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."

Comments

"Backed by Obama and business groups..."

[MyFirstNameIsPaul]

I'm sure this will work out well for small businesses.

Re:"Backed by Obama and business groups..."

[Rei]

As a small business owner myself, the funding changes will. The huge costs and absurd backlogs are easily handled by big businesses with their own legal departments and deep pockets for building up patent thickets and getting their patents expedited, but it's much harder for the small fish to get a piece.

To benefit small business owners versus big business owners, you need:
  * Lower filing/defense costs
  * Shorter backlogs
  * Greater tolerance for filing errors (a big established company is less likely to make them)
  * Stricter standards for review when it comes to originality, prior art, etc (as a general rule, small businesses thrive on radical changes, while big businesses thrive on incremental changes)

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.

Yeah, but...

[Penguinisto]

...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.)

Re:Yeah, but...

[WrongSizeGlass]

(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.)

New patent process for large businesses:
Patent Clerk: OK, let's get started. Is your company valued at over $1 billion?
Applicant: No, not yet. We're hoping this patent will help us get there.
Patent Clerk: I'm sorry, please come back when you're large enough to matter. Next!

Patent Clerk: OK, let's get started. Is your company valued at over $1 billion?
Applicant: Yes, of course.
Patent Clerk: Excellent. All right then, have you checked for prior art on this application?
Applicant: Yes, of course.
Patent Clerk: And did you find any prior art?
Applicant: Of course not.
Patent Clerk: Good. Did you really invent this?
Applicant: Yes, of course.
Patent Clerk: OK. Anything else I should know about this application?
Applicant: Of course not.
Patent Clerk: Piny swear?
Applicant: Piny swear.
Patent Clerk: Great - application granted! Anything else I can help you with today?
Applicant: Do you happen to know the name of that guy who was in line ahead of me? I think he's violating my new patent.

Re:Yeah, but...

[TheRaven64]

Patenting something like the GIF encoding algorithm nowadays would be extremely difficult.

I was going to post a long reply to this, but I think I can sum it up with one letter and three numbers: H.264.

This is not good.

[gfxguy]

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.

Patent value-based system

[Kongming]

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?

Re:Patent value-based system

[Teancum]

Here is my thought on a method to handle the awarding of patents:

Don't.

Yup. Simply outlaw the practice altogether and let trade secrets be the law of the land. By the time a product has gone through testing and has made it to the consumer, it is likely nearing the end of its useful life for patent protection anyway.

I consider patent legislation to be a failed social experiment whose time is nearing an end. No, I'm not really an anarchist and I do believe in the rule of law and even think there is a necessity for a legal system, but that patents tend to help those who don't need help and don't protect those that do. I also don't know of any way to reform the system sufficiently to be able to "protect the little guy" without screwing them over even more than they are, where being blunt that legal protection through patents doesn't work at all is likely the best advise you can give to a young aspiring inventor.

Having known many engineers and "inventors" in my lifetime, including some who sought protection through the U.S. Patent and Trademark Office, not a single one of them ever received in royalties any money more than the legal costs they spent trying to get the patent in the first place, assuming they got anything at all in the first place. At best all a patent has been useful for is a resume bullet point that might make the difference to get a job interview. I guess that counts for something, but it wouldn't be something I would necessarily be impressed with other than showing you actually do know how to work with lawyers.

Not the kind of overhaul you're thinking

[sl4shd0rk]

"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.

Re:Mod parent up

[AliasMarlowe]

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.).