Is H.R.1907 Patent Reform that We Want?

Ken Hendrickson N8KH asks: "Slashdot readers are involved with software, and recognize great abuses of the US Patent system as it has been applied to software. We want the patent system to be reformed. (This means we want software patents to be invalidated and no longer issued. We are probably also highly suspect of even hardware patents, as they are a government granted monopoly). Some people don't want the patent system to be changed. John D. Trudel is one of them. He rants against what he calls the "internationalization" of the U.S. patent system." Sounds like HR 1907 is just what we need...or is it? (More)

"What is Trudel ranting against? I wasn't quite sure after reading his pages. Is his only gripe the publishing of patent applications 18 months after filing, whether or not the patent is granted? What does Trudel stand to gain or lose? Might Trudel have a hidden agenda against other provisions in H.R.1907?

What kind of "reform" are Trudel's antagonists proposing? I couldn't determine this from his rants either. (I haven't read H.R.1907 in its entirety, because frankly, I don't have time.) What do Trudel's antagonists stand to gain or lose?

What are the implications?

Could Trudel be right? Will the "reform" usher us into a world where US inventors and corporations are hurt by foreign concerns? I don't see how.

• If a patent is granted, the patent holder has his US monopoly, even if foreigners could read his application before the monopoly was bestowed.
• If a patent wasn't granted, it can't be argued that the patent application filer has lost anything because the idea was either: prior art, not innovative, or obvious. (Damn bloody obvious with how the PTO grants patents even for obvious methods!)

So what are the real issues?

What does it all mean?"

Comments

Summary of HR1907

[Fastolfe]

It's 116 pages in the PDF form from the Government Printing Office, but the letters are big and it's a quick read.

Title I - Inventors' Rights
Basically protects inventors from those shady late-night TV commercials promoting "invention" services, where you sign your inventions over to them for the purposes of "evaluating" and "promoting" it, and they keep the patents, royalties, etc.

This is a good thing.

Title II - First Inventor Defense
Protects an inventor from patent infringement charges if the original inventor brought the subject matter to practical use at least a year before the filing of the other guy's patent and used the patent commercially at some point prior to the filing.

It seems to me like this kinda matches my own interpretation of what "prior art" was, but maybe not. Maybe this just makes it more explicit.

Title III - Patent Term Guarantee
Very basically, if the patent office is butt-slow in getting your patent approved, your patent term is adjusted accordingly.

I'm not sure if I'm reading this right, but I guess in the past your patent term began when you filed the patent? So I guess here you get extra days for every day the patent office is unnecessarily slow in getting it processed. Maybe someone has a better analysis.

Title IV - United States Publication of Patent Applications Published Abroad
Presumably this is where all of the fuss occurs. Unfortunately, it's very hard to read for me, and makes extensive references to the various patent treaties.

My understanding is this: Patents are generally published/made available to foreign countries after 18 months. You can request that it be made available earlier, or, if you're not filing patents in a different country, you can request that it not be published at all. If you do file patents in other countries, presumably treaties require these patent applications to be shared between member countries after 18 months.

I think this is what some people are angry about. I don't know the rationale behind the sharing of applications, so maybe somebody else can step up and elaborate for us? I guess by publishing these patent applications, anyone in another country where the patent holder isn't planning on applying for a patent could then in turn patent it himself. Anybody in a country where the US patent wouldn't be legal could use the information in the patent for his own good. I may be totally off-base here, but that's how I read it. Corrections are welcome.

Title V - Patent Litigation Reduction Act (I like it already)
Anybody can write the patent office with a request for re-examination, citing examples of prior art. Their letter will become an official part of the patent, and the patent office must make a determination (whether or not to re-examine) within 3 months. The requester gets copies of the progress.

Title VI - Patent and Trademark Office
This takes up about half of the actual bill. Since I'm not totally familiar with the current structure of the PTO, this could either be a lot of re-wording, or (more likely) a complete restructuring of the office itself. Note that this seems to only apply to the PTO office/organization. It doesn't have anything to do with the types of patents issued, but how they do their day-to-day business, how they evaluate their staff, and pick their work force.

But most importantly, the bill includes wording to bring the PTO out of the dark ages. They're given permission to make use of whatever equipment and technology they need (like broadband) and lets them hire their examiners more competitively.

Re:"rant" is right

[lordsutch]

Here's a link to the most recent version of the bill.

I can't make heads or tails about what this guy is complaining about. Probably black helicopters are involved, somehow...

Section 303, requesting an investigation of business model patents, is probably of the most interest to ./ers.

Unfortunately, you are wrong.

[Greg Merchan]

From the U.S. Legal Code here

-CITE-

35 USC Sec. 101 01/26/98

-EXPCITE-

TITLE 35 - PATENTS

PART II - PATENTABILITY OF INVENTIONS AND GRANT OF PATENTS

CHAPTER 10 - PATENTABILITY OF INVENTIONS

-HEAD-

Sec. 101. Inventions patentable

-STATUTE-

Whoever invents or discovers any new and useful process, machine,

manufacture, or composition of matter, or any new and useful

improvement thereof, may obtain a patent therefor, subject to the

conditions and requirements of this title.

-SOURCE-

(July 19, 1952, ch. 950, 66 Stat. 797.)


Go here to find more. I searched for 'discover' in title 35.

I do not believe that discoveries should be patentable, but the current law allows it. Also recall that the US governemnt's web pages are not always up to date, i.e. H.R. 1907 may have changed this in some way.

I dispute that patents are usually beneficial.

[Tau Zero]

Check the Constitution sometime. You'll find that the entire purpose of the patent system is to "promote progress in the useful arts", not to be a gravy train for a certain protected class. The patent system is intended to promote progress by the means of trading disclosure for a temporary monopoly. The monopoly is not the purpose, it is the means.

There are a number of problems with the patent system today. To list a few:

1. Some patents are granted for inventions that cannot be used without being disclosed (look-and-feel patents, anyone?). Amazon's one-button patent falls into this category. Since the progress in the useful arts is brought about by disclosure, schemes such as the above which cannot be used without being disclosed should be held to a very high level of scrutiny before any patent is granted. This is certainly not true today.
2. Most of the benefits of many inventions is not in the sales, but in the use. (See open-source software.) Techniques such as wavelet compression are far more useful if they are not patented, because the requirement to negotiate use rights is a barrier to their use, and their value is increased by ubiquity; the promise of "progress in the useful arts" is taken back by the barriers to entry.
3. The USPTO considers "prior art" to be that which has been previously granted a patent, and precious little else. 'nuff said.

I've got my name on three, count 'em, three software patents. I'd like to see every last one of them invalidated, because I think that everyone should be able to build better stuff without having to jump through hoops to do it or worry about stepping on a legal land mine when they are trying to do engineering.
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