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IEEE Proposes New Class of Patents
Posted by
Zonk
on Thu Feb 02, 2006 12:13 PM
from the something's-got-to-change dept.
from the something's-got-to-change dept.
cheesedog writes "The IEEE Spectrum proposes a new type of patent that wouldn't require formal examination, would cost significantly less than traditional patents, would last only 4 years from date of first commercial product, and which wouldn't carry a presumption of validity. These 'limited patents' would be attractive to innovators in the fast-moving high-tech industry that can't wait 18-24 months for patent approval, and would help improve patent quality by populating the USPTO's prior-art database more efficiently. Additional commentary on this proposal is available."
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The question is ... (Score:5, Funny)
Re:The question is ... (Score:5, Informative)
In fact, IEEE's proposal parallels the system in Australia, which allows "innovation" patents to issue without review. http://www.ipaustralia.gov.au/patents/what_innova
Australian Innovation Patents, as they are called, last a maximum of 8 years, are granted without examination within 1 to 3 months. However, before enforcement or even threatened enforcement of an innovation patent, someone (not just the owner of the patent) must request a formal examination of the patent.
These systems have their problems as well. See: http://news.bbc.co.uk/1/hi/world/asia-pacific/141
Nevertheless, with sad state of affairs in this country, you probably could file an application and get a piece of paper back granting you a patent this "process."
[ Begin Rant ]
The problem with these types of "IEEE" or "innovation" patents is that they worthless.
First, without the initial review, the patent owner is left unaware if there are serious deficiencies in his patent until he tries to enforce it. Between 2000 and 2003 roughly 300,000 patent applications were filed each year. Between 2001 and 2004 roughly only half those applications matured into granted patents. http://www.uspto.gov/go/taf/us_stat.htm [uspto.gov]. During the examination process, there are ways to cure these deficiencies. For example, the inventor may amend the claims or file another application. The system currently proposed by IEEE does not serve inventors because it cannot forewarn applicants that there is a problem. (Of course, the current system is broken, but in other ways.)
Second, even if the owner has a valid patent, he would not be able to recuperate the costs of enforcing that patent. By giving a limited monopoly for 4 years, the patent owner can only recover damages for those 4 years. Take this example: Inventor A gets invents a widget and wants to bring it immediately to market (and can), so he gets an "IEEE" patent. Company B sees A widget and decides to reverse engineer and sell the widget. If it takes Company B a year to reverse engineer and market widget, then the soonest A would realize that B is infrigning is in the 2nd year of his patent's 4 year term. However, before he can even threaten B, he must have the patent reviewed by the patent office for validity. This might take 3-6 months (I am guessing). This puts him into his 3rd year. After a finding of validity, A then has to commence suit, which generally takes more than a year. So after everything is said and done, B only has to pay royalties for 3 years and can continue manufacturing the widget because A's 4-year patent term has expired by the end of litigation. What was accomplished by suing B? A expended hundreds of thousands of dollars in litigation only to gain 3 years worth of royalties, which probably weren't that much.
On the other hand, with a standard patent, the patent owner, A, could recover damages for 20 years and/or charge Company B a royalty for the remaining term of the patent. Now, if that widget was, for example, the iPod, then A would have benefited by obtaining a standard patent.
For these reasons, no major company will pursue an "IEEE" patent even if it was allowed.
[/end Rant]
Parent
Re:Let's see.... (Score:5, Funny)
Parent
So (Score:5, Insightful)
Re:So (Score:3, Interesting)
I think so. This just establishes prior art in a very clean way. If the patent shouldn't have been granted, the courts can come into play. Anything is better than the system in place now.
Re:So (Score:2)
The problem being patents that should never have been granted.
Re:So (Score:2)
Re:So (Score:5, Interesting)
Parent
Re:So (Score:2, Interesting)
Re:So (Score:4, Insightful)
Parent
Re:The only type (Score:5, Insightful)
As far as software is concerned, and perhaps some other idiotic types of IP (like copyright on the "appearance" of a building in a public location), is to ELIMINATE it. Their absence is what got us where we are, but for some reason, people feel like they have to squeeze every last bit of "value" from something that is often completely intangible. The only thing it's doing is slowing things down and increasing costs. I imagine that not too long from now, the "leaders" in the US government will be scratching something, wondering why the US continues to either lag behind, or give up ground to, other countries in important areas like science and technology. The current patent system has shackled and menacled our ability to remain agile, and I fear that we will pay dearly for that over the long term.
Parent
Re:So (Score:5, Insightful)
Indeed; helping increase the volume of bad patents doesn't seem like a useful goal. The main problem with software (and other more abstract) patents is not the slow process for granting them, it's the fact that they keep granting idiotic patents that are very obvious to anyone even remotely skilled in the art. Searching and validating beforehand may be expensive, but is a lot cheaper than a court fight....at least in an overall sense.
On the other hand, if their intention is to fuel outrage in blogs and community websites (like
Parent
Just FYI (Score:5, Informative)
I submitted a correction to
I'm the IEEE Spectrum editor of this article, and for the record the IEEE has made no such proposal. To quote the disclaimer we run with every issue: "The editorial content of IEEE Spectrum magazine does not represent official positions of the IEEE or its organizational units."
Prof Hollaar's article is funtionally equivalent to an Op-Ed -- as a respected, knowledgedable, and articulate individual, he was given space in the magazine to share a proposal we found noteworthy. We've actually run a lot of articles on the "What To Do With Patents" theme recently, as our contribution to the patent reform debate, with authors advocating ideas ranging from replacing software patents completely with copyright, to more-or-less leaving well enough alone. I think it's great
Parent
Great idea! (Score:3, Interesting)
This is a very good idea. My current patent application was filed Jan '01 and is still being reviewed!
TimJowers
Re:Great idea! (Score:2)
Re:Great idea! (Score:2)
4 year patents are different... why? (Score:5, Insightful)
Re:4 year patents are different... why? (Score:2)
without the presumption of validity? (Score:5, Insightful)
-Jesse
Re:without the presumption of validity? (Score:5, Interesting)
Imagine Acme Corp. files a 'limited patent' for Widget X and it's granted without examination. My widget, Widget Y does the same thing as Widget X, and it's actually got a real patent pending and has been on the market for 3 years.
However, Widget Y hasn't been selling very well due to my inability to market the product, and well, I can't afford good legal representation. So I can't sue Acme Corp. at all... worse, Acme Corp. notices my product and decides to sue me! Since Acme got their 'limited patent' first and mine is just pending, Acme wins!
Screw that. It sounds like a patent abusers' wet dream.
Parent
Re:without the presumption of validity? (Score:2)
On a related point, the granting of a patent does not give you the right to do anything other than exclude someone from using what is claimed in your patent. It does not give you the right to actually practice what your own patent claims.
Pay a fee to file prior art? (Score:3, Insightful)
A fee? That sounds counter-productive to encouraging prior art submissions.
Re:Pay a fee to file prior art? (Score:3, Insightful)
Actually, making someone pay a fee for prior art is an idea with some merit. But it shouldn't be the person who points out the prior art who has to pay. Instead, the person who filed for the patent should have to pay a fee to the patent office when someone points out valid prior art. After the patent office determines it really is prior art, they would take part of the fee for themselves and pay part of it as a bounty to the
Clearly someon doesn't understand patent (Score:5, Insightful)
Second, Patents are not expensive, paten lawyers are. You can file a patent as an individual for a few hundred dollars.
Third, a patent is a way of saying you had it first, but there are other ways.
Forth, This would be even more abused then the current system
Re:Clearly someon doesn't understand patent (Score:2)
yeah my favourite, but the least well known way, is to actually release the fucking product.
Re:Clearly someon doesn't understand patent (Score:2)
There is the real crux of the issue for small inventors.
I got nifty widget one, but I need 250,000 for manufacturing. How do I show people what I have and keep it protected?
If you dn't have proof that you had it a specific date, anyone can claim they had it first.
No Patent != No Protection (Score:2)
Clearly someone doesn't know the author (Score:5, Informative)
Lee Hollaar is one of our nation's most brilliant non-legal scholars regarding intellectual property issues. Lee has been active in intellectual proprerty matters for decades, and is the author of the BNA publication "Legal Protection of Digital Information," which you can read for free online [digital-law-online.info] (complete with hyperlinks to case law!) at the AUTHOR's insistance. Although he is no doubt an IP maximalist, his is frequenty a reasoned and well-informed view.
He is the author of or worked closely with the authors of highly influential amicus briefs that led the United States Supreme Courts to decisions in landmark intellectual property law cases. He worked on the hill as a staffer, and also as an advisor to the Federal Circuit Court of Appeals. And he has served as technical expert and special master in many important IP and technology law cases, including United States v. Microsoft.
As it turns out, I do not agree with Lee on the necessity or benefits of his "petit patent" proposal, and might agree with a more critically worded and substantive revision of the poster's remarks. Unlikely many on this forum, I find Lee to be open to new ideas and revisions of his old ones when confronted with solid argument. This flexibility toward truth-seeking rather than lockstep ideology is one of the principal reasons he is such a formidable opponent at a debate on IP matters, and why his opinions, even when they are wrong, are highly influential.
But I would Never, NEVER suggest that the proposal was founded in ignorance. Professor Hollaar has enormous gravitas in the IP community, and his influence is well-deserved. Right or wrong (I often disagree and spar with him), your suggestions about his understanding are wholly unfounded.
Parent
Re:Clearly someone doesn't know the author (Score:4, Insightful)
However, that still does not change the fact that increasing the number of patents and decreasing the effective duration is a dumb idea.
Just because it is shorter does not make thing better when the number of rediculous patents will explode.
The problem is not necessarily that the patents are too long or even it is too expensive to obtain. The problem is that too many non-novel ideas are granted patents.
What Professor Hollaar suggests does not address those problems at all. And that does not change no matter how well respected he is.
Parent
Wrong direction (Score:2)
Patent Spam For Teh Win!!! (Score:2)
They'll bring the patents, and the USPTO will bring the stamps.
Reducing the time constant (Score:5, Insightful)
Re:Reducing the time constant (Score:2)
Teh /. summary left something out (Score:5, Informative)
Re:Teh /. summary left something out (Score:2)
In the new climate...
The Law of Unintended [wikipedia.org] Consequences [atfreeweb.com] strikes again.
Incomplete summary (Score:5, Informative)
What the submitter failed to mention is that the patent claim is validated only when the patent owner attempts to sue an alleged infringer of that patent. FTFA: "Should the patent owner try to sue an alleged infringer, an examination for novelty would be the initial step in any litigation." And goes on to claim that this is better because the alleged violator will have to provide prior art to invalidate the patent.
This seems to increase the amount of time developers will have to spend in courts, attacking and defending, while reducing the burden on the patent office. Less chance of mistakes, but probably not a viable option for smaller developers without the resources to spend on litigation.
Also, the other linked article [blogspot.com] claims that "Novelty could be challenged at any point by someone submitting prior art and paying a small fee." Anyone have any idea where this information comes from?
Sounds more like... (Score:2, Insightful)
Examination (Score:2)
Judging by the quality of the examination for the current types of patents, this part wouldn't be much of a change. They might as well do away with examination of patents all together, considering some of the crap that gets approved.
the really high costs... (Score:2)
Change the existing system, don't add to it (Score:5, Insightful)
This part I can buy, and I would go further and change the entire patent system to limit to 4 years on ALL patents from date of first commercial product. After all, the original objective of the patent system was to advance science, industry, etc. in the United States, it was not intended as a means of leeching cash from a productive industry or building monopolies. Shorter terms would force the hand of patent holders to put up or shut up.
I would also implement stricter rules on acceptance of patents. Today we hear over and over the excuse that lame patents are accepted because the office is overworked. I've read the rules on the uspto.gov website and several of the questionable patents that have been in the news and from what I've seen every one of them should have been rejected in the first 5 minutes of reading the abstract and claims.
The rules are simple and most patents don't pass muster. The patent office should be pushing back on those who file patents to submit applications which easily pass the initial tests:
"The patent law specifies that the subject matter must be "useful." The term "useful" in this connection refers to the condition that the subject matter has a useful purpose and also includes operativeness, that is, a machine which will not operate to perform the intended purpose would not be called useful, and therefore would not be granted a patent.
Interpretations of the statute by the courts have defined the limits of the field of subject matter that can be patented, thus it has been held that the laws of nature, physical phenomena, and abstract ideas are not patentable subject matter.
A patent cannot be obtained upon a mere idea or suggestion. The patent is granted upon the new machine, manufacture, etc., as has been said, and not upon the idea or suggestion of the new machine. A complete description of the actual machine or other subject matter for which a patent is sought is required."
http://www.uspto.gov/web/offices/pac/doc/general/
And from these basic rules it becomes obvious that SOFTWARE IS NOT PATENTABLE, you use copyrights for software. And just to add to the rant, a reimplementation of a concept or idea by someone else is not infringement of a copyright. I suspect that is why we have this big mess with software patents. I also suspect that part of the problem is interference from lawyers and lawmakers who have beaten the USPTO into submission, but at some point we need to stop all this stupidity.
burnin
A REALLY bad day (Score:2)
Just limit the number (Score:3, Interesting)
Right now the little guys get eaten alive having the burden of getting their goods to market without the propper resources to do so. With the 15% tariff all they need to do is patent their invention and the market will reap the profits for them.
Yes, big pharma might get lowballed for their R/D costs, but on the bright side they wouldn't have to spend billons on those drug ads that appear during prime time.
Also, software patents wouldn't be a problem because paying an extra 15 cents on your $1 software download isn't going to hurt much.
Trade secrets are INSTANT and FREE .... (Score:2)
http://www.nigeljohnstone.com/archives/2006/02/eu
Complain, Complain, Complain (Score:4, Interesting)
This guy, an actual *professional* in that field, comes up with some ideas and spends the time to think them through, document them, review them with peers, and even has a huge body (IEEE) behind him.
Yet 90% of the posts on here are negative, with absolutely no substantial suggestions that would improve the situation.
Just FYI (Score:3, Informative)
I submitted a correction to
I'm the IEEE Spectrum editor of this article, and for the record the IEEE has made no such proposal. To quote the disclaimer we run with every issue: "The editorial content of IEEE Spectrum magazine does not represent official positions of the IEEE or its organizational units."
Prof Hollaar's ar
The IEEE is not proposing anything (Score:4, Informative)
I'm the IEEE Spectrum editor of this article, and for the record the IEEE has made no such proposal. To quote the disclaimer we run with every issue: "The editorial content of IEEE Spectrum magazine does not represent official positions of the IEEE or its organizational units."
Prof Hollaar's article is funtionally equivalent to an Op-Ed -- as a respected, knowledgedable, and articulate individual, he was given space in the magazine to share a proposal we found noteworthy. We've actually run a lot of articles on the "What To Do With Patents" theme recently, as our contribution to the patent reform debate, with authors advocating ideas ranging from replacing software patents completely with copyright, to more-or-less leaving well enough alone. I think it's great
RTFA (Score:3, Interesting)
After reading the article, the solution proposed is a good solution IMO. A patent granted through this system solves many of the problems with the current patent process.
1. Eliminates the upfront burden on the patent office.
2. A patent is only enforceable if a commercial product is produced by the patentee. That's a biggie. This gets rid of the current batch of "IP" companies, whose sole existance is pumping out patents and litigating. No product, no enforceable patent.
3. The first step in any litigation is an examination by the USPTO.
4. These mini-patents can be challenged via prior art with a small fee.
5. It will help build up the prior art database, which should allow the USPTO to be quicker in making prior art determinations in any examinations they have to do.
Although people might bemoan the fact that this would grant a lot of trivial patents, those same trivial patents also mean that prior art has been established. Those trivial patents are meaningless unless a commercial product is produced. And if it's trivial, then chances are it will be easily refuted upon a full USPTO examination. Which means you've now established both prior art and refuted the patent, both of which can be referenced by the USPTO directly for later patent examinations, which should help them make determinations for prior art quicker.
Since the fee involved with one of these patents is small, it will also mean that people would be free to submit patents for the sole purpose of establishing prior art, even if they have no intent of bringing a product to market. This could be used to actually prevent folks from taking out trivial patents in the future, making a product, and then trying to enforce it, since a prior patent had already been issued. Even if that prior patent is not enforceable, it still establishes the prior art, thus invalidating the subsequent patent.
Would love to see someone's reasoned arguments as to what the pitfalls might be under such a system.
Re:Improve patent quality? (Score:5, Interesting)
TimJowers
Parent
Re:Improve patent quality? (Score:2)
RTFA. He spends a fair amount of time on exactly this.
congrats (Score:2)