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Court Says USPTO Can Change Patent Rules
bizwriter writes "Many large companies have been closely monitoring the Tafas v. Doll lawsuit over whether the US Patent and Trademark Office has the power to change the patent application process in significant ways, so as to restrict the scope of patents and the chances of getting one. The US Court of Appeals for the Federal Circuit has finally spoken, with a split court ruling that the USPTO does have the necessary authority. The case stems from a court challenge to four new rules the USPTO put in place in 2007. A number of tech companies including Microsoft, IBM, Oracle, Apple, and Intel have supported the rule changes, which would strengthen their positions and make it more difficult for small companies to create, protect, and bring to market disruptive technology. These companies didn't have it all their way, as the appeals court said that one of the four rules conflicts with existing patent law and sent the other three back to a lower court for further review. If the decision is sustained by a full review of all 12 Federal Circuit appeals judges, it could be a blow to biotech and pharmaceutical companies, which depend on being able to obtain large numbers of patents. Expect further appeals on this one, and for the only beneficiaries in the short run to be the lawyers."
"which would strengthen their positions and make it more difficult for small companies to create, protect, and bring to market disruptive technology."
What? There is nothing like this in the article itself. And how exactly does a limit of 5 unique patents per invention strengthen their positions? From my perspective patents only serve to stifle progress in this age of accelerating change. I can understand why they helped back when things moved slower, but that's not the case anymore.
Maybe it does help the larger IT companies more than smaller ones in the sense that the larger ones have the resources to submit more patents, but it only restricts the small ones (or anyone) from making lots of separate claims within each patent. This should make each individual patent easier to follow. That's good, right? You can still patent your small company's disruptive technology but you're effectively encouraged to focus on actually patenting that and not laying claim to everything under the sun and moon while you're doing it.
A somewhat better description of the rules can be found here.
They include things like limiting the number of claims to 25 (some patents include hundreds of claims, I believe; these are the heart of the patent, as they define what exactly might be infringed); and setting a limit on the number of requests for reexamination (I think that currently, you can just refile indefinitely, and that many applicants do just that, hoping that eventually an examiner will give up and accept their patent application).
"Anyone who [rips a CD] is probably engaging in copyright infringement." - David O. Carson
That means that you can't go patenting "a visual display to transmit data in visual form over a rapidly updated and refreshed rectangular optical screen" and then go sue every television and LCD display maker under the sun. So much for my idea to patent breathing.
for Congress re-writing the law in a comprehensive matter. If Congress does so, courts have to defer to the new laws. With the USPTO doing it, every rule change will be heavily scrutinized by courts, and it will take years of start and stop rule making to come up with an ad hoc, disjointed rule set. But at least someone is doing something.
http://bgcommonsense.blogspot.com
this sounds like a hidden win for open source. someone verify the meaning of this
TFA tries to spin this issue like it's David and Goliath. It looks more to me like the new rules are biased against patent trolls.
In biotech, there has been kind of a land grab mind set. Companies used new technology, which they didn't invent, to sequence every little bit of dna so they could patent genes. These gene patents weren't really creative and were more a matter of who could do the work fastest and get to the patent office first. The result was bad. It gave a couple of companies a hammer lock on diagnostic techniques that used certain genes. The result sure didn't benefit society or encourage innovation. These patents were evil and anything that puts a limit on them is a good thing.
The US Court of Appeals for the Federal Circuit has finally spoken...
Umm, WHICH Federal Circuit? Come on people, at least give us the basics!
According to the moderation log, my above comment has currrently been modded +4, as follows:
50% Insightful
30% Informative
20% Interesting
Question: How does that work? I could see +2/+1/+1 giving total +4 and 50%/25%/25% but what combination of points could get +4 with 50%/30%/20%?
IANYourL. This post is my rambling, not legal advice. Do not rely on this post for any reason.
Out of curiosity, why do lawyers in public forums almost always say that? I'm not your IT guy, but I don't disclaim technical advice I give you. Neither am I a doctor, but I'll hypothesize about medical stuff without prepending "IANAD" to every statement. In fact, I only see those disclaimers from lawyers, and seemingly every time a lawyer chimes in on legal stuff. Why is that?
BTW, I do mean that as a serious question. Is it a requirement of the bar or something?
Dewey, what part of this looks like authorities should be involved?
Though both may operate in the GP's comment.
A plane landing safely doesn't make the news while a crash does. This may skew our perception of air travel. The same for patent trolls: A relatively small number of malefactors get more press than all the useful ways patent law works.
I'd rather have someone respond than be modded up.
Question: How does that work? I could see +2/+1/+1 giving total +4 and 50%/25%/25% but what combination of points could get +4 with 50%/30%/20%?
The old system showed the raw number of points for each reason, up until that infamous post in "Oracle Breakable After All" that had literally hundreds of moderations. So Slashdot switched to percentages to make the controversy level of someone else's post harder to determine. But people could still infer the controversy level from the precise percentages: if they're all close to multiples of 9%, then it's likely that 11 moderations were applied. So Slashdot switched to rounding the percentages to the nearest 10%, and fudging them to add up to 100%.
But would such a Method of hiding the level of controversy in a moderated discussion have been patent-worthy?
While it makes sense that an office would be creating for the application of congressional rules, granting that office the authority to change the rules is tantamount to dereliction of duty.
Dereliction? I believe you misspelled "delegation". If the Congress wants to "secur[e] for limited Times to [] Inventors the exclusive right to their [] Discoveries" by creating a federal agency that specializes in finding the way to do so that best "promote[s] Progress", let them.
There is one difference between having congress set the rules and allowing the USPTO do it: We can vote out the congress.
The Congress can always legislate away a USPTO regulation if it feels the need.
1) A patent is a NEGATIVE right, not a positive right. ...
A patent doesn't give me the right to practice my invention, only prevent others from doing so.
For example,
I can patent an improvement to a GM engine (which they have patents on).
But, because GM has existing patents on their engine, you can't start making knock-off GM engines that include your invention.
Now, if you are clever, you can make an adapter kit that, once someone has bought a GM engine from GM, they can adapt their GM engine to make use of your invention.
The reason is, patents tend to be layered unto of one another.
So, requiring that people sell their invention won't work because it tramples on other's patents.
This is why some industries (e.g., semi-conductors) rely on cross-licensing deals.
2) The patent system is already a two-way street.
You give the public knowledge of your invention (versus keeping it a trade secret), and the government gives you an invention.
If you aren't willing to pay that price (give up your trade secret) you can go the Coke formula route and hope that no one comes up with a Pepsi or RC for your product.
Not that patent trolls aren't a problem, it is just that your solutions assume a different architecture than exists.
broad, nebulous, all-inclusive-for-them/all-deprivation-for-others patent?
http://www.freepatentsonline.com/4594817.html
http://www.wikipatents.com/4594817.html,
then, compare to:
http://www.yesicanusechopsticks.com/thesequel/capsule/
It's high time that even decades-old patents be overhauled... We have innumerable types of pens, tables, chairs, automobiles, book shelves, sofas, scanner and printer devices, cabinets, trash cans, shoes, refrigerators... Is anyone out there sitting on proof that there is a cartel collecting royalties on THOSE items or numerous others?
It's not as if a bunk bed is as seminal as a special pain-free needle/injector for patients to self-administer multiple times a day, and not as if it is as significant as wiper blades or the Botts Dots, or special alloys...
But, for big companies to possibly preempt smaller firms and individuals from obtaining patents on "disruptive" technology or other things, the only defense left is to immediately and constantly diffuse/dissseminate information and details on every step along the way, with anciliary information to work around and back toward the patent. This will teach the big bastards they are NOT going to be allowed to hem in tech and non-tech patents for themselves, their leashpullers, and those that otherwise bow to them.
Previously: "Linux... Toward the Sunrise..." Now: "Linux... Toward the-- No, now, part of Every Sunrise"
If you want to support small companies and get more disruptive technologies to the market, ABOLISH PATENTS! Sheesh.
Handing out exclusive monopolies doesn't help small business, it props up big business and hinders innovation. The proponents say it foster innovation, but it only fosters getting to the first rung of the ladder. Once you have a monopoly on the first rung, everyone has to pay royalties to get to the second and third. Big businesses love patents, because they beat down their small business competitors, and prevent new ones from rising. (Actually, big businesses love most regulations, for exactly the same reason).
Don't blame me, I didn't vote for either of them!
http://en.wikipedia.org/wiki/Capsule_hotel
"[edit] History
The first capsule hotel was the Capsule Inn Osaka, designed by Kisho Kurokawa and located in the Umeda district of Osaka. It opened on February 1, 1979 and the initial room rate was ¥1,600.[citation needed]"
It seems to me that since (if i can assume this) Japan is a party to Berne/Copyright, patent and other treaties that the USPTO might have to modify the patent awarding and downgrade it or flag it as open to fair and immediate nullificaiton or challenge. I'm assuming that the original (Japanese) designers didn't sell or sublicense any patents rights to the US.
It's possible that for some reason even the Japanese were not the first conceptual artists of such bedding arrangements. After all, mausoleums are similar, with row after row, and column after column of "sleep/rest" slots, although for the dead.
Since the *dead* don't need ventilation, reading, and other "creature comforts", it's only obvious that the living *would*. I would like to safely assume that anyone making or designing for build any similar bunks is only offering/forcing fair, legitimate, and useful competition. And, in the USA, when was the last time any of us walked into a bedding or furnishing store and found front/rear-entry bunks? Of course, while most US bedroom layouts may not be conducive to such bunking arrangements, the lack of visibility of such bunks shouldn't be seen as some "niche" or "novelty" supporting claim, either.
Previously: "Linux... Toward the Sunrise..." Now: "Linux... Toward the-- No, now, part of Every Sunrise"
So, requiring that people sell their invention won't work because it tramples on other's patents.
This is why some industries (e.g., semi-conductors) rely on cross-licensing deals.
That's not what the OP said. He said "investment". In your GM example, sale of the adapter kits could be considered "investment".
2) The patent system is already a two-way street.
You give the public knowledge of your invention (versus keeping it a trade secret), and the government gives you an invention.
Not a fair one, since the public's knowledge of your invention is worthless unless you license them. If someone innovates upon your innovation, they need your permission. A patent just means they can innovate first, ask second, and pray not to be sued third. On a side note, WTF does "the government gives you an invention" mean? A more accurate phrasing would be "the government gives you a monopoly." We all know from economics 101 that monopolies tend to be bad for the public in the long run (see M$ for an empirical example).
If you aren't willing to pay that price (give up your trade secret) you can go the Coke formula route and hope that no one comes up with a Pepsi or RC for your product.
Trade secrets are much weaker, legally speaking, than patents.
$ make available
We all know from economics 101 that monopolies tend to be bad for the public in the long run (see M$ for an empirical example).
Actually, we tend to believe that perpetual monopolies are a bad thing. Copyright is dangerously close to just being a perpetual monopoly. The term is ridiculously long, and we are seeing problems from that. But we decided way back in Article 1 of our U.S. Constitution that a limited monopoly would be a good thing to "promote the progress of science and useful arts." Maybe you disagree with that individually, and you're entitled to believe whatever you want. But the general consensus is, and has been for more than 200 years, that limited monopolies in exchange for certain disclosures give a net benefit to society. I could go on for pages about the quid pro quos and disclosures that would be kept trade secrets, or not disclosed at all, and all the theory behind that. But that's really beyond the scope of Slashdot posts, and I suspect that at the end of the day, you wouldn't be convinced anyway.
Today's Sesame Street was brought to you by the number e.
That's not what the OP said. He said "investment". In your GM example, sale of the adapter kits could be considered "investment".
Except that to sell them, you need to have them manufactured, and unless you own a factory, in many cases, you can't, because without a patent nothing prevents the contract manufacturer from stealing your inventions.
That's an important part of what the patent system had initially been designed for: to protect inventors from manufacturers.
There's nothing like $HOME
The BIG problem is:
The Examiner doesn't say "A is not novel"
The Examiner says "A is not novel because the Moon is made out of green cheese"
1) The Moon is not made out of green cheese.
2) Why is the composition of the Moon relevant?
You can't effectively Appeal because the Examiner can always pull your Application out of Appeal and claim "A is now not novel because Chewbacca is a Wookie".
I wouldn't have to take so many damn Continuation Requests if I could get the Examiner to do something reasonable or stick with their WFT idea of why things aren't novel.
Arguing with them is like watch someone badly ski moguls. They stick to a messed up coarse only to change when you go over their head to another messed up course.
Examiner laziness is a big issue.
Couple this with them not having enough time (IIRC, they allotted 8 hrs per case) to perform a prior art search, and you have junk Examination.
I tell you, well done Examinations are deadly. They just pole-ax you. But instead I spend most of my time running an Examiner's Training Course.
Things would move along much much faster if the Appeal Board was truly separate and worked as an adversarial procedure between the Examiner and Inventor. Like a real Appeals Court does.
One of the REAL powers behind the throne. Little happens, that does not gain the approval of or is not at the behest of the insurance industry. For instance, if every American is required by law to pay the insurance industry health care premiums, we will have national health care.
If not, not.
While they are unlikely to do anything to make health care better, cheaper, and more readily available - quite the contrary, in fact - they will get their pound of flesh.
No matter how many politicians they have to buy.
Orwell: "In a Time of Universal Deceit, telling the Truth is a Revolutionary Act"
you must provide verbatim source code, possibly with a full language specification, and documentation.
Software is already protected with copyrights. But then again with copyright terms being so long maybe it would be better to patent software. At least then it wouldn't be closed and protected for ever.
Falcon
Should there be a Law?