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."

Comments

This is a poor substitute

[gravesb]

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.

Re:This is a poor substitute

[cvd6262]

True. My first reaction was like the GP: The Constitution grants congress the authority to protect intellectual property ("inventions"). I don't see the Patent Office mentioned anywhere therein. 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.

But then, like you, I looked back at the last dozen-or-so congresses and realized I don't have much faith in them upholding the Constitution either. Whether it's unlawful search and seizure or bills of attainder, I'm pretty sure most of our elected officials flunked high school government.

There is one difference between having congress set the rules and allowing the USPTO do it: We can vote out the congress.

Re:Bias against big firms?

[Arancaytar]

Concurred. This pro-patent analysis seems very unreasonable in a time where patent lawsuits are mostly crazy monkey trials where an unproductive, greedy company seeks to prevent people from innovating by protecting things that have long become common knowledge or accepted practice.

Thanks to the accelerated rate of innovation enabled by technology, there is a turning point where the damage done by keeping the lid on an invention outweighs the incentive.

Nowadays, ideas are becoming cheaper, whereas implementing them to enable new ideas is a costly and risky investment. The result is people trying to patent what boils down to day-dreams and doodles (approximately "adding a scroll-bar to a window to allow that window to contain more text than it has space for"), not in order to actually accomplish anything with them, but in order to prevent other people from putting these ideas into practice without a cut of the profit.

Re:Bias against big firms?

[Anonymous Coward]

I agree.

1) A big company can drive a small company out of business by using their patent on widely adopted technology.
2) A small company may have ideas to make existing patent into a disruptive technology or more cheaply but unable to do so due to big company holding on to the patent.
3) A big company have more patents in their portfolio to play with. A small company may try to sue a big company for 1 patent but the big company can overrun the small company with counter sue with 5-7 patents of their own.
4) A big company got the money and the lawyers to spend on patent lawsuit game. A small company may hold a valid patent but can't afford the long costly lawsuit.

Moderation question

[Anonymous Coward]

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%?

Re:TFA is biased and maybe disingenuous

[jonwil]

whats needed is to make it illegal to patent any DNA sequence found in nature (be it plant, animal or human). If the company has cooked up a sequence in a lab (ala Monsanto), yeah sure, give them a patent on it.
Further to this though there would be a complete ban on any patent covering any part of the human genome. So when we start doing genetic manipulation and gene therapy on humans in the future, we dont have a situation where someone has gene therapy and then gets sued for having kids and passing on the gene therapy to them or something like that.

I think you mean publication bias

[cvd6262]

Though both may operate in the GP's comment.

In psychology and cognitive science, confirmation bias is a tendency to search for or interpret new information in a way that confirms one's preconceptions and to avoid information and interpretations which contradict prior beliefs.

Publication bias arises from the tendency for researchers, editors, and pharmaceutical companies to handle experimental results that are positive (they found something) differently from results that are negative (found that something did not happen) or inconclusive.

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.

Re:Bias against big firms?

[Temujin_12]

I am not a bona fide registered patent attorney, but it seems to me that requiring a certain level of investment towards the development of the entity behind a patent (relative to what the investment capability of the filer is) would go a long way towards making the business of being a patent troll unprofitable. Once it's unprofitable to be a patent troll, they'll go away.

This would basically make the patent system a two-way street. If the government is going to grant you a patent and help you protect it (by providing the legal system, courts, etc.), you'd better make it worth their while by investing in the idea which in turn puts money back into the economy. Make patents less of an enumeration of ideas and more like a business proposal made to a bank.

Re:Bias against big firms?

[darkmeridian]

Small pharmaceutical companies usually discover the novel compounds that may have medicinal value. However, it is the big companies that can perform human testing and bring it to market. Small companies may find it difficult to cover all medicinal uses for their products with only five patents. For instance, Viagra was designed for heart problems but turned out to be useful for erectile dysfunction. With these limitations, it is theoretically easier for big companies to bully small companies into giving up their invention without paying full price for it.

That is the argument for it, anyway. Who knows?

Re:OT: Your sig

[SydShamino]

I turned signatures off nearly a decade ago. I just can't see a trivial user preference like that being crucial for a legal case.

Of course, I can't see a slashdot post from a lawyer as crucial for a legal case, either.

Re:OT: Your sig

[Zordak]

True, it's not perfect. But the totally effective thing to do would be to get a signed non-engagement letter from every Slashdot user and AC, co-signed by their own attorney for best results, clearly indicating that I don't represent them. Sometimes you just go with "good enough." Some people have .sigs off, but most don't. And sometimes, if I want to be extra careful, I will add an extra inline disclaimer.