Inventors Protest Patent Reform Bill

narramissic writes "A group of inventors and U.S. company execs, among them Dean Kamen, inventor of the Segway and the AutoSyringe, and Steve Perlman, inventor of WebTV and lead developer of Apple Inc.'s QuickTime, paid a visit to Washington to encourage Congress to defeat the Patent Reform Act. The inventors say the Act will weaken the patent system, devalue patents, and encourage infringement. A version of the act, which passed the House of Representatives earlier this month, is supported by several large tech vendors including Microsoft, IBM, and Cisco. The big companies hope it will make it harder for patent holders to sue and collect huge damage awards when only a small piece of a tech product is found to infringe."

Comments

in mother russia

[Anonymous Coward]

patent reform bill protests you!

"Incumbent Patent Holders", not "Inventors"

[Doc Ruby]

Those people protesting the patent reform aren't notably "inventors" so much as they're notably "incumbent patent holders". They are a group defined by holding patents themselves, under the existing broken system, and getting rich off it.

I really don't understand what effects this proposed tweak to the patent system will have. I expect no one really does: the system is so unjust and complicated that it needs to be ripped out by the roots and replaced by something simple that merely "promotes science and the useful arts", without infringing our rights to free expression (including copying) more than is absolutely necessary to protect essential commerce. But if these rich guys are protesting the tweak, which would reduce their own protection (and evidently increase the rights of the rest of us to invent freely, using other inventions), then it starts to look like the reform is at least worth trying. Because they're making their money off their monopolies under the current law, and didn't seem to be so motivated by its existing injustice as to protest the old way, or to propose a workable new regime that protects the rest of us as well as it's protected them.

Re:"Incumbent Patent Holders", not "Inventors"

[marcello_dl]

> I really don't understand what effects this proposed tweak to the patent system will have.

Favoring the big corps against small companies. Never mind if the small company is a patent troll or not.

Let's say a guy finds a killer algorithm to speed up data mining. Big corp selling data mining software can gobble it up. Guy can't sell any data mining competing software because I'm infringing 800 silly patents (double linked lists and stuff).

Only cure for the patent system: no silly patents. Difficult to find a metric for silliness but we are not remotely trying. What about "whatever patent a team of students can find a similar solution for in 3 months (summer-of-code style) can't be used to prevent deployment and improvement of the newfound alternative solution"?. If the solution is identical to the patent, patent is revoked, if not they can use copyright to defend the patent especially if it performs better, yet they don't prevent other people to do their silly things.

Re:"Incumbent Patent Holders", not "Inventors"

[Reverend528]

Steve Perlman, inventor of WebTV and lead developer of Apple Inc.'s QuickTime, paid a visit to Washington to encourage Congress to defeat the Patent Reform Act.

Clearly, this guy is a patent troll trying to profit off of those who make good technologies.

Re:"Incumbent Patent Holders", not "Inventors"

[D'Sphitz]

I'd like to see someone compile a list of patents the Segway infringes on (they're out there), buy them up, and sue the ass off that guy. Wonder if he'd change his tune then?

Re:"Incumbent Patent Holders", not "Inventors"

[iamacat]

Let's say a guy finds a killer algorithm to speed up data mining. Big corp selling data mining software can gobble it up. Guy can't sell any data mining competing software because I'm infringing 800 silly patents (double linked lists and stuff).

Let's say a guy finds a killer algorithm to speed up data mining. Big corp selling data mining software can gobble it up. Guy can't sell any data mining competing software because I'm infringing 800 silly patents (double linked lists and stuff). Those two issues are not mutually exclusive and must be both addresses in law. Make it easy to challenge a patent and do not award damages with no rational basis.

Re:"Incumbent Patent Holders", not "Inventors"

[serbanp]

Let's say a guy finds a killer algorithm to speed up data mining.

Let's say that algorithms are one category of discoveries that should be not patentable, along with laws of physics and the like.

Re:"Incumbent Patent Holders", not "Inventors"

[Doc Ruby]

On basics, I tend to think any patent "reform" from the current political system (populated by its heavily bribed players) can favor only the big companies.

I think patents should require a working model of a physical device. Anything that doesn't cover should be copyrighted, or just admitted that it's "just a good idea".

When registering a patent, the inventor should register their auditable invested costs. When either 14 years (the original term the first Congress set) pass, or 10x the registered investment is taken as income (corroborated with the IRS), then the patent expires. No renewals.

Those two reforms should constitute practically all the entire system. And clean practically all of it up. Anything left to fix we can get to next. Because, as you say, we're so far from a working system that anything that works should be welcome, even just serious negotiations around it in Congress.

Re:"Incumbent Patent Holders", not "Inventors"

[Svartalf]

That'd be my take on things. They're not trying to fix the real problem with the system.

Amazon's One-Click patent should never have happened. There's a vast SEA of patents that're the same way (Just
putting the Internet in the mix seems to be a magic formula for making something patentable these days...)

Fix that stupidity and you'd go a long way to fixing the patent problem.

Re:"Incumbent Patent Holders", not "Inventors"

[canadian_right]

Algorithms should not be patentable.

Re:"Incumbent Patent Holders", not "Inventors"

[FuzzyDaddy]

To amplify this point, patents don't reward inventors so much as their employers. Most engineers sign over all their rights to any patents/copyright/etc as a condition of employment. (Some are so broadly worded that taking pictures of your kids and sending them to grandma would constitute a violation of your employer's copyright.).

It didn't use to be this way. I have a very old "Stillson" pipe wrench sitting on top of my monitor. The inventor, Daniel Stillson, invented the wrench in 1870 when piping was beginning to be widely used for heating. Although he worked for someone else, the patent was assigned to him (that's how it used to work), and he apparently made about $80,000 (in the 1870's!) in royalties over his lifetime off of the invention.

So unless you are an independent inventor - the exception rather than the rule - the current patent system doesn't benefit you in the slightest. The benefit goes to the patent holder - something entirely different from an inventor.

Re:"Incumbent Patent Holders", not "Inventors"

[Fulcrum of Evil]

Yeah, gotta love absolute limits on how profitable a device can be. Sounds like a great way to let someone get steamrollered on their billion dollar idea that cost $150k to research.

Re:"Incumbent Patent Holders", not "Inventors"

[2short]

If algorithms should not be patentable, neither should anything else.

If you just want to abolish patents entirely, I see some potential problems with that that would need to be addressed, but it's an arguable position. If you think inventions that manipulate stuff deserve protection, but not ones that manipulate data do not, I don't buy the distinction. All patents are essentially for algorithms. Eli Whitney's patent protected not a particular instance of the device, but the idea of how to construct a cotton gin.

Re:"Incumbent Patent Holders", not "Inventors"

[Doc Ruby]

It's not a limit on how profitable the device can be. It's a limit on how profitable a monopoly on a device can be. The Constitution carves out an exception to free expression only "to promote science and the useful arts". 90% profit is an extremely generous limit on a government created monopoly.

A $150K investment that returns $1.5 millions sounds like enough upside to promote any science or useful arts.

You're somehow equating a patent to an invention. Which is at the core of what's broken in our system.

Re:"Incumbent Patent Holders", not "Inventors"

[Fulcrum of Evil]

You're tying the extractable value of a device to its development cost. That makes no sense. Also, you have to consider that $1.5M isn't enough to set up a business capable of dealing with the existing giants and, for existing companies, you'd have to account for how much of the development and profit was attributable to a specific patent. This is madness and will just tie companies down with onerous audit requirements.

Re:"Incumbent Patent Holders", not "Inventors"

[PopeRatzo]

Simple solution: Patents can not be transferred. You can license a patent, but you can't sell them. Companies can hold patents, but only if their own employees did the R&D.

Am I missing something? Maybe some of you jailhouse lawyers can clear up for me why this wouldn't work.

I'm serious. We know the IP laws are broken, but what would work with copyright, might not work with patents.

Re:"Incumbent Patent Holders", not "Inventors"

[physburn]

"Algorithms should not be patentable". If thats the case then nothing should be patentable. Mechanisms are merely argorithms programmed in gears and cogs. Chemical synethesis is a reciple, an algorithm for producing A from B,C,D etc. It not that algorithm should not be patentable, it is that obvious algorithms should not be patentiable, they has to be some deep inventive step to make a patent, something that took a lot of time or a lot of insight to produce.

Re:"Incumbent Patent Holders", not "Inventors"

[Timtheenchanted]

I think you will find that patent law explicitly excludes algorithms from being patentable.

Re:"Incumbent Patent Holders", not "Inventors"

[pete6677]

If you invent something, your only way of capitalizing on it would be to make and sell the devices yourself if you are not allowed to sell to anyone else. And what's to stop a patent troll from filing their own dubious patents? This would only screw legitimate inventors and do very little to stop patent trolling. A company with a lot of patents could not change ownership without losing them all.

Re:"Incumbent Patent Holders", not "Inventors"

[Doc Ruby]

You said the extractable value vs development cost makes no sense. It makes perfect sense to me, and "profit" is a perfectly sensible way to measure the value of the patent in returning on its investment to promote its "science" or its "art". If you're going to argue, do so. You haven't.

$1.5M is plenty of money to do what you're talking about. I've done it for less, and without a patent. The accounting for return on asset investment value is also well established. The audit requirements aren't nearly as onerous as unrestricted patent monopolies.

We're talking about preserving a patent monopoly system. If inventors don't want to take on even some costs of protecting their monopolies, they're welcome to compete without them.

Re:"Incumbent Patent Holders", not "Inventors"

[rtb61]

Of course the major change in the new patent system is intended to fix that, patent first, bugger the actual inventor and favour the lawyer. Companies will be trolling every forum, and hunting through every open source program etc. searching for patentable ideas that they will simply steal and then sue the original inventor to stop them using their own idea. Hey, the patentor legally stole the idea, so what right should the inventor have to their own idea in a world of corporate greed, lawyers and corrupt politicians, none apparently.

A bright new era in industrial espionage in a patent first system, researchers can now be valid targets for crime syndicates, what multi million dollar ideas do they have wallowing around in their heads that their company has not yet patented but is about to and that can be extracted by US Government approved harsh interrogation techniques. Corporate security takes on a whole new dimension with mobile human safes carrying hundreds of millions of dollars worth of ideas that can be quite readily picked or if absolutely necessary bought.

Patent first is some really dangerous stuff, especially in a society where the celebration of greed is the prime motivator in the mass media, corporate and political space. Now the US Government can run the CIA and the NSA at a profit (especially considering the number of private for profit contractors they employ). Now if your a foreign or even local multinational industrialist, do you really want them monitoring your valuable research communications, phone calls, email, WAN - all encrypted, all of the time and debugging your desktops takes on a whole new significance. With China now declaring a big push for patents, how will those autocrats tackle a patent first system, where even a simple dissenting opinion leads to harsh interrogation techniques and extended jail terms, do you want you really want your researchers holidaying in China, where they might say the wrong thing.

Re:"Incumbent Patent Holders", not "Inventors"

[mabhatter654]

the problem is that while algorithms are patentable, they are not required to be disclosed. That leads to "black box" that allows silly suits and no independent discovery. Think of the software problem this way: Instead of the thousands of mouse trap inventions imagine being allowed to hide the patent in a box that nobody can see inside... so you'd have a patent on "catching mice with a box" and that's what the software situation is. If an algorithm is patented, then the executable source code should be part of the patent, just like they used to have physical models made that somebody could examine and find a better way... with software their is no arguing as their "theory" covers "catching mice" and not a specific model of mouse trap.

Re:"Incumbent Patent Holders", not "Inventors"

[Fulcrum of Evil]

"profit" is a perfectly sensible way to measure the value of the patent in returning on its investment to promote its "science" or its "art". If you're going to argue, do so. You haven't.

Okay then, you're basically taking the most effective patents (the ones that make money hand over fist) and handing them to all comers. This means that whenever you patent a really good idea, the big boys can just take it and rest assured that your maximum payout is 10x the investment cost. This also means that drug research will grind to a halt.

$1.5M is plenty of money to do what you're talking about.

It won't help you if you're fighting GE.

The audit requirements aren't nearly as onerous as unrestricted patent monopolies.

Stated without support

We're talking about preserving a patent monopoly system.

Which is just fine. Want to tear something down? Knock copyright back to something reasonable.

If inventors don't want to take on even some costs of protecting their monopolies, they're welcome to compete without them.

That's called trade secrets and leads to a guild system. No thank you.

Re:"Incumbent Patent Holders", not "Inventors"

[Doc Ruby]

Patenting a "really good idea" doesn't justify protection for making a vast fortune without competition. You're not getting the only justification of patent monopolies: "to promote science and the useful arts". It's not just a way to get rich off an idea. It's a way to protect for the people that progress, which economics would leave exposed to ripoffs by competitors who don't invent, but save their money for competition with the inventor once the inventor has spent some on inventing. The monopoly is a synthetic government compromise of everyone else's protected rights to free expression, including copying, because it's necessary not to ruin the inventor's chances to compete.

Drug marketing is in the province of a small number of incumbent giant corporations. They spend most of their money on marketing and the huge testing bureaucracy. It's a deliverate billionaire's club, designed to keep new competitors out. Which keeps entrepreneurs out. The drugs that get invented and marketed are not in sync with the actual markets, because the system is rigged by the incumbents ot protect their prejudiced agendas. The huge profits keep drugs out of the hands of many sick people, because the profit they represent isn't as big as some other market niches. You're fighting to keep that system, instead of one both more entrepreneurial and more available to more sick people.

As for the audit costs, you go and explain how high they'll be. It'll be easy for me to show how the costs of the current patent system are higher, especially in stifling priceless innovation.

Like I said, the inventors can help pay the costs of protecting their monopolies. If they choose trade secrets, though reverse engineering and corporate espionage are cheaper then most inventing, then their inventions will mostly enter the public domain that much sooner. There isn't an infrastructure or culture for a "guild system", so that's not a meaningful risk.

But I guess our basic disagreement is that you think that "preserving a patent monopoly system" is "just fine". I don't want to just tear something down, though copyright is way too protective of content monopolies at the expense of our rights, similar to patents. I want to free science and the useful arts from the patent monopolism that you seem to like. We're not going to agree on anything with those different values.

Re:"Incumbent Patent Holders", not "Inventors"

[Archades54]

There could be 1 benefit to no patents. 1 program that incorporates massive amounts of features for the given topic whereas with patents, some features may not have been available. Another company could compete by making the same program with a better interface, faster processing, and additional features. I guess something likened to socialism, new inventions and ideas would be merged to create even better products, but brings a negative aspect as it risks the profits of companies therefore slows R&D.

Re:"Incumbent Patent Holders", not "Inventors"

[bane2571]

I think you aren't getting his point.

Current system: I invest $100, sell my product for a few weeks and make $1 billion (extreme example YMMV) then vanish to Bahama. In this case no one else is legally able to sell my product, essentially killing it and losing any benefit to science and the arts it would have provided (legally anyway, something that profitable is definitely going to be stripped and reverse engineered).

GPP's Situation: As above except by the time I've vanished with my profits some other company can start [legally] producing my invention, world wins. The only loophole is that someone could move in on me bang on when I hit $1000 but frankly I only have a right to make money off my invention, not to become ludicrously rich. How would the world be today if some of the great american inventions stopped inventing because they knew they, their family and the 5 shell companies they founded can all get fat off the riches of a patent on lightbulbs?

Re:"Incumbent Patent Holders", not "Inventors"

[Anonymous Coward]

But the R&D will consist of mixing as much knowledge as is known into new products without restrictions. Companies that don't do this, will be trying to sell inferior products that consumers don't buy. Companies will still invest R&D on a smaller scale, but the rate at which innovation occurs will more than make up for the old dinosaur model of massive all or nothing R&D expenses. Smaller R&D X Many More Frequent Innovations > Big R&D X Fewer Less Frequent Innovations. Every innovation is more wealth for society, is more wealth which can be further invested. As it is now anyway, everything which is patented is just those same smaller innovations monopolized by few big companies occurring less frequently as none of these patented innovations are massively novel innovations that can't be figured out by others.

You would constantly get better products, and those products would constantly be competing on price (rather than shielded for long terms against competition because of patents). Think of it like a blog topic about the patent system. People willingly voluntarily invest time and energy of posting their thoughts and the output knowledge is greater than if it was hindered by patent and copyright prohibitions against using knowledge first stated by others in subsequent posts. That's why a site like /. can in a short time comparatively technologically overwhelm the expert knowledge of a single university faculty department devoting their lives to the study of a topic. They're closed off in their outrageously priced copyrighted journals, not contributing and even being heard, and all who avail themselves to open source reap the benefits (and can take pieces from others whenever and from whomever they want). There's no reason you couldn't get exactly the same effect on medical or IT topics. How inefficiently slow is it to take years to write and publish a new book, especially if you aren't profiting from the ideas of others? And that's what professors do anyways, cite the ideas of others while putting them in their latest book product.

And if R&D becomes a more precious resource to be used wisely, it will be focused on more short term surer things rather than wildly risked on vast unknown paths. You have to compare how much R&D spent is total failure, either because nothing innovative is discovered or because someone else duplicated that R&D, only a little bit faster, and got an exclusive patent grant. So what is the current R&D dollar failure rate? 50% 75%? Companies might currently take pride in emphasizing the "low" return for high risk they currently take. How much of the R&D budget must be focused on not tripping on other patents? It can only get more expensive and more cumbersome the more patents there are to deal with, shutting more and more entrants and more and more contributors completely out of the innovation process for vast areas of technology. Thus, in a patent system R&D payoff has a steep marginal utility decline whereas in a patent free system R&D has a steady slightly increasing return which overwhelms the patent R&D return the further out in time you go. In a patent free system your incentive is to make your product a little bit better and a little bit cheaper than the competition for as little expense as possible, and that's the competition's incentive as well, and it's relentlessly constant, as it's extremely easy for new players to get into the game as well.

Re:"Incumbent Patent Holders", not "Inventors"

[Fulcrum of Evil]

I think you aren't getting his point.

I get it just fine. I just disagree.

How would the world be today if some of the great american inventions stopped inventing because they knew they, their family and the 5 shell companies they founded can all get fat off the riches of a patent on lightbulbs?

I dunno, ask Edison. Of course, he didn't get rich off just the light bulb, but a lot of other things his employees developed.

frankly I only have a right to make money off my invention, not to become ludicrously rich.

You have neither. You have the right to try, and congress is empowered to grant time limited monopolies to inventors, which helps a fair bit. Making a mint off of some idea of yours is highly unlikely (I'd like to see an example or two, personally). You generally get rich by selling something to a few million people, which takes time to set up. In the meantime, your competitors are trying to take your invention and reproduce the effect a different way. The current system isn't perfect, but this change doesn't address its flaws.

Re:"Incumbent Patent Holders", not "Inventors"

[r6144]

Your second requirement might encourage patent trolls. They would need to do more than coming up with some idea, but a half-baked proof-of-concept is almost trivial to make compared to a finished product, especially since profitability is not a concern. For example, for things like the one-click patent, one can simply make some web pages and server scripts and put them into a computer, which may count as the "working model". This should not cost much compared to the other costs in obtaining a patent, and once obtained, such patents can still be used for trolling.

I'm opposed to patents for the most part, but if we have to grant a patent to someone, it would be better if the patented idea actually gets fully implemented and turns into a useful, profitable product, than having it sitting around like a landmine, serving no purpose except for denying others' use of the idea.

Of course, that's unless your first requirement intends to make patents as limited in scope as copyrights, that is, they only cover blatant copying of e.g. blueprints and PCB designs and do not cover clean-room reimplementations of the same idea. Maybe that's not such a bad idea, after all...

Re:"Incumbent Patent Holders", not "Inventors"

[foniksonik]

Let's say the small guy has a killer algorithm but big corps have all the patents for implementing it in a device... even though the algorithm is the only important aspect.. the rest is just cruft to access files or queue up data or something (obvious to those skilled in the art).

Current system says small guy is out of luck and must sell to big corp to make anything out of his discovery or must give it away and hope for some new idea that is less encumbered.

New system *might* allow small guy to start a big corp without being sued by everyone for trivial but factual patent infringements.

Re:"Incumbent Patent Holders", not "Inventors"

[jZnat]

It was already decided long ago that mathematics was not patentable, so the fact that software (which is just maths) is patentable is absurd. Especially algorithms which are purely maths.

Re:"Incumbent Patent Holders", not "Inventors"

[SCHecklerX]

Easy.

1. No more software or business method patents
2. No patent without working model or design

Patents should protect those who have ideas who actually want to make something of them. I have lots of ideas. But I lack the time and ambition to make something of them, so I certainly am not going to patent them.

Patent your idea. Work with a company to bring it to market, if you can't do it yourself. If you don't do that, and fail to have a model or design in a reasonable amount of time, too bad, squatter. You shouldn't have the ability to make money off of somebody ELSE's hard work to bring an idea to fruition.

Since there is no physical device involved with software or methods, they don't require patents to 'protect' them. I can write code and come up with processes, which are the final product, without an investment in physical devices to build the 'thing'. You don't need a patent to protect you, as the product is instantly created. Copyright, sure. Patent? No way.

Re:"Incumbent Patent Holders", not "Inventors"

[psydeshow]

Wow, I now have a real person to curse whenever Apple tries to charge me $30 to enable clipboard actions in the media player that ships with their OS.

I'm not sure that Mr. Perlman has anything to do with Apple's petty greed or not, but given his role in this little debacle I'll assume he does. I don't like cursing Jobs because he has magical charms that protect him.

Cheers, Steve! I remember cursing you for WebTV, too, back when people actually used it.

Re:"Incumbent Patent Holders", not "Inventors"

[2short]

As a mathematician of sorts, I'll readily agree that everything is worthwhile is really just math.

But as far as US patent law goes, facts are not patentable, methods are. The difference is certainly fuzzy in many areas. My point is, if we're discussing whether instructions for how to do something should be patentable, why does it matter if they are instructions for how to perform some complex transformation on some data, or instructions for how to build a device that will extract the seeds from cotton?

Re:"Incumbent Patent Holders", not "Inventors"

[Anonymous Coward]

So now it's three elections worth of straight Republican tickets.

Give me a reason to make it five you pathetic cunt.

Re:"Incumbent Patent Holders", not "Inventors"

[RoyBoy]

Sorry, but I just couldn't let this one go:

This also means that drug research will grind to a halt.

This is one of the most oft-hear lies in the whole patent debate. The fact is, pharmaceutical and biotehnology firms spend miniscule amounts on R&D relative to other factors (marketing, manufacturing, administration and profiteering). In fact, accorsing to the NIH, only about 18% of the drug industry's research budget goes to basic research for breakthrough drugs; sbout 82% goes to derivative innovations on existing drugs and to testing (while our patent system afford them the self-same protections).

If you believe in the power of a free market, then you should understand that the government should never be in a position of enforcing a monopoly, unless it somehow benefits society as a whole. In this case, the claim is made that patent monopoly protection "advances science and the useful arts". It is an accepted economic theory that any level of profit above break-even is significant incentive to pursure a course of action. If 10x investment is not enough profit motive, then I think you are misleading yourself about the nature of why we allow this sort of protection.

Re:"Incumbent Patent Holders", not "Inventors"

[marcello_dl]

Well but how the linked list ever got patented? Methods, processes or however they call what they patent are kind of broadly defined algorithms- which is even worse.

Re:"Incumbent Patent Holders", not "Inventors"

[Fulcrum of Evil]

If you believe in the power of a free market, then you should understand that the government should never be in a position of enforcing a monopoly, unless it somehow benefits society as a whole.

Free markets exist only as an abstract concept, and they're not always desirable. The government should regulate monopolies where it makes sense; I'm happy with the patent system as written - I think the problems stem from a lack of operational support and too loose policies on granting patents

It is an accepted economic theory that any level of profit above break-even is significant incentive to pursure a course of action. If 10x investment is not enough profit motive, then I think you are misleading yourself about the nature of why we allow this sort of protection.

This assumes that most research leads to profitable inventions, when it's probably not nearly that. You have to pay for all the research you do, not just the stuff that works. I still maintain that you're suffering from a fundamental misconception - the gub isn't in the business of enforcing morals (which is what determining a moral amount of profit is). It's in the business of protecting us from the predators among us and regulating companies the minimum amount for the same reasons.

Very appropriate sig....

[Anonymous Coward]

Perlman does not work for Apple, and hasn't for decades.

Way to troll the fanboys, though.

Re:Thanks, Apple

[Anonymous Coward]

Because the views of a single developer clearly represent the whole company?

ekkk!!!!

[LWATCDR]

Microsoft on the side that isn't pure evil..... Head going to explode.....
Just kidding but I can understand both sides of the issue. RnD is expensive. And then you have the companies that make nothing but law suits...
That has got to be a good middle ground. I have to admit that I don't support software patents but a company deserves to make good money from their RnD. And no just being first to market isn't enough.

Re:ekkk!!!!

[Anonymous Coward]

>And no just being first to market isn't enough.

Ah, but in the patent system, that is essentially all you are supposed to get. I should remind everyone that the patent system with its 20 year protection was created back when information and people traveled a lot slower. 20 years was a fairly good amount of time needed to build, and reach the markets. Today, companies can perform the same amount of work in only a few years, and a single inventor can do it in less then 10.

Re:ekkk!!!!

[DustyShadow]

The biggest problem with lowering the damages in patent lawsuits is that it then becomes more cost effective for the large companies to just infringe the small guy's patent instead of licensing or buying the company. Believe it or not, most innovation comes from the little guys. Kill the high damages, then you kill all the little guys and the incentive for new little guys to start new innovative companies. Innovation in the US then comes to a standstill.

Re:ekkk!!!!

[pilgrim23]

Reforming patent law won't be ANY problem at all After all, look at coyright; they reformed it and everything there worked out ok.

Re:ekkk!!!!

[cpt kangarooski]

I should remind everyone that the patent system with its 20 year protection was created back when information and people traveled a lot slower.

And I should remind everyone that US patents were originally 14 years long, then 17 years long, and only recently are 20 years long (also the point from which you begin counting has changed). The original patent law, the Venetian statute of 1474, had a 10 year term.

I suppose it is possible that someone had a 20 year term a long time ago, but it wasn't an influence on us, apparently, and this is a discussion about US patent law.

Re:ekkk!!!!

[mabhatter654]

the 17 year term was from date of GRANT backdated to the time of filing and date of invention. That allowed all sorts of abuse by keeping the application in limbo for years then getting the patent when other people actually market devices. The alternative was to mimic the European and Japanese systems and make them 20 years from date of file. Then the incentive is to get the patent thru the system quickly and into production so you can make money before the clock runs out. The old system benefited waiting for years then pouncing... we're STILL paying for those bad patents with many of the big lawsuits that were kept quiet for years then sprung. In theory that should stop happening soon, but not soon enough.

Re:ekkk!!!!

[cpt kangarooski]

the 17 year term was from date of GRANT backdated to the time of filing and date of invention. That allowed all sorts of abuse by keeping the application in limbo for years then getting the patent when other people actually market devices.

I know, I just didn't want to get into it, when the nit at hand was the numerical value.

The alternative was to mimic the European and Japanese systems and make them 20 years from date of file.

No, the alternative was to adopt a sensible idea and make the patent term run from the filing date. There's no reason why the term had to be 20 years, however. It could have just as easily been any number, preferably the lowest one that still yields the greatest public benefit.

And this isn't quite ideal either, as the PTO should be willing to spend as much time examining the application as it needs to. I don't care if the applicant wants to rush, but the PTO should not do so where it would even risk the quality of the examination. Though we also should try to minimize harm to the applicant from, say, a very slow examiner. I seem to recall that there's some extensions for this (or possibly if the FDA takes their time for a patented drug... patents aren't my field), but then that introduces uncertainty.

I would hope that a clever fellow could come up with a better solution that addressed these concerns (funding the PTO out of the general fund, and having plenty of examiners would help). Terms running from filing are decent, but I'm not convinced that they're the best possible solution.

Re:Thanks, Apple

[Elektroschock]

The funny thing here is that a premature fix to the broken US patent system is provided by Microsoft and others, and the patent trolls cry and campaign. Nice try.

Sure, it would be better to abolish the patent system altogether as it is not justified for software at all. But unfortunately Microsoft does not support this. Anyway, let's better get what you can, and set up a real campaign against US software patents. All experts agree that the Us patent system needs reforms. But what you need in the US is a pressure group as FFII that works to put the kibosh on it.

good

[roman_mir]

The inventors say the Act will weaken the patent system, devalue patents, and encourage infringement. - Good. I think the patent infringement should be encouranged, patents should be devalued and the whole patent system should be dismantled. Then again, I am an anarcho-capitalist/libertarian at heart, I must be crazy of-course.

Now copyrights, I don't have a problem with meaningful copyrights. It's just that the definition of 'meaningfull' differs from person to company.

They're both right

[realmolo]

Most companies are justifiably terrified of lawsuits based on dubious patents.

At the same time, anyone with a patent is justifiably terrified that a big company will steal their idea, forcing them into a lengthy, expensive lawsuit that they can't afford and might not win.

The problem is, patents are BAD for the consumer/marketplace, but they are GREAT for the person holding the patent. Sometimes it's hard to decide which side to take.

Re:They're both right

[DustyShadow]

Theft of intellectual property is a much much bigger problem than patent trolls.

Re:They're both right

[Anonymous Coward]

There's no such thing as intellectual "property". A.) It can't even be circumscribed. B.) There's no limit to the number of people that can simultaneously inhabit an idea. C.) It is an impossibility for intellectual ideas to be subject to "theft", as it is impossible for somebody to lose an idea unless they willingly forget it themselves.

So A.) there is no property + B.) there never is any theft = C.) You're a liar (or a dumbass, you pick)

Re:They're both right

[DustyShadow]

Wrong.

Big business wins again

[nurb432]

And the little guys suffer. Go figure why they support it, its perfect for them.

What part is most dangerous?

[meburke]

I strongly object to the part that awards the patent at "first to file" rather than "first to invent". I believe that the policy of "prior art" protects the small inventor. Somehow this change is being ignored in light of the "small detail" portion of the bill. Some of the awards are clearly out-of-hand. An inventor should be compensated for someone stealing his/her invention, and punitive damages are appropriate, but surely the remuneration award should be based on fair royalties, right? So if an an inventor discovers his $.30 invention is being used in someone's $30,000 machine, shouldn't the remunerative part of the award be based on fees due him from licensing the $.30 part? If he didn't invent the whole machine he shouldn't be entitled to all the accumulated royalties due the other contirbuting inventors.

Re:What part is most dangerous?

[Raul654]

I strongly object to the part that awards the patent at "first to file" rather than "first to invent".

The whole theory of the patent system is that it is a quid-pro-quo - the inventor releases what would otherwise-be trade secrets into the public domain; in return, society grants him 20-or-so years monopoly on that information. Rewarding the "first to invent" rather than the first to patent defeats this purpose.

Re:What part is most dangerous?

[debrain]

I believe that the USA is the only 'first to invent' nation left in the world except for Somalia (which, incidentally, has no government, and is coincidentally the only other country to not have signed the UN Declaration on the Rights of the Child). All the others discovered decades, if not centuries, ago the serious problems with a first-to-invent system, the reasons for which are widely known and the benefits broadly realized.

Re:What part is most dangerous?

[Vellmont]

So if an an inventor discovers his $.30 invention is being used in someone's $30,000 machine, shouldn't the remunerative part of the award be based on fees due him from licensing the $.30 part?

Only if the $.30 part isn't the linch-pin that makes the whole $30,000 machine possible. The monetary value of the part is really irrelevant, it's the role the part plays in what the invention does. If I invented a magical $3 device that allows a car to run on gasoline, I'd expect an automaker to pay me a HELL of a lot if they infringed on that patent. Such a device is pretty useless in isolation. On the other hand, if I invented an adjustable cup holder, and an automaker infringed on it, I'd say damages awarded against anyone infringing on that should be based on the little amount of value generated by the better cup-holder, not the whole value of the car.

What the law actually says I don't know.. summaries of law are notoriously terrible.

Re:What part is most dangerous?

[Elektroschock]

First to file and first to invent has *nothing* to do with prior art. But in a "first to invent" thinking market players tend to believe prior art was more important. In a first to file system novelty is still a requirement that kills the claim. Protests based on these grounds follow illusions about the reality of the patent system.

Re:What part is most dangerous?

[DustyShadow]

Rewarding the "first to invent" rather than the first to patent defeats this purpose.

Please explain this.

Re:What part is most dangerous?

[rolfwind]

I wonder if the "first to file" part replacing "first to invent" is coming from the EU. In Europe this is the policy and I find it rather stupid.

We already "had" to make several changes in the tax code on the bequest of these intra/international organization and this smacks of the WTO influencing us.

It seems to be a policy purely to save the bureaucrats work and from having to think while suffocating business who already patent every little burp they release. I hope the western world wakes up from this patent madness before China completely surpasses us laughing all the way to the bank with their minimal IP protection. (Not anti-patent, just anti-stupidity).

Re:What part is most dangerous?

[meburke]

You may have a point. There are many people that think the patent system should be abolished completely. In the meantime, my criteria is, "what is best for both the inventor and the public?" The new law doesn't seem to protect the small inventor as well as what we have.

Re:What part is most dangerous?

[meburke]

I agree; the award should be based on the value of the item being used, which would certainly be part of any royalty arrangement. I did not mean to imply that the manufacturing cost of the item should be the deciding factor.

Re:What part is most dangerous?

[meburke]

Thanks for the link. the only argument that I agree with in the list is, "Early disclosure encourages early use". The arguments for "Because everyone else does it this way do not impress me at all. My criteria is, "What is best for both the inventor and the public?"

Re:What part is most dangerous?

[darkmeridian]

Let me try to address your concerns one by one.

The rest of the world is on a first-to-file system. This encourages inventors to file their patents as soon as possible. Furthermore, it simplifies ownership of patent rights. Instead of litigating over who first "conceived" of the invention, you look at a piece of paper at the patent office.

The prior art aspect is not changed by moving to a first-to-file system. Pretend A first conceived of an invention but B filed first. B obtains a patent. Person A cannot receive patent rights but he can defeat B's patent if he can proof his case (if he publicized his invention). If A kept it secret, then the world would be no different in regards to whether A or B got the patents because that invention was not going to go on the public domain.

Damages right now are based on a reasonable royalty, at a minimum. The move to limiting damages to the added benefit provided over the prior art is cumbersome and unworkable in my book. But a company sued Microsoft for patent infringement of an aspect of Windows and proves infringement. The judge uses the entire value of the computer system and Windows to set the royalty base. I think it was overturned on appeal because that was just insane.

In conclusion, the first-to-file system is meant to improve parity with the rest of the world's patent systems. It should not affect prior art at all.

Re:What part is most dangerous?

[russotto]

The US, on the other hand, discovered decades, if not centuries, ago the serious problems with a first-to-file system, and switched to first-to-invent.

Harmonization with other countries isn't sufficient reason for doing it. After all, it's largely harmonization with the rest of the world -- joining the Berne convention -- that made copyright the out-of-control monster it is today.

Re:What part is most dangerous?

[bzipitidoo]

It's these sorts of problems that make the patent system so unwieldy and impractical. How is that value to be determined?

How is a small inventor to profit? I would guess most so-called inventions are not really novel or valuable, but many would-be inventors are totally blind to any objective thinking on their pride and joy. Novel is especially tough-- how can anyone know whether another person could've come up with the same idea? But for those few who are real, starting and running a company is a lot of work. So the inventor usually has to find and convince some buyers he's not a crackpot and it is real and could be valuable, in order to sell the invention. This has to be done in a manner that doesn't give the show away. Otherwise, the buyers could learn enough to produce something similar, and then not need the inventor's efforts. He also needs some assurance the buyers deal in good faith. A bit of creative accounting, Hollywood style, and the small inventor might see nothing. Contracts to handle these contingencies are complicated.

Inventors are quite right to be concerned that invention is an even riskier business than the already high risks of spending much time and money on some idea that doesn't work out. But those sorts of solutions that push even stronger intellectual property laws aren't the answer. Any sort of legal regime that presumes users of some idea "should've known better", and "ignorance is no excuse", and that the remedy should involve some heavy punishment to deter others really misses the point, and actually chills things. The system would seem to be designed to force people to spend much time keeping up with patents, which is a huge waste of time given how many worthless, overbroad patents there are, and that it takes many many hours in court to sort out whether just one patent is or is not being infringed. Extremely difficult to guess at outcomes beforehand. Is something an infringement? Will they find out? Whether or not it is infringing, will they sue anyway? Will they win in court? At the same time there is actually an incentive to NOT keep abreast of patents lest one be liable for triple the damages one could incur for being ignorant. Berserk. But that's the system we have.

Someone who just wants to do something has such a heavy burden of due diligence for no good reason. I'd much prefer some kind of system that leaves people free to invent, refine, use, and reuse without having to worry about the law, or having to enter some overly restrictive deal with an inventor that dictates too much about how an invention may be used. Rewards for inventions should be done in a way that encourages invention without anyone being branded a thief, having to endure trial after trial, and ultimately being punished for "stealing" an idea. Let the government pay up, instead of some hapless private organization. I am thinking particularly of RIM, and their record $612 million punitive payment. The minefield analogy is so apt-- patents are like putting mines in a national park to punish people for straying off trails. Except that trails are a lot easier to mark.

Re:What part is most dangerous?

[Anonymous Coward]

An inventor should be compensated for someone stealing his/her invention Well that's easy. If the invention is still there right where the inventor left it, the gloves don't fit, and you must acquit. Damages awarded are mark it ZERO!

It's no wonder the system will collapse when people associate "stealing" with copying competition. Competition is impossible without copying. Think about it. Impossible. Competition means competing over a similar or the same product. Most are just oblivious to the multitude of levels upon which copying is naturally occurring. Without copying you've got no competition and a medieval monopolistic restrictive guild system where the non-favored are restricted from peaceful free action, which means less wealth than there otherwise would be, without exception (and that compounds enormously through time and competition upon innovation is thwarted). Not to mention all invention involves copying, whether it's discovering and copying the laws of nature or the laws of scientific or artistic recipes. The world is supposed to pretend it's DUMB by not reverse-engineering? What happened to climbing that mountain because it was there? Should we pretend there are no mountains? All scientific progress whatsoever is a process of reverse-engineering expected outputs from given understood inputs?! And these "inventors" certainly have no qualms with copying (cough, excuse me, "stealing") the methodology of research of past scientific and artistic masters.

It's time we simply say "fuck you", no more restrictions on peaceful action that doesn't deprive anyone of real physical material property, to continue providing government subsidized protection to parasites. The only result will be a greater rate of higher quality innovation necessitated by the competition constantly getting incrementaly better with costs spread over more and more efficient competition. To suggest otherwise is to suggest people don't daily contemplate and occasionally speculate on shorter (innovation) commute times. People already voluntarily donate money to causes like breast cancer research, and scientifically enabled persons seek solutions to daily problems, whether they are paid or not (if it's a problem that effects them). There's no more "incentive" needed than that, then to get up and do something. The selfish asses can't compete with those who voluntarily cooperate. There's no government subsidized reward needed, that can compete with pride, fame, and need. That's how the truly talented attract voluntary funding, and salaries to boot.

All of society would be far more wealthier than it otherwise would be a mere twenty years after a ban on all copyright and patent, not to mention instantaneously more wealthy immediately as any and all could use any and all knowledge anyway they want to for peaceful purposes. Hello all pharmaceuticals cheaper than aspirin. With those kind of savings, that opens up tons of financing opportunities for voluntary experimental innovation projects, whether that's more material money to donate, or more time to donate (as grinding takes less time to afford current technology).

Re:What part is most dangerous?

[cpt kangarooski]

The whole theory of the patent system is that it is a quid-pro-quo - the inventor releases what would otherwise-be trade secrets into the public domain; in return, society grants him 20-or-so years monopoly on that information.

The patent system is also meant to incentivize inventors into inventing and marketing inventions that they otherwise would not have, but only where the inventions is novel, nonobvious, and useful. The second guy to invent something has failed to meet the requirement of novelty.

There's also the issue that the Constitution mandates that patents shall vest in inventors. The second guy is just an also-ran; he's not the inventor.

First to invent is not only a better system, it's the only constitutional one here.

Re:What part is most dangerous?

[cpt kangarooski]

The prior art aspect is not changed by moving to a first-to-file system. Pretend A first conceived of an invention but B filed first. B obtains a patent. Person A cannot receive patent rights but he can defeat B's patent if he can proof his case (if he publicized his invention). If A kept it secret, then the world would be no different in regards to whether A or B got the patents because that invention was not going to go on the public domain.

That's wrong. Remember that the first-to-invent rule, where there is not an issue of prior art, only arises in the context of an interference. Thus, A is also seeking a patent on the same invention, but merely filed for the patent after B. The issue then is not whether a patent will be awarded at all, but rather to whom the patent will be awarded? Will it be awarded to A, the true inventor, or to B, the also-ran who merely happened to file some paperwork earlier?

In conclusion, the first-to-file system is meant to improve parity with the rest of the world's patent systems.

But that is not an appropriate goal of the patent system. Harmonization is not a legitimate policy at all! The purpose of the patent system is to provide the greatest benefit to the American public in the realm of inventions. Whether the rest of the world does it one way or another or all different ways is utterly irrelevant. What's important is that we do it the best way. If someone else comes up with a substantively better way, then we should learn from them, whether their way is popular or not. If someone else comes up with a substantively worse way, then we should avoid following their example, whether their way is popular or not.

Your argument boils down to that all the kids are jumping off of a cliff, so we should as well. My mother taught me better than that, and I'd imagine that yours tried to do the same with you.

Re:What part is most dangerous?

[akasch]

at least now you can sue the rattlesnake who infringes

Re:What part is most dangerous?

[mr3038]

Lets pretend that person A has made the invention first and has decided not to apply a patent for it (keeping the invention secret) and B later files the paperwork and gets granted a patent. In first-to-file system A can later come and make the patent void due to prior art but he cannot claim the patent as his own. And I believe it should be this way! Person A should not be awarded for the fact that he tried to keep the invention secret (the patent system is supposed to help getting inventions into public domain) but the fact that A did the invention earlier should be enough to nullify the patent of B.

If something is simple enough that A and B both come up with the same end result without knowing about each other, the there shouldn't be a patent at all.

Re:What part is most dangerous?

[phybere]

It would seem they're awarded based on opportunity cost. i.e. they *could* have designed the $30,000 machine if their patent hadn't been infringed on. Still seems somewhat ridiculous.

Re:What part is most dangerous?

[cpt kangarooski]

Lets pretend that person A has made the invention first and has decided not to apply a patent for it (keeping the invention secret) and B later files the paperwork and gets granted a patent. In first-to-file system A can later come and make the patent void due to prior art but he cannot claim the patent as his own.

Actually, I don't believe that to be the case, though I could be wrong, as patents are not my field, and I'm having to rely on what I learned about them in school.

Rather, what happens is that A invents first, and diligently works on his patent application, which he typically has one year to do. During that time, B independently comes up with the same thing, and being quicker to do the paperwork, gets his application mailed in sooner. The interference cannot arise until A sends in his application, and now there is a fight as to which one of them will get the patent. A isn't being rewarded for keeping a secret, he's just being rewarded as a normal inventor, albeit a slower one than B when it comes to patent filings (which are often done right up to the time limits anyway, as I understand it)

What doesn't happen is that A can keep an invention secret yet also prevent B from getting a patent. IIRC, A would have to publicize the invention to at least some extent in order for it to be the right kind of prior art to bar B.

There is a decent-looking discussion of interferences here, which you might want to review so that you get a better idea of just what it actually means. In particular there is a section about the effect of concealment or abandonment.

As for something being simple enough that two people independently come up with it, that's just stupid. The simplicity of an invention isn't relevant, and often very good inventions are quite simple. The obviousness of an invention, OTOH, is important, but there's no reason to believe that a patent is obvious merely because two people had the same idea at the same time. That can just be coincidence. Remember that obviousness is when _non-innovative_ study of the prior art would lead you to the invention. That is, if someone with no inventive imagination whatsoever could have thought of it at the time of the invention, then it is obvious. This is often not the case.

Re:What part is most dangerous?

[jez9999]

If I invented a magical $3 device that allows a car to run on gasoline, I'd expect an automaker to pay me a HELL of a lot if they infringed on that patent.

I think you might have some trouble selling the novelty of that idea.

Confused inventors bump into things, demand monies

[hxnwix]

Article:

Currently, courts generally consider the value of the entire product when a small piece of the product infringes a patent, and the legislation would allow courts to base damages only on the value of the infringing piece... The legislation would also allow a new way to challenge patents after they've been granted. Patent troll:

Currently, courts don't murder you while you sleep, but this legislation would change that. The legislation would also kill your dog, shit on your face and destroy all innovation. Apple:

Wait, if someone stole our patented floe growler spinaclaptic interface, they would only have to compensate us fairly. This does not sound good. Quick, let's react!

Yeah, that's the idea.

[kebes]

From TFA:

The legislation "will weaken the patent system," said Dean Kamen, inventor of the Segway and the AutoSyringe. "It will devalue patents..."

Umm... yeah. That's the idea: to weaken a system that is currently very strict and uncompromising. The end of the quote is:

"It will be a disincentive for people to invest in the future."

Well I guess that's what is being debated. On the one hand there you can argue that without strong patent protection there is a disincentive to invest in future ideas, because you can't protect your expected profits. On the other hand you can argue that with strong patent protection, there is a disincentive to invest in future ideas, because you can't be sure you won't infringe on other's patents, and have your profits sucked away.

It's not at all obvious that the current patent balance (or one involving even greater patent protection) is the optimal one. It is obvious that no matter how you set the patent system, some people will not like it, and will experience a "disincentive to create." But that's hardly relevant: the proper balance is one which encourages the greatest innovation and progress overall. And, when analyzing the overall benefit to society, it should be noted that there are distinct advantages to allowing an idea to be used widely (perhaps even gratis), and to offer companies some assurance that their product will not be destroyed simply because of an obscure patent of questionable validity.

WebTV needed inventing?

[tehwebguy]

I must be missing something.. isn't WebTV just Web + TV?

Aren't these exactly the types of patents we DON'T want being granted?

Reminds me of the hamburger earmuffs, and the electric blanket mobile.

Re:WebTV needed inventing?

[Anonymous Coward]

I must be missing something.. isn't WebTV just Web + TV?

Just????

A TV + Set top box is totally different than a monitor + PC. Worlds apart. This guy is right up there with Tim Berners-Lee and Bill Gates in terms of Internet pioneers. Heck, he brought the Internet to ma and pa back in the "dark ages", when the 'Net was still brand new, and Windows 95 had just been released. Three cheers, indeed!

Another try, please.

[Anonymous Coward]

This is interesting. Small companies, likely backed by VC, is against this bill. After all, many small companies bet the farm on inventing something that will change the world and result in billions of licensing fees.

Large companies are all for the bill. They're getting hammered by small companies that own a lot of patents.

So, obviously it'd be great to support the small companies and the large companies and everyone else. Clearly, reducing fair market value isn't so fair. And eliminating patents will make all those small (and some very good) start-ups disappear... after all, look at what Kaman has invented - mostly awesome medical stuff.

So is there an auction system to determine fair market value for patents, and such a market can determine if something is both patentable and have a particular value? After all, an invention with no users would seem... valueless to everyone. Or maybe I'm wrong on that.

Ironic

[iamacat]

Given that it's impossible to ship a product without infringing on dozens of patents from big companies, at least one of which will refuse to negotiate reasonable licensing due to competitive considerations. What's not too like about the new rules? You get compensated for the fair value of your patent if someone uses your invention without license. If a BMW shop uses 1-click on their online website, do you really expect to get all the proceeds from their car sales as a reward?

From the man who brought us the segway....

[MLCT]

inventor of the Segway Oh well - with all the sense to invent (and mercilessly promote) - a machine that ensures people don't even have to walk any more - all in a country with one of the worst obesity problems in the world. If a change in the patent system will stop crap like the segway being invented then it will be a change for the good.

The bar for getting a patent should be very high

[kcbrown]

These days, the USPTO hands out patents like candy. That obviously must stop.

The only meaningful patent reform bill is one which makes it much harder to get a patent. A patent is a monopoly on an invention. Today, the term "invention" is used so loosely that it's almost devoid of meaning -- you can get a patent on pretty much anything these days.

But the nature of a patent is such that it should be hard to get. So what should be required to accomplish that?

I think the most important requirement should be that the patent itself be publicly peer-reviewed. Some will argue that the downside is that if the patent isn't granted, then suddenly the invention will be made known to the world -- the inventor won't have the opportunity to keep it secret. To that, I say good! If you want the monopoly that getting a patent gives you, you should be forced to risk the possibility of losing control over your invention. This alone would eliminate most of the patent applications, and rightly so.

Additionally, the patent itself must be a technical document, not a legal document as it is now. It must provide the average practitioner in the field in question with all the information he needs to implement the invention. The patent can be rejected by the peer reviewers on this basis alone.

Right now, neither of those is required, and the results are predictable: nonsensical and/or trivial "inventions" are routinely granted patent status, and we're all worse off for it.

wow

[Anonymous Coward]

who are these moderators hard at work?

Re:Thanks, Apple

[Anarke_Incarnate]

If it is apple, no, but god forbid Miguel from Novell says anything that is "Teh Stoopit" it is all Novell's fault.

Re:Segway carries a "Risk of Death" label.

[eepok]

Isn't it a corollary of wheeled transportation that you're never supposed to hit anything or try to go over a hole that is near the diameter of the wheels? Think about it. Even an obstacle 1/4 the height of a height of a wheel will screw you up.

Innovation and Patents

[Inventor Stan]

Worldwide employment in manufacturing is decreasing due to increased automation.
By being a leader in manufacturing automation, the U.S. could recapture much of it's lost manufacturing capability. Labor costs would be less of a factor in product costs.
Progress in in manufacturing automation depends on innovation. The key to an increased pace of innovation is a reformed patent system which greatly reduces the time and cost of securing patent protection.
A week or so after filing for a patent, others could read the patent and perhaps improve on it.
Many of the patents would be for increased automation in manufacturing and products that are easier to manufacture.
By rewarding the inventors of worthwhile inventions, inventing can be a rewarding career and a way to recruit inventors.
The patenting process in brief:
To file a patent application, email a description of your invention to a Patent Office Repository. A cursory examination for clarity would be done by the Patent Office.
No patents would be awarded as such. The presence in the repository is the patent.
Designers could search the repository for ideas when designing a new product.
Each industry segment would be taxed on it's products as a per cent of the perceived value of the patents. (The tax rate would be set by law.)
Compensation, if any, would be from the tax revenues of the relevant industry. The compensation would be based on usage, perceived value(as determined from a number of sources) and time elapsed since the description was filed.

The end of technology is at hand

[grolaw]

The "first to file" as opposed to the "first to invent" rewards the thief not the inventor. Shortly follows the end of individual innovation - because all it takes is one slip and the invention is stolen. It also prevents collaboration / full disclosure and scientific discourse because the first to file wins. Secrecy becomes the norm and we all lose.

Anybody know the story of the wiper-delay circuit? That was stolen AFTER a patent issued. It took nearly 20 years to win the suits and the inventor finally was paid. The system is flawed - but at least the inventor reaped the benefit.

This change only concentrates patents and wealth in the largest entities.

Imagine a product that requires experimental use to perfect - say, a new roadbed (city of Elizabeth) and somebody who observes the experimental use files for the patent - guess who wins? First to file.

The pharmaceutical industry is happy - the rest of us can tough it out.

Re:The end of technology is at hand

[Anonymous Coward]

The problem with the argument that "first to file" hands the advantage to the thief conveniently ignores the fact that a real inventor does not live in a vacuum.

An inventor must live with everyone else in order to extract that licensing revenue from the rest of the folks. Therefore, it is the inventor's responsibility to know what everyone else's technology level has risen to, and thereby, making his invention either innovative or trivial, valuable or pointless.

It is HIS responsibilty to ensure that his invention has real value to the public at large. If he does not want to waste time figuring out if his invention is of any value to the public, then why does he need a patent?

The whole point of an economic incentive to produce is directly related to the market value of the idea, which means that some bozo with no connection to the real world is not likely to be a "theft victim". The thief who has the "vision" to see that the idea is worth stealing may, arguably, be more useful to society than the hermit who can't see the business opportunity.

Now, I'm not trying to argue that stealing is morally right in this case, but we have to keep the fundamental purpose of patent protection in mind. The idea needs to come out, and participate in real products and services, which requires some business insight, not just some nerdy coolness factor.

Patents are meaningless without the economic opportunities associated with them.

Ern

Re:The end of technology is at hand

[canadian_right]

The rest of the world uses first to file as it is simpler to administer and less likely to be "gamed". Much less lawsuits with first to file as the rules are much clearer.

Re:The end of technology is at hand

[grolaw]

Actually, the rest of the world doesn't use "first to file" - and Brazil is one major example.

I have no idea what you mean by: "it is simpler to administer and less likely to be "gamed". Much less lawsuits with first to file as the rules are much clearer."

The rule: "first to invent owns the rights" is simple. First to file = "a race to the patent office" and that means that the first thief to file owns the rights - screw the inventor.

If that is a desirable outcome - I don't see how. There will be no fewer lawsuits - just different lawsuits.

For the parts of the world that have "first to file" many companies file first in the US and then register their US patents in the parent country - because the US has universal registration rights that may be unavailable to patents originally filed under the "first to file" doctrine in the parent country.

Re:The end of technology is at hand

[thePig]

Actually, the inventor, in many a case, lives in a vacuum.
I know some small scale inventors, and their social skills are, to put it mildly, less than exemplary.
They either believe others fully or completely disbelieve them.
Also, their financial situation means that they cannot straight away file a patent once the invention is complete.
All these factors can mean that 'first to invent' is indeed better in the long run.

Most little guys are not patent holders

[Anonymous Coward]

Holding back innovation hurts us all, patents only make a couple little guys big. Big companies drive innovation ... not patents.

Re:Most little guys are not patent holders

[DustyShadow]

When was the last time Microsoft innovated? Yea, I can't remember either.

All of their innovation cames from little guys they have bought.

Re:Most little guys are not patent holders

[epine]

Microsoft innovated new business practices, such as submitting simulated video evidence in major court cases without originally designating it as such.

People make too much noise about technical innovation. In the vast majority of cases, 90% of the difficulty is in running a successful company in the first place. Make that 99% if the company employs too many Linux hackers.

Dell's primary innovation was in its distribution model, which suited white box systems for about a decade, until the price came down and the market moved toward laptops, which people expect to touch before purchasing. I respect true business innovation as much as I respect true technical innovation. However, when it comes to business practice, there is a fine line between innovative and sharp. Selling printers with the starter cartridge half full of ink? That's a sharp business practice, not an innovation. Enron's mark-to-market accounting methods? I don't even need to comment on that one.

It would be tough to speculate what proportion of technical innovation in the world these days is embodied as software. It's also unclear whether the global innovation rate in the modern world depends in any way upon patent protection. For every person who says she wouldn't have bothered without patent protection, you can probably find another two to say they would have gone further without the risk of patent interference.

The case where patents seem most important is where the resulting business model requires a large initial capitalisation. I doubt the patent system has any connection with innovation rate, but I suspect it does have a connection in the level of investment available to make those innovations commercially viable.

Perhaps what we need is a two term system. For the initial term, perhaps six years from date of filing, the present system would work, with some of the more glaring stupidities cleared up. The renewal application would be a contested process, in which the innovator needs to justify considerable non-triviality while facing a very broad interpretation of any prior art brought to the attention of the patent office.

Such a system might cut the patent application rate in half. Of those approved, maybe 20% pursue the term extension, and that process costs five to ten times as much as the initial application, because these examiners are supposed to know what they are doing, and they have contesting materials to arbitrate.

Net effect is that the cost of the patent system remains about the same, the number of worthless patents declines, and many of the marginal patents are washed off the books at the conclusion of a relatively short six year initial term.

I don't think we can eliminate software patents altogether, it's far too large a sphere of human intellectual work.

Re:Most little guys are not patent holders

[Anonymous Coward]

Net effect is that the cost of the patent system remains about the same, And what is the cost of that system now? How much time, energy, and resources are spent on looking for violations, on enforcement? How much time, energy, and resources are spent on protecting against lawsuits? How many people devote careers to patent law? Check out how many lawyers society graduates yearly now and their starting salaries. How much competition is lost? How much innovation upon the innovation is lost, simply because innovation upon innovation is a violation where someone also takes the fruits of another's labor to themselves (though it is unseen), and wholly prevent society from receiving those derivative benefits?

The best and brightest innovators have to compete not just on new innovative products but on delivery of new innovative products (in a free market). People naturally want to make more from less work. Big businesses aren't looking for incentives but looking for squashing of competition through government means. A glance at the software industry patents clarifies the entire patent system. Companies like Microsoft are applying for thousands of patents per year! This *dwarfs* the really innovative applications from other industries. Bodily genetic processes and the make up of food are under siege by "land grabbing" multinational corporations. The goal is as small as possible patentable innovation (the likely least cost) until the rest of society is enslaved to non-competition violently enforced through the patent system. Then why bother doing any more hard work on innovation when you can sit back and charge whatever you feel like charging with no competition (aka the pharmaceutical industry, aka Microsoft, aka et al).

Just look at the sheer number of lawyers employed these days to what should be nothing more than neighborhood kids competing over lemonade stands. Are these people at all productive? The parasites are bigger and hungrier than they've ever been, and their meal ticket depends upon intentional complication and enforcement of rules against free peaceful behavior that make you dependent upon them.

The man brought us medical devices

[Anonymous Coward]

The Segway is a toy version of the wheelchair he also invented. That balancing wheelchair allows people reach top shelves, and climb stairs.

Wheelchairs are not profitable, but the customers do need them. The customers often don't have high paying jobs, and some can't even work.

The Segway toy helps defray the cost of the wheelchair model. Many medical/necessary inventions are financed by novelty uses.

You guys don't get first to file vs first to inven

[Dan Berlin]

First to file does not change what is prior art at all.

In both systems, prior art is more or less anything that is one year older than your patent filing date.

First to file vs first to invent only affects who would get an *otherwise valid* patent. It makes no more patents valid than were valid under a first to invent system.

In a first to invent system, if i file a patent, and you file a patent on the same thing, and both are otherwise valid (IE there is no prior art that invalidates it), the winner of the patent is the person who can prove they invented it first. Well, actually, it's much more complex than that, and the winner ends up being the person who can prove they have more money to spend on complex and intricate "interference" proceedings and appeals.

In a first to file system, if i file a patent, and you file a patent on the same thing, and both are otherwise valid, the winner of the patent is the person who filed first.

In *neither* system do you get a patent if there is prior art. The difference between the two systems is only in determining who will own a patent when two people claim the same thing.

Given that most small inventors don't have money to spend on interference proceedings (these often cost >100k), first to file helps them a lot.

Re:The bar for getting a patent should be very hig

[DustyShadow]

I think the most important requirement should be that the patent itself be publicly peer-reviewed. Some will argue that the downside is that if the patent isn't granted, then suddenly the invention will be made known to the world -- the inventor won't have the opportunity to keep it secret.

Correct me if I'm wrong but I believe all patent applications publish after 18 months whether they are granted or not so that argument is pointless. Once you file an application, it becomes public record.

How To Deal With Big Business And Patents?

[MCTFB]

How about limiting the number of patents that any corporation can hold at any given time. If they come up with something new and they hit the threshold of the maximum number of patents allowable by law, they have to release one of their patents into the public domain to make room for the new patent.

This way small inventors who may only have a few patents or even just one, are not put in a position where if they challenge a big corporation like IBM which has thousands upon thousands of patents, the small inventor is not in the position where the big corporation will threaten the small inventor was lawsuits on a bunch of dubious patents that have no industrial value, but instead only have legal extortion value against small inventors.

The patents a big company or any company of any size would keep would likely be the patents they would be commercially exploiting (like for instance a drug company exploiting a blockbuster drug), while the other patents they previously filed for but were deemed less valuable would effectively become prior art.

Say for instance, cap the number of patents a company could have at any given time to 100 and you would solve a lot of the problems almost overnight. Of course, Microsoft and IBM and other megacorps would probably fight this tooth and nail, but in the long run this would benefit everyone because legitimate commercial enterprise that requires patent protection would be protected, while the legal extortion tactics of patent trolls and big businesses whose patent portfolio has few commercial applications (Nathan Myrhvold comes to mind) would be rendered impotent.

That's why we need...

[Anonymous Coward]

...corporate death penalties, modeled on the "three strikes and you are out" deal they apply to single named humans with felonies. Corporation A gets caught and convicted three times for fraud, misrepresentation, cooking the books, paying bribes, manipulating the stock price, etc, your normal malfeasance stuff, that's it, their stock gets declared worthless and can't be traded, the corporation loses it's charter (if in the US), or is banned from doing business here, and the entire board of directors is banned from ever being in any managerial capacity forever.

This will make "investors" think about just a little more than the gross bottom line, make them pay attention to what is being done in their name with their money, and make executives think long and hard about their actions.

Modern corporations are freaking zombies, no matter how much they screw up, you can't kill them! Just change that one point, and it will go pretty far in cleaning up business in general terms. Examples, not exhaustive at all, but just a few here : think if this was already in place, half the MAFIAA members would be gone, several large and abusive software companies would have been dissolved, and etc. And the remainder would be the more honest companies....so what's not to like? Yes, in the beginning stages of such a new law and policy there will be some collateral damage and social realignment unfortunately, but "workers" and "consumers" are ALREADY being grossly hurt by these zombie corporations. Frankly, I'd rather be in the job market where the numbers of potential employers had been thinned to the more honest ones. They are far more likely to be better employers and to do well in business over the long run, ethics actually work when there are laws backing up policy. And so far, the threshold to "kill" a corporation is so absurdly high, with "fines" being easily passed on to the next consumer or taken away from potential employee pay or stockholder dividends, that there is little incentive for them to do right, and all the incentive in the world to just be sneaky conmen and crooks, so that's we are growing in the business world, and it gets worse yearly.

Re:That's why we need...

[mabhatter654]

I agree, patents and copyrights held by "dead" corporations should expire with the company. There should be no transfer of ownership of government "grants". There is a huge problem with zombie corporations. Look at the SCO case, they were built by people that buy up rights to sue other people from dead companies and do nothing. Making corporations DIE and the non-cash, non-physical assets go back to the public domain would go a long way to purging information from corporate control.

So does my car

[Anonymous Coward]

In several places. Apparently, that protects automakers legally from the fact that it is VERY dangerous if you happen to hit just about everything.

Re:Thanks, Apple

[ShieldW0lf]

You can see the point, though.

"Yes, your honour, we know that our product uses John Smiths 'Infinite Energy' technology, but we'd like to point out that our product is not just an infinite energy source, but is also a camera, an mp3 player and a toaster. The 'Infinite Energy' technology is only a small part of the product."

"We would also like to point out that John Smiths product, the 'Bottomless Battery', consists mostly of technology that we have patented ourselves. For example, it has 5 buttons, and a number of terminals, and a large number of LEDs."

Make the system work? Turn the clock back 40 years

[argent]

"Let's first make the system we've got today work the way it's supposed to work," Perlman said.

Start out by getting rid of algorithm patents. The first algorithm patent in the US, the UNIX setuid bit, was donated back to the public domain by Dennis Ritchie. Unfortunately that didn't seem to set a precedent... so let's set the clock back and eliminate all patents on mathematical algorithms, whether described as "formats", "software", or "protocols", just as if it had and all these patents on mathematics had been turned back to the public domain.

That would massively reduce the load on the patent system, and free Microsoft and the rest of us from this unwanted burden.

Three months?

[Joce640k]

Most of these patents could be done in three minutes by any competent coder.

eg. this or this ...and that's only scratching the surface. There's hundreds of thousands of them which just took an existing idea and added the words "on the internet".

Look at pictures "on the Internet"
Watch a movie "on the Internet"
Listen to music "on the Internet"
Read a book "on the Internet"
Talk to people "on the Internet"

etc., etc., ad nauseam.

Small developers are already 100% screwed by the system. Saying that this reform is bad for small developers is like saying that adding a thimble of water would make the ocean wetter.

What counts is that it makes things worse for the trolls.

real incentives

[jbengt]

There is a commonly stated belief that without the patent system there would not be an incentive to invest in new ideas and novel improvements.

In reality, the incentive to innovate would is still there with or without a patent system. Howver, without the protection of patents, there would be little incentive to make your inventions public, so there would be a lot more trade secrets. Avoiding trade secrets, where, often, the inventions die with their inventors and are lost to society, is the main benefit of the patent system.

Re:real incentives

[Anonymous Coward]

Howver, without the protection of patents, there would be little incentive to make your inventions public, so there would be a lot more trade secrets Trade secrets are exactly like Digital Rights Management, a practical impossibility. You can not secretly deliver the content, whether it's media or whether it's physical property, without divulging the content. And even if you could, like say for the formula of Coca Cola, they wouldn't divulge it anyway! Thus, people currently only seek patents for stuff they know others can and will figure out, and they also don't file for patents for things they think others won't be able to figure out and attempt to keep it a trade secret, defeating the entire alleged purpose of the patent system. Thus, by definition, anything which is patented for a short-term exclusive monopoly is thought to be worth more as a short term monopoly than the innovation actually is in reality (because it's too easy for others to figure out how they did it, and is thus not of major novel innovation quality). That's why companies are so willing to seek patents as opposed to trade secrets, even though patents are limited and trade secrets can live on in perpetuity. The short term monopoly is worth more than the continuing trade secret. That's the only reason inventors so willingly want monopoly patent protectionism, to make sort term money at the expense of the rest of society. But it's certainly much harder to keep information secret in a global instantly communicating society (which is itself fueling many more smaller scale piecemeal innovations at a greater rate).

Re:real incentives

[Anonymous Coward]

You can not secretly deliver the content, And that's the only way inventors are making big money, by mass delivering their inventions. What single invention has been invented that would have been more valuably kept secret since the days of Leonardo da Vinci? That's the *sole* alleged purpose of patents, and I can't think of a *single* example of any invention whereby the inventor would have considered himself wealthier keeping his invention secret. Is someone going to patent invisibility or teleportation or trade secret exploit those inventions for all they would be worth? Even those who would invent the greatest cures for the worst human affliction diseases wouldn't make a dime except by selling them. And only the threat of copycat competition can keep the sale price reasonably in line. There's no incentive whatsoever to keep something which would be sold to consumers a secret (not to mention the reward of fame and praise that naturally goes along with real genius invention). Thus, all patented consumer products should instantly be devoid of any patent protection, as the inventor's won't see the slightest profit except by divulging their inventions.

And that's the whole crux of the economic proof against the alleged value of patents. Something invented must be valued by others and traded to others to garner the inventor wealth. Already, if the invention is worth more as a secret, it's kept secret in spite of available patent protection. And nothing will change that. What we are left with then is a patent system that is absolutely unnecessary and can only hinder further smaller scale greater rate valuable innovation (none of which is of massive novelty that can't be figured out by others) to profit inventors to a greater extent then their inventions are really worth.

Cat and mouse secrecy SHOULD be encouraged. That's a competitive game. That would certainly enhance network security. But nobody has anything to GAIN (rather than nothing to lose) unless they at least try to trade it away for something in return. And it's clearly not like these small little guy inventors people are so concerned about are investing mega billion amounts into R&D, now are they? By definition it's a small amount invested for a big pay off that comes at the expense of society.

Re:real incentives

[Anonymous Coward]

Even those who would invent the greatest cures for the worst human affliction diseases wouldn't make a dime except by selling them And let's not forget the perverse incentive that it is more profitable to have a patented treatment for disease that keeps customers paying rather than a cure. Someone who invents a cure in a patent-free system will be more highly praised and more highly valued than someone who invents a treatment. And on that note, I've always wanted to ask, do those who write computer code have a perverse incentive to make code that makes customers dependent upon things like virus protection and ad blocking? Isn't it part of Microsoft's business strategy to make people dependent upon service pack updates for enhanced future security?

It seems to me the patent system not only hinders innovation for treatments (by forcing them to be all or none research pay offs) but removes incentives for cures. At least better to patent the treatment first, block out competition, and focus on patenting the cure only when absolutely necessary (even if the cure was originally discovered). Yup, I think if a cure was found, massive amounts of R&D would be focused on turning that cure into a treatment, whereas in a patent-free system where somebody couldn't exclusively patent a treatment, the incentive would be to immediately go for the glory and fame maximizing cure. And it would also bring a needed focus on maximizing cheap delivery efficiency (that isn't required when competition is artificially limited and extra delivery charges can be raised to gouge levels under the excuse guise of alleged otherwise absent research incentives).

Good idea...but it could be played...

[Joce640k]

Limiting number of patents is clever thinking but the corporations would play the system. All you need is a few dummy companies to "invent" something then "exclusive licensing arrangements" with some totally unconnected (honest!) large corporation.

Re:You guys don't get first to file vs first to in

[jbengt]

"In both systems, prior art is more or less anything that is one year older than your patent filing date.

First to file vs first to invent only affects who would get an *otherwise valid* patent."

It is that one year window that bothers people about the first to file system.

Re:You guys don't get first to file vs first to in

[Dan Berlin]

But the one year window exists in a first to invent system, e.g., our system, *right now*.

Yes, but Segways are more dangerous than obvious.

[Futurepower(R)]

Sure, but Segways are not good transportation, when compared to a bicycle, for most purposes. Segways cost about 30 times more and are VERY dangerous in conditions that normally exist outside, in my opinion.

Inside, they may have a use, if it is sensible to buy transportation that costs $6000 for one person's use inside.

Segways, and many things in modern U.S. society, use legal protection that that average person doesn't really understand. If people knew the meaning of the label, they would be far, far more careful. The label means, "If you are in the hospital, we don't have to care."

good!

[m2943]

If these people are against it, the reform must be good.

Nice Article

[Anonymous Coward]

Lots of talk about what the bill will do

No mention of what the bill actually does

And at least 65 assholes above me who think their opinion on such drivvel really matters.

Re:The bar for getting a patent should be very hig

[canadian_right]

The bar used to be very high:

The first Patent Act of the United States was signed into law by President George Washington on April 10, 1790. Under this legislation, patent applicants petitioned the Secretary of State for the grant of a patent. The Secretary, in consultation with the Secretary of War and the Attorney General, determined whether the invention or discovery was "sufficiently useful and important." At that time, both the President and the Secretary of State signed patents.

Shouldn't the title this?

[SQLz]

"Inventors" Protest Patent Reform Bill

Publish early, publish often

[Pinky's Brain]

Anything you publish becomes prior art, after which you are the only one who can patent it anymore (inside the grace period).

Re:Publish early, publish often

[grolaw]

"Publishing" is not prior art. Prior art is that which has been in use or on sale more than one year prior to the filing of a patent application. See, 35 U.S.C. 102(b).

OR, prior art is subject matter that has already been patented or it cannot be patented (a utility patent must be: new, unique and non-obvious). Some things cannot be patented - in the US we don't patent "immoral" items - such as drug paraphernalia.

Re:Thanks, Apple

[jelton]

Sure, it would be better to abolish the patent system altogether as it is not justified for software at all. But unfortunately Microsoft does not support this. Anyway, let's better get what you can, and set up a real campaign against US software patents. All experts agree that the Us patent system needs reforms.

I'm confused. Are you saying the entire patent system should be abolished or that software shouldn't be patentable?

I'm seeing it ... are you?

[Pinky's Brain]

A person shall be entitled to a patent unless--
(a)
the invention was known or used by others in this country, or patented or described in a printed publication in this or a foreign country, before the invention thereof by the applicant for patent, or
(b)
the invention was patented or described in a printed publication in this or a foreign country or in public use or on sale in this country, more than one year prior to the date of the application for patent in the United States, or

Re:I'm seeing it ... are you?

[grolaw]

You are citing the C.F.R. (regulation) to my U.S.C. (statute) - we agree.

Re:I'm seeing it ... are you?

[cpt kangarooski]

No, I believe he was citing the USC. Here is 35 USC 102 in full:

A person shall be entitled to a patent unless--
(a) the invention was known or used by others in this country, or patented or described in a printed publication in this or a foreign country, before the invention thereof by the applicant for patent, or
(b) the invention was patented or described in a printed publication in this or a foreign country or in public use or on sale in this country, more than one year prior to the date of the application for patent in the United States, or
(c) he has abandoned the invention, or
(d) the invention was first patented or caused to be patented, or was the subject of an inventor's certificate, by the applicant or his legal representatives or assigns in a foreign country prior to the date of the application for patent in this country on an application for patent or inventor's certificate filed more than twelve months before the filing of the application in the United States, or
(e) the invention was described in
(1) an application for patent, published under section 122 (b), by another filed in the United States before the invention by the applicant for patent or
(2) a patent granted on an application for patent by another filed in the United States before the invention by the applicant for patent, except that an international application filed under the treaty defined in section 351 (a) shall have the effects for the purposes of this subsection of an application filed in the United States only if the international application designated the United States and was published under Article 21(2) of such treaty in the English language; [1] or
(f) he did not himself invent the subject matter sought to be patented, or
(g)
(1) during the course of an interference conducted under section 135 or section 291, another inventor involved therein establishes, to the extent permitted in section 104, that before such person's invention thereof the invention was made by such other inventor and not abandoned, suppressed, or concealed, or
(2) before such person's invention thereof, the invention was made in this country by another inventor who had not abandoned, suppressed, or concealed it. In determining priority of invention under this subsection, there shall be considered not only the respective dates of conception and reduction to practice of the invention, but also the reasonable diligence of one who was first to conceive and last to reduce to practice, from a time prior to conception by the other.

102(b) deals with published information compromising public art. There have been many notorious examples of obscure but published information resulting in patents being invalidated, so I'm surprised that you disputed this.

Also, I'm pretty confident that the immorality rule died out for patents some time ago and is only hanging on in the world of trademarks. It shouldn't there, either, IMO. It isn't an appropriate criterion for these sorts of issues.

Re:I'm seeing it ... are you?

[grolaw]

Well, the last time I argued the 102(b) bar, J. Rich was still alive, and seated and ruled for my client - in 1990.

You are correct - I'm just working from recall - I didn't bother reading the statute again. Sloppy of me.

I've been litigating in federal courts for 30 years..... damn sloppy to shoot from the hip.

Re:I'm seeing it ... are you?

[cpt kangarooski]

Happens to all of us. Don't sweat it. Hell, I don't do patents at all, so I'm lucky to have even remembered it from school.

Also Biotech vs. Electronics

[schwaang]

I was listening to a recent This Week in Law podcast on the subject of patents. One lawyer on the panel said that in general, companies that make electronics see the patent problem very differently from biotech companies.

Companies that make electronics are begging for reform because any given product usually touches on hundreds of patents, and any one of those could be used as a threat against that product's launch (via injuction, which extorts them into buying a license rather than let their product become obsolete during lengthy litigation).

Whereas biotech companies tend to invent products that involve a small, manageable number of patents. Therefore biotech companies want patents to remain as strong as possible, whereas computer companies need relief from death by a thousand cuts.

So apparently it's not *just* patent trolls who are against reform.

Re:Also Biotech vs. Electronics

[Doc Ruby]

Biotech patents are largely a scam. While patenting the devices used to produce their molecules, substances and devices are patentable, their output cannot be when it's identical to (or trivially different from) a natural substance. For the patent to govern anything but their invented procedure and devices, it would also have to prohibit the natural stuff, but clearly it can't.

There's a lot of reasons biotech patenters like the current system. Electronics patents are different partly because their investment return time, and obsolescence time, is much shorter. And because they typically don't get to stand anymore on the shoulders of giant scientists without paying them, the way biotech inventors do.

When the biotech industry is more like the electronics industry, more entrenched, it will see the current patent system like they do. Until then, they're screwing everyone, including themselves down the line when they'll probably be as powerless as the electronics industry is now to change it, trying to compete with the next new kids on the block.

So publishing produces prior art then? (NS)

[Pinky's Brain]

Nuff Said.

correct patent law

[celle]

What is it with you guys, just strip all patent law back to its inception when it was fair instead of adding on more legal manure on top of the old legal manure in the hopes something beautiful will grow. If you get it back to the basics before much of the legal and corporate corruption trashed it all you might get a legal system the average american can understand, be able to use themselves, and have pride in.

Re:Thanks, Apple

[Anonymous Coward]

I work with Embedded Software, and have seen a few things that have either been applied for patents or are patented which I think are good. Control systems for machinery can often have algorythms used in them that should be patented because it helps protect the time and money that the company spent developing the system. Say for example, a system that allows you to lock the controllers on a machine so that if someone tries to start it without entering the code to unlock it the machine won't run long enough (or at all maybe) for them to actually get anywhere with it. Software ideas can be easy to replicate after you see someone else do it with enough time and resources, and so much of what features new things have are driven by software, so why shouldn't a company be able to protect their investment. On the other hand, patenting something like a doubly-linked list that any student who has taken data structures should be able to write is just stupid.

My point, software should be patentable, but there does need to be some more reasonable rules about what can and can't be patented. A system that no one else has started using in production, probably, a data structure that has existed for about as long as software has, probably not.

Re:The bar for getting a patent should be very hig

[Anonymous Coward]

All patent applications are published 18 months from their earliest priority dates. So the "invention" will become public whether a patent is granted or not.

And it is a requirement of the current US patent law that a patent must disclose the invention in such full and complete terms that one of ordinary skill in that field can make and use the invention. And patent examiners are very familiar with this provision of law and make rejections based on it frequently.

But hey, don't let the facts get in the way if you have a point to make.

Re:The bar for getting a patent should be very hig

[ShadowDrgn]

Additionally, the patent itself must be a technical document, not a legal document as it is now. It must provide the average practitioner in the field in question with all the information he needs to implement the invention.

This is already required actually.

35 U.S.C. 112 Specification.

The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.

I don't get it...

[TheVelvetFlamebait]

... why is the parent post modded so low? I've seen very similar opinions posted here before and they've never been "flamebait"-ed/"overrated"-ed down to score:0. What did this guy do?

(Just asking so I don't make a similar mistake)

Patent == Your Name on it

[Anonymous Coward]

_All_and_only_ rights that patents should grant you should be the association of your name and the invention. Period. Everyone should be allowed to use it after you publish it, as soon as they mention your name (where exactly - could be defined by law).

This will give a strong incentive to the inventor to patent his inventions: think of most precious thing our days - free advertising to relevant audience. Or, probably, free condemnation - if your patent is plain stupid.

If you don't want to share your "invention" on these conditions - fine, keep it secret, and three months later (or, more likely, sooner) someone will come up with the same or better idea and implementation.

Re:Patent == Your Name on it

[Doc Ruby]

No, I think the basic economics incorporated in the Constitution, that lets vultures rip off inventors after the inventor has spent some money (and other resources) on producing the invention, while the vultures can start spending in competition with the inventor, is still true now. Not as strongly, not as long needed to protect the inventor after the invention is produced, but still necessary to protect the inventor.

The world is so full of shortsighted ripoff pros that the reputation benefits you mention wouldn't compare to the benefits of ripping inventors off. But we've got to go from one extreme, permanent monopolies that inhibit progress in science and the useful arts, to something closer to moderation. To go to another extreme will be at least as dangerous.

Original Intent

[flyneye]

What is it about the phrase "secure for a short time" that people have trouble with?
A short time doesn't mean a lifetime,75 years,50 years,20 years or even 10!
Originally it was 4 years.That seems to be right.4 years then the world gets it.
C'mon Disney,If the mouse is really that f**king important,then you haven't ever been able to top him and deserve nothing.What have you done for us today besides destroy freedom.Screw off morons!
            This would also clean up many messes with the music and entertainment world.Its about time there was an honest expiration date,like milk has.4 years then the world gets it when relevance has gone cold anyway.
          So to these "high profile" inventors lobbying the gov. to take another bite out of our original freedom,I say "what have you done for us today? Are you really worthy of our cash or is it time to pass the torch? Are you a flash in the pan or can you do it again?Either way you aren't worth exchanging freedom for.
I encourage all to ignore patent laws and steal the sh*t out of EVERYTHING 4 years or older(copywise)."
If enough people ignore a law it goes away with embarrasment.

Re:Original Intent

[Anonymous Coward]

The mouse isn't patented. He's copyrighted. More, he's a corporate trademark, which NEVER expires.

So....

[ZoneGray]

>>the Act will weaken the patent system, devalue patents, and encourage infringement

But are there any negative effects?

Brazil does use "First to File"

[Schmidt Capela]

Brazil uses the "first to file" system. I've translated below the part of the law that states it (article 7 from law no. 9279):

Art. 7 - If two or more authors independently created the same invention or utility model the right to obtain the patent is granted to the one that can prove having the oldest deposit, notwithstanding the invention or creation dates.

BTW, one of the main reasons large companies file first in the US is that in most other economically significant countries (i.e., in Europe) all applications are immediately published, which means you have at most a one year window of opportunity from filling the patent there to file it in all other countries you're interested in.

Re:Brazil does use "First to File"

[grolaw]

What is the date of this change?

Brown & Williamson Tobacco patented a high-niccotine GM Tobacco there under a "first to invent" patent interference battle around 1997. I had some involvement in the research that found that patent and used it in the Tobacco class actions in the US.

Re:Brazil does use "First to File"

[Schmidt Capela]

The law is from may 1996, but I believe it was already "first to file" way before that - brazilian institutions are usually much closer to their european counterparts than to US ones. But of course Brazil is a signatory of the Paris Convention for the Protection of Industrial Property, so owners of a patent in other signatory countries have a one year grace period to file the same patent in Brazil. The situation you refer to is most likely a result from this Paris Convention rule.

let me try to expand on this....

[Anonymous Coward]

No silly patents, all patents are silly. Problem solved. If the patent system existed in ancient society how much longer would it have been before fire or the wheel spread. There's clear evidence of open trade of technology pre-patent, why is this a problem? Patents don't "promote" advancement, they deter it (and in, as in the case of Microsoft, often almost completely stop it).

Abandon ALL copyrights and patents NOW!

Restraint on trade

[Infonaut]

Patents can not be transferred.

That would fly in the face of free alienability of property, a bedrock of American jurisprudence. We can all argue until we're blue in the face about whether a patent constitutes "property" or not, but enactment of legislation that would render patents inalienable would in effect make them no longer property. If you can't sell something, it is questionable whether you actually own it.

Re:Restraint on trade

[PopeRatzo]

Yes, we can argue about whether or not a patent constitutes property.

Big Pharma v. Silicon Valley is the Real Battle

[Infonaut]

This is where the real political confrontation is taking place. The lobbyists from these two groups are the ones duking it out in Congress. Small inventors are at best a sideshow.

Big Pharma's argument: We spends tens of millions of dollars researching new products, without any guarantee that their research will net any results. Therefore, when something does pan out from their research, they want to be able to capitalize on it for a long time in order to recoup their costs.

Silicon Valley's argument: Patents are essentially ambushes. Every time we roll out a new product, even if we make it past the gantlet of cross-licensing negotiations before product launch, there's always the possibility that some troll will wait until we start making serious money from the product, and will then sue us for infringement on the basis of a submarine patent.

Simple to state != simple to implement

[Infonaut]

The rule: "first to invent owns the rights" is simple. First to file = "a race to the patent office" and that means that the first thief to file owns the rights - screw the inventor.

The first to invent rule is simple, but in implementation is an invitation to litigation. It becomes an argument about who "actually" invented first. Who had the idea and wrote it in their notes. Who talked about the idea to a colleague. The discovery in cases like this can take a very long time and an awful lot of money.

The first to file rule is much simpler. If you filed it, you own it. You make the assumption that thieves are lurking around every corner, ready to steal people's ideas and patent them, but in actual practice it is difficult to do that. The requirements for patentability are still present, and the patent application has to clearly lay out how the patented invention actually works.

First to file is much easier to administer and involves far less legal ambiguity. It does not encourage "theft." If you invent something and want it patented, file in a timely manner and it's yours. If you want to screw around with your idea and hem and haw and maybe someday patent it, you're out of luck.

Re:Simple to state != simple to implement

[grolaw]

Got a simple answer to the experimental use problem?

You really think that the US isn't full of thieves? My, oh, my - why do you think corporations are worried about corporate espionage? If a large corporate entity with tons of money wants to steal a small inventor's invention - what's to keep them from simply placing a secretary or tech in the small inventor's lab?

I mentioned the blatant theft of the patented wiper delay circuit - and how the inventor spent 20 years in litigation (3 years longer that the 17 year patent term in place at that time) only to finally recover a portion of his royalties...

The upshot is simple: the present system, flawed as it may be, rewards the actual inventor. The person or group that invented the new, unique and non-obvious creation. A first to file system has exactly ZERO concern with rewarding the actual inventor.

The US Constitution provides: Clause 8. "The Congress shall have Power *** To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."

OK, now tell me how a first to file system comports with the Constitution where the first to file isn't the inventor? There is NO right under the Constitution for exclusive rights to accrue to anyone but the author or inventor.

Of course, Bush calls the Constitution "just a piece of GD paper" and his Supreme Court is of the same ilk - so, a Constitutional argument may well be totally moot.

Still, the only reasonable outcome arising from a first to file system is a substantial decrease in innovation over time. Look at the effect media consolidation (or, Microsoft's massive presence) has had on he US. The system will self-destruct in a first to file modality. Inventors will leave the US for countries that protect them and reward them (much the same as our stem-cell and molecular biology brain drain) and in the final analysis we will trade simplicity for substance.

H.L. Mencken said: "For every complex problem, there is an answer that is clear, simple--and wrong." First to file IS the wrong answer.

Re:Simple to state != simple to implement

[Infonaut]

Inventors will leave the US for countries that protect them and reward them (much the same as our stem-cell and molecular biology brain drain) and in the final analysis we will trade simplicity for substance.

These biochem folks are leaving the US and landing in countries that use first to file systems. Maybe they just don't understand that they're getting screwed. The US isn't the only country innovating. How do you account for that?

As for the theft problem, criminal law doesn't get obviated by the patent system. A patent filed on the basis of theft can still be negated by a showing of bad faith. The patent law doesn't operate in a vacuum.

Regarding the Constitutional analysis, I'd say that's the strongest leg of your argument. However, the declaration that "Congress shall have power" is indicative of the Framers' intent to give Congress latitude in determining how to exercise the power granted it. Because it is not an imperative or a negative pronouncement, I think it would be difficult to get the Supreme Court to agree with your contention that a first to invent system is the only means of effectuating the Framers' intent.

Re:Simple to state != simple to implement

[grolaw]

The molecular biologists / developmental biologists are leaving because the government impedes their research. Putting your career at a standstill for political reasons is not acceptable and other nations academic and private employers won't tie up these scientists' research in political bs. It is a brain drain driven by political fiat - not patent. I used it as an example of what could happen with first to file.

Bad faith??? Try Fraud. But, first to file is just that - the ONLY TEST is: were you first to file? End of analysis. End of fraud, conversion, breach or any other cause of action. There will be no "criminal law" remedy - there isn't now. There is an administrative process within the USPTO for pending patents called "an interference" and, after a patent has issued a variety of federal actions are available to rectify a fraud on the patent office/invalidate a patent.

U.S. Patent No. 4544870, the windshield wiper intermittent delay circuit invented by Robert W. Kearns, who won multimillion-dollar judgments against Ford and Chrysler for stealing his invention. It took more than 20 years of litigation and Kearns felt so strongly that he had recouped only part what automakers had made from his inventions, that he left millions of dollars from Chrysler uncollected in a federal court account for years.

This case clearly shows that even with patent protection in place - NO QUESTION THAT KEARNES INVENTED the circuit - that enforcing that patent is very, very costly and time-consuming. It took Kearns twenty (20) years of litigation to prevail - and he did not even begin to recover all of his lost royalties, much less the treble-damages he was entitled to under law. Kearns died this last February and is presently up for induction into the National Inventor's Hall of Fame in Akron, OH.

First to file means that the Kearnes of the US will have to challenge the validity of the underlying patent before they can even address the lost royalties. The Patent has to be invalidated - and that prong will be nearly impossible where merely filing first is dispositive.

As for the Constitutional analysis - the "shall" language is an imperative - and only authors and inventors are to have exclusive rights to their works - not the "first to file."

Read all of Article I Section 8 and name any power of Congress that Congress has failed to implement. The duty of Congress is. "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries..."

That was: "Promote the progress of Science and useful Arts...by securing ... to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." What part of "THEIR" don't you understand? The USPTO exists to serve the INVENTORS not the FILERS.

The intent is clear. Inventors and Authors have the "exclusive right." Not corporations, not first to filers, not the guy with the biggest pile of money and not anybody else but the INVENTOR.

Patent reform background info

[Anonymous Coward]

Santa Clara University's Tech LawForum has been covering patent reform issues for several months.

For a good initial treatment of the pros and cons of patent reform, check out this article. For dispatches from the fighting, check out the In the News blog.

My 2 lire

[AP31R0N]

Code seems like something that should be under copyright, not a patent. It's text, not a toothbrush. You can protect your bit of code that causes output X with input Y. But you shouldn't be able to prevent others from coming up with something else that has output X with input Y. Imagine if all car companies had to pay Ford for having a car with a circular steering wheel. i don't know if Ford came up with the steering wheel or not, i'm using it as an example. You should be able to prevent someone from using YOUR unique steering wheel design without permission/compensation (for a reasonable amount of time).

IANAL, and i'm not claiming to know all and see all. This is just my amateur take.

Re:The bar for getting a patent should be very hig

[rogerz]

No, this is a requirement only if you intend to apply for a European patent on the invention. Otherwise, you can keep the patent secret until it is granted.

It's about Innovation, Stupid

[LeadSongDog]

None of this fight is new. Think Bell, Edison, Fessenden, Tesla. The recurring problem is that we keep letting the lawyers write the laws, so we get laws written for lawyers. It's a basic conflict of interest that means (among other things) that patents are just another way to make lawyers rich.

Some idjit who thought audio radio was a good idea http://en.wikipedia.org/wiki/Reginald_Fessenden#Quotations gave us:

An inventor is one who can see the applicability of means to supplying demand five years before it is obvious to those skilled in the art.

"The Inventions of Reginald A. Fessenden". (January, 1925). Radio News, p. 1142.

That said, a simplified patent should be expressed in one or two central paragraphs, plus illumination. If it doesn't elicit a "Holy sh*t why didn't I think of that" reaction on first reading, it isn't worthy of a patent. Of course that would mean way more lawyers having to chase ambulances for a living...

Re:The bar for getting a patent should be very hig

[Anonymous Coward]

I'm afraid peer-review and technical patent documents are red herrings.

At the end of the day, patents *are* legal documents. The problem is that the USPTO (and the various patent offices around the world) have *zero* incentive to do the job right.

What is the job? A patent is meant to be an official statement that the inventor did in fact advance the state of the art and thus deserves a monopoly on the invention. This requires both a thorough prior art research, and a high standard of what constitutes an advance. Like I said, the PTO has no incentive to do that right. It gets money for patents (or applications), and who's gonna put brakes on the gravy train? It is not, on the other hand, held accountable when patents are invalidated in court (after a very expensive battle), or when dubious patents put the industry on hold for 10 years.

As it is a patent is more like a recording that at that time the inventor knew how to do something, to be debated in courts later. This wouldn't necessarily be a bad premise to base the system on, just prove that you knew too and you're good, IF the courts didn't assume the former definitions (ie that that the inventor *invented* the thing).

But anyway... Rather than expanding peer review and hope for the best, I would like the PTO to have to pay court costs PLUS statutory damages to BOTH parties (after, the patent holder was also defrauded in believing that he had something) when a patent is invalidated. You'd see that the quality of patents jump after that.

Re:Thanks, Apple

[doctoP]

Providing incentives to create innovative softwares seems like a pretty good justification to allow software patents. Microsoft, Intel, IBM, etc. would probably love to get rid of the patent system all together. Its partly this system that forces them to continually innovate to stay leaders in their fields. Without the patent system in place, nothing would prevent the Microsofts from pushing their innovation costs onto smaller more innovative companies without compensating those companies in any way. As soon as a technology seems to be potentially successful, the Microsofts could adopt it and easily use their immense market share to force the small guys out. With patents around, at least the small guy get to make a profit through patent cases (if they invent something good) and Microsoft is forced to try to innovate on its own if it wants to avoid paying the small guys for patent infringement.

The way to solve multiple applications

[Per Abrahamsen]

If multiple people have independently made the same invention, none of them should be awarded a patent on it. A time limited monopoly on an invention is a good idea if, and only if, the alternative is that the invention otherwise would have been kept secret, or never made within the patent period.

If multiple people make the same independent invention within a short period, other people would likely be able to come up with it as well, and it is thus not the kind of invention where awarding a time limited monopoly will benefit the progress of science and art.

Re:The way to solve multiple applications

[AngryDill]

This is so true; I wish I had modpoints today. Nothing says "obvious" to me more than multiple people "inventing" something concurrently. That's simply "an idea whose time has come".

-a.d.-

Re:Thanks, Apple

[Anonymous Coward]

Without the patent system in place, nothing would prevent the Microsofts from pushing their innovation costs onto smaller more innovative companies without compensating those companies in any way And nothing would prevent the smaller more innovative companies from pushing their innovation costs onto Microsoft. That's the beauty of removing all patent protection. Windows code could be strip mined and any useful bits used in a multitude of very compatible competing OS, since Microsoft couldn't prevent any and all possible competition from copying any and all parts of their work. Not only would that likely knock the price of Vista down by over 90%, but the end result would be a much better product, some kind of a jumbo combo of linux, mac, windows, etc. features. And nothing would prevent mass P2P sharing of any and all coding ideas either.

Just a small part of that equation your post overlooks.

Re:Thanks, Apple

[doctoP]

Thats not really correct, I believe. First, I believe there may be a confusion between patent law and copyright law. Regardless of whether the patent system continues to exist or not, copyright still protects code. So that code could not be used or modified by another party, only the ideas embodied in that code could be used.

Second, Microsoft has the marketshare and money to push out any small entity attempting to compete with them. Consider as an analog the netflix v blockbuster issue, which i admittedly have not followed much. Blockbuster has no incentive to create an innovative movie delivery system because it owns the movie rental marketplace already. Netflix, without patents has little incentive to innovate because Blockbuster could immediately overtake that market. I believe the outcome there was that Blockbuster has some inferior rental service in which there still are late fees charged because Netflix has a patent on an innovative rental system that they risked much money on creating.

Similarly, in the software world, the army of MS coders could easily reproduce the ideas of a smaller company's code if there were no patent protection on those ideas, but the few people working on the smaller companies programs would have a more difficult time reproducing the larger number of ideas embodied in the Microsoft code in the same time period.

Accordingly, MS would be able to adopt more good and novel ideas stolen from a number of small companies in a faster and scaleably efficient way, beating smaller companies to the market at a cheaper price. This would effectively eliminate the incentive to start a small company and the incentive for big companies to innovate at all.

Re:Thanks, Apple

[Elektroschock]

You start with finbding out that patents make no sense for software. I am satisfied with an abolishment of software patents.

But the point is that when get into the economical literature you would find out within 3 month that the patent system as a whole is economical voodoo.

Re:Thanks, Apple

[Elektroschock]

"providing incentives to create innovative softwares seems like a pretty good justification to allow software patents" Learning curve ahead. No free lunch in patents. Patents don't work for small companies. Look at the data.

Re:Thanks, Apple

[jelton]

Whose economic theory posits that patents don't "promote the progress of science and useful arts?" And if you don't promote the progress of software via patents, how do you do it? There is a wide gulf between the statements "software patents are an inherently bad idea, because they don't serve the purpose they are intended to serve," and "all patents are bad."

Why do these economic theories argue against patent systems? Is their argument actually economic or is it an argument against restricting freedoms?

Re:Thanks, Apple

[Elektroschock]

Whose economic theory posits that patents don't "promote the progress of science and useful arts?" And if you don't promote the progress of software via patents, how do you do it?

(Neo)liberal economists. The patent system interferes in the market and changes its structure but it is difficult to show that it serves its objectives. Maybe the new book of Dominique Guellec is a good start. He was chief economist of the European Patent Office. A still enlighting classic is Machlup, Fritz: An Economic Review of the Patent System http://www.mises.org/about/3237

His popular conclusions 1958:

If one does not know whether a system "as a whole" (in contrast to certain features of it) is good or bad, the safest "policy conclusion" is to "muddle through" - either with it, if one has long lived with it, or without it, if one has lived without it... If we did not have a patent system, it would be irresponsible, on the basis of our present knowledge of its economic consequences, to recommend instituting one. But since we have had a patent system for a long time, it would be irresponsible, on the basis of our present knowledge, to recommend abolishing it. This last statement refers to a country such as the United States of America - not to a small country and not a predominantly nonindustrial country, where a different weight of argument might well suggest another conclusion...

Decoded: We have an "incentive system" but don't know if it works it all. It is not economic proof that it works, so you cannot recommend its application on a economy from a tabula rasa perspective. But abolishing is no solution because market players are used to it.

Now the shocking fact is that this conclusion is still state of the art. It is just that some economists shift on qualitative effects. Every few years a a young fellow comes around to the scientific societies and recommends to abolish it. You applaud his interesting views. But as the patent institutions dominate the discourse and invest in research and no radical reformer is expected to get around the corner you keep a low voice.

I guess there are less costly methods that work. Maybe Slashdot promotes the "progress of software". ;-)

There is a wide gulf between the statements "software patents are an inherently bad idea, because they don't serve the purpose they are intended to serve," and "all patents are bad."

The gulf are my interests. I don't care about patents for laundry machines and pharma. I don't care. I wanted to argue why traditional patents make sense but you cannot apply it to software and it turned out: the patent system is economically unjustified. I was quite shocked. Economists know that, but they tend to word that diplomatically.

Why do these economic theories argue against patent systems? Is their argument actually economic or is it an argument against restricting freedoms?

It is a simple test
W(Tabula Rasa) W(patent system installed)
In order to install the patent system and make patents available you need to proof that it works.

This type of thinking is very natural to an economist. The phrase "promotes the sciences and the arts" is an objective of the *instrumental* use of a patent system, not a feature naturally associated with it.

Lawers and politicians don't understand that which leads to a fundamental logical fallacy: they let to prove why patents are wrong for software instead of asking if they are justified for that subject matter as an economist would do.

"promote the progress of science and useful arts" is an objective that limits the constitutional right of the US federal level to install a patent system. Only for that objective it is authorized to install a patent system by the US constitution.