Lawmakers Take Another Shot At Patent Reform

narramissic writes "Patent reform legislation was introduced yesterday (PDF), which, if it passes, would be the first major overhaul of US patent law in more than 50 years. (It should be noted that the new legislation is very similar to the Patent Reform Act of 2007, which died on the Senate floor last year.) The legislation would bring US patent law in line with global laws, and introduce 'reasonable royalty' provisions, which change the way damages are calculated and would reduce the likelihood of massive payouts for some patent holders. Representatives from Google, HP and Intel were quick to say that the changes would cut down on frivolous patent lawsuits. But the Innovation Alliance, a group representing patent-holders that oppose the legislation, said that it would 'devalue all patents, invite infringement — including from companies in China, India and other countries — and generate more litigation that will further strain the courts.'"

Comments

changes

[Anonymous Coward]

0. Any patent not being sold in a current product line shall pass into public domain.

Might as well add this to copyright reform too.

Re:changes

[techno-vampire]

So you think that a company has to develop a product and put it on the market before getting a patent? By your reasoning, that's the only way they could get one, and doing that leaves them open to having other people a)copy their idea and then b) using that copy as "prior art" to fight the eventual patent. Do you even take one second to think before posting?

Re:changes

[erroneus]

YES. That is why a whole bunch of products are protected by those "Patent Pending" labels and the like. At the very least, a patent needs to have been applied for but not necessarily granted.

There are a LOT of "inventions" that can be imagined for which adequate materials have not yet been developed. What if I were to patent "antigravity panel that uses an unknown material that acts against gravity when power is applied"? This panel material is critical to the invention and I can claim to have first thought of its use even before the material with said properties has been developed.

Patents need to GET USED not trolled. A great test for using a patent is actually producing a product for sale that works.

So the "protection" you are looking for is the "patent pending" label.

Re:changes

[sir_eccles]

For a start your anti gravity patent wouldn't get granted because you haven't reduced it to practice. In simple terms this means you haven't worked out all the details and written them down.

But just suppose you knew of a new material that made your thing work. You can make it in teeny tiny amounts on your kitchen table. But you need a big pile of cash, time, a large lab and a team of research scientists to take that kitchen table process and scale it up.

You could go round to some banks (ha!) or maybe a venture capitalist or some bored millionaire asking for help. But they all turn you away because under your system, you can't get patent protection until you have a product. So they all walk away because the risk is too great.

There are many inventions like this that are filed for by people who don't have the means to commercialize or even build a single prototype. For them, patents offer a valuable thing they can get that has value to investors.

Re:changes

[dgatwood]

In other words, the law should read:

In that patents are intended to protect actual inventions, no patent shall be granted on any hypothetical product or service, nor on any portion thereof, until such time as that product or service is rendered in a form suitable for use by others and is made openly available to the public in the form of sales of the product or use of the service. Should the product or service be removed from the market, the patent shall expire two years after the date that the product or service ceases to be generally available unless the patent is employed in a new product or service within that time period.

Or some such.

Re:changes

[jonbryce]

Without details of the material, what's the invention here? Your idea isn't much use outside a science fiction book.

Re:changes

[SCHecklerX]

which is why IMHO:

1) get rid of software and business method patents
2) in order to patent something, you need to have a working model, or show that you have the means to produce said model within a certain timeframe.

I've had plenty of ideas. Some of them I could have patented. Why didn't I? I had no intention of going through the effort of building any type of prototype. If someone else does all of the work without ever seeing your work, then you should have no right to any type of money from that work, squatter.

Re:changes

[coolsnowmen]

You should look into what an "invention disclosure is"
http://www.patentapplications.net/disclosure/index.html

I believe you can begin the patent process WAY before actually receiving a patent, and thereby protect yourself from people copying your product (in USA atlease) if/when you are given your notice of allow-ability.

Then if someone has decided to copy your product you can force them to stop, or license it to them and sit back and make money off of their work (because they are making money off of yours).

Re:changes

[srleffler]

The trouble with that is that some technologies take effort to develop from the concept stage to the "marketable product" stage. Unless devices can be patented before this development is done, there is no way to secure financing to develop the product. Prototyping is expensive and takes time. Designing a final product takes further time and money. Building production capacity to actually make that final product takes still more time and money. Who is going to pay for that if someone else could start selling them two days before you're ready to ship your product, and invalidate your patent?

Re:changes

[techno-vampire]

YES. That is why a whole bunch of products are protected by those "Patent Pending" labels and the like

You do realize, don't you, that all the words Patent Pending do is put people on notice that they may be liable for damages later, if and when the patent is granted? In the US, at least, the phrase has no legal effect whatsoever, and is only used as a warning that borrowing the idea now might lead to trouble later.

Re:changes

[sjames]

I would say that SOME time needs to be allowed to get from patent to production, but it should be considerably less than the full life of the patent. For example, if after 5 years you are essentially no further towards offering a product than you were the day the patent was applied for, you probably never will.

Likewise, if you introduce the product and it flops to the point that you withdraw it from the market AND you don't manage to sell or license it to someone else, the patent should go away to give others a chance to make the invention useful to society.

Likewise, independent invention should be taken as prima facie evidence of obviousness.

Re:changes

[Alinabi]

I don't know what AC thinks, but I think there should be a grace period after obtaining a patent and failure to bring a product to market within said grace period should place the invention in the public domain. Five years sounds like a reasonable time frame, but the actual limit should be based on statistical data.

Re:changes

[digitalunity]

It is not completely without legal ramifications. For instance, the very same Wiki entry you linked cites this:

35 U.S.C. 292 False marking.
(a) Whoever, without the consent of the patentee, marks upon, or affixes to, or uses in advertising in connection with anything made, used, offered for sale, or sold by such person within the United States, or imported by the person into the United States, the name or any imitation of the name of the patentee, the patent number, or the words "patent," "patentee," or the like, with the intent of counterfeiting or imitating the mark of the patentee, or of deceiving the public and inducing them to believe that the thing was made, offered for sale, sold, or imported into the United States by or with the consent of the patentee; or Whoever marks upon, or affixes to, or uses in advertising in connection with any unpatented article the word "patent" or any word or number importing the same is patented, for the purpose of deceiving the public; or Whoever marks upon, or affixes to, or uses in advertising in connection with any article the words "patent applied for," "patent pending," or any word importing that an application for patent has been made, when no application for patent has been made, or if made, is not pending, for the purpose of deceiving the public - Shall be fined not more than $500 for every such offense.

(b) Any person may sue for the penalty, in which event one-half shall go to the person suing and the other to the use of the United States.

In other words, marking products "Patent Pending" does not protect the patent applicant but if misused does result in up to $500 in fines per offense.

Re:changes

[techno-vampire]

failure to bring a product to market within said grace period should place the invention in the public domain.

That would be just fine, as far as I'm concerned. If nothing else, it would completely kill the patent troll's business plan. Of course, there are sometimes problems that slow down bringing a patent to market and it might be fair to have a way for a business to get an extension to the grace period, but they'd have to prove that they were really working on it and not just stalling. As always, the devil is in the details.

Re:changes

[steelfood]

Correct. But it's enough to discourage other people from outright copying the idea. At the very least, it makes other companies hold off on releasing their own products until they know the turnout of the patent application.

That is as it should be. A patent-pending notice shouldn't have any legal power. If it did, then there's no point in having the patent application process; all you'd need is the patent-pending application process.

Now, you can argue to change things so that there are two classes of patents, wherein the lesser class would replace patent-pending and is more easily granted (fewer prior art checks, etc.), but lasts for a much shorter time, and would be superceded by the greater patent once the latter is granted. But that's not the current system, and I would argue that the patent-pending label is sufficient and in fact, more than fair to everybody else.

Re:changes

[thePowerOfGrayskull]

It seems to me that the majority of patent trolling that occurs today is tied to business processes and algorithms. Since these are very easy to put into service, the proposal to require them to be in use before granting a patent won't address the one area where patent reform is most needed.

Re:changes

[dgatwood]

Nothing in my suggested wording prevents a patent from existing in a provisional state prior to the release of the product. Something like this would merely prevent patent litigation until the person or company who filed for the patent actually makes a product. If somebody steals a company's design, that company can still collect damages for any product their competitor produced without a patent license all the way back to the original provisional filing date. They just can't file the suit until they actually ship a product and the patent becomes extant.

Besides, given the current state of the USPTO, most patents don't actually get approved until years after the product was first made available for sale anyway.

Re:changes

[Eskarel]

It's not so much the Patent Pending label that's important it's actually having the pending patent.

There's no reason we can't have provisional approval for products that don't exist quite yet. The problem is patent protection for products which don't exist and which the patent holder never intends to actually create, or which are actually impossible to build beyond theory.

Essentially the basic question comes down to whether patents are designed to protect and promote ideas or whether they're designed to protect and promote implementation.

If you put stringent requirements on actual implementation of patents, you have the potential to shaft the little guy. You'd have to ensure a number of additional protections such as ensuring that large companies can't just refuse to fund new ideas and then develop them after the patent has expired due to lack of implementation. That's certainly possible to do though.

The flip side of that argument is that patents which aren't turned into products stifle innovation because they stop anyone else from developing said product, and harms society as a whole.

All that aside, patents which are overly generic, vague, or which even given full funding the "inventor" couldn't actually create, should not under any circumstances be granted, and should be culled where they have already been granted. To use an example that's been mentioned earlier. If you can build a tiny anti-gravity machine, but it's prohibitively expensive to build a full scale one without some other development, you should probably get a patent. If your full scale one cannot function without some additional development, then you haven't actually invented anything and you shouldn't.

Re:changes

[Dachannien]

Actually, you have 1 year to file a patent application from when you offer a product for sale that uses what's claimed in the application. If you take longer than a year, then your own work would count as a reference against you under 35 USC 102(b).

If somebody did copy your work in the interim, and then they tried to use their copy to invalidate your patent, their copy would be a 102(a) reference (unless, of course, you waited more than a year afterwards to file your application). You would simply have to prove that you had conceived of the invention first, and either you reduced it to practice first, or you practiced due diligence in attempting to reduce it to practice from before the date of the 102(a) reference until you actually did reduce it to practice. Conception means (roughly) you had the full invention in your mind (or on paper, or whatever), and reduction to practice means (roughly) that either you built one, or you filed your application (which is considered "constructive reduction to practice"). Due diligence can be a pretty flexible thing, but it generally means no big vacations, no spending a month working on some other product when you could be working on the one involving the claimed subject matter, and definitely no sitting around on your invention while you wait for someone else to invent it also.

So, the mechanisms are already in place to prevent you from screwing yourself over, if, for some strange reason, putting a product on sale became a prerequisite to filing an application.

Re:changes

[techno-vampire]

Essentially the basic question comes down to whether patents are designed to protect and promote ideas or whether they're designed to protect and promote implementation.

I may well be wrong here, but my impression is that the original intent of patents was to protect the implementation, as you had to have, at the very least, a working model to get a patent. (Note that Abraham Lincoln actually built a model of his invention, which still exists, although a full-scale copy was never made.) Now, it seems that patents are being given to ideas, and implementation isn't important. Frankly, I'd prefer it if we went back to the way they were handled back then, because that alone would just about kill the patent trolls.

Re:changes

[mdmkolbe]

So add a grace period at the start of the patent where you don't have to market it (say 2 years). After that if you haven't started selling it, then the patent expires.

Re:changes

[srleffler]

What you really want then is for the patent to be issued, but expire if the holder fails to bring a product to market within a certain time. The patent holder needs the ability to sue during the product development process. Otherwise a competitor could potentially look at what they are doing, copy it, and bring it to market quicker. If the patent holder is unable to sue, they can't get an injunction to force the competitor to stop. By the time the patent holder gets their product ready to market, it may be too late.

Re:changes

[srleffler]

How would you handle licensing? This is an important feature of patents: the inventor doesn't have to do the product development herself. Indeed, it is often unfeasible for an inventor to take an idea from the genius concept stage, to a marketable product on her own. It is important that the person who had the idea has the option to sell/license the rights to that idea to someone else who has the potential to bring it to market.

With your proposal, potential licensees will just proceed with the product development themselves and not pay the inventor a dime. If the patent clock runs out before they finish their product development, they are free and clear. If it doesn't, they start selling the product anyway. If the inventor can't sue, she has no recourse. Even if the inventor could have potentially developed the product, nobody will finance that because larger competitors will likely beat her to market.

Huh?

[Savage-Rabbit]

...it would 'devalue all patents, invite infringement -- including from companies in China, India and other countries...

Pardon my ignorance, but even if that is true does it matter? These countries, especially China, have a long history of not respecting patents and they don't look set to change that attitude.

Re:Huh?

[TubeSteak]

Further, since when is a patent's value determined by how big of a legal payday (triple damages) you receive for infringement?

Re:Huh?

[jeti]

The governments you're thinking of will change their attitudes when enforcing patents will gain their own industries a net profit.
It already happened in Japan and other eastern countries.

Re:Huh?

[fm6]

Since acquire-a-patent-and-sue become a common business model.

Re:Huh?

[Anonymous Coward]

The governments you're thinking of will change their attitudes when enforcing patents will gain their own industries a net profit.
It already happened in Japan and other eastern countries.

Until then I wouldn't lose any sleep ripping off their IP.

Re:Huh?

[polle404]

and since this is a US law, it doesn't apply in those countries anyhoot.

Re:Huh?

[Anonymous Coward]

>It already happened in Japan and other eastern countries.
and before that, it happened in the US

What? No Child Porn & Terrorism?

[Bob9113]

But the Innovation Alliance, a group representing patent-holders that oppose the legislation said that it would 'devalue all patents, invite infringement -- including from companies in China, India and other countries -- and generate more litigation that will further strain the courts.'

These guys really need a new PR firm. Vague insinuations about the threat of SEAsia and clogged courts is soooo pre-9/11. It's all about child porn and terrorism now, guys - get with the program.

Re:What? No Child Porn & Terrorism?

[soren202]

Reforming patent laws would flood the market with cheap knock off products of currently patented technology. This flood would spur the growth of child porn leading to more abused children, as well as allow terrorists in the middle east to purchase newer, up to date technology.

Don't support perverts and terrorists! Help the children and support America! Don't pass patent reform laws!

Re:What? No Child Porn & Terrorism?

[mcgrew]

That comment was soooo 2002ish. Child porn, drugs, gambling, and prostitution ARE terrorism these days, Bob - get with the program.

Re:What? No Child Porn & Terrorism?

[CodeBuster]

It's all about child porn and terrorism now, guys - get with the program.

Maybe they can combine them to, you know, improve their pitch and make the effects of patent reform sound doubly scary and dire. If we don't all want to go home and lock our doors when they are through then this PR firm hasn't done their job to make patents safe for trolls everywhere.

Re:What? No Child Porn & Terrorism?

[QuantumRiff]

Nah, Child Porn and Terrorism are soooo last administration. Now its all about saving American jobs...

Booting the troll from under the bridge?

[AuralityKev]

I'd rather go one step further - instead of measures that will reduce patent troll-filed lawsuits, why not add a punitive measure?

A good first step, but . . .

[defile39]

This is a good first step. The US *should* be on a first to file system. Venue for patent suits *should* be restricted to venues that make sense (rarely ED TX).

But some provisions go too far. Damages should be linked to some market definition - NOT what the trial court thinks is reasonable. Also, we need a change to the laws that provide incentive for innovation in regulated industries. Patents are most valuable in the life sciences. We need reform here. We need to better align value with innovation. We've still a long way to go.

Re:A good first step, but . . .

[Valdrax]

The US *should* be on a first to file system.

Why?

Why shouldn't the person or company that actually invented it first get the reward? Why should we put a premium on getting your legal paperwork in order first over getting your research and development done first? While I like the bit about people working on the same type of invention at the same time getting some immunity from patents issued to one of the parties, I don't see why the person with the fastest lawyers should be the one to profit from everyone who comes later.

Re:A good first step, but . . .

[Aladrin]

Damages should be linked to some market definition - NOT what the trial court thinks is reasonable.

Why, so that the law can be out of date before it's even passed? The market is constantly changing. The only way to have reasonable amounts is to let the court decide what's reasonable then and there.

Re:A good first step, but . . .

[defile39]

Practical reasons. The US is (I believe) the only country with a first to invent system. Why stay that way? Also, it is a lot easier to adjudicate a first to file system. There is less to prove when inventorship disputes arise. This simply gives people a kick in the pants to get to the patent office. Lawyers and inventors will adapt. The first to invent will most likely become the first to file by default (in most instances).

Re:A good first step, but . . .

[JimboFBX]

I agree, why should we be first to file? Its not like you can just claim you did something, you need a dated legally recognized document that has a witness's signature that claims you came up with an invention, and you have to file for the patent within a reasonable time frame of that document (i.e. 30 days ish). If you don't do that, then it is just like first to file. Seems like our system is just an improvement IMO.

Re:A good first step, but . . .

[defile39]

Let me explain the debate a bit -

The bill proposes to link reasonable royalties to what the court deems is the value of the technological innovation of the patent. This removes any market valuation of the patent, i.e. what a patent holder can extract from a potential infringer through a negotiated settlement. Instead, the court will assign the value of the patent by sitting back and thinking about how valuable the technology is in this instance. What it fails to take into consideration is that, in most cases, patents can be used to PREVENT someone from making, using, selling, etc. the invention.

This inherently devalues the patent. If you can only extract the value of the added quantum of technology added by the patent, you sometimes won't be able to get damages at all. For instance, if an infringer used your patented technology, but they could've alternatively used some public domain non-infringing technology, you won't get much in the way of a damages award. There is a problem with this arrangement - it changes the fundamental nature of a patent.

Re:A good first step, but . . .

[edizzle2]

without patents - how would a small guy with a software innovation able to survive without being able to patent their innovation?

Tell me because I want to know, I've got something I feel is pretty worthy that I have spent considerable time & effort on but know that without protection bigger fish will copy-paste my innovations into their next service pack or website update.

Re:A good first step, but . . .

[defile39]

There are many ways outside of patents. Be the first to market. Be the best implementer. Be the most frequent innovator. Be most in touch with consumers. Generate the strongest brand. Solidify dominance, through branding, in a certain market segment.

Some of these actions require more resources than others, but there is almost always a way to do them well on the cheap . . . depending on how broad or how narrow your marketing plan is. The broader your targeted market, the more you're going to have to spend. Talk to a business/marketing consultant. Frankly, a good marketing plan is MUCH more valuable than a patent.

Re:A good first step, but . . .

[Anonymous Coward]

I've watched several big examples of innovation over the past 15 years lose out to much bigger fish. Perhaps none worse than Mosaic/Netscape truly innovated and got smoked by Microsoft's relatively inexhaustible resources. Netscape had everything what you suggest - great branding, solid dominance, in touch with customers, frequent innovator, first to market, best implementer for many years but couldn't hold on.

I believe your suggestions are needed *together* with some form of protection. If not for the possibility for patents I would have given up long ago and got a regular job making $100k/year with a lot less stress and worries.

Re:A good first step, but . . .

[mcgrew]

Damages should be linked to some market definition - NOT what the trial court thinks is reasonable.

Why?

Also, we need a change to the laws that provide incentive for innovation in regulated industries.

Such as what? Why should regulation stifle innovation?

Patents are most valuable in the life sciences.

If you're talking about genetic engineering, I don't think life should be patentable. Your neighbor plants some genetically engineered corn and it pollinates your crop and you owe Monsanto patent fees. Why should this be?

If you're talking about pharmaceuticals, the patent system seems to be working all too well, and newly patented, expensive drugs are being prescribed when a public domain drug or even an herb will do as well for far cheaper to the consumer. An example is antidepressants. Although Paxil's patent has run out, triple blind studies between Paxil, Wort, and placebo show that St John's Wort is just as effective as Paxil, twice as effective as placebo.

We need to better align value with innovation

Are you in marketing? That sentence conveyed no information whatever.

Re:A good first step, but . . .

[holmstar]

Yeah, but patents are damn expensive. If Joe Blow invented a thingamabob in his garage, there is little chance he could afford to patent it.

So Joe goes out and tries to find a financier to pay for the patent. But one of his prospective financiers decides to cut joe out and just "invent" the thingamabob themselves. They file for a patent and Joe is screwed. Since first to invent doesn't matter, he can never invalidate the financier's patent.

Granted, most patents are filed by companies, not Joe Blows, but it certainly doesn't seem fair to the Joe Blows as long as it costs ridiculous amounts of money to file for a patent.

Re:A good first step, but . . .

[russotto]

The US is (I believe) the only country with a first to invent system. Why stay that way?

For the same reason the US switched to first to invent. (The US used first to file in the past)

Re:A good first step, but . . .

[Chabo]

Alexander Graham Bell.

Re:A good first step, but . . .

[shutdown -p now]

Why?

Because "first to invent" encourages the tactics similar to that of submarine patents:

1. Invent something.
2. Wait for others to invent it too and start using it.
3. File for the patent.
4. Sue everyone who had been using your invention.
5. Profit!

Re:A good first step, but . . .

[Pinky's Brain]

Netscape made money!

Would the situation today be better if they had a monopoly position? For them, sure ... for me? Oh hell no.

Re:A good first step, but . . .

[digitalunity]

It doesn't have to cost ridiculous amounts of money to obtain a patent. Despite what patent lawyers may tell you, if you have sufficient time and effort you can obtain a patent all by yourself. The filing fees are more than some can afford, but are not outside the realm of reasonableness given the amount of patent examiner time needed to evaluate the application.

The most difficult part of a patent application is writing concise claims and properly citing any prior art.

Current USPTO fee list. Note, you even get a 50% discount for being a small entity if you are a person or small business.

Re:A good first step, but . . .

[naasking]

1. Invent something.
2. Wait for others to invent it too and start using it.
3. File for the patent.
4. Sue everyone who had been using your invention.
5. Profit!

Actually, if everyone is using it, it is no longer innovative, ie. it is common knowledge to experts in the field, and so would not qualify for a patent.

Re:A good first step, but . . .

[Ornedan]

But why is that a bad thing that patents are "devalued" thus? I see no problem in only being able to obtain damages relative to the actual value of the patent.

Re:A good first step, but . . .

[digitalunity]

Indeed. I propose also that there be new rules for certain patentable product categories such as pharmaceuticals whereby:

a) A patent application is filed upon a drug reaching a stage of development where efficacy in treating, preventing or curing a disease or condition has been demonstrated.
b) Clinical trials are completed until final FDA approval is issued.
c) Patent is issued, issue date being that of the FDA approval date. Patent duration is to be 5 years.

The key with a plan like this is that the long period of time that is needed for drug development becomes unimportant. Public disclosure of the drug's basic function occurs in a timely manner, the drug company gets the same fixed duration of patent protection regardless of the number of clinical trials needed to obtain FDA approval and the drug company has an opportunity to exploit their monopoly status to fund development of new drugs with a little profit added in.

In addition to this, I also believe only NEW drugs should be patent eligible, meaning combination of existing drugs should not be eligible for patent protection unless there is demonstration of marked utility in combining the drugs. A good example are patents issued for combination drugs that have statins and other drugs included in the same pill, but are available and useful separately.

Re:A good first step, but . . .

[princessproton]

The fees for the patent filing itself are less of an issue than the skills needed, which is where the patent attorneys or patent agents make the big bucks and the cost of obtaining patents rises sharply. There are extremely stringent application requirements, and small errors or the failure to include minor details can disqualify the entire patent application. It is often beneficial to the Joe Blow or small company without experience with the process to hire someone if they can afford it (which is a big "if") because the basic knowledge/time/effort needed for a successful outcome can itself be prohibitive.

Re:A good first step, but . . .

[steelfood]

Damages should be based on the market value of your product and the scale of infringement.

This prevents your competition from undercutting you with the same product, and it discourages large companies from integrating your invention without a licensing agreement. It also completely stops patent trolls in their tracks, because patent trolls have no product on the market and no intention of bringing a product to the market.

The only detriment to this is somebody else coming out with a product convered under your patent faster than you. But that would be an argument for the current method of keeping a patent secret initially and then bringing it out when somebody infringes.

Re:A good first step, but . . .

[marnues]

That doesn't sound like a problem at all. Also sounds like the patent holder probably shouldn't have been granted a patent. If a patent is that similar to something in the public domain, I should hope no one gets any money.

Re:A good first step, but . . .

[samkass]

Actually, if everyone is using it, it is no longer innovative, ie. it is common knowledge to experts in the field, and so would not qualify for a patent.

Just the opposite. The ability of a company or companies to monetize a new invention is actually one measure of its novelty, at least in the US system as it exists today.

Re:A good first step, but . . .

[defile39]

My suggestions also considered market scope. If you want to be the dominant market player in an all encompassing market (not some niche or sub-market), AND the market is worth being in, you need to have resources. There's no question about that. Netscape lost out because it was out-muscled. Well . . . also because it made some bad program decisions (I remember bloat being a huge issue - I stopped using it because it ran so slowly). A patent portfolio wouldn't have prevented others from innovating in browser development. Microsoft would've likely innovated around Mozilla's patents.

Re:A good first step, but . . .

[Dachannien]

You have to show due diligence in reducing your invention to practice (usually meaning filing your application) from before they start using/selling their invention until you actually do reduce your invention to practice. Most patent trolls don't bother building what they are asserting, so camping on the idea to try to catch someone later will likely result in your application being rejected or your patent being invalidated.

It's much easier and safer to just invent something, get your patent, and then wait for someone else to just infringe on it the old fashioned way.

Re:A good first step, but . . .

[Eskarel]

Well to begin with, Joe needs to have a signed agreement with his financier regarding his invention in any event.

From there, the primary reason patents are expensive and difficult in the US is because the US is not a first to file system.

An incredible amount of money and time has to go into researching, verifying, and defending claims of prior art. The process is convoluted, arcane, and expensive.

In a first to file system, it doesn't have to be that way. Joe Blow should only need to fill out the required paperwork and ensure that his patent meets required criteria. Add a bit of a grace period for a limited number of re-files if it gets knocked back, and you're looking at maybe a couple of hours time with a halfway decent lawyer. Not pocket change, but certainly affordable without a massive loan.

Re:A good first step, but . . .

[naasking]

Just the opposite. The ability of a company or companies to monetize a new invention is actually one measure of its novelty, at least in the US system as it exists today.

In order to patent, it must not be common knowledge to practitioners in the field. Monetization has nothing to do with this particular clause. You can monetize plenty of old technologies, but they are disqualified because the techniques are common knowledge.

Of course, then comes the onerous task of determining what lead time between publication of the technique and patent grant suffices for something to become common knowledge and hence no longer eligible for patent (and it's often dependent on the field).

Re:A good first step, but . . .

[Anonymous Coward]

Patents should be first on the draw. However, you should have a period of 3 or so years and if you do nothing with it, and can't show any work (real work! not drawing something in visio) on it then you lose all rights to it.

Re:A good first step, but . . .

[Aladrin]

"it changes the fundamental nature of a patent."

Isn't that the point? The fundamental nature of a patent right now is 'a tool to sue someone with'. Instead, it should be a tool to help grow your business. If you patent a process that can be done just as easily/well/efficiently/etc with a public domain process, it has no value anyhow!

Re:A good first step, but . . .

[Anonymous Coward]

"Because "first to invent" encourages the tactics similar to that of submarine patents:"

But it opens up a larger issue, which is that ideas do not default to public domain, but patents.

Currently, you have a limited time to file from the time of invention (I think it's one year but IANAL) for patent protection. After that, you can no longer opt for patent protection. iow, this leaves the inventor the option to patent, or not patent and keep it a trade secret, or not patent and simply document and allow the idea to go into unprotected status aka public domain.

The conclusion is that in the current patent process, if you don't file, proof of the original idea is enough to negate a filed patent, since there is a pre-existing example.

The problem I have with first to file method is what if you invent something, market it, and *wanted* it to be public domain. First to file appears to set the default for unfiled and new inventions to a patented status (as someone will patent it eventually), not public domain. Strange to have something be given into the public domain might require forms to be filled out like patent....

Worse, if you use something as a trade secret or keep it under wraps, even produce something from it, someone who files *years* after you is granted patent protection, and can in turn sue you and shut you down. This is particularly true in a society which where corporate powers and resources already dwarf small business and individual inventors.

People seem to forget that the patent system itself has flaws and loopholes that can currently be exploited, and is not really the best thing for all inventions. First to file opens those loopholes more instead of closing them. I absolutely do not look forward to these patent revisions; the incremental changes that went on in the last 15 years fixed a huge number of issues really well, and while there is much work still to be done, first to file is not the answer--even nothing more than an attempt to create a legal pool of crap for lawyers and big business to stink up the entire invention and innovation mindset.

Re:A good first step, but . . .

[Anonymous Coward]

Let me explain the debate a bit -

The bill proposes to link reasonable royalties to what the court deems is the value of the technological innovation of the patent. This removes any market valuation of the patent, i.e. what a patent holder can extract from a potential infringer through a negotiated settlement. Instead, the court will assign the value of the patent by sitting back and thinking about how valuable the technology is in this instance. What it fails to take into consideration is that, in most cases, patents can be used to PREVENT someone from making, using, selling, etc. the invention.

This inherently devalues the patent. If you can only extract the value of the added quantum of technology added by the patent, you sometimes won't be able to get damages at all. For instance, if an infringer used your patented technology, but they could've alternatively used some public domain non-infringing technology, you won't get much in the way of a damages award.

So this means that people will only earn money from patents that actually create something that brings benefit to the world?

I don't see how this is bad.

There is a problem with this arrangement - it changes the fundamental nature of a patent.

For some definition of fundamental nature, that is obviously true.

Now, what is the actual *problem* with that particular change of fundamental nature?

Which negative consequences do you see that outweight the likely positive ones?

Re:A good first step, but . . .

[Kashgarinn]

I say change the patent system into what it really should be, a way for people to verify whether someone is illegally copying/cloning an invention for his own profit.
- If 2 people individually invent something, I say let them both have a chance to get it out there, and may the best man win. If on the other hand one stole from the other and that can be proven, let the patent system deal with that.

Not sure why it has to be more complex than that.

In the end patents do not help society, they are selfish things which only help the one who has the patent and of course there should be an expiry date on it.

Innovation Alliance == Patent Trolls

[morgan_greywolf]

The Innovation Alliance, which opposes these patent reforms, include some of the best and brightest in patent/IP trolling. One prominent company is the Canopy Partners, which is famous for its previous ownership of The SCO Group and Tessera, which is suing everyone in the wireless industry right now.

Re:Innovation Alliance == Patent Trolls

[techno-vampire]

Didn't you know? Innovation Alliance is just a cover name. The group's real name is Patent Troll Association of America: PTAA.

Re:Innovation Alliance == Patent Trolls

[StikyPad]

Great New Association Acronym. Too bad they'll get sued by the Patent Infringement Troll Association.

BTW, New Acronyms Make Baby Lesus Angry.

Infringement, so?

[Anonymous Coward]

There already is MASSIVE software copyright infringement going on globally.

Who really thinks legislation in any shape or form is going to stop that?

Re:Infringement, so?

[EEBaum]

There already is MASSIVE software copyright infringement going on globally. Who really thinks legislation in any shape or form is going to stop that?

this legislation will stop that, seeing as it deals with patents, not copyrights.

Re:Infringement, so?

[EEBaum]

There already is MASSIVE software copyright infringement going on globally. Who really thinks legislation in any shape or form is going to stop that?

I don't think many people think this legislation will stop that, seeing as it deals with patents, not copyrights.

Re:Infringement, so?

[TheTurtlesMoves]

There already is MASSIVE software copyright infringement going on globally.

No there isn't. Software patents are not valid outside the US. In fact patent trolling seems to be far worse in the US than most other countries. I don't know why that is. Patent offices world wide approve of equally lame patents. Perhaps its just the litigious culture in the US?

Innovation Alliance?

[dwiget001]

Where have I heard the word "innovation" or "innovate" repeatedly, over and over and over, ad nauseam?

say wha?

[Anonymous Coward]

" 'devalue all patents, invite infringement -- including from companies in China, India and other countries -- and generate more litigation that will further strain the courts.'""

Like this would have ANY effect on other countries. If they're going to rip off your patents they're going to rip off your patents regardless of the punishments threatened since the US can't touch them. For those in the US, if they're ripping you off on purpose then it will be easier to extract what's due you if the law defines some rational amount instead of the typical patent troll going "YOU OWE ME A BILLION MILLION DOLLARZ!" Of course, people in the US make it a point not to "purposefully" rip anyone off anyway.

Devaluing patents? Good move I say. :P Especially where software patents are concerned.

Ridiculous arguments against, obvious need for.

[Anonymous Coward]

Do you think the Chinese patent-infringing manufacturers care about US laws?

I can see why some patent holders wouldn't want to be aced out of royalties due to reforms,
but at SOME point we're going to have to bite the bullet and someone, somewhere won't like it.

If you don't acknowledge that the system needs reform, these ridiculous arguments might hold.

But it does.

Re:Ridiculous arguments against, obvious need for.

[mcgrew]

Do you think the Chinese patent-infringing manufacturers care about US laws?

They do if they want to sell their wares here.

Re:Ridiculous arguments against, obvious need for.

[StikyPad]

If they're not asking for permission to make the product, they're sure as hell not going to ask for permission to sell it. You don't just slap a Sorny store up in the middle of town and go about your business. The whole point of making knockoffs is to either compete on price through illicit channels (i.e., sidewalk or back alley stores), or to introduce the product to a legitimate marketplace via illicit means (i.e. substituting a counterfeit in an order for a legitimate product).

Re:Ridiculous arguments against, obvious need for.

[steelfood]

But they're usually satisfied with selling in the Chinese market. There's little money and a lot of red tape here. There's a lot more money in China. Which is why a lot of established, 1st world companies are trying to break into China. There are companies trying to do the reverse, but that's much rarer, and they probably operate in a market segment where IP is not an issue.

NO, Faster-issued, shorter lifetime patents.

[gravos]

If there is a problem with the patent system, it is not that patents are issued too hastily, but rather that many are issued too slowly. On the other hand we need to ensure that the quality of patents that actually ARE issued is very high, and that they only last for a brief period of time (maybe 2-4 years, tops).

So overall, I'm not sure this is the right direction that we want to go.

Re:NO, Faster-issued, shorter lifetime patents.

[defile39]

Arguably, a problem with the patent system is that all technologies are treated the same. This is, of course, necessary because of treaties obliging member states to treat all technology the same, but it causes problems with incentives. We need long patents in regulated industries (namely, bio and pharma). We don't need long patents in EE industries where changing technology makes patented technology obsolete more quickly. This, however, is a hard issue to address. We're mired in international treaties that protect the status quo.

Re:NO, Faster-issued, shorter lifetime patents.

[Anonymous Coward]

We need long patents in regulated industries (namely, bio and pharma).

Yeah because they never abuse the patent system. They really need to patent 20% of our genes to protect their massive profits because the
5000% markup on AIDS drugs doesn't earn them enough.

Re:NO, Faster-issued, shorter lifetime patents.

[von_rick]

Oftentimes there are patents that cover several technologies - a patent in medical imaging can cover the field of medicine, engineering and sometimes even natural sciences. There will always be an uncertainty in deciding the shelf life of any technology and even more difficult in determining how long before it gets obsolete in a given discipline.

The duration of a given patent is an issue best left alone. However it would be nice if we make the process a little faster and have some way to filter out patents that are in no way innovative.

Re:NO, Faster-issued, shorter lifetime patents.

[defile39]

Hence the need for longer patent terms in REGULATED industries. With regulation, you put up huge barriers to innovation. Patents are good for surmounting these barriers. The weaker the patent for these technologies, the less "activation energy" donated by the patent system. Face it - you want safe and effective drugs, proven by substantial clinical evidence? It's going to cost you. Without the ability to extract monopoly prices, we can't afford to innovate in regulated sectors. Unless you want to come up with an alternative compensation system. Good luck with that, though.

Re:NO, Faster-issued, shorter lifetime patents.

[Austerity Empowers]

Ok, so no one should be patenting "genes" period. It's a separate discussion the list of things that may be considered patentable that shouldn't be.

His point is valid, patents are intended to promote innovation. In many industries they're actually retarding it, particularly in many EE/CS/ME areas. Investment in these areas is pretty cheap, and the innovation alone is its own reward in most cases. The real issue is that these patents are often obvious enough and essential and trivial such that they really shouldn't have ever been granted. The right thing would be to toss them out a window...

In bio/pharm, I'm still not sure 17 years or whatever it is, is the right number, it seems awfully long for the way things are today... but it does cost a crapload of money to research and test and create the new ideas. Patents are still needed to keep companies interested in R&D.

Re:NO, Faster-issued, shorter lifetime patents.

[erroneus]

I'd be all for cash reward coming from taxes. Imagine our healthcare taxes going into the active development of new and useful treatments and remedies that aren't too expensive to use?

Let the government buy these patents or otherwise compensate the developer in some what in exchange for the royalty-free ability to manufacture and sell drugs for the lowest price available.

Part of the drug patent problem is that big pharma keeps changing the drugs, often making them more dangerous or otherwise having more risk and more side-effects, in order to keep their patents going. We definitely need something better than the "pay up or die" system we have today.

Re:NO, Faster-issued, shorter lifetime patents.

[defile39]

Though I agree with you - big pharma engages in minor drug tweaking to extend monopoly profits beyond the original patent term - please give me an example of an instance where this was the motive AND the resulting new drug was more risky or more dangerous than the old, off-patent drug. I don't think such a case exists. Sometimes these incremental tweaks bring about improvements, sometimes they offer no improvement at all, but never have I seen a tweak produce a WORSE product.

Re:NO, Faster-issued, shorter lifetime patents.

[WhiplashII]

Imagine our healthcare taxes going into the active development of new and useful treatments and remedies that aren't too expensive to use?

And imagine Harry Reid deciding which drugs are worth investment?

Re:NO, Faster-issued, shorter lifetime patents.

[jonbryce]

In pharma, it takes a long time after the patent is granted before you get your product onto the market, because you have to do lots of tests on it to satisfy the regulators that it is safe. Generally they have about five years of sales under patent before the generic manufacturers can move in.

If tech patents lasted 5 years, that would take us back to around the time WIndows XP SP2 was released. I think we could live with that.

Re:NO, Faster-issued, shorter lifetime patents.

[holmstar]

It wouldn't make sense to make a patented but more poorly performing (lame side effects) drug. Nobody would buy it! They would just use a generic version of the old drug.

What they probably do actually do, is produce drugs that have an enhancement that makes the new drug more effective in some way, wile also adding a side-effect that is negative, but is generally outweighed by the positive.

Ie... people will buy the new patented drug that, on top of it's normal effects, now prevents migraines rather than the generic one that doesn't, even if the new one now gives them a stomach ache.

Re:NO, Faster-issued, shorter lifetime patents.

[Moryath]

In pharma, you generally get 5 years of sales under patent.

In electronics/tech, you generally get 5-10 years before the tech is "stale." Unless you're like Intel or IBM or some other big company that can get their patent into the "root" of a tech standard and force everyone else to pay for the use of your patent. This is why Sony put DVD drives in the PS2 and Blu-Ray in the PS3, and spent tons of money pushing Blu-Ray on everyone: if they can get their stuff to be "the standard", then they stand to make a mint. They've also managed this with certain other technology (Beta, for instance, survived quite well in the TV production industry where quality mattered more than relative price).

In manufacturing/tech, you can sometimes have the full run of your patent to make money, either by being the "exclusive" provider or (again) by getting people to license it.

What's absurd isn't those limits, but the oddly strange "copyright" limits. If copyright terms were the same as the current patent terms, you'd see a lot less DRM and other foolish bullshit-crap being forced on consumers, because the primary reason for a lot of DRM (think, for example, printer cartridges) is to try to "copyright" what should, at best, be covered under a patent.

Re:NO, Faster-issued, shorter lifetime patents.

[Anonymous Coward]

We're mired in international treaties that protect the status quo.

We pushed hard for international treaties that protect the status quo.

There, fixed that for you, assholes.

--The Rest of the World

Re:NO, Faster-issued, shorter lifetime patents.

[symbolset]

This is why Sony put DVD drives in the PS2 and Blu-Ray in the PS3, and spent tons of money pushing Blu-Ray on everyone: if they can get their stuff to be "the standard", then they stand to make a mint. They've also managed this with certain other technology (Beta, for instance, survived quite well in the TV production industry where quality mattered more than relative price).

And this is why Sony technologies almost never win in the marketplace. That, and their amazing sense of timing. As your example shows, this isn't how you win in the marketplace. Even BluRay is struggling to find its takeoff point before it's made obsolete by flash media, and they bribed the HD-DVD out of the market. They make money, but this strategy to exploit the customer just doesn't work any more for Sony - if it ever did. There are just too many different ways to do everything.

Which of course makes the whole patent idea silly.

Re:NO, Faster-issued, shorter lifetime patents.

[jonbryce]

In patent terms, I don't agree that you only get 5-10 years, because the newer technologies build on older technologies.

The operating system I am using at the moment is based on 1970s Unix technology. Yes, it is much more advanced that anything that was available in the 1970s, but all the inventions contained in 1970s Unix are still present in my system.

Re:NO, Faster-issued, shorter lifetime patents.

[Anonymous Coward]

Way to go with the first-post whoring!

Re:NO, Faster-issued, shorter lifetime patents.

[marnues]

Didn't think this was worth a response but apparently someone thinks this is insightful. No senator or rep would ever pretend that they can make that decision. The problem is who Harry Reid is getting the information from. We need to make sure that our reps and senators are talking to the right people. Wonder why we have this patent problem? Its because the Reids of old thought that asking Microsoft and GE how to handle these new sciences and no surprise they got answers that rewarded Microsoft and GE instead of the market. We needed to make the Reids know that they talked to the wrong people. Instead we sit back and complain. Please do not dilute this issue. It's a complex issues as is and we don't need people assuming that their rep or senator is making decisions without talking to relevant parties first.

Re:NO, Faster-issued, shorter lifetime patents.

[The Grim Reefer2]

And this is why Sony technologies almost never win in the marketplace. That, and their amazing sense of timing.

Yes Beta-max failed, but BetaCam and it's follow up formats Digital Betacam and HD-Cam have pretty much dominated the broadcast market for decades. I'm not sure the mountain of cash they ultimately made off of that could be considered a format failure. While I'm talking about video formats, I think Video 8 and High 8 did pretty good back in the analog days. miniDV did/does fairly well as the digital replacement for those. Let's see who's where those... Oh yeah, Sony had all three of those too. Wow, I guess you can say that was a total fail in the video market.

3.5" floppy disks were received poorly as well. That was another Sony format. Well I guess they aren't doing so well since they have been replaced replaced by CD. Hmm, who developed that format with Phillips? Oh that's right it was Sony. Together they also developed S/PDIF, you sure don't see that on too many audio devices.

Seriously though, Sony has had some colossal failures with some formats but they are far from having the inverse Midis touch in regards to formats. I think there recent business practices have cost them more due to consumer mistrust than any format flop has. Especially since they have had a great many more successful formats.

Re:NO, Faster-issued, shorter lifetime patents.

[symbolset]

3 1/2" floppies were Sony? That's funny. I though that was IBM. Do you have a citation for that?

Stuff they partner with other people like CD-ROM, DVD, SP/DIF (Philips) miniDV (JVC, Panasonic and others) only prove my point because they relinquish control in the partnership and are unable to hose it up. Philips has excellent timing.

Digital8? Licensed by Hitachi for a little while on a few models, otherwise and currently yet another Sony-only medium. Just like MiniDisc, MemoryStick, UniversalMediaDisc [sic] and many others. Their long history of failed proprietary media is the main reason I won't buy their equipment. A shame, too. Their engineering and build quality is first rate.

But I already have too many things that don't plug into my other things. Not looking for any more like that, ever.

Re:NO, Faster-issued, shorter lifetime patents.

[Brickwall]

You should look up Richard Posner's "Capture Theory" of regulation. He posited that in any regulated industry, the industry has 1) most of the experts, 2) more money, and 3) a highly vested interest in having decisions go their way, whereas citizen groups are 1) disorganized, 2) cash strapped, and 3) tend to be dominated by the ideologically driven, not the scientific. Inevitably, the regulatory body becomes "captured" by the industry, and performs like a trained seal.

Ironically, Posner's initial article was published in the Bell System Journal of Economics, an interesting journal that AT&T could afford to publish because of its monopoly status.

Re:NO, Faster-issued, shorter lifetime patents.

[Anonymous Coward]

Note: Distinct lack of arguments focusing on 'Advance Science". This is what it is or should about.

Pharma blockbusters have gone BACKWARDS, because R+D sees cross-patent problems everywhere, so nobody shares anymore, but scams and evergreen old hat..

I bet when MSRA, TB and SAR's get nastier, a move to reward do'ers will advance.

This reform is no where near effective in unlocking mothballed projects - which could replace the jobs lost in banking and finance - CDO's in Pharma..

Re:NO, Faster-issued, shorter lifetime patents.

[The Grim Reefer2]

IBM may have invented the first floppies, but the 3.5 version was Sony's. Here's a link about the history of storage from another thread:
http://www.maximumpc.com/article/news/computer_data_storage_through_ages?page=0%2C1

Since Digital8 was simply recording digital video to a High 8 cassette, I'd say it made Sony plenty of money too. I've known quite a few people that bought them, and some are still in use to this day.

Memory Stick is debatable as to it's success. Granted no one but Sony uses it, but they sure have sold a lot of their own products that do use it. I see it at every retailer beside the other formats and there is a Memory Stick slot on every "universal" card reader that I've seen.

MiniDisc got killed in the consumer market due to bad timing and Apple out-marketing them by figuring out a way to make a MP3 player cool and easy to use for the average person. However it is still alive an well in broadcast radio. Again, making Sony more that enough money to justify it's existence.

I do agree with you about the engineering and build quality and have bought many of there products over the years. Their ES line of audio equipment is excellent IMO. I also stay away from their products that require proprietary formats though.

I've already patented this

[MrEricSir]

As the patent holder on "patent reform," these so-called lawmakers are infringing on my intellectual property.

And I'm going to sue them if they don't give me *dramatic music* one BILLION dollars!

Bailout

[Anonymous Coward]

You should have patented bailouts instead.

Patent Fairness? more like Large Corporate Bullies

[edizzle2]

Two of the large proponents of this so-called Patent Fairness are Google and Microsoft. Let's take a look at these companies financial situations:

Google:
-Profit margin=20%
-Profits=$8billion per year
-Cash=$15billion

Microsoft:
-Profit margin=28%
-Profits=$20billion per year
-Cash=$20billion

Seems that the large software companies have had very little problems competing in today's environment. How much more profitable do they need to be? Or is this more a result of soul-less corporations relentless search of increasing their profits?

These same large corporations love to throw around the term "patent trolls" but it is difficult buy their story that the small inventor is hurting or impeding them.

In fact, the last time they tried patent reform many small inventors spoke up AGAINST such a reform citing that the world is already tilted against them - and such reforms would only increase the leverage the large companies already have. Many small inventors are unable to get any traction when approaching the large software companies in selling their innovation.

In fact - small software inventors have found that their only chance to introduce their innovations to the marketplace is by trying to get a license deal rather than compete with a Google or Microsoft or even much smaller corporations. Many inventors ask for a small fee of almost always less than 1% but we don't hear Google's or Microsoft's point out how little the innovations actually cost.

There is plenty of proof that innovation occurs at the small companies (in fact, the Google's of 10 years ago, and the Microsoft's of 30 years ago).

Large companies would love nothing more than get rid of patents and then simply monitor competitors for the best innovations and then incorporate those into the next service pack or website update.

Interesting how large companies like Google have the resources for people like Michelle Lee and "Head of Patent Strategy". You think the small inventor has time or resources for this?

Respect for Patents? That's a laugh.

[geekmux]

"...it would devalue all patents, invite infringement â" including from companies in China, India and other countries.

Er, yeah, because other countries have such a high regard for patents and trademarks(cough, black market, cough) today...

Are you kidding me?

[Weaselmancer]

But the Innovation Alliance, a group representing patent-holders that oppose the legislation said that it would 'devalue all patents, invite infringement - including from companies in China, India and other countries

Yeah, because our American patent system has certainly stopped China and India from infringing thus far! Are these people nuts? Why the hell should these countries obey our patent laws regardless of whatever they happened to be? We're not the law there!

And another thing while I'm at it:

The legislation would bring U.S. patent law in line with global laws

This legislation would have the best chance for getting China and India to respect our patents, since we'd be adhering to a global standard and not a local one.

So this Innovation Alliance is, as far as I can tell - arguing against the very legislation that would have the best chance of supporting its agenda. In other words - yeah. They're nuts.

Re:Are you kidding me?

[edizzle2]

ahem, please show some good examples to backup your claim (where a Chinese product has infringed an american product that was patented in the U.S.). Good luck.

Re:Are you kidding me?

[TubeSteak]

Yeah, because our American patent system has certainly stopped China and India from infringing thus far! Are these people nuts? Why the hell should these countries obey our patent laws regardless of whatever they happened to be? We're not the law there!

There are treaty obligations that over ride (or force conformity upon) local laws.
You can't just say "we're not the law there" and expect to be right 100% of the time.

Re:Are you kidding me?

[Weaselmancer]

I don't need luck - it happened at my last job. We used to make an OBD2 car code scanner.

The Chinese would buy them, disassemble them, reverse engineer them, and then sell clones. Not just patent infringement but blatant theft of IP. They'd copy our units even down to the bugs.

And there are loads of patents in this particular product space. I worked on a team that wrote about half of them.

Good enough?

Re:Are you kidding me?

[Anonymous Coward]

You are really showing your ignorance here. Go google PCT and spend some time reading.

Re:Are you kidding me?

[Anonymous Coward]

nope, if you had a good patent on the innovation you introduced AND the product truly infringed then you could stop them in court from selling in U.S.

Before you say "that costs a fortune" know that there are contingency firms.

Re:Are you kidding me?

[Anonymous Coward]

The thing is, to enjoy the societal benefits of a true free market, such activity is necessary. It's not wrong and it's not theft. You still have first-mover advantage. Patent monopolies represent the worst of socialism and the labor theory of value fallacy.

Re:Are you kidding me?

[Weaselmancer]

And you are showing your naivete. China knows there is no way to enforce this.

Examples, you ask? Sure.

Here is the family of devices I worked on.

Here is an absolutely infringing device being sold. It is as blatant of a ripoff as you could possibly get. They didn't even change the freaking color of the unit.

They reverse engineered our unit and built clones. We know this because we bought one and used it. It duplicates subtle bugs in our unit. It is absolutely 100% certainly an illegal copy. And the patent space in the OBD2 market is carved up VERY tightly, so they are certainly breaking patent law by selling this unit. Not to mention the whole "theft of IP" issues.

And you'll notice that nobody is kicking down any doors to get these people to stop.

Face it - this sort of thing is absolutely unenforceable. It's naive to think otherwise.

Re:Are you kidding me?

[StikyPad]

Not just patent infringement but blatant theft of IP.

I hate it when people steal my IP. I'm all like "Here's a good idea.." and then they just reach into my brain and TAKE it, and then it's gone. I can't even remember it anymore, because they stole it. Hell, for all I know, all the products lining the store shelves were *my* ideas.

Or did you mean "not just patent infringement, but blatant, wanton, bad faith patent infringement? Either way, I'm suing the fuck out of whoever steals my next idea. What were we talking about again?

Re:Are you kidding me?

[Anonymous Coward]

So you tried to enforce your patent and the Chinese government refused to comply? Where did you file your lawsuit? Did you send a cease and desist letter to the accused infringer? Was your case dismissed?

Or is the only real action that you have taken is to complain about your problems on \. ?

Re:Are you kidding me?

[Weaselmancer]

I'm in software - I don't do legal stuff.

I do know that my company at the time was taking in almost $50M a year and didn't have the cash and the resources to fight them. It was decided that it was more expensive to pursue the matter.

So while there may be legitimate avenues to pursue with regards to these sorts of complaints, I also know that a company taking in that kind of money decided it wasn't even worth it to try.

So make of that what you will.

Re:Are you kidding me?

[steelfood]

Treaty laws override local laws only if the government deems it to be so.

It's a catch-22.

The only thing that really works in this case is negotiation and soft power.

Re:Are you kidding me?

[mdmkolbe]

Not to mention the whole "theft of IP" issues

You keep using that word ("IP"), but I don't think it means what you think it means. You seem speak of something in addition to patent infringement (otherwise why say "not to mention"), but what is left?

Trademark? Unless they used your name or you have a trademark on that particular color, you don't have a case there.

Copyright? That only covers the artistic expression of the work. Not much of a case there either.

Trade secret? If it was as easy to reverse engineer as you claim it was, then it may not qualify for trade secret status. And even if it did, trade secret doesn't cover reverse engineering.

This is why the term "IP" should rarely if ever be used. It is a gloss term. It muddles both thought and communication. You claim they stole your IP, but other than patent, I see no law that they have broken. They didn't steal anything, they infringed a patent.

So either stop complaining about your "IP", or say what you mean instead of vaguely complaining about your IP.

Re:Are you kidding me?

[Anonymous Coward]

Popsci did an entire article on this....
Images...
http://www.popsci.com/node/2282
Check out image 4

Entire article http://www.popsci.com/iclone

Re:The Best Form of Patent Reform

[Camann]

The less you know, the louder you know it, eh? Patent law came into existance as an incentive to inventors to invent. Giving them a temporary monopoly on the sale of products covered by the patent.

Related reading

We need editor reform

[Anonymous Coward]

Find kdawson a new job... like flipping burgers.

May the lord save us

[noundi]

...including from companies in China, India and other countries...

My God! Not in China! And India!!! And other countries!!! This is it, all we can do now is sit and await the four horsemen. May God have mercy on our intellectual properties.

yo mom

[Anonymous Coward]

o ya

fugsdfkfadgkadggrt
eetrtgtrtwhrthgsgfgfdgfgytjtyt

Umm...excuse me?

[Anonymous Coward]

"and generate more litigation that will further strain the courts"

Oh, like the Courts enjoy all the patent trolling cases they get already?

It does matter...

[solder_fox]

It does, to some degree, because they are moving at least a little bit more toward accepting and enforcing IP law, and as the domestic IP grows they'll have stronger interests in enforcement of IP law in general. (Because they'll want other countries to recognize their IP rights.)

What's more interesting about this to the /. crowd, I should think, is the movement from first-to-invent to first-to-file. That is, the "inventor" in the U.S. won't be the person who invented something first, it'll be the person who first filed it at the patent office claiming to be the inventor.

Every other country in the world does it that way, but it's quite a philisophical change from our system.

Re:Patent Fairness? more like Large Corporate Bull

[ardor]

There is nothing redeemable about Forgent Networks' JPEG RLE patents (which is *extremely* trivial), the infamous Acacia project-killer, the Alcatel-Lucent MP3 patent trolling, Creative Labs' game audio innovation lockdown and zfail-Shadow Volume-Patents etc.

All of these used trivial patents to squash companies that were actually producing something. They contribute nothing and just act like bloodsuckers. I doubt anybody would be sad to see these go.

Also, you seem to think that only large companies want this reform. In fact, EVERY PROGRAMMER OUT THERE wants it. We want to develop without danger of infringing trivial nonsensical patents like the "progress bar patent".

Re:Patent Fairness? more like Large Corporate Bull

[Anonymous Coward]

don't speak for me when you say "every programmer". I wouldn't have taken the past couple of years off to pursue my innovations (without $100k/year salary) if it wasn't for the possibility of having some kind of protection for my innovation that I will try to bring to market (either produce myself, find a willing partner, or license to someone in a better position to take advantage of my innovation).

For many small software companies that are trying to innovate, we find we spend all this effort then approach larger companies and ask for a pittance (0.1% to 1% of just one product under certain circumstances - often less than $250k) and are shunned away. I have colleagues that then find out later the company strings them along enough to find out the steps to carry it out and copy before releasing a coincidentally similar product. For large software companies this is their goal:
-remove software patents from the field
-cut their R&D significantly (almost to 0)
-monitor their competitors for best innovations to emerge
-outsource the copying-pasting to China/India

But of course, you drink the Slashdot koolaid and don't believe me.

Lawmakers Take Another Shot At Patent Reform

[Anonymous Coward]

Duuh. ...and we wonder why our US patent system remains broken.

Maybe shots isn't what they should be taking at our beleaguered USPTO.

Parallel development is a poor use of resources

[Pinky's Brain]

Patents should reward putting your invention out in the open. Having a huge period in which to do secret development is the anti-thesis to what patents should reward.

The only problem with first to file is that there is no grace period.

Lawyers hate grace periods, because if a paper without a million of legalese claims holds any value in court that diminishes their contribution to patents ... they see the exact wording of those legalese claims as somehow more important than the subject covered. Which is ridiculous ... in the areas I'm an expert I can recognize the innovative parts of a paper better than a lawyer can capture it in claims.

I think the first to file vs first to invent difference is just being played up by lawyers to disguise the fact that the real thing they want to get rid of is the grace period.

Re:Parallel development is a poor use of resources

[Anonymous Coward]

in the areas I'm an expert I can recognize the innovative parts of a paper better than a lawyer can capture it in claims
 
Keep in mind that we don't have technical experts sitting on benches or juries. The claim construction proceedings are often a huge part of the overall dispute. Even if you are an expert in an area, I'd hate sue on the basis of your 'recognition' when I could have precisely limited claims, with terms carefully defined in the spec, instead.

Re:The Best Form of Patent Reform

[CompMD]

How about the poor who have ideas that are anywhere from useful to revolutionary?

Two things...

[madsci1016]

1. That's not a vacuum model. It's an irobot Create which is just a platform to build hobby robots off. It has no cleaning power at all.

2. This is an old video. I mean OLD; years old. It was done by a few geeks asked to demo what the irobot create could do, when they were first introduced to the market. That's all, no 'hamster cleaning' market in mind.

Bad slashdot, bad. Check your sources before publishing a story.

Re:Two things...

[madsci1016]

oops, i had a coworker switch which article i was looking at while i was afk. Ignore this.

The JPEG patent is not trivial ...

[Pinky's Brain]

The problem with the JPEG patent was it's non enforcement for all those years.

AFAICS the inventor in question was the first to combine RLE+VLC coding and the first to use zigzag scanning of DCT coefficients. Both pretty inventive steps for which I see no real prior art at the time. Nothing at the time could get anywhere close to his results.

Although I'm opposed to software patents in general, I think this one was more deserved than most.

Re:The JPEG patent is not trivial ...

[ardor]

RLE + VLC? This is one of the first things people try when toying with data compression. Of course, usually the VLC of choice is huffman or arithmetic coding. Huffman has been around since the 50s, RLE even longer, combinations of the two were omnipresent in early archive formats, among others. Now, patenting one very specific VLC technique, that is another matter. But patenting RLE + VLC in general is just braindead.

Re:The JPEG patent is not trivial ...

[Anonymous Coward]

My concern with JPEG --- and all patents applied to widely-publicized standards --- is that the litigation always follows the public discussion and widespread adoption of the standard. If patent-holders are dealing in good faith, they should assert their IP during this public process, or at least during the early adoption phase.

I recognize that this is not the current law. I even recognize that it might impose some burden on patent-holders. However, it's egregious to see patent trolls suing dozens of companies who have merely adopted a widely-accepted standard. If the patent-holder is not willing to put any financial resources into monitoring the standards and looking for infringement, then they should be strictly limited in the damages they can obtain.

don't touch it

[Maxo-Texas]

17 years is bad. but it ends comparatively soon.

i'm sure if they touch it , it is going to come out at 50 years or longer.

Re:The Best Form of Patent Reform

[TheTurtlesMoves]

Patents only give you a right to enforce. Hence you need to come up with legal costs. aka a corporations knows that you can't afford to litigate, they may not even bother offering a crap deal and just infringe. I know of one person personally where this was the case.

So in summary if you are poor forget patents. You just told everyone your invention.

The only winners in the current system are the lawyers.

Re:Patent Fairness? more like Large Corporate Bull

[ardor]

There is no R&D involved in patenting a damn progress bar, tabs, RLE + VLC etc. These are weaponized trivial patents, used to crush competitors and/or for extortion.

Non-trivial patents are another matter. But, say hello to submarine patents. Lets use the Creative Labs example: Carmack figured out the ZFail Stencil Shadow method on his own for Doom 3. Little did he know that a guy at Creative Labs figured it out years before. One cannot blame Carmack, there are bazillion patents, it is impossible to examine all of them. But, after sitting on that patent for YEARS (and doing nothing with it), Creative decides all of a sudden that they have to enforce it, and extort id into including their EAX stuff in Doom3. Yes, this helps innovation.

I didn't say software patents are bad in general. I listed examples for inexcusable abuses that warrant a patent reform. Today it is completely impossible to write software without infringing some trivial patent. This must change.

if only it was that easy.

[bzipitidoo]

This whole thread has a lot of assumptions about how easy it is to define, delineate, and value so-called intellectual property. If it was so easy to do all that, as easy as marking the boundaries of a bit of land, then the patent system could be patched up. It's not that easy, and the patent system needs serious rolling back, starting with at the very least no more patents on software or "business methods".

As things stand, the system has led to very expensive and endless arguing and litigation about whether an idea is novel enough to warrant patenting, or is too broad and basic a concept of nature to be patentable, or whether two or more ideas are really the same idea, or even what exactly a particular patent covers. These questions are extremely difficult, and largely beside the point, which is to encourage innovation. It's guaranteed income for lawyers, without any clear net benefit to society. It's led to an informal truce where all the players spend to stockpile patents in the same way hostile nations expend resources to stockpile weapons. This is the "Tragedy of the Blood Sport" so to speak where the manner of the competition does such damage in finding out who's the most righteous that when it's all over the issue is likely moot because no one is left fit enough to be any good. The players would have been better off not playing. And they know it, and that's why the informal truce and cross licensing deals. In ancient Rome, a big point of blood sports was to have a bit of "fun" killing off the condemned, but in today's patent system, that is most definitely not the point. Why carry on maintaining this blood sport gig? And it is a blood sport, with the patent office issuing weapons as fast as they're allowed, and the courts dragged into officiating. There's a certain horror in seeing the Joe Theismann of the patent wars, RIM, taken for an incredible $612 million in damages. Innovators have little choice but to go ahead and hope they aren't sued by too many trolls, aren't called out to go fight in the Colosseum. You can't write a program without violating not just 1 or 2 patents, but hundreds of patents.

In your drug example, we can't know which version of two nearly identical drugs is better. It may be that one version is better for some people, and the other is better for the rest of the population. Or it may be that it depends on the environment, with one drug being better at sea level, or in winter time, or who knows? It can takes years to gather enough data to spot such trends. It may even take years to think to look for such correlations and discover that they were there all along, in decades old data. Patents interfere with this process of discovery, motivating companies to hold back data, or bury old generics so they won't compete with new patent protected drugs. Doctors are subtly and unsubtly pushed to use the new regardless of whether an old generic might actually be better.

Re:The Best Form of Patent Reform

[Tuoqui]

Well I know one thing EXTENDING the duration of patents is definitely *NOT* the way to go if COPYRIGHT is any indication.

If you extend Patent Coverage from 20 years to 50 years then we will end up with technological stagnation in much the same way that Copyright has lead to cultural stagnation. It will also set precedence for further extending patents later down the line (slippery slope is valid logic given the close relation of Copyrights to Patents). Do we want patents that NEVER expire? Can we afford patents that NEVER expire? The answer is NO.

What you are seeing now is a result of the US having little to nothing to offer the world. They don't manufacture or produce nearly enough to cover their imports. As a result of this America's exports primarily are limited to cultural items/shows/movies such as American Idol, Survivor: Another Stupid Island and X-Men 11: Even more stupid special effects! Now they need to extend the strength of patents because they want to control the technology involved because they're quickly putting themselves into the same position of becoming inconsequential in the economy because we are consumers who simply do not produce enough to cover what we consume.

IMHO

[supersloshy]

Personally, I don't really give a care about the patent system. I WILL care, however, when somebody makes non-profit works such as FLOSS patent-proof. I mean if they're not making any money, how could they be stealing it? And if they somehow are decreasing revenue then they should spend their time improving their product, not whining about it in court like little babies.

The problem with patent law is....

[symbolset]

Patents are intended to promote progress, and patent law as implemented performs the opposite function. We might as well start over from zero.

Re:The problem with patent law is....

[TheVelvetFlamebait]

Doesn't "abolishing" mean "ending with zero"?

[/temporarily playing along with your conflation between copyrights and patents]
[/temporarily playing along with the conjecture that patents perform the opposite function as intended]

Re:The problem with patent law is....

[symbolset]

Ending? There is no ending. There's no such thing as a permanent law. If it were possible for Congress to arrive at such a thing we'd have no further need for lawmakers, would we?

No man's life, liberty, or property is safe, while Congress is in session. - attributed to Mark Twain

Copyrights, patents, same problem. The common theme of all these articles is some dipwad and his army of lawyers doing his best to prevent progress.

Re:The problem with patent law is....

[TheVelvetFlamebait]

Ending? There is no ending. There's no such thing as a permanent law.

I mean the ending to your plan. It's to end at zero, and hope we end up somewhere greater than we are now, which is no mean feat.

Misleading Tag

[gavron]

Lawmakers have done nothing. Lobbyists beholden to special interests have handed their pet congressmen a "new set" of rules they want to play by for the next half. If it passes it will be "reform" in terms of "changing the form" not in terms of "fixing the problems." Don't look for the elimination of software patents, a change in the basic requirements to get a patent, the length of a patent, OR a reduction in the complexity of the USPTO process.

This is a misleading tag, but I don't blame the OP. This is just the message being put out by the marketing arm of the lobbyists who own the congressmen to whom they gave the "reform" to.

Ehud
P.S. Mods: Before you mod this down, may I respectfully request you read the proposed legislation... specifically pages 8, 10, bottom of 13 (Arbitration), 24 (Damages!!!), 28 (sec e(1)), 33 (s 301 is actually a good thing when we want it, but a bad thing when the big corporate guys can now nip at each other heels with new standing they don't currently have), p.35 line 22 says the Director can decide whether or not to do a re-examination all on his own, etc. etc. etc.

Re:The Best Form of Patent Reform

[Samah]

...Survivor: Another Stupid Island...

Hey, great idea! Now that you've suggested it, I'm going to say "Patent Pending". See you in court! ;)

Re:The Best Form of Patent Reform

[Tuoqui]

Sorry, prior art. You can see from the time stamp on slashdot. (now if only invalidating stupid patents was that easy)