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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.'"
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.
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.
Weaselmancer
rediculous.
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.
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.
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.
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.
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.
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!
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.