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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.
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?
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"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.
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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.
Get a clue. 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. The difference between first to file and first to invent is that it's much easier to determine who was first to file. For first to invent, it's necessary to examine the evidence of invention (lab notebooks, internal emails, notes of discussions, etc.).
Those who can make you believe absurdities can make you commit atrocities. - Voltaire
The US Patent Trade Office FINALLY gets to keep the fees it collects..
Sounds like a disaster in-making to me. What if the Sheriff's office got to keep all the funds that it confiscated? No doubt there'd be a lot more arrests and confiscated funds. Same with the patent office. The Patent office will just issue more and more and more patents as it's now in their best interest. "Come one, come all, file your patents, On sale this week only!"
This is not the overhaul you're looking for.
Move along.
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...
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!
File immediately when you haven't raised money yet? File immediately when you don't know if you have a viable business model yet? File immediately when you, as a starting entrepreneur not versed in patent law, don't know the risks of disclosure? Um, *yeah* it hurts small businesses.
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