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US House Takes Up Major Overhaul of Patent System
Bookworm09 writes "The House took up the most far-reaching overhaul of the patent system in 60 years today, with a bill both parties say will make it easier for inventors to get their innovations to market and help put people back to work. Backed by Obama and business groups, the legislation aims to ease the lengthy backlog in patent applications, clean up some of the procedures that can lead to costly litigation and put the United States under the same filing system as the rest of the industrialized world."
I'm sure this will work out well for small businesses.
I once took an excursion to Reddit, and later HN. Unlimited up/down voting sucks when dealing with a hive-mind.
...can we *please* kill off software patents while we're at it?
(I know, too much to ask, etc. Knowing Congress, they'll just make it all that much easier for patent trolls and big corps to plow through even the silliest patents now.)
Quo usque tandem abutere, Nimbus, patientia nostra?
Being like the rest of the world is a nice mantra that people keep throwing around, but most of the rest of the world simplified the system by having a "first to file" system, meaning someone could steal your invention and file first, and you'd have NO recourse. If that's the way to reduce litigation, then I'm not all for it.
I'm not going to claim the U.S. is the best at everything, but just because the rest of the world does something doesn't make it better.
First to file is NOT BETTER than first to invent.
Stupid sexy Flanders.
Moves from 'first-to-invent' to 'first-inventor-to-file', and the US Patent Trade Office FINALLY gets to keep the fees it collects. The bit about fees is a no-brainer in my book (perhaps if they kept the money, they could employ more folks to look over patent applications), but I'm not so sure about a 'first-to-file' system.
Why do I have a bad feeling about this?
both parties say
This so close to an election year? I don't smell roses.
Having to work for a living is the root of all evil.
...I have a very bad feeling about this.
Nope. It's going to get A LOT worse before it gets better. That's change, if change means exactly what everyone else has done.
Flamebait.
In debates about Christianity, there are two groups: those looking for answers, and those looking to just ask questions.
All those conversations about "prior art" that we love to throw around here? Whooosh....all gone. Prior art only matters in "first to invent" instead of first to file.
I have been thinking about a possible model for handling the awarding of patents that might mitigate certain problems with our current patent system. I'm curious as to if anyone has any feedback on it.
As the last stage of the patent registration process (so when the applicant already knows that the patent will be awarded), the applicant declares how much they will charge to license the patent. There would probably need to be multiple licensing models (flat-rate, per product sold, etc.) that the applicant could opt for - I don't know enough about patent law to go into detail here. The applicant must then pay a fee whose amount is related to the declared licensing cost before the patent is officially awarded. (The clock is already ticking on the patent's expiration, of course.) The applicant is free to charge less to parties to license the patent if they choose, but are obligated to license it to any interested party for no more than the previously declared amount.
Here are the advantages of the system:
1. Under the current system, there are currently parties who file or acquire a large number of cheap, vague patents solely in the hopes that some other party develops a massively profitable technology that happens to make use of them so they can extort a large sum of money from them. This practice is a parasitic load on technological development and should not be unnecessarily enabled by our patent system. The fact that the patent registration fee under the model I describe is related to the size of the licensing fee would discourage this practice. If the applicant didn't pay much to register the patents, then they cannot charge much for licensing. If the applicant did have enough confidence that the patents would actually be used profitably when they registered the patents, then that would indicate that the patents were actually of some value.
2. If the applicant is the proverbial "private inventor" without much in the way of financial resources but develops what they believe to be highly valuable IP, the fact that the fee need not be declared until it is already known that the patent will be awarded will aid in them acquiring investment capital to cover the fees to complete the registration of any relevant patents.
3. Under the current system, there are some industries in which companies acquire patents on potentially competing technology for the sole purpose of sitting on them and preventing what would otherwise be a better alternative to their business from developing. The mandatory licensing system would effectively prevent this practice, and the relation of registration fees to licensing costs would discourage setting unreasonably high prices to potential competitors.
Thoughts? Criticisms?
(no sig)
Doesn't moving from first-to-invent to first-to-file essentially get rid of the Prior Art argument when attempting to invalidate a patent?
"ease the lengthy backlog in patent applications, clean up some of the procedures that can lead to costly litigation and put the United States under the same filing system as the rest of the industrialized world."
IOW, same absurd shit, only faster, cheaper and standardized.
Join the Slashcott! Feb 10 thru Feb 17!
Because nothing says increase due diligence by patent examiners like "ease the lengthy backlog in patent applications".
That is all.
and have triple digit term lengths.
There is no right to feel safe thru security vaudeville at the expense of everyone's freedom, privacy and tax money.
We Cartels are losing money due to the increasing move towards legalized pot. We need to get this legislation passed in time to make illegal devices the new source of revenue. Signed, Emilio "the dagger" Cortez.
Why shouldn't our antiquated system of patents be defended as viciously as our antiquated system of marriage?
If our 'marriage system' was handled the same way as our patent system, the first person to file a marriage license with your name on it would be your husband whether you liked it or not.
Gay marriage doesn't really hurt anyone - at least no more than any traditional marriage with two willing participants hurts those who marry. To paraphrase John Stewart on gay marriage, "I was completely against it, until I found out that it was voluntary." I tend to agree with him about it.
Considering that the only thing the government does well is F*ck Things Up, this does bode well for small business.
Patent and IP lawyers, on the other hand, should be most pleased by this.
Hope is the currency of fools
Because the US government has nothing better to do - watch, I bet they are going to make a bad system even worse.
Seven puppies were harmed during the making of this post.
I think all those gay marriage opponents ought to uphold the sanctity of marriage by banning divorce, and having to stick with their first wife.
This is not the overhaul you're looking for.
Move along.
Congressmen are afraid to kill off software patents entirely, and I don't blame them. It could wreak havoc on Silicon Valley and fubar the U.S. economy. And, knowing the way U.S. news media outlets react to economic downturns, it would result in a ton of bad PR for the politicians, which would likely hurt their chances at being re-elected, which would mean that these life-long politicians are either out of a job or demoted by more than a few rungs.
The problem isn't software patents anymore. The problem is we, the people, rely on a congressional system of elected officials who have become increasingly corrupt and feeble-minded, resulting in a massive disparity between the wishes of the masses and those of the government. Sure, in an ideal world, people would eventually vote these individuals out of office, but most damage is usually prevented in actuality by bribes, media brainwashing, and just plain counter-intelligence.
Until the problem of the "corrupts officials that don't listen to the people" is fixed, we are still plain old fucked.
vos nescitis quicquam, nec cogitatis quia expedit nobis ut unus moriatur homo pro populo et non tota gens pereat.
Does this bill do anything about being able to patent "obvious" evolutionary changes to a product? That seems to be the issue that underlines most of the patent contentions--one company patents an idea, and another, seemingly independently, comes up with the same idea on it's own.
--
$tar -xvf
They could start by doing something to remove the expectation that the government is perfect and did everything right. As it stands, I could patent word-for-word another patent, and as long as I cited the previous patent within my patent as prior art and drew a patent examiner whose rubber stamp needs heat sinks to keep it from melting (and/or is currently enjoying a sudden "windfall"), I end up with a patent that would likely take action by the Supreme Court to overturn, since the current state of justice in this country is that no matter how blatantly bad it is, any prior art "reviewed" by an examiner and found to be OK cannot be re-examined by the judicial system. (That is, assuming the SCOTUS doesn't pull the same "sorry, we don't give a damn about fixing the injustices of the other branches anymore" bullshit they've been pulling recently and tell the complainant that they have to convince Congress to do something about it).
Is to abolish them.
Congress is doing something that needs to be done? Something fishy is going on here...
Simple. They are making it easier for big business to clog the system with trash and ill-gotten patents. In so doing big business will have more leverage to enforce the status quo which aligns with conservative ideology.
Two of my imaginary friends reproduced once
True. The Defense of Marriage Act should really make adultery illegal. That has had a much bigger impact on American Family Values than the so-called "homosexual agenda". Not only is adultery not illegal, I don't think it even helps that much with divorce settlements anymore.
If the plaintiff in a divorce can prove adultery, the defendant should, at the least, lose all of the joint marriage finances and child visitation.
--
$tar -xvf
and put the United States under the same filing system as the rest of the industrialized world.
Here comes ACTA... Call me a Cynic.
- Dan.
~ People that think they are better than anyone else for any reason are the cause of all the strife in the world.
You know, from time to time I've wondered if it might not be faster to get upstream by propelling the country down.
Two of my imaginary friends reproduced once
I think a lot of people are missing the fact that currently the little guy could submit an invention for a patent only for GE or IBM or some other behemoth to come forward with some dusty drawing from an engineer 15 years ago proving -they- invented it first but never thought worthwhile to file. I wonder how many people get screwed out of an idea they thought worthy enough to take to market only to have it ripped out of their hands by a corporation who didn't have their foresight to market it in a new way or for a new use. It doesn't seem to me like first to file will really be a detriment to individual inventors.
The backlog is a Bad Thing because it makes every patent a sort of mini-submarine patent. In the time it takes an application to get examined (often over 3 years to first office action, and sometimes 5 or more years until issuance), one of the applicant's competitors can develop a successful business based on what eventually winds up in the patent. That's bad for the patentee, of course, because it establishes a competitor in the public eye selling the same product, but it's also bad for the competitor, because they put a lot of work into that business and then get taken to the cleaners for infringing.
That sounds like a savings, but the reality is that the change means you're just FUCKED. Now, if you find you're infringing a patent you can spend 400 to 500K and show that you invented it first and you are not infringing (other may be, but not you). After this, the option to defend yourself WILL BE GONE. Because some company patents something you're already doing, you will be barred from doing it. period. end of story. Because they filed first.
I find it odd that the US considers itself to be a leader in innovation, but we need to change our system to match the rest of the world...
If there's one thing this world needs it's more patents.
There's too much innovation and not enough litigation nowadays.
P.S.: The order of the words in this posts and the subject is innovative so I've just applied for a patent for it, so if you quote it or reply to it you can expect to hear from my lawyers.
From the summary: "and put the United States under the same filing system as the rest of the industrialized world."
Parent is right. This will absolutely help big businesses at the expense of small inventors and companies. The United States is perhaps unique in the world in caring about who invented a thing first, rather than who filed a thing first, and in caring somewhat about the individual inventor. Despite all of the clamor about it, there are maybe a hundred interference proceedings (i.e. who invented it first) a year--they're VERY rare. Companies and academia are just afraid of them because they (1) require a lot more auditing internally, (2) are a little less administrable than a first-to-file system, (3) are not what everyone else in the world does, and a lot of patent work is international, (4) sometimes a patent is worth billions, and secret prior art is in theory a massive risk, and (5) litigating the point costs money and lots of legal and inventor time when it comes up.
That being said, these reforms are proposed every year. They very rarely get passed. The first-to-file reform has been "likely to change this year" for twenty or thirty years at this point.
The patent system is already nontrivial to deal with for a newcomer, taking years, being very precise and arcane, and costing thousands unless you do everything yourself--and most people who try to do it themselves fail miserably. A patent examiner I know has seen *one* pro se application that was done well. The money is pocket change for a big corporation (maybe more if litigated or if it's an important of complicated patent), reasonable fees but ridiculous delays for a little corporation, doable for the upper middle class when you're not in the middle of an economic recession, and practically prohibitive for a small inventor who is lower middle-class or poor (without backers, anyway, and disclosing it to backers beforehand starts all kinds of legal clocks). The system encourages some innovation, but it doesn't do much about bootstrapping.
-- IANAL, this isn't legal advice, and definitely isn't legal advice for you. Also, Squee!
You put out a product. Someone else gets a patent on some feature (possibly hidden from view, they didn't even know you did it). Now, because they filed and you didn't, you are screwed. You seem to be saying that under the new rules you could use your prior "invention" as a way to overturn the patent entirely. As it is now, you can use your prior invention to get exemption from paying royalties. Under which system will the big guys fight harder in court to squash you? Under the old system they can roll over and let you "infringe", under the new one that would completely invalidate the patent. You're ignoring what "first to file" actually means - it means you get patents for filing, not inventing. And that's where the constitutional challenge lies - government is allowed to reward inventors, not filers.
> "small business" good "big business" bad
Small businesses have fewer resources to allocate to high barriers to entry, and need to enter the market to participate. High barriers to entry make the market less competitive. The patent system, to encourage an active market in innovation, should minimize barriers to entry--otherwise, it is not doing the thing it's designed to do (i.e., give people some of the benefit of their inventions/incentivize invention), it's only serving a small subset of inventors.
-- IANAL, this isn't legal advice, and definitely isn't legal advice for you. Also, Squee!
How about every time the courts throw out a patent, the patent office sees its budget reduced by the amount of money spent by the lawyers on both sides to get that decision made? Maybe that's just a drop-in-the-bucket, but perhaps it would make the Patent office think twice about granting clearly weak or overly-broad patents and letting the court system decide the validity of said-patent.
When most people see overhaul they think make better, but for government everything is about money. Streamlining the patent system means a big rubber stamp approving every single application without reading it then let the courts figure out the mess. More money for gov, more IP for big business to put on the balance sheet to pump up their (on paper) net corporate worth.
Prior art is relevant to "first to file" as well as "first to invent". You cannot invent something which already exists, so prior art is an absolute obstacle in either case.
It will be harder to prove you had something, and it doesn't matter, under the new rules, if it's not patented and you get there first, you own the patent.
I don't think you are fully understanding the GP's argument. There are three things:
1. First to market. (prior art)
2. First to invent.
3. First to file.
It seems the GP is arguing that if one person goes to market first then some other person's patent application fails due to prior art. You seem to be focused on the inventor working in secret who is first to invent but not to file, which is only one of various scenarios. Secondly, in this working in secret scenario the inventor ***gambled*** and put off filing despite having an invention, apparently trying to maximize the duration of time in the market under patent protection, not wanting burn some of the patent protection time turning the invention into a marketable product. If the original inventor had not taken this ***gamble*** he/she would not have created the window for the second to invent to file.
If seems that this legislation is far more likely to incentivize the first to invent to file immediately rather than to continue to work in secret. The danger of a second to invent filing seem unlikely unless the first takes the gamble mentioned previously.
If all the representatives cutting across the party lines and BIG businesses and ruling administration unanimously agrees to something, it must be good for average Joe/Jane.
Another giant step towards Orwellian nightmare.
However, there are some things in there that they're proposing which will absolutely not help small businesses: switching from "first to invent" to "first to file", for one. Again, the deep pockets and legal departments of large corporations make getting "first to file" much easier for them. They're also getting rid of the one-year grace period after disclosure which, yeah, while it brings us into sync with the rest of the world, but was always a huge boon to small inventors (it really ought to be *longer*). The grace period gives you time to shop your idea around, determine whether there's a good business opportunity, raise investment, etc, and *then* file.
I'm sympathetic to small and local business but I'm having a hard time seeing this change as disastrous. It seems that there is only a problem with the second to invent being the first to file if the actual first to invent is trying to continue working in secret. Postponing filing and working in secret seems to be a ***gamble*** to maximize the time a product on the market has under patent protection. Turning an invention into a marketable product, acquiring investors/funding, etc can take some time but the life of a patent is 20 years. If the proposed change encourages inventors to file immediately and they only get 15 years of protection rather than 18 or so years is that really disastrous?
The bargain inherent in the patent system is that you get patent protection in exchange for teaching your idea to the world. If you invent something but keep it secret, you haven't fulfilled your part of the bargain and you don't deserve anything, because you haven't actually benefited society yet. It makes sense that the patent system would reward the first person to actually teach their invention to the world, rather than rewarding someone who invented something and then sat quietly on it.
Axe all software patents.
Seriously. I am now going through patents for multiple items that I am working on. It was obvious when W/neo-cons outsourced our patents. The quality of them PLUMMETED. As it is, I will have to fight one of these patents. The inspector was a guy from China and obviously had NO CLUE ABOUT PRIOR ART. Now, I have to locate in a home that has a piece that was sold in the 70's in Ace Hardware.
Total BS. OTH, if we bring in LOCALS then this would not have happened.
I prefer the "u" in honour as it seems to be missing these days.
Are you sure?
Didn't Apple just get the broadest patent ever for "making finger gestures that mean stuff"?
My first Journal Entry ever, in 8 years! http://slashdot.org/journal/365947/aphelion-scifi-fantasy-horror-poetry-webzine
Hello.
You have provided an insightful Act 2 Scene 1. My unpolished first video imagines what transpires outside the patent office three minutes later.
http://www.youtube.com/watch?v=v2XllZTiRbQ
Captcha: sadden
And not the big company? After all, they have expensive lawyers who will rip your "evidence" to shreds. You don't.
Add to that they will also find you guilty of infringing every one of 1000 patents they hold and you will fold and go bankrupt before your case gets to a hearing.
The backlog would be helped by allowing the USPTO keep all the funds that are raised. This could mean hiring more examiners, allowing for overtime pay, contracting out PCT work so examiners can examine US filings, updating the IT system etc.
That is one portion of the bill.
Bring back the old version of slashdot.
How about only allowing patents to be granted to individuals (multiple individuals can be listed)? I'm thinking the whole "a company has the same legal rights as a person" is part of the problem as well.
"a bill both parties say will make it easier for inventors to get their innovations to market and help put people back to work"
Damnable lies!
This bill is nothing less than another monumental federal giveaway for banks and huge multinationals and an off shoring job killing nightmare for America.
Just because they call it “reform” doesn’t mean it is. Even the leading patent expert in China has stated the bill will help them steal our inventions. Who are the supporters of this bill working for??
Patent reform is a fraud on America. This bill will not do what they claim it will. What it will do is help large multinational corporations maintain their monopolies by robbing and killing their small entity and startup competitors (so it will do exactly what the large multinationals paid for) and with them the jobs they would have created. Yet small entities create the lion's share of new jobs. According to recent studies by the Kauffman Foundation and economists at the U.S. Census Bureau, “startups aren’t everything when it comes to job growth. They’re the only thing.” This bill is a wholesale slaughter of US jobs. Those wishing to help in the fight to defeat this bill should contact us as below.
Small entities and inventors have been given far too little voice on this bill when one considers that they rely far more heavily on the patent system than do large firms who can control their markets by their size alone. The smaller the firm, the more they rely on patents -especially startups and individual inventors.
Please see http://truereform.piausa.org/ for a different/opposing view on patent reform.
http://docs.piausa.org/
The problem is we, the people, rely on a congressional system of elected officials who have become increasingly corrupt and feeble-minded, resulting in a massive disparity between the wishes of the masses and those of big business and the mega-rich.
FIFY
(you gotta go to the source!)
Yeah, right.
I can't be the only voter who finds it completely ridiculous that the House has stripped the least controversial provision from this bill (ending fee diversion) and passed the most contentious provisions. Without an end to fee diversion, "patent reform" is a waste, or worse.
I can't be the only voter who finds it completely ridiculous that the House has stripped the least controversial provision from this bill (ending fee diversion) and passed the most contentious provisions. Without an end to fee diversion, "patent reform" is a waste, or worse.