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Court Blocks Controversial New Patent Rules

Posted by Zonk on from the walking-a-fine-line dept.

An anonymous reader writes "InformationWeek is reporting that a court in Virginia has issued an injunction against controversial new patent rules that were supposed to go into effect tomorrow. The court granted a motion filed by GlaxoSmithKline, which is suing the US patent office over the issue. Among other things, the new rules would limit the extent to which existing patent applications can be modified. The patent office says the new rules would speed up the patent process, but critics say they hurt inventors."

28 of 119 comments (clear)

  1. Playing devil's advocate by Anonymous Coward · · Score: 4, Interesting

    Having submitted several patents through my company, I can attest that they need to be rewritten all the time because patent reviewers are idiots. They take a one sentence claim, pick a two 'big' words out it and do a literature search. If those two words appear in any publication remotely related to the field related to your patent, they mark it as prior art.

    1. Re:Playing devil's advocate by cromar · · Score: 3, Funny

      That's interesting. You'd think "one click" would have turned up in their search.

    2. Re:Playing devil's advocate by Anonymous+Crowhead · · Score: 3, Interesting

      I'll give you an example. If you claim you have discovered a novel way to screen for a cancer, say pancreatic cancer, in a tissue sample using some lab technique, say PCR, the patent clerk is going to hand you back the first published article that mentions pancreatic cancer and PCR, even when the paper is discussing something like a pathway involved pancreatic cancer and PCR is mentioned in the materials and methods section.

      I have had patents rejected in very similar circumstances.

    3. Re:Playing devil's advocate by megaditto · · Score: 2, Insightful

      Don't you think patenting PCR as a tool to screen for cancer is still insanely broad?

      You really should be trying to patent a sequence of your gene transcript (GATTACATACA...) as it applies to pancreatic cancer, and not the entire PCR technique.

      It's not exactly the breakthrough of the century these days that PCR might be used in some way to screen for cancer, you know.

      --
      Obama likes poor people so much, he wants to make more of them.
    4. Re:Playing devil's advocate by Anonymous+Crowhead · · Score: 3, Informative

      I guess my point was that if you refer to common things (to those skilled in the trade) in your claims, you are going to get hit with prior art because the reviewer latches on to those things not understanding what they are. If in your claim you write "for example, pancreatic cancer", they tend to think that is to the focus of the claim when it isn't. The prior art is going to be the thousands of published articles that just happen to mention both those terms.

      Either way, you can take decades old technology and discover novel, patentable ways to use it. My example was contrived, sure.

    5. Re:Playing devil's advocate by DamnStupidElf · · Score: 4, Funny

      Having submitted several patents through my company, I can attest that they need to be rewritten all the time because patent reviewers are idiots. They take a one sentence claim, pick a two 'big' words out it and do a literature search. If those two words appear in any publication remotely related to the field related to your patent, they mark it as prior art.

      Hence the patent attempts for "rotational conveyance devices", whatever those are...

  2. Bad for inventors? by Anonymous Coward · · Score: 3, Funny

    All I hear are the cries of patent trolls saying "Won't someone please think of the children^W inventors!"

    1. Re:Bad for inventors? by Jarjarthejedi · · Score: 3, Insightful

      It's the number one way to fight for something that the facts tend to be against. If you're on the wrong side of the facts you can't exactly make an Argument from Logos. You may or may not be able to make an argument from Ethos, depending on how well known you are, patent trolls tend to be unknown or disliked, so they can't use that.

      They're left with just Pathos, trying to get people emotionally rallied behind an argument by asking them to think about what effect (insert strawman that's highly unlikely to happen but sounds like what the other side is arguing for) will have on (insert group that looks small and poor, someone whose life depends on the current system).

      It's the same system the RIAA uses, some argue the government does the same thing (I happen to agree), it's the last argument of those unable to argue from reason, as such it's used a lot by groups who are heavily disliked as they have nothing else to turn to.

      --
      There are two kinds of fool One says 'This is old therefore good' Another says 'This is new therefore better'- Dean Ing
  3. Please... by iamacat · · Score: 2, Insightful

    Name at least one genuine inventor who put in the hard work, personally received at least 10% of license revenues and did not take advantage of other people's work by patenting vaporware and waiting for someone else to build an actual product. Current patent system only benefits large companies by driving startups out of business by requiring prohibitive legal costs to ship any product. Lets cut the crap about benefitting the little guys.

    1. Re:Please... by TheMeuge · · Score: 2

      Jan Vilcek -> Remicaid.

    2. Re:Please... by iamacat · · Score: 4, Insightful

      While he certainly financially benefited from his invention, is it really fair to patent something created on taxpayer dime, student tuition, university equipment and probably work of many (post)graduate students who were not in any way compensated for their contributions?

    3. Re:Please... by steveshaw · · Score: 5, Interesting
      I personally know of dozens of "little guys" for whom the patent system has provided massive benefits. I know because I drafted their patents and helped them with the sale/licensing. Ask most any patent attorney and they will have the same report.

      Please stop believing all the /. FUD regarding patents and IP in general.

      On another note, from the perspective of a patent attorney, these Proposed Rules are a nightmare. This Preliminary Injunction was a great thing, and anybody who has any thought of ever filing a patent application should be glad they've been stopped.

    4. Re:Please... by iamacat · · Score: 4, Insightful

      Ask most any patent attorney ...

      That's my point about legal costs. Can I afford your services to patent a dozen inventions and then get Microsoft to license one they are infringing on?

    5. Re:Please... by Anonymous Coward · · Score: 3, Insightful

      Well, let's see... you:

      1) have avoided the question by not naming even one such person/patent as the parent requested

      2) have a huge vested interest, as you depend upon the existing patent system, and your experience in navigating its legalities, to make a living

      Why should we take your entirely unsubstantiated assertion as anything else?

    6. Re:Please... by steveshaw · · Score: 2, Interesting
      Can you afford not to patent your dozen inventions and watch as you release your product(s) and Microsoft simply incorporates them into their latest product(s) without paying you dime 1? The vast majority of companies will not even look at a product for potential licensing unless patent protection is at least an option. Before you even start negotiating with a company, they are going to want to see that you have either filed one or more patent applications or done a prior art search (bad idea, by the way).

      What's your alternative? Should I work for free? Abolish the patent system? What are your ideas for reform? Have you ever filed a patent application?

      Legal costs are simply part of doing business in a civilized society that uses courts of law to protect rights and enforce standards of conduct. You seem like a smart guy, draft your own patent applications if you can't afford my expertise.

    7. Re:Please... by vertinox · · Score: 4, Insightful

      Can you afford not to patent your dozen inventions and watch as you release your product(s) and Microsoft simply incorporates them into their latest product(s) without paying you dime 1?

      Not if you don't have enough money to pay for patent lawyers to outlast their patent lawyers. If it is Microsoft we are talking about, I bet they could drag the case out for years without paying a dime while you're burning away my life savings paying a lawyer. You might win, but then they'll keep appealing and try to get you to settle.

      The point of this issue is that when you have that much money to kill you can get your way no matter what.

      --
      "I am the king of the Romans, and am superior to rules of grammar!"
      -Sigismund, Holy Roman Emperor (1368-1437)
    8. Re:Please... by Anonymous Coward · · Score: 4, Insightful

      Please stop believing all the /. FUD regarding patents and IP in general.
      There are plenty of examples where the current system is failing to do its job. That isn't FUD, it's reality. There is something very wrong with the way patents are being issued/approved that makes it far too easy to prevent innovation because of an overly vague patent claim. That of course, is contrary to the purpose of a patent. To give an inventor extra incentive to innovate; this is null and void if an ultra-broad patent claim encompasses all conceivable combinations none of which were discovered by the owner of the patent.
    9. Re:Please... by rmerry72 · · Score: 4, Insightful

      Legal costs are simply part of doing business in a civilized society that uses courts of law to protect rights and enforce standards of conduct. You seem like a smart guy, draft your own patent applications if you can't afford my expertise.

      The fact that an ordinary smart guy can't draft their own patent applications - as you imply - demonstrates the fallacy that this great society is so civilised. If an ordinary "smart" Joe can't file the appropriate paperwork to protect his efforts and concerns of being swamped then I put forward the system has failed.

      The fact that an ordinary nuclear family "needs" a financial advisor just to get them through the hurdles of our financial system in order to get ahead, demonstrates a large failure of our financial system. Think of it as a computer system that needs a large number of sys admins and programmers just to keep the thing running and how poorly designed we all know them to be (how many of them have we bemoaned). Good systems run themselves providing efficiencies of scale with minimal overheads. Civic systems are the same else they are of little good to the little guy.

      Who would own a car if you needed a mechanic to spend an hour a day performing maintainence on it for you and a driver to operate it? Not the ordinary person. Only rich folk and corporations would use them - as they once did in the early days.

      Patent system is the same. If it's harder to file a patent claim then it is to invent new technologies and products then there is little money to be gained from releasing your invention into the wild. That's why I build systems for myself, my family and friends. Somebody else can come up with their own ideas for the rest of humanity.

      --
      We do not inherit the Earth from our parents. We borrow it from our children.
    10. Re:Please... by Anonymous Coward · · Score: 2, Insightful

      "Any other completely asinine comments you wish to make that have no real relation whatsoever to my original post other than to serve as a pathetic attempt to discredit the messenger?"

      Considering how asinine your original post was, and its refusal (which you prolong) to answer the question to which it pretended to reply, you're in no position to feign the high ground.

      As the first poster expressed, the patent system as it exists is primarily to the benefit of the already wealthy. He/she asked for a counterexample, which you were unable to provide despite being, apparently, extremely eager to dismiss the concern as "FUD."

      As for your current reply to my #2, I apologize for incorrectly accusing you of being a self-interested patent attorney -- as you now state that you are no longer one. Nonetheless, when you claim to have a certain authority in order to lend your statements credibility, you must expect to have that claim stand as it was expressed; otherwise you must correct it as a misleading claim, or you must admit to some hypocrisy.

      The fact that you have presented yourself as a former patent attorney (in an appeal to authority, hoping it will give your arguments more force) is particularly damning since absolutely nothing in your argument follows from that by necessity -- except, of course, your unsupported and meaningless claim to 'personally know of dozens of "little guys" for whom the patent system has provided massive benefits.'

    11. Re:Please... by steveshaw · · Score: 2, Informative

      Sorry to be blunt, but realistically as a patent attorney I imagine you're interested in cramming as many patents through the system as you can find clients to charge for them. I would definitely argue that the convenience of patent attorneys and everybody who's got an idea they just really think is great is not something the public should be overly concerned about. There are bigger issues at stake.

      Well, you would be wrong about what I was interested in when I drafted and prosecuted patents, but I don't expect you to take my word for it. I turned away many people who wanted to file patent applications on ridiculously obvious inventions and inventions that were clearly anticipated by other patents. You're basically calling me a charlatan, a rip-off artist who will take anybody's money regardless of the benefit to my customer. I know lawyers are scum and all, but I never wanted to take money from somebody unless I genuinely believed they were getting good value for it.

      Back to the point of the article, why these Proposed Rules are a bad thing, from a Patent Attorney perspective and the perspective of anybody who deals with the USPTO, boils down to this: they will not solve the problem they are meant to address, which is relieving the backlog of applications.

      In a nutshell, they will basically take some pressure off of the Examining Corps at the USPTO and shift a greater burden onto the Appeals division. It will cost patent applicants more money, take more time, create more uncertainty, and not improve patent quality one bit (which is a goal I support).

    12. Re:Please... by rmerry72 · · Score: 2, Insightful

      You probably spend more on your car in a year than you would pay for filing a patent.

      I'd bloody well hope so, but then my car is a valuable tool I - and most other people in the free world - use daily to go about our lives. A patent is not.

      I don't understand how your mention of "building systems" is even relevant. It's not that special of an idea. You screw together a few parts, none of those parts are anything you could possibly make on your own.

      It's the KISS principle, mate. Any moron can screw together a few parts that others have built. That just leads to piles of mess. Screwing together the right parts in the right way leads to new technologies and can lead to effecient, useful, systems that benefit all, including the common man.

      I've seen lots of the former and few of the latter. One of the ways of distinguishing between them is the amount of overhead and specialists required to use the system on a day to day basis by ordinary folk. High overheads are bad.

      The patent system, our financial system and most certainly our legal system (which underlie both) have very high overheads especially for the people that they are supposed to support - the common man. They both require more and more time of specialists - more overheads, wasted time and expense. The point of my post is that our civic systems are supposed to support the common man. As soon as it is required to spend hours/days/weeks and thousands of dollars on a specialist to use that system then the system is not able to be used by the common person effectively.

      If common folk can't use it - or it becomes a large burden - they won't. Then its just a game played by the corporates and specialists. That's a failed civic system and should be thrown away and rebuilt.

      --
      We do not inherit the Earth from our parents. We borrow it from our children.
  4. A much better explanation of this case: by KiahZero · · Score: 4, Informative

    http://www.patentlyo.com/patent/2007/10/surprise-pto-co.html

    Interesting that there were no amicus briefs for the Patent Office.

    --
    I'm a lawyer, but not yours. I wouldn't represent someone who thinks taking legal advice from Slashdot is a good idea.
  5. Capitalism requires clear ownership by whoever57 · · Score: 3, Insightful

    One of the tenets of the capitalist system is clear ownership of property. How can one invest if the ownership can be taken away.

    Yet, the current patent system dies exactly this. The abuses that are possible under the current system allow for someone to develop a product and later, through the monopoly granted under the patent system, effectively have that intellectual property taken away.

    The problems are many: submarine patents, the fact that the possible award of punitive damages discourages searches for pre-existing patents, the over-broad patents that may or may not apply. Uncertainty kills investment and the current patent system provides plenty of uncertainty.

    --
    The real "Libtards" are the Libertarians!
  6. I'm curious... by wizardforce · · Score: 2, Interesting

    The new rules are intended to speed patent reviews by the chronically understaffed USPTO. Among other things, they limit so-called "continuing applications" through which inventors can modify existing patent applications. Murphy said the new rules would "severely limit the level of patent coverage you can get for an invention" if they are allowed to take effect.
    so basically the argument that is being made is that if company A patents a technology/drug whatever and finds a new use for it they can extend the patent to include that finding? To what end?

    The drug manufacturer contends that it, and other companies that invest heavily in research and development, needs the freedom to broaden their patent claims when new applications for their inventions are discovered.
    so if someone other than them discovers a new application of their drug, who gets the rights to that finding? the company that developed the drug in the first place or the one that made use of it in a compeltely new way?
    --
    Sigs are too short to say anything truly profound so read the above post instead.
    1. Re:I'm curious... by Janthkin · · Score: 3, Informative

      so basically the argument that is being made is that if company A patents a technology/drug whatever and finds a new use for it they can extend the patent to include that finding? To what end?

      Here's the 10 cent version: continuations are used when:
      a) your inventor comes up with a new way of extending his invention (continuation in part);
      b) you disclosed multiple distinct inventions in the original application, but only filed claims at one of them (continuation);
      c) the patent office is being dense, and you have to argue your claims repeatedly (request for continuing examination); or
      d) the patent office grants some of your claims, and you want to get an issued patent AND continue to argue about the others (continuation).

  7. You clearly don't know what rivalrous means. by Anonymous Coward · · Score: 2, Informative

    > The government grants me a monopoly right to my house. If someone else tries to live in it, I can call the police and have them thrown out. I can even shoot them with government permission if they refuse to leave. Does that mean it's not property?

    I think you totally misunderstood what a "rivalrous" good is. Rivalrous is what your house is. Think of a shirt: two people can't wear it at the same time and three is right out. That's why it's rivalrous: multiple users interfere with each other.

    The monopoly rights are an attempt to make something non-rivalrous into something rivalrous: we can't both have exclusive monopoly rights to an invention. But it's natural state is non-rivalrous: we both CAN make the same invention, and let the better of the two win in the marketplace. These patents prevent one of the two from getting to the market to begin with merely because someone patented it first.

    Lastly, calling your house a "monopoly" right is just plain silly. It doesn't keep people from owning other land, nor other people from owning other houses, therefore it cannot rightfully be called a "monopoly."

    The sheer amount of confusion you have about what these words mean disturbs me because it means that you're both ignorant and strongly opinionated. I've yet to see a case where that was a good combination. Alas, it does make your username true. You are certainly not a misfit...

  8. Re:I don't know why the court would get involved . by ScrewMaster · · Score: 2, Insightful

    Why oh Why are the courts involved at all?

    Checks and balances again. The courts are involved because Congress, once again, dropped the goddamn ball.

    You know, when dogs get rabies, becoming irrational and dangerous to humans, they are taken out and shot. Congress may or may not have rabies (although some its members often act like they do) but they have certainly become irrational and dangerous. What are we going to do about them? Shoot votes at them?

    --
    The higher the technology, the sharper that two-edged sword.
  9. No wonder by He+Who+Waits · · Score: 2, Insightful

    Isn't GlaxoSmithKline the company that patented Prilosec? And then when the FDA would no longer let them charge inflated prices for Prilosec "to cover their development costs", didn't GlaxoSmithKline then repackage Prilosec in purple capsules and re-patent it as Nexium, for which they could in turn charge inflated prices? Gee, why would GSK be concerned about greater patent scrutiny?