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House Passes Patent Overhaul Bill
narramissic writes "ITworld reports that the House of Representatives has passed a bill that promises to overhaul the US patent system. 'The Patent Reform Act, supported by several large tech vendors including Microsoft Corp. and IBM Corp., would allow courts to change they way they assess damages in patent infringement cases. Currently, courts generally consider the value of the entire product when a small piece of the product infringes a patent; the bill would allow, but not require, courts to base damages only on the value of the infringing piece."
1. put a clock in an existing product 2. sue when company releases same 3. profit?
If you mod me down, I will become more powerful than you can imagine....
But is there anything that can even remotely approximate this? How much does a touch screen matter for the iPhone? What is such an estimate based on? I realize it's optional, but I'm having a hard time thinking of any situation that is really fair. Identically sized corporations, with similar market testing, and a market loaded with finely-grained differences in features? Even still, I think there's a great deal of random speculation.
While I respect intentions to reform the patent system, I suppose my more cynical side should've known that it'd be either evil or botched. I guess the latter is better than the former.
If your theory is different from practice, then your theory is wrong.
I think us little guys just got screwed. "supported by several large tech vendors including Microsoft Corp. and IBM Corp" Nevermind, we have always been screwed. ;-)
MOD THE PATENT TROLL DOWN!!!
Sounds like this is just the sweeping overhaul we need to solve the patent system's problems!
ceci n'est pas une
Hmm... so if I am M$ and decide if that paying out limited patent infringements penalties for technology I like is a "cost of doing business" Is this a good thing or a bad thing?
"Large tech vendors have been pushing for patent reform for close to five years. The Software & Information Industry Association (SIIA), the Business Software Alliance, and the Computing Technology Industry Association, all praised the House for passing the bill."
"The bill also sets into motion a change in the way patents are awarded, from the first-to-invent system unique to the U.S. to the first-to-file system used by the rest of the world."
Polotition logic: Something must be done. This is something, lets do it.
Changing the system from first to invent to first to file will only help incumbents who already have patent attorneys on staff. The original intention of patents, to give the innovator a head start in business, will be lost.
Boy I hope someone doesn't already hold a patent for reforming the patent system in this way. Then they'd sue the government for using it. You might think I'm joking but theoretically if someone did hold tons of patents for patent reform and sat on them, that would stop anyone from reforming the patent system and invalidating their patents. Ahhh see, it's like one big circle of patent doom lol.
Google's Super Secret Search Algorithm: SELECT @search_results FROM internet WHERE @search_results = 'good'
Umm... Remember Big Blue, etc? IBM was Microsoft before Microsoft was Microsoft. Get off my lawn, etc.
Thanks to all the free-market, fiscal conservatives, common sense has fina... what? Oh, that's right, half the conservatives lost (or are about to lose) their jobs, and the other half are getting indicted. Over ten years of conservative government... and all we got was corruption and war. "Fiscal Conservative", indeed.
The Democrats have been in office for less than a year, and they've already accomplished more than ten years of conservatives being in charge.
Am I correct in assuming that the first-to-file system would remove the value of prior art in invalidating a patent? Would it be possible under such a system for one entity to patent a technology that someone else is already using, but hasn't patented? Or am I misunderstanding the concept?
Let me get this right. Are you saying that "Prior Art" will no longer apply if this bill gets passed?!
Life is not for the lazy.
If you don't make the big companies pay big dollars for the IP violations then they will simply take advantage of all the smaller guys. Small money is all it takes to kill a small company so big companies stealing from a small company harms it not only in the reduced funds necessary to protect itself in court but harms to company's future potential. Small companies violating big companies patents hardly impact them in the same way. A big company stealing from a small company could kill the small company but a small company stealing from a big company generally has a much lighter impact on them.
This is just sad to see big companies trying to take advantage of the system this way. What needs to happen is that they need to focus on protecting the small guy and you don't do so by limiting what they can get in defense of their IP. This simply allows the big dog to tear up the little dogs in a fight.
This is bad news, not good news.
You can lead a man with reason but you can't make him think.
I've been totally confused as to whether this patent bill is a good thing or not, primarily because Howard Berman and Howard Coble, the Antichrist and the False Prophet to fair use and personal liberty involving legally purchased copyrighted works, have had a prominent role in bringing this bill through the House. On the other hand, Public Knowledge and other groups seem pretty upbeat on it (although I didn't sit and watch C-SPAN all day today to see what happened with amendments and such). So what am I to think? Is this a Good Thing (tm), or is there some hidden provision that will eventually screw us all yet again?
And it is here in the US Senate that concerns with this first-to-file, regardless of intent to ever invent, versus first-to-invent will have conditions set on it to make such a valid patent.
We all know the patent system is broken with the dawning of the Information Age. However, this first-to-file, on the surface, doesn't appear to keep companies from filing frivolous patents with no intention of ever producing an invention.
The patent system should be set to promote diverse competition and may the winner best their competition through competition and not anti-competitive legal maneuvers.
That was my first thought as well. This bill basically means that the big guys will pay less, and the little guys will still go bankrupt trying to defend against patent claims.
End of lesson. You may press the button.
I agree with you, but I was having a talk about this with my lawyer the other day. She said that unfortunately, most of the rest of the world follows the first to file rule.
One of the side effects of being part of the WTO is that there should be a level playing field. Unfortunately, we've asked other countries to bend over backwards to do things our way, now they want us to do things their way, and corporations are more than happy to give in. After all, who cares about the lone innovator that you are talking about?
It's unfortunate, but that's the state of affairs for you.
something. Whether it stinks or not remains to be seen.
The higher the technology, the sharper that two-edged sword.
Wherein the government, large corporations, and consumers can all agree and benefit. But how hard will this hit small business owners?
Such a system essentially forces you to publish your invention early but still allows you time to draw up the actual patent afterwards.
You don't need patent attorneys to write a paper.
Yet more blog spam from IDG. Did IDG *buy* Slashdot?
As a small inventor, I hated the idea of First to File because I was worried that corrupt individuals or companies could quickly patent my invention submissions. But that is easily solved by requiring a NDA before showing anyone your invention. Before, when it was First to Invent, there were more problems. For example, I could patent something and someone could claim they invented it first and manufacture fake logs or a fake journal showing they invented it first. Also don't forget, false witnesses who could swear up and down they saw the other guy working on the invention for years. Now I am in favor of the new way. I can protect my ideas easily by just keeping my mouth shut until I fill out a provisional patent application. I think it will be good for the little guy.
You can still slap them with an injunction, the penalties for not abiding by that are not similarly limited.
I don't see any problem with limiting the liabilities you face for unknowing use of patents, even ignoring submarining there are too many patents out there at the moment to really know for a fact any high tech product doesn't infringe on one (hell, I'm sure they all do).
Although your example would apparently benefit Linux and therefore is a positive case scenario, you've overlooked the gist of the problem.
> "isn't worth much to Microsoft".
Maybe it's not, but you're stating the value in wishy-washy terms. The good thing about assessing damages on the value of a full product is that you have a concrete value (price of product * products distributed). A laywer may argue that, since an OS is rather pointless without a filesystem, it's a VERY valuable piece of the OS, and, assuming that FAT is the third most common filesystem in linux installations (I have no idea, really) it would be big damages.
Valuing intellectual property is an insanely difficult prospect, with the only good approximation being what the market will buy. Take that away and you're left with pure speculation.
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Incite and flee.
Real reform would to to return to the requirement for a working version of the patent to be submitted with one's patent application. Currently, one can patent an intended innovation before it has been implemented. Researching through awarded patents yields many things that are not yet possible - like Sony's patent for controlling a video game with your thoughts. Now, because of that patent and Sony owning the IP space, any would be innovators in that field are discouraged from seeking a solution in that area.
So if you write FOSS, and some big company sues you for patent infrigement.
If Big Co. wins they get their worth. (lots of money)
If mr. Hobbyist wins he gets his worth. (nothing, since his software is free)
If you mod this up, your slashdot background will turn into a beautiful sunset!
Ah, no.
The little guys would go bankrupt anyway...this bill doesn't really affect them much.
This bill could mean less patent trolls (if the big $$$ disappears from the market), and hey, people are admitting there's a problem.
No sig today...
A specific example: A copy protection idea is presented to Microsoft. Microsoft loves it, but says no. 2 years later they are using this protection...point the company to their lawyers who tell them to go screw themselves until their patent is finally approved. Microsoft has privately admitted that this protection technology has made/saved them a great deal of money. So when this gets to court under this type of Bill...will Microsoft simply argue that the patent they infringed upon is worth ZERO because because were simply buying their product, and not the copy protection...and also argue those same people would have bought regardless of the copy protection??? This is only one simple case, but it is simply setting up the big boys to continue to steal ideas and eventually not have to pay for it. They will just drown the little guy in the legal system, with little or no recourse.
No, lets say you come up with something cool. After the first date that you reduce your invention to practice, you have one year to file it with USPTO (assuming no other circumstances). If Big Company X comes along during that period, and creates the same invention, and files before you; your claim of invention will take precedent. However, under a first to file system, in the above scenario; you're screwed. Prior art will still invalidate a patent (although it will arguably not come up during prosecution under first to file). First to file puts extra emphasis on filing as soon as possible.
11 was a racehorse
12 was 12
1111 Race
12112
Wouldn't it be a lot cheaper if the patent office just made a 1-page list of what is NOT patented? It would probably only take one side, and would probably fit on a single square of toilet paper.
Hope is the currency of fools
If you are a corporation and you apply for patents, then I do not see how "first to file" makes it any worse. (most corps file patent apps as fast as they can anyway).
If you are not a corporation (e.g an open source developer) and instead of filing a patent application, you just disclose your invention, then, "first to file" rule automatically disqualifies everyone else who might otherwise claim that they invented it before you did...
Basically, if I understand correctly, "first to file" removes a lot of uncertainty over who did what first. And as you can guess, the only beneficiary of such uncertainty are lawyers.
I wouldn't be so sure.
Seen from the big company angle, "minor" patents are simply change and arsenal to negotiate cross-licenses in case of patent litigation. For a small company, a patent of similar scope could represent a major and highly valuable core asset. In case of infringement, this change could mean that the court should set damages as a compromise between what the patents are worth to their owners and what they are worth in the infringing product.
In the case of FAT on Linux, FAT is only a tiny and optional component of the Linux kernel. FAT is also worth next to nothing to Microsoft - FAT infringement lawsuits could probably be dismissed by pointing out that M$ has not enforced it for the first 10+ years of past infringement by countless parties. Since FAT is a minor optional component of little value to both parties, its value in such an hypothetical case with the new rule is practically nonexistent.
In the case of FAT on digital cameras, FAT is the only FS supported by the camera and is therefore of significant value to camera makers. Assuming such lawsuits do not get drop on the grounds of extended past willful failure to enforce (as is the case for submarine patents), damages here could be substantial but limited by FAT's relative/apparent current worth to Microsoft.
Personally I think both first to invent and first to file are crap. If something is indpendently invented within such a short window that the difference between first to invent and first to file matters then IMO it doesn't deserve a patent.
note: i'm known as plugwash most places but i screwd up registering that here somehow in the past and now can't register
How can you base the value *only* on the single piece when the entire product could not exist without the part in question?
Sure, its not worth 100% of the 'product' value, but i think its worth more then then just the 'single component' level, espcially since it was used illegally. Need to have some sort of penalty for doing wrong things.
---- Booth was a patriot ----
Tag article "democrats" for this bill.
Well, of course. They have big, giant portfolios on life support. They'll be for anyrthing that might help cool down the call for complete abolishment. Where's Dr. Kevorkian? Time for some youth in Asia.
What?
The truth is that all men having power ought to be mistrusted. James Madison
This sig cannot be proven true.
It's a bad start, especially for small inventors. And it says nothing about getting rid of software patents.
FalconShould there be a Law?
With enough laxative, anyone could pass it.
Max.
First of all, a patent legistration reform at the hands of Microsoft and Intel are definitely going to have provisions in it for the little guy, right?!
This is another example of the house passing a bill with a name but very little effect. Like the earlier poster said, a band-aid for a gaping head wound. I honestly don't think that anyone in the house or senate cares, it's merely a token effort to say, "Hey look! We're at least trying to do something!!" like Bush did with his social security bill, and previous efforts with welfare, prescription drugs for seniors, and a variety of other problems. Maybe I'm just turning cynical but it seems that all action done in the name of politics are designed to line someone's pockets and fixing problems means taking money out of people's pockets (usually people who donate to parties and candidates) - so getting real progress is an uphill battle. Fixing it would require honesty, and last I checked, there wasn't a lot of that left in politics.
"Thank you for using Stop-n-Drop, America's favorite suicide booth since 2008"
It takes more than just showing a judge a notebook and claiming that the date on it is correct. There's a well established practice of sending mail to yourself so you can show the postmark on the unopened envelope and show the court that the USPS attests to the date on it.
From Expertlaw:
Don't attempt a "poor man's patent" - putting documentation of your invention into an envelope and mailing it to yourself is of next to no value when it comes to defending your invention or establishing the date of its conception.
FalconShould there be a Law?
Patent trolls aren't really the problem. A patent troll is one of two things: Lawyers abusing the broken patent system (a symptom of the larger problem) or a legitimate little guy who invented something (in which case this is the system working as it is supposedly intended to work).
You use "patent troll" different than I do. To me a patent troll is something that gets a patent on something but then sits on patent and waits until someone releases a product with the patent in it. No one who gets a patent then tries to manufacture for sale a product with the patent is a troll.
FalconShould there be a Law?
ad valorem on digital copies? Rather a unique idea there...might make the RIAA and MPAA reconsider what they say their stuff is worth, along with software vendors... now it could backfire, but at least they would be held in check pulling numbers out of their nether regions when they claim they lost such and such zillions on copies they never had in the first place except in theory
This is bad - lets think about this guys; ludite judges being informed by two companies about the so-called 'value' of the said technology, and apparently this person who as much technical knowledge as my grandfather, is going to decide who and how much is appropriate.
It also deals in hypertheticals as well; the apparent value which is being debated over and whether it truly reflects the market value; what happens if the patent infringment is found very early in the product release, how does one make assumptions on whether the product is a success, and how much can be attributed to the infringed technology and the portion of revenue that should be transferred from the offending part to the patent holder.
How about rethinking what's patentable instead? The number of patent infringement cases would plummet if the junk patents were thrown out - and no new junk patents were granted.
Their "solution" is ridiculous; altering the penalty for violating the "one click" patent isn't what's needed. What's really needed is to reform the patent system so that things like that "one click" patent could never occur.
I've no time to RTFA but, assuming the slashdot summary is correct (many times it isn't), if the courts can choose when to apply the new rules then when a small guy infringes against a big corporation the courts may choose to calculate damages based on the value of the whole product (ie the small guy gets screwed), but when a big corporation infringes against a rival smaller company or guy then the courts may choose to calculate the damages based on the part of the product that is covered by the patent (ie the small guy is again screwed). If you did RTFA and it isn't like this please correct me.
Par for the course because that is how politics work in a capitalistic society that feeds on its own. It is obscene that years of real American people participating in public outcry have yet to achieve so much as a footnote yet big money bends the ears of the scum that is now Washington.
Realizing the U.S. is a republic and not a democracy it is still pretty sad how the system works...For the ones that game it.
BSD is designed. Linux is grown. C++ libs
software patents and patents on natural genetics, most of the problems solved right there.
-William Shatner can be neither created nor destroyed.
The purpose of patents is to encourage disclosure. First to invent works against this. The strategy that gives you the longest protection with the smallest investment is to wait until a second person invents the same thing and then sue them and claim the patent because you invented it first. With first to file, your best strategy is to file (and, thus, disclose) as soon as possible.
I am TheRaven on Soylent News
That's not an "overhaul", it's a tiny tweak. That doesn't protect real inventors, but rather protects big bundlers too incompetent to patent search every part they include in their hugely complex products - that they patent. There ain't gonna be any real "patent overhauls" sponsored by Microsoft and IBM, which make most of their hundreds of $billions a year protected by the current rigged patent system. This tweak is just a change to one spreadsheet cell in their accounting departments, not a reform of the twisted patent monopoly system with which those companies monopolize anemic "innovation" while locking out real inventors.
Wake me when the patent system compromises our First Amendment free expression rights only for the economically necessary "limited times to promote progress in science and the useful arts". That reform won't have Microsoft or IBM fingerprints all over it.
Now watch someone sue me for including a "BandAid" in this comment.
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make install -not war
This makes no sense since you haven't defined at what point YOU believe an invention deserves patent protection (then again, neither has Congress it seems). Is it in the idea stage, or the practice stage, that someone should be able to file and awarded protection?
To me, invention is not only the idea, but implementation. Ideas are protected by copyright already. Invention are actual useful, physical or measurable constructs, i.e. a product, an algorithm that results in measurable output in the physical world, etc. And to do that, to prove that, you have to implement it in practice.
I know SCOTUS seems to agree on the physical or measurable construct part, since there was an older decision (1960s or 1970s) where this was determined. What is less clear is actually having a workable product; I know the patent office can demand the filer show them the patent in practice (/. covered this when some guy claim teleportation and the patent office requested proof), but I don't know if that is legally required (as in, for all patents, i.e. if they don't do this, can you raise a claim later that it wasn't implemented to invalidate their patent).
If an individual comes up with an idea sans implementation, and patents it without implementation (what you call practice), then it's not really an invention yet and is pure speculation. (This alone is a problem in the patent system.) If a company comes along during that year or even later and implements the patent, then imo they should be awarded the patent; they may have had the idea for the invention later, but they actually put it into practice sooner.
It is the result of both the idea and putting the idea into the real world to be used that is an invention.
If you are worried that someone may "steal" your idea, i.e. a machinist, that is what contract law and confidentiality agreements are for.
I overhauled my car by replacing the left wiper...
it has bald wheels, the electrics are shot, one 1 brake works - but its still drivable!
Maybe there's a way of doing the tax in a capital gains fashion. If the intellectual property is worth next to nothing one year and then suddenly a billion dollar idea the next, fine, they pay capital gains on the increase. Of course then you run into problems with a capital loss.
Or even wackier, how about trading futures on an idea? A company has an IPO for a patent, and then let the market decide what rights to use it are worth. Taxes would then be based off of that. Of course then you run into the problem of what happens when 20 years are up...
The sending of this message pretty much inconveniences everyone involved.
A simple contract between the machinist and the inventor would solve all of that (though then the lawyer who drafted the contract could steal it... just make a contract with him, using another lawyer, and of course you will need another contract for the *other* lawyer.. it's turtles all the way down).
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WHO ATE MY BREAKFAST PANTS?
IPR (patent/copyright) presently benefits big corporations and exploits big talents/creativity.
... when does IPR reasonably end?
...) should be strictly protected from any further spin-claim privatization attempts.
IPR law should only allow 12 to 36 month licensing rights, no possible purchases/forfeiture of IPR from the original artist/inventor/... and/or R&D company.
The original owner/creator should have full legal protection and property rights to the intellectual property for life plus a couple years, for corporations (maybe larger then a small business) 50 year IPR ownership maximum. I mean Beethoven/Goya... descendants no longer have any IPR
Public IPR (like GPL OSS, donations, IPR expiration
A real capitalist economy could easily adjust to source-IPR time-limit licenses, and there would be no need for any source-IPR tax/fee/penalty. Simply tax/fee the sale of licenses. No source-IPR license sales, then no cost to retain IPR for life.
Unaccountable leaders are masters, and unrepresented people are slaves. How do US and EU fare?
The USA should adopt the patent rules of other countries. There, the fine or reward for patent infringement would be the assessment of the damages to an existing product, or of proof that a company was using the patent to produce a product. Intending to use the patent is considered, but to a much lessor degree. So, I buy a patent, because I can sue companies and make xyz dollars. That is the rule in the USA, but in my country, the patent holder would get zero, not even his court costs. If he was to license the patent, then there would be a judgement as to the worth of the patent and the revenue it could bring. Here again, the judge would treat the patent as one would treat a lottery ticket. One chance in hell.
Leslie Satenstein Montreal Quebec Canada
You seem to misunderstand the effects that patents have in the real world and why large corporations lobby for them. Patent laws were initially introduced based on precisely the reasoning you describe - but patents haven't actually done that or been supported with that intention by any major political players in living memory.
No I don't. Actually for a long tyme patents has helped hold back progress. With maybe the exception of drugs I oppose patents. Even with drugs though I'd limit patents to not more than a few years instead of the typical 28 years drugs are patented for now. As Open Source has shown patents aren't needed for progress.
As for why "patent trolls" can be "legitimate" small players, consider the following situation: A small research lab invents stuff, patents it, and licenses it to other companies to productize. This is the absolute best case of the patent system, and the company looks *exactly* like a patent troll except they have a sales department in addition to their legal department.
Ah, if they are licensing other companies to manufacture a product they patented then they aren't just sitting on it waiting for someone else to release a product with the patent before they sue. Therefore they aren't a troll.
FalconShould there be a Law?