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Senate Panel Backs Patent Overhaul Bill
mvar writes "A bill to reduce the likelihood of massive damage awards in patent disputes took a step forward with approval by the Senate Judiciary Committee. The committee voted 15-0 to back the legislation that would give judges a major role in determining how important a particular patent is to a product, so that infringing minor patents would not lead to huge damages. The bill (PDF) also gives patents to the first inventor to file, rather than the first to invent, making the patent application process easier for companies who apply for patents in multiple countries. This year, Microsoft, the Pharmaceutical Research and Manufacturers of America and the Biotechnology Industry Organization support the patent legislation, while Dell, Cisco and others oppose it."
Microsoft's blog post in support of patent reform calls for a quick review period for newly-granted patents and the acceptance of prior art submissions from third parties.
Well this is interesting. Do we like the track record of judges, or will they all file in East Texas where "a big corp clearly has better ideas on what to do with an idea that they were (second) to sell"?
My first Journal Entry ever, in 8 years! http://slashdot.org/journal/365947/aphelion-scifi-fantasy-horror-poetry-webzine
Well..... that fixes all the problems with prior art, now there is none!
"The bill (PDF) also gives patents to the first inventor to file, rather than the first to invent"
WTF?
legislation that would give judges a major role in determining how important a particular patent is to a product, so that infringing minor patents would not lead to huge damages
Okay that sounds good, what's the catch?
patents to the first inventor to file, rather than the first to invent, making the patent application process easier for companies who apply for patents in multiple countries
... and making it much harder for anyone who is not a large company with money to throw at patent applications. Also could someone familiar with patent law explain how changing this one particular law in the U.S. makes it easier for companies to file in other countries?
Schumer's amendment would have allowed companies sued over such patents to ask the U.S. Patent and Trademark Office to declare them invalid without resorting to litigation.
"I feel very strongly about this issue," said the Democrat from New York. He could not guarantee he would vote for patent reform once it hit the Senate floor if it was not in the bill.
So 90% of what would have protected smaller innovative companies was removed and what is left is further patent domination for the bureaucratic styled corporations.
Other provisions in this year's 99-page bill aim to prevent bad patents from being issued by allowing third parties to provide information on why an application should be rejected.
Useful, but not nearly as useful as the above proposed amendment.
The U.S. Patent and Trademark Office has asked for the right to set its own fees in order to hire more examiners and upgrade technology so it can chip away at a massive backlog of patent applications.
The bill would give the patent office authority to set fees, but requires that the smallest applicants get relief on application fees.
They'll need it with the flood of "first to file" applications coming in.
Just look at who are backing this, and you can clearly see that it's a very bad thing for the consumer and average citizen.
c++;
Large companies, who can afford to defend themselves in court, will benefit from this. Same is true for Microsoft's case against i4i where they want to make it easier to invalidate patents in court.
For small and medium-sized companies, and for individuals, this won't help.
In software, people need the freedom to use the commonly used video formats, and the freedom to make a website to sell stuff. For a small company, the court case would cost more than the profits they'd be trying to protect.
Patents simply don't work for software. They *might* work for things where all mass production is done by large companies (e.g. pharma, cars), but for things which ordinary people do, such as writing books and writing software, patents don't work and must be abolished. Reform is not enough.
* http://en.swpat.org/wiki/Why_software_is_different
* http://en.swpat.org/wiki/Why_abolish_software_patents
Expert in software patents or patent law? Contribute to the ESP wiki!
... is that we don't have enough patent office workers, and very few are any quality. They make a low salary, there aren't enough of them, and they leave shortly after starting (within 2 years, I heard). If we had enough to do a careful review, maybe the current law would suffice. This law is the equivalent of trying to make software fast by removing all the useful work it does. Process is streamlined, but results are crap.
Currently hooked on AMP
"first inventor to file, rather than the first to invent" sounds like code for "prior art no longer matters". Think about this for a minute. You invent something. You try to use it. You get sued into oblivion because someone else filed first. Or how about this one: You invent something. You don't believe in patents, so you give it to the world for free. Someone files and locks it down. Or how about this one: You are sued for doing something that everyone has been doing for fifty years. When you try to defend yourself, your defense is struck down because prior art no longer matters--you didn't file first.
The thing that scares me about this is that if this passes it will allow people with the resources to file patents on other peoples (with lesser resources) inventions. As things stand no one can patent something Ive created with any reasonable expectance that their patent can be defended in court. This law would basically allow patent trolls to scour open source software and patent anything they see. How could we expect to defend against anything like the wave of filings this would create?
once more into the breach
and how is ice buildup on power lines Obama fault?
Wednesday's rolling blackouts were not caused by a failure to predict demand accurately or to keep enough plants online, Doggett said, but by a widespread mechanical failure of more than 50 power generating units all over the state.
"The bill (PDF) also gives patents to the first inventor to file, rather than the first to invent"
BRB, filing patents.
What do I know, I'm just an idiot, right?
Your first paragraph is overly optimistic. The Mpeg h.264 video format is covered by over 1,000 patents. Raising quality might get rid of 5 or 10% percent, or in a dream world 50%, but that would change nothing, you'd still need the MPEG LA cartel's permission to use that format.
Your 2nd paragraph is correct*, software and books are copyrighted. Algorithms and plots are not. Plots are not patentable, and neither should algorithms be.
( * To be more correct, you've over-simplified in saying that algorithms are patentable - only specific implementations to a technical problems are patentable, not the algorithm itself.)
Expert in software patents or patent law? Contribute to the ESP wiki!
Of course anything published, in any reasonably accessible medium, before the filing date of a patent (and Open Source is here actually the prime example, because it is so simple to show that it was in the wild before the filing date) is prior art and invalidates any patents filed on its algorithms later.
Contrary to what scare mongers imply here, Open Source clearly gains from this.
This will cripple innovation in America's Universities as researchers are forced to choose between publishing and patenting.
some kind of rule where you can't just file wherever you want. Not sure if having to file where you live or possibly where the corporate HQ is would help....
-Xen
From the summary: "A bill to reduce the likelihood of massive damage awards in patent disputes took a step forward with approval by the Senate Judiciary Committee. The committee voted 15-0 to back the legislation that would give judges a major role in determining how important a particular patent is to a product, so that infringing minor patents would not lead to huge damages."
Judges already have a significant role in the damages determination. First, in some cases the right to a jury trial is waived, so the judge is solely responsible for the damages calculation. Second, even in jury trial cases, the judge determines what evidence the jury sees. Generally evidence on damages is presented by dueling expert witnesses from each side, and the judge may exclude a witness or part of the witness's testimony on various grounds. Third, the judge may modify the jury's award of damages in certain circumstances. Fourth, certain parts of the damages calculation are always performed by the judge anyway.
Then there's this: "determining how important a particular patent is to a product, so that infringing minor patents would not lead to huge damages." That's not a new idea. One of the main ways damages in patent cases are determined is via the Georgia Pacific factors, named after the case where they were set down. Four of the factors are these:
"The utility and advantages of the patent property over the old modes or devices, if any, that had been used for working out similar results.
The nature of the patented invention; the character of the commercial embodiment of it as owned and produced by the licensor; and the benefits to those who have used the invention.
The portion of the profit or of the selling price that may be customary in the particular business or in comparable businesses to allow for the use of the invention or analogous inventions.
The portion of the realizable profit that should be credited to the invention as distinguished from non-patented elements, the manufacturing process, business risks, or significant features or improvements added by the infringer."
As you can see, the law already takes into account how important a patent is to a given product. So it's not clear how much this reform would actually change things. What it almost certainly will do, however, is lead to a spike in litigation and appeals as parties try to figure out exactly what the law means.
Any time the law changes, uncertainty is introduced. In the presence of uncertainty, parties find it hard to come to settlement agreements. So they ask the courts to figure things out. That takes time and costs money, which is something that large, established players have and that small, newer players do not. Legal reform efforts are fraught with unintended consequences.
So the bill addresses the first to invent problem. Without addressing the major issue with the way prior art is defined at the moment. The scope of material examined with regards to prior art is way too narrow, which is a major (if not the biggest) reason for the ridiculous patents that are granted these days, even though you can point to something someone else has already brought to market that employs the same techniques and whatnot.
That makes this bill if not pointless then only a very tiny first step.
First to file means the first inventor to file. Priority is based on filing rather than date of inventorship, but the applicant still has to have invented the claimed invention. The law wouldn't change 35 USC 102(f): "A person shall be entitled to a patent unless he did not himself invent the subject matter sought to be patented."
First to file is the way things work in the entire rest of the world. The US is the only country that uses a first to invent system. The Philippines did until several years ago, but now we're the only ones. I'm not citing that fact to argue that we should switch, only that switching is unlikely to cause the sky to fall.
The Constitution authorizes the government to issue patents to reward the publication of inventions. Making information widely available to the public is the ONLY reason for the government to be involved at all with inventions. Government has no business rewarding invention itself.
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Look for the patent law to swing wildly in favor of the large corporations and against upstart companies.
No, this doesn't change the fact that the applicant must still have actually invented the claimed invention. 35 USC 102(f): "A person shall be entitled to a patent unless he did not himself invent the subject matter sought to be patented."
Remember, every country in the world other than the US uses a first to file rather than a first to invent system. There are advantages and disadvantages to both systems, but the disadvantages are not anything like that. First to file does not enable theft or ripping off of inventions.
1.Introduce a rule where anyone (someone being sued for the patent, someone using the patented technology and not being sued, someone not using the patent at all, whatever) can submit possible prior art for for the patent. Then the patent is re-examined in light of the new prior art. If the prior art is found to be genuine, the patent is ruled invalid and the person who submitted the patent has to pay the costs of the re-examination.
If the prior art is found not to be genuine, the patent stands and the person who submitted the prior art has to pay the costs of the re-examination.
2.Change the methods used for calculating patent damages. They already said that damages would be higher if a patent is important to the product and lower if its less important (which is a good thing) but there should also be a rule whereby a patent that is being actually used or licenced by the patent holder attracts higher damages than one that is simply being held (i.e. patent trolls who hold the patent purely to sue people get less money than those who are actually using or licensing the patent).
3.Ban patents on any genetic sequence or chemical compound found in nature. (so a pharma company that finds a new medicine in a plant in the amazon jungle does not get to claim a patent over that medicine or any genes in the plant responsible for producing that chemical). Chemicals and gene sequences created in a lab would still be eligible for patent protection though. Should it be discovered (and verified) that the complete chemical or genetic sequence does exist in nature and that the occurrence could not have come from the lab-produced version, that evidence would count as prior art and could be used as such under point 1 above.
Also further to this, there would be a complete ban on patenting any genetic sequence found in any human being anywhere on the planet as well as any proteins produced by those genes or any tests for those genes or the proteins they produce.
4.Ban patents on mathematical formulas and algorithms including encryption algorithms and compression algorithms. This would also mean the banning of patents such as the patent granted to eHarmony for its algorithim to match up people based on the answers to the eHarmony questionnaire.
5.Ban business method patents and make it clear that all kinds of business method patents (including those involving a computer system) are not patentable.
Can we please stop the comments about prior art.
Suppose you have "great open source software" everyone loves it and has been using it since v 1.0 (wow, I know it got out of beta!) came out on April 1st 2000. Now today Microsoft says "haha, no-one has patented this great piece of software let's steal it, lolz".
First to invent - lolz we totally have notarized log books that show we actually did this way back in February 2000, see you in court"
First to file - v 1.0 is prior art, end of story, Microsoft's patent application isn't novel, you can all carry on using the software without any problem
Given that we currently honor software patents, I imagine there will be soon a flood of software patents as soon as this gets implemented. Big companies will hire large "think-tanks" to basically come up with as many ideas to file into patents, and then the companies will start rolling out the appropriate applications (if they are inclined) after the fact. So expect to see the patent office even more overburdened if this ever comes true.
"3.Ban patents on any genetic sequence or chemical compound found in nature. (so a pharma company that finds a new medicine in a plant in the amazon jungle does not get to claim a patent over that medicine or any genes in the plant responsible for producing that chemical). Chemicals and gene sequences created in a lab would still be eligible for patent protection though. Should it be discovered (and verified) that the complete chemical or genetic sequence does exist in nature and that the occurrence could not have come from the lab-produced version, that evidence would count as prior art and could be used as such under point 1 above."
That means that immediately no pharma company will any longer invest in the extraction, identification, characterization and modification of pharmacologically active compounds from any biological source. This will stop progress, from historical aspirin (originally isolated from tree bark) to recent important innovations in malaria and cancer treatment (artemisinin, taxoles) or pain management (cone snail toxins). A large part of drug research is inspired by what has been found in nature, and if you fear that even if you work with a modified substance somebody might find later that modified compound in some other species, or in minimal previously overlooked concentration, and then you'ld lose you USD 500 Mil development investment nobody is going to take at risk any longer.
There needs to be a way for an inventor who does not want to file a patent ($$$) to prevent other people from using their idea to get a patent and then charge them for the use of their own invention (or prevent the inventor from letting others use their invention for no cost, if he so desires).
Not every idea or invention in the world is about commercial profit making, and the law needs to recognize that.
There needs to be some kind of filing that will block other patents but not grant exclusivity, which is much less expensive to file.
"I object to doing things that computers can do." -- Olin Shivers, lispers.org
http://www.theatlantic.com/past/docs/issues/2000/03/press.htm
"Commercially sponsored research is putting at risk the paramount value of higher education -- disinterested inquiry. Even more alarming, the authors argue, universities themselves are behaving more and more like for-profit companies"
I know of situations where the push to patent has delayed publication and caused academics to be secretive. We ideally need a basic income, a gift economy, and other social innovations to rethink how those who want to work in the public interest are supported.
A 21st century issue: the irony of technologies of abundance in the hands of those still thinking in terms of scarcity.
This "harmoization" of US law with other countries is getting really old. We need to decide what we stand for and do it. Others can do as they wish. Why don't we just dump our whole government and put the states under some other one? Since we think adopting all their rules is a good idea... That is the stupidest reason I've ever seen for changing a law, and it gets used more often than a stupid idea should come up.
office, and a large majority of these problems go away.
This is yet ANOTHER example of how using a 'free market' approach to government bodies and regulations fails.
The Kruger Dunning explains most post on
Filing costs are the problem, it's the costs of defence.
If you write something in your spare time and you get threatened with a patent suit, would you pay a lawyer US$10k for an initial opinion? If the lawyer said you had a 60% chance of winning, would you have the time and money to start the lawsuit?
If the patent holder asked you for US$5 for every unit which you distribute, for a product you were giving away for free, would you start charging your users so you could pay the patent holder?
Applying these questions to producers of pharma and cars is different. Only large companies produce those things (on a commercially significant scale), so all concerned parties have the time and cash resources for these issues to be considered. For software, most producers can't deal with these costs. The list of costs is quite long:
* http://en.swpat.org/wiki/Costs
Expert in software patents or patent law? Contribute to the ESP wiki!
Bleh, missing word:
Filing costs are NOT the problem
Expert in software patents or patent law? Contribute to the ESP wiki!
Now how about some copyright reform while they're at it? Let's return the duration to something less than the average lifespan of an Arctica islandica.
https://www.eff.org/https-everywhere
The fact that the Senate is studing reform is a start. Perhaps they will eventually invalidate all software patents, except those for hardware drivers for industrial devices. (Think of centrifuges)
Leslie Satenstein Montreal Quebec Canada
Until recently, I worked in research at a major pharmaceutical company. Thus, I have some understanding of how the whole process works going from development of a drug, through clinical trials, to final approval and marketing. First to file would be a *bad thing* for the pharmaceutical industry.
Clinical trials cost a lot of money and, depending on the disease, can take a lot of time. It can take a while just to develop a drug to the point of taking it into clinical trials, too. Patents only last 17-20 years. If it takes 7-10 years just to go through the full development and approval process, that may leave only 7-12 years of patent life in which to recoup your investment and generate profit, after which time the generics will seriously erode your profits. Any time a drug goes off patent = huge loss of income.
Thus, as it is now, drugs are patented as late in the process as possible, so as to maximize the amount of patent life left at the end of the approval process in which to make profit. They can wait as long as possible now, due to the fact that they keep meticulous records (including lab notebooks) of every step in the process, so that if a competitor files before them, they can challenge the patent based on first to invent. With the change to first to file, they will have to file for the patent extremely early in the development process, shaving time off their already small patent-time-limited profitability window.
Clinical trials are very expensive to run (this is not a bad thing, we *want*drugs to be rigorously tested before being prescribed), and due to the relatively short sales window before the end of patent life, drug companies only have a relatively short period in which to recoup their investment. If we switch to first to file, drug companies must file even earlier than they do now, which leaves even less time to make profit before the drug goes off patent. There would also be increased paranoia (and likelihood) of the competition stealing your ideas. I can not see how this would be a desirable outcome.
There's also the whole issue of the global market. If they are already having to file extremely early in non-US markets due to first-to-file in other countries, then maybe it just comes down to reduced profits in the US. I still can't see how they would be in favor of a net reduction in usable patent life in the US, though. Then again, they may just not care any more. I'm seeing more and more of a trend toward giving up on inventing drugs in-house and simply buying out other companies to get their patent rights. If drug companies are no longer inventing their own drugs, then maybe this becomes not so much an issue to them.