threaten to move and fire 'am all if you don't get your way). Among the deals include govt. granted monopoly status. It's not worded that way in legislation but effected through the legislation that is passed. Sometimes named as anti-competitive act "this" or "that" and having the exact opposite effect as claimed. The other local govt. deal almost always includes being excluded from any taxes at all. The positive tax impact on the local economy is extracted from the taxes of the underpaid poor saps working for you. More perks include breaks on loans and funding for facilities management and capital expansion costs.
10. Attack anyone who even remotely treads on your patent and trademark portfolio. Use the resources of industry organizations which can help the lobbying effort to keep laws in place that prevent any competition from innovating a better product (which would be trivial since your original product is a piece of junk anyways). Continue any voliminous trivial patent filings so as to prevent any remote chance of any technology competing. Litigate, litigate, litigate.
My fellow Americans. This is what living in a fascist state gives you. Attempting to change the status quo will get the attention of the federal authorities under the suspicion of terrorism threats. The penalty of which (no conviction or due process is necessary) is being whisked away to a state sponsored gulag located in a legal limbo foriegn land where the laws of your own country do not apply.
Welcome to Ben Franklin's worst nightmare.
Maybe it's time for another declaration of independance?
-- Mean People Suck
This bill does a lot to make the US patent system align with the EU one.
Furthermore, it establishes a first to file system, meaning the first inventor to file gets the patent. Currently, we go through lots of litigation involving signed lab books and "dilligent" pursuit of the invention. In the future, we'll just look at the filing date. Prior art still invalidates applications as before.
It also introduces a method for submitting prior art for the examiner's consideration before a patent issues. That means the thing can be squashed before a troll uses it to sue somebody.
There's more, but we're still digesting it at my firm.
I am a lawyer, but not yours. Anything I tell you might be a total lie intended to benefit my clients at your expense.
It is tempting to say that you must have all or nothing solutions, but politics is about compromise. I'd rather have slow change than no change at all.
In your personal life, slow changes make sense. You slowly learn a new trade, or you slowly fix your home, or you slowly save for retirement. It's just you, so you know what your goals are.
In politics, slow always means "more tyranny," because the people voting for a bill today will not be the ones to enforce it tomorrow. When the Executive takes on new powers, you have to consider what future executives will do with those powers. When today's Congress enacts new legislation, you have to think of how that legislation will "slowly" change in the future.
I don't trust politicians to do anything slowly in my favor. When I have a heavy stone, and a hill, I know I can push that stone slowly over the hill. I can hire people, invite friends, or do it myself, but I'll get there. When politicians are involved, along with special interests, you never know where that stone will roll, but if you're below it, I'd wager that you'll get crushed eventually.
A small tweak?
The "2+1" Limit on Continuations/RCE's:
Each applicant gets 2 continuations and 1 RCE per application. The rules will be applied retroactively for cases that have not yet received a first action on the merits.
The "3+1 Transition Rule":
For cases that have not received a first action by the time of the new rules, a "bonus" continuation will be allowed, i.e., a total of one (1) RCE and three (3) continuations.
The "25/5" Claim Limits:
Twenty-five (25) total claims, including up to five (5) independent claims.
These are substantial changes that will cause applicants to claim their real invention up front, and more likely have longer more detailed claims. For the slashdot crowd, this means lower liklihood of infringment asuming the claims are longer.
If these are applied retroactively, this will signifigantly reduce pendancy in the office, meaning shorter times to first actions, and much much much shorter prosecutions since applicant can't simply file RCE/continuations forever.
Bring back the old version of slashdot.
Wednesday's committee deliberations centered on finding compromises acceptable to opponents -- namely the pharmaceutical and biotechnology industries, manufacturers, and large research universities Am I the only one who thinks how powerful interests have to be consulted (so they can stay powerful) before a bill passes is a pretty F****D-UP kind of democracy? It looks like whether we have communism or capitalism, if either system gets too hoary and entrenched the people get pwned.
Those are my principles, and if you don't like them... well, I have others.
People who favor a free market generally recognize that it is not the solution to everything.
(IANAL)
Um, Microsoft is not giving up their patents. They are saying this:
"Look, guys, we haven't really had any new ideas in a while, and we're tired of paying so much for ideas. Let's have Congress pass a law that makes it really hard for future people to get patents, but allows us to keep our patents! That way we can still threaten to sue Linux users, but they can't do anything to us! Woot!"
while (sig==sig) sig=!sig;
...etc..
The IT industry sector here = IBM
Things that cannot be patented: Natural Law, Physical Phenomenon, Abstract Ideas are the three primaries. Mathematical algorithms are also considered non-patentable but in fact are a subset of abstract ideas.
Man is unlike other animal life, he is capable of consciousness or in other words, abstraction above basic level. It is the nature or natural law of human character. It is further a physical phenomenon that man converts abstract thinking into physical movement and the creation, repair and manipulation of physical objects large and very very small. And programing is commonly thought of in terms of mathematical algorithms.
Software is not of patentable nature, It has all three primary strikes against it. So apparently the US position on software Patents is one of supporting Fraud.
So is it really any surprise that we have problems with the patent system in regards to software? Would you have a with any other natural law, physical phenomenon or abstract idea if you went against the honesty about it? Try thinking that you can walk off a cliff without anything but your thoughts to keep you from falling!
It should be obvious why there are problems with the patent system regarding the IT sector. IBM is a very large software patent holder and the one most supporting this "reform". They are also making available many of their patents to anyone to use without need to compensate IBM for such use. IBM knows, but they are not ready to give it all up yet. The change has to happen across the IT board. It must happen. There is no excuse to not correct the wrong of fraud.
http://threeseas.net/abstraction_physics.html
IS it any surprise the us is falling in innovation, given such fraud that can only act to suppress innovation?
Unless I am mistaken, this is quite literally at the heart of the patent issue -- because when patents came into existence, only individuals could be granted patents. And in the ideal system, the patent owner either produces the item, or licenses other groups of people (which could include companies) to produce the item during the patent period. It was not designed to support the idea of "I had an idea first, threw together some government approved documentation, and can sit like a spider waiting for some profitable fly to get entangled in my legal web".
Bottom line for me is that if the citizenry actually cared enough to use their elector power to force the politicians and bureacracies to take away some of the most misused corporate "special rights", and how many of the problems in our society become ten times more solvable?
...Open Source isn't the only answer -- but it's almost always a better value than the alternatives...
First to file used to be the way the US Patent system worked, so it is tested law and very likely to hold up under constitutionality attacks. As you note it is how most of the rest of the world works, and for good reason, it is less evil than first to invent. The problem with first to invent is twofold - it leads to submarine patents, and it also leads to a lot more litigation. With First To File it is pretty clearcut who has priority. With first to invent it often requires a lengthy discovery process, extensive record keeping, and an expensive trial to figure out who was actually first. None of that favours the individual inventor.
I'm all in favor of first to file.
First to file used to be the way the US Patent system worked, so it is tested law and very likely to hold up under constitutionality attacks.
That's news to me, though as I said, patents aren't my field. Please cite the law to which you refer and the dates when it was in force. But IIRC we've been first-to-invent since the 1793 Patent Act.
The problem with first to invent is twofold - it leads to submarine patents, and it also leads to a lot more litigation.
No, submarine patents are caused by having termination dates that depend on the grant date, as opposed to the filing date. They are also caused by not requiring the PTO to publish every application it receives immediately upon receipt, along with amendments and other correspondence regarding patents and applications.
As for litigation, so what? What is important is having a useful patent system which allocates patents justly and lawfully. Sometimes this requires litigation. It's just a means to an end, and is itself neither good nor bad. If you have a better way of actually prosecuting an interference, then by all means, let us know. But abolishing the practice altogether is a terrible idea. It's akin to saying that we could save a lot of money in the criminal justice system if we just assumed everyone was guilty and didn't bother with a trial. Yes, it would be cheaper, but it would not actually help with the goals of the system.
None of that favours the individual inventor.
OTOH, not having to race to the PTO does favor the individual inventor. AFAIK, individual inventors and their trade organizations have been in favor of first-to-invent, while it's mainly been large inventors (and the worthless-to-listen-to-on-this-matter international community) who have been in favor of first-to-file.
-- This and all my posts are in the public domain. I am a lawyer. I am not your lawyer, and this is not legal advice.
Think about what you're saying...you don't trust politicians to make small changes to large complex systems, but you trust them to trash the systems then put up quick replacements?
In the real world, you can't toss programs around left and right and expect any sort of success. The only real way to get stuff to work is through an evolutionary type process where there is improvement over time. Yes, this can lead to bloat when you involve idiots, but when done reasonably well it's the only real way to build something solid.
Help me take back Slashdot. When did 'News for Nerds' become 'FUD and Conspiracy Theories for Extremist Nutjobs'?
In politics, slow always means "more tyranny," because the people voting for a bill today will not be the ones to enforce it tomorrow.
I'd say it's exactly the opposite. Look at the history of tyranny in the 20th Century. Tyranny moves swiftly, often by popular demand. The Russian Revolution, the rule of Mussolini, the rule of Hitler, and the Killing Fields in Cambodia all came about through rapid unchecked political action. The swiftness with which the Bush White House consolidated Executive Branch power is exactly what I'm talking about.
Swift political change sounds great, until the law of unintendend consequences rears its ugly head. The "special interests" you refer to are really just competing political factions. Special interests is one of those terms used by everyone in politics as a convenient scapegoat. But in reality "special interests" just means whatever interests you politically oppose. When those interests currently in power (be they libertarians pushing for mandated tax cuts, liberals pushing for stricter anti-tobacco laws, or republicans outlawing sodomy), make sweeping political changes, our ability to tweak, modify, and correct those changes is constrained.
Read the EFF's Fair Use FAQ