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Analyzing Congress's Multiple Approaches To Patent Reform
ectoman writes "Patent reform is becoming an unavoidable issue — and the United States Congress is taking note. But the scope and scale of the problem have prompted multiple legislative solutions, and keeping track of them all can be rather difficult. Mark Bohannon, Vice President of Corporate Affairs and Global Public Policy at Red Hat, provides an overview of four important legislative actions currently under consideration, offering clear and concise analysis of their goals and provisions. He also assesses their potential impacts. 'Given the widening attacks by PAEs [Patent Assertion Entities],' Bohannon concludes, 'it is essential that Congress work to produce meaningful legislation on at least the issues identified above in order to begin to stem the tide.'"
...until the paychecks from the Patent Trolls' lobby clears.
I say the idea of granting monopolies over work which has already been performed is counter to the nature of the Universe, and that we have Zero evidence that Patents and Copyrights are actually beneficial for society. Laborers have unlimited monopolies over their works prior to the work being done, and can leverage this monopoly in the same way that home builders and car mechanics do: Payment Agreement Up Front. Copyright and Patent laws ignore the economic fact that ideas and procedures and information are in infinite supply in the Information Age. Economics 101 states that which is in infinite supply has zero price regardless of cost to create or demand. What's scarce is not the solutions and information; What's scarce is the ability to create new solutions and new works. Market the labor, not the infinitely reproducible output, otherwise you're trying to sell ice to Eskimos; You're letting mechanics charge you for each time you start the car.
Humans and all life are information duplication and refining machines. Laws against human nature should be abolished, especially if they have ZERO evidence to support the assumption that they're beneficial for society -- Especially when the fashion and automotive industries are successful and sell primarily on design, even though these markets are not allowed design patents or copyrights; This is evidence these archaic restrictive systems are unnecessary. No scientist would agree to run the world on unproven hypotheses. What if patents and copyright are harmful? We MUST test the hypothesis and abolish them.
The important thing to be careful about here is that the patent and copyright regimes do greatly benefit the large rich corporations the most. In fact they do give an advantage to the immortal corporations which can simply wait out a patent before using it, or leverage a copyright for three generations of humans. I hypothesize that in a climate where corporations rule via lobbyists that any change to the patent system that is not abolition will be in the best interest of corporations primarily, and secondarily will be detrimental to society as a whole if possible.
Here we have a situation where through a loophole a small entity can leverage patents against small business and big corporations alike without retaliation if they merely do nothing but hold one or more patents and sue over them. If my hypothesis is correct, the patent reform will not address the issue of anti-competitive practices against small companies with small patent portfolios who actually create things, but will merely remove the teeth of patents held by smaller companies in general.
Be Careful. The medicine they're developing is not a cure for the artificial scarcity insanity; It could be much worse than the disease.
Patents should be readable and understandable to people with typical proficiency in the industry or science under question. Now, maybe some of the specifics of the invention may require more expertise, but the parts of interest to business managers should be written to be understood.
As an example, think of 3D systems patenting stereo lithography 25 years ago. They would have no problem stating what their invention was, why it is unique and non-obvious, etc. It's only when you have a trollish type invention that you have to write it in a language so that even an expert in the field would have trouble figuring out what the claims are, or make so many claims that nobody would bother reading it all (comparable to the "terms of use" and "user's agreements" drafted by lawyers for banking and software products).
Method for keeping track of multiple legislative solutions of differing scopes and scales for patent reform on the internet.
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Most of the proposals in TFA deal with cost shifting as a way to reign in the Patent Trolls.
These proposals tend to make it easier to extract money from the trolls that lose their case, but that seems hardly enough.
If there were no patent trolls, we would STILL have a problem with pointless and obvious things being patented and
these patents bought and sold with the sole intent to prevent others from using the "invention" and import bans etc.
If Patents are to benefit society as a whole, perhaps we should be investigating MANDATORY Licensing of patents.
Then develop a framework of deciding what that should cost. Maybe it would take the form of a Court of Cost Recovery, or a methodology of evaluating the value that each patent contributed to the wholesale price of the item. But such an evaluation would have to start from the position that the invention
MUST be licensed, for the good of all human kind. And the remuneration must be in line with some realistic value.
Inventions couldn't be used solely to prevent another party from producing something.
Bounce-Back patents (reaching the end of a scrolling action), if forcibly licensed would not prevent the inventor from making
phones, or add a great deal of value to other manufacturer's phones. The harm is very little for one side, the gain is vary little
for the other side if such a patent is abused.
So why should import bans be on the table at all?
If you start from the basis that all inventions MUST be licensed, all that drama goes away, and it becomes
a simple matter of price determination.
If you want to deny some item to society, you should find another way to use your invention, because you
gain your patent protection only if you license it.
Sig Battery depleted. Reverting to safe mode.
Speaking as an inventor of more than 50 patents - the current system _is_ broken, but not in the way that these reforms are trying to fix. The real problem is that companies do not and will not negotiate with patent holders until they are taken to court. Before filing a lawsuit, companies won't take any discussion seriously. Licensee's don't negotiate outside of litigation because (1) the record of such negotiation might be used against them in litigation and (2) there is no penalty for refusing to negotiate. The "stick" of treble damages for wilful infringement is never awarded in court, and licensees know that.
The direct consequence of licensees refusal to negotiate outside of a lawsuit is that patent holders MUST file a lawsuit to have any hope of negotiating a license. Patent holders must pay enormous costs to lawyers and expert to file such a lawsuit, and these costs are never recovered in settlements - the pro forma settlement has each side paying their own costs. Potential licensees will pay millions in litigation costs before they are are wiling to negotiate a license - to them, anything that costs less than a license is just "good business" - even when any reasonable person could see that extending litigation would be fruitless. It is only when they've exhausted all the time leading up to trial that it becomes time for licensees to come to the table - since there is no penalty for delaying negotiations by extending litigation - in fact, since it delays payment, it can be seen as reducing expenses.
REAL reform would be to have a "safe harbor" where patent holders and patent infringers can realistically negotiate licenses. In order to do so, infringers have to provide truthful information about production volume and projected volume, and patent holders would have to provide truthful information about previous license arrangements. Upon entering a good-faith negotiation, both sides need to have the facts at hand to make a fair settlement. If one side or the other fails to negotiate in good faith, such a fact should be material to a resulting lawsuit. Having a penalty at trial for forcing the patent holder to file suit in order to negotiate a license instead of engaging in good-faith negotiations is the way to avoid lawsuits in the first place. Likewise, forcing patent holders to negotiate first instead of filing suit first also avoids expensive lawsuits.
If we are to value intellectual property fairly, reducing the "friction" in negotiating intellectual property licenses is key. At the moment, even for patents which have been examined by the patent office, "examined" by bringing those patents to court in prior cases, and re-examined by the patent office with senior patent examiners, and ruled on by patent appeal boards with several senior patent officials, the cost of litigation to negotiate a license can be tens of millions of dollars. What this means is that if you have a patent worth less than tens of millions of dollars, you can't get _anything_ of value for your patent. If your patent is more valuable than than, it's still a tremendous drag on patent value.
The current system is rewarding lawyers, not inventors, and the AIA and these further "reforms" are making the problem worse.
Say it's radicaly and mod me down, but I think this would deter these jackaniddies:
A) Instead of just slapping people on the wrist who DO infringe on patents, give them jail time INSTEAD of monetary compensation. Not sure if jail time is already included, but what can patent-trolling lawyers and companies get if they just send one or two guys to jail?
B) No monetary rewards for obvious trolls. If you have a patent portfolio over, say, more than 30 patents, and you're not doing anything with ANY of them, the, fuck you. No money because someone else DID something with it.
In fact, on that last note, I might add, if some jerkoff troll has been sittin' on a patent for more than a three years, and not made any effort to get it to be useful, then any lawsuit regarding it's "noble" cause should be tossed out and the patent invalid.
About a year ago I started working for a government agency, one that is lauded for it's enforced efficiency compared to other agencies. The waste is absolutely. obscene. We spend ten times as much money and yen times as long to do anything compared to a typical company. For the same cost, corporations will save ten times as many lives. Government in America was designed to be fair, rewritable equitable, and accountable, not effective or efficient. If you wanted to cease any progress in medicine, the best way to ensure no new treatments are developed may be to assign the task to the government.
It REALLY sucks that companies that clearly knew they were doing something immoral and shady like outsourcing their patent lawsuits to shell companies that are just lawyer pool patent trolls can't be prosecuted retroactively. There should be some sort of penalty that can be applied to them. The only loophole I know is modifying the current year's tax laws to include a massive penalty for sale and repurchase of the same patent for example. That's effectively retroactive.
It's the guy with the Patent on PAEs that's really raking in the dough.
1) News flash: Competing patent reform bills have been trudging through and/or stuck in Congress for most of the past two decades. It's a constant race among snails to see which one actually crosses the finish line.
This isn't surprising, because patent law serves multiple industries that widely differ in their characteristics and ideal uses of patents. The result is competing bills by big pharma, GMOs, big oil, the semiconductor industry, software companies, etc. The big players in each industry want to skew the whole system in their direction, and don't much care if it adversely affects other industries. (Contrast this with the copyright industry, which is a struggle between ALL media owners and ALL consumers... guess which side wins those struggles, every time?)
2) Like any piece of hotly contested and highly profitable legislation, many of the "reform" bills are intent on "reforming" the patent system straight into the trash. case in point: Many of the initiatives suggested by Barack Obama a few weeks back would rapidly exacerbate the troll problems that they suggest solving.
Computer over. Virus = very yes.
just make everything patent able...Its what corporate wants.... and corporate is everything to the law makers bank accounts
Fact is the patent system causes bias and handicaps advancement and this is against the original intent of the idea of patenting.
There are solutions to problems that are suppressed because they are not patent able for corporate to make a profit off of so instead we get non solutions to medicate the symptoms of the problems.
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It is possible to reform the patent office and mitigate the incentives to grant poor patents. But, first we must acknowledge that we have made some fundamental mistakes. In my opinion, they most critical mistakes are:
Real patent reform is possible. The pressures that currently give rise to bad patents are fairly obvious. We can mitigate those pressures and institute processes that tend to increase patent quality. If we can somehow summon and maintain the political will to admit our mistakes.
Please write a letter to your congressman, or to to those who are handling patent reform bills, containing the above information. Slashdot members generally can't vote on proposed legislation.