Court Blocks Controversial New Patent Rules

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."

Comments

Playing devil's advocate

[Anonymous Coward]

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.

Re:Playing devil's advocate

[cromar]

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

Re:Playing devil's advocate

[Anonymous Crowhead]

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.

Re:Playing devil's advocate

[Anonymous Crowhead]

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.

Re:Playing devil's advocate

[DamnStupidElf]

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...

Bad for inventors?

[Anonymous Coward]

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

Re:Bad for inventors?

[Jarjarthejedi]

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.

A much better explanation of this case:

[KiahZero]

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

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

Capitalism requires clear ownership

[whoever57]

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.

Re:Please...

[iamacat]

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?

Re:Please...

[steveshaw]

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.

Re:Please...

[iamacat]

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?

Re:Please...

[Anonymous Coward]

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?

Re:Please...

[vertinox]

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.

Re:I'm curious...

[Janthkin]

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).

Re:Please...

[Anonymous Coward]

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.

Re:Please...

[rmerry72]

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.