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Court Blocks Controversial New Patent Rules

Posted by Zonk on Wed Oct 31, 2007 05:01 PM
from the walking-a-fine-line dept.
Patents Government The Courts News
An anonymous reader writes "InformationWeek is reporting that a court in Virginia has issued an injunction against controversial new patent rules that were supposed to go into effect tomorrow. The court granted a motion filed by GlaxoSmithKline, which is suing the US patent office over the issue. Among other things, the new rules would limit the extent to which existing patent applications can be modified. The patent office says the new rules would speed up the patent process, but critics say they hurt inventors."
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Submission: Court Blocks Controversial New Patent Rules by Anonymous Coward
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  • Playing devil's advocate (Score:4, Interesting)

    by Anonymous Coward on Wednesday October 31 2007, @05:04PM (#21189543)
    Having submitted several patents through my company, I can attest that they need to be rewritten all the time because patent reviewers are idiots. They take a one sentence claim, pick a two 'big' words out it and do a literature search. If those two words appear in any publication remotely related to the field related to your patent, they mark it as prior art.

    • Re:Playing devil's advocate (Score:4, Funny)

      by cromar (1103585) on Wednesday October 31 2007, @05:10PM (#21189617)
      That's interesting. You'd think "one click" would have turned up in their search.
      • I'll give you an example. If you claim you have discovered a novel way to screen for a cancer, say pancreatic cancer, in a tissue sample using some lab technique, say PCR, the patent clerk is going to hand you back the first published article that mentions pancreatic cancer and PCR, even when the paper is discussing something like a pathway involved pancreatic cancer and PCR is mentioned in the materials and methods section.

        I have had patents rejected in very similar circumstances.

        • Re: (Score:3, Insightful)

          by megaditto (982598)
          Don't you think patenting PCR as a tool to screen for cancer is still insanely broad?

          You really should be trying to patent a sequence of your gene transcript (GATTACATACA...) as it applies to pancreatic cancer, and not the entire PCR technique.

          It's not exactly the breakthrough of the century these days that PCR might be used in some way to screen for cancer, you know.
          • I guess my point was that if you refer to common things (to those skilled in the trade) in your claims, you are going to get hit with prior art because the reviewer latches on to those things not understanding what they are. If in your claim you write "for example, pancreatic cancer", they tend to think that is to the focus of the claim when it isn't. The prior art is going to be the thousands of published articles that just happen to mention both those terms.

            Either way, you can take decades old technolog
            • Either way, you can take decades old technology and discover novel, patentable ways to use it.
              A number of people would dispute whether that's an appropriate use of the patent system. For drugs that may only be approved by the FDA for a particular use and that need to go through significant additional testing for new uses, it's debatable that those new uses should be patentable to support the costs of the additional testing required by government regulation.

              But with most patentable items it's the creation of

            • you can take decades old technology and discover novel, patentable ways to use it.
              ... on the internet for example?
      • The obvious key problem being that one is not a very long word. Even click at 5 letters is hardly a big winner for scrabble.

    • Re:Playing devil's advocate (Score:5, Funny)

      by DamnStupidElf (649844) <Fingolfin@linuxmail.org> on Wednesday October 31 2007, @06:21PM (#21190329)
      Having submitted several patents through my company, I can attest that they need to be rewritten all the time because patent reviewers are idiots. They take a one sentence claim, pick a two 'big' words out it and do a literature search. If those two words appear in any publication remotely related to the field related to your patent, they mark it as prior art.

      Hence the patent attempts for "rotational conveyance devices", whatever those are...
        • Because pretending to play devil's advocate as a means to backup Slashdot groupthink gets you modded up. Questioning it gets you modded troll.

  • Bad for inventors? (Score:3, Funny)

    by Anonymous Coward on Wednesday October 31 2007, @05:07PM (#21189581)
    All I hear are the cries of patent trolls saying "Won't someone please think of the children^W inventors!"

    • Re:Bad for inventors? (Score:4, Insightful)

      by Jarjarthejedi (996957) <bookreader13.cox@net> on Wednesday October 31 2007, @05:15PM (#21189663) Journal
      It's the number one way to fight for something that the facts tend to be against. If you're on the wrong side of the facts you can't exactly make an Argument from Logos. You may or may not be able to make an argument from Ethos, depending on how well known you are, patent trolls tend to be unknown or disliked, so they can't use that.

      They're left with just Pathos, trying to get people emotionally rallied behind an argument by asking them to think about what effect (insert strawman that's highly unlikely to happen but sounds like what the other side is arguing for) will have on (insert group that looks small and poor, someone whose life depends on the current system).

      It's the same system the RIAA uses, some argue the government does the same thing (I happen to agree), it's the last argument of those unable to argue from reason, as such it's used a lot by groups who are heavily disliked as they have nothing else to turn to.
  • Name at least one genuine inventor who put in the hard work, personally received at least 10% of license revenues and did not take advantage of other people's work by patenting vaporware and waiting for someone else to build an actual product. Current patent system only benefits large companies by driving startups out of business by requiring prohibitive legal costs to ship any product. Lets cut the crap about benefitting the little guys.
    • Jan Vilcek -> Remicaid.

      • Re:Please... (Score:5, Insightful)

        by iamacat (583406) on Wednesday October 31 2007, @05:23PM (#21189747)
        While he certainly financially benefited from his invention, is it really fair to patent something created on taxpayer dime, student tuition, university equipment and probably work of many (post)graduate students who were not in any way compensated for their contributions?

    • Re:Please... (Score:5, Interesting)

      by steveshaw (690806) <sjshaw@gmCOBOLail.com minus language> on Wednesday October 31 2007, @05:24PM (#21189761)
      I personally know of dozens of "little guys" for whom the patent system has provided massive benefits. I know because I drafted their patents and helped them with the sale/licensing. Ask most any patent attorney and they will have the same report.

      Please stop believing all the /. FUD regarding patents and IP in general.

      On another note, from the perspective of a patent attorney, these Proposed Rules are a nightmare. This Preliminary Injunction was a great thing, and anybody who has any thought of ever filing a patent application should be glad they've been stopped.

      • Re:Please... (Score:5, Insightful)

        by iamacat (583406) on Wednesday October 31 2007, @05:32PM (#21189833)
        Ask most any patent attorney ...

        That's my point about legal costs. Can I afford your services to patent a dozen inventions and then get Microsoft to license one they are infringing on?

        • Re: (Score:2, Interesting)

          by steveshaw (690806)
          Can you afford not to patent your dozen inventions and watch as you release your product(s) and Microsoft simply incorporates them into their latest product(s) without paying you dime 1? The vast majority of companies will not even look at a product for potential licensing unless patent protection is at least an option. Before you even start negotiating with a company, they are going to want to see that you have either filed one or more patent applications or done a prior art search (bad idea, by the way).

          W

          • Re:Please... (Score:5, Insightful)

            by vertinox (846076) on Wednesday October 31 2007, @06:02PM (#21190159)
            Can you afford not to patent your dozen inventions and watch as you release your product(s) and Microsoft simply incorporates them into their latest product(s) without paying you dime 1?

            Not if you don't have enough money to pay for patent lawyers to outlast their patent lawyers. If it is Microsoft we are talking about, I bet they could drag the case out for years without paying a dime while you're burning away my life savings paying a lawyer. You might win, but then they'll keep appealing and try to get you to settle.

            The point of this issue is that when you have that much money to kill you can get your way no matter what.

            • If it is Microsoft we are talking about, I bet they could drag the case out for years without paying a dime while you're burning away my life savings paying a lawyer. You might win, but then they'll keep appealing and try to get you to settle. The point of this issue is that when you have that much money to kill you can get your way no matter what.

              But that isn't limited to Patent law. It's true for all areas of the law, but I can tell you from experience that it isn't as pronounced a problem in Patent law

            • The point of this issue is that when you have that much money to kill you can get your way no matter what.

              That doesn't seem to have worked against Eolas yet.

              Generally though I agree; in any non-trivial case, victory often goes to the side with the deepest pockets. That's true of more than just patent disputes though, and is a problem with your legal system, not your patent system.

          • Re:Please... (Score:4, Insightful)

            by rmerry72 (934528) on Wednesday October 31 2007, @06:25PM (#21190369) Homepage

            Legal costs are simply part of doing business in a civilized society that uses courts of law to protect rights and enforce standards of conduct. You seem like a smart guy, draft your own patent applications if you can't afford my expertise.

            The fact that an ordinary smart guy can't draft their own patent applications - as you imply - demonstrates the fallacy that this great society is so civilised. If an ordinary "smart" Joe can't file the appropriate paperwork to protect his efforts and concerns of being swamped then I put forward the system has failed.

            The fact that an ordinary nuclear family "needs" a financial advisor just to get them through the hurdles of our financial system in order to get ahead, demonstrates a large failure of our financial system. Think of it as a computer system that needs a large number of sys admins and programmers just to keep the thing running and how poorly designed we all know them to be (how many of them have we bemoaned). Good systems run themselves providing efficiencies of scale with minimal overheads. Civic systems are the same else they are of little good to the little guy.

            Who would own a car if you needed a mechanic to spend an hour a day performing maintainence on it for you and a driver to operate it? Not the ordinary person. Only rich folk and corporations would use them - as they once did in the early days.

            Patent system is the same. If it's harder to file a patent claim then it is to invent new technologies and products then there is little money to be gained from releasing your invention into the wild. That's why I build systems for myself, my family and friends. Somebody else can come up with their own ideas for the rest of humanity.

            • Um, what? Your whole post reads like a non sequitur. I mean, a few hours a year with a professional finance guy or getting a patent lawyer isn't equivalent to an hour a day and a driver for a car. You probably spend more on your car in a year than you would pay for filing a patent, which according to a friend of the family, that is a patent attorney, most of the cost is searching existing patents to make sure it hasn't already been filed.

              I don't understand how your mention of "building systems" is even re

              • Re: (Score:2, Insightful)

                by rmerry72 (934528)

                You probably spend more on your car in a year than you would pay for filing a patent.

                I'd bloody well hope so, but then my car is a valuable tool I - and most other people in the free world - use daily to go about our lives. A patent is not.

                I don't understand how your mention of "building systems" is even relevant. It's not that special of an idea. You screw together a few parts, none of those parts are anything you could possibly make on your own.

                It's the KISS principle, mate. Any moron can screw togeth

      • Re: (Score:3, Insightful)

        by Anonymous Coward
        Well, let's see... you:

        1) have avoided the question by not naming even one such person/patent as the parent requested

        2) have a huge vested interest, as you depend upon the existing patent system, and your experience in navigating its legalities, to make a living

        Why should we take your entirely unsubstantiated assertion as anything else?
        • Well, let's see...

          1. The identity of my clients is protected by attorney/client privilege; and

          2. I don't practice patent law in my current position, so I don't have a vested interest in it to make a living.

          Any other completely asinine comments you wish to make that have no real relation whatsoever to my original post other than to serve as a pathetic attempt to discredit the messenger?

          • Re: (Score:2, Insightful)

            by Anonymous Coward
            "Any other completely asinine comments you wish to make that have no real relation whatsoever to my original post other than to serve as a pathetic attempt to discredit the messenger?"

            Considering how asinine your original post was, and its refusal (which you prolong) to answer the question to which it pretended to reply, you're in no position to feign the high ground.

            As the first poster expressed, the patent system as it exists is primarily to the benefit of the already wealthy. He/she asked for a countere

            • The fact that you have presented yourself as a former patent attorney (in an appeal to authority, hoping it will give your arguments more force) is particularly damning since absolutely nothing in your argument follows from that by necessity -- except, of course, your unsupported and meaningless claim to 'personally know of dozens of "little guys" for whom the patent system has provided massive benefits.'

              You mean except the claim that is both directly relevant to and directly answers the question you accus

      • Re:Please... (Score:4, Insightful)

        by Anonymous Coward on Wednesday October 31 2007, @06:10PM (#21190217)

        Please stop believing all the /. FUD regarding patents and IP in general.
        There are plenty of examples where the current system is failing to do its job. That isn't FUD, it's reality. There is something very wrong with the way patents are being issued/approved that makes it far too easy to prevent innovation because of an overly vague patent claim. That of course, is contrary to the purpose of a patent. To give an inventor extra incentive to innovate; this is null and void if an ultra-broad patent claim encompasses all conceivable combinations none of which were discovered by the owner of the patent.

        • Re: (Score:3, Informative)

          by steveshaw (690806)

          Sorry to be blunt, but realistically as a patent attorney I imagine you're interested in cramming as many patents through the system as you can find clients to charge for them. I would definitely argue that the convenience of patent attorneys and everybody who's got an idea they just really think is great is not something the public should be overly concerned about. There are bigger issues at stake.

          Well, you would be wrong about what I was interested in when I drafted and prosecuted patents, but I don't

  • A much better explanation of this case: (Score:5, Informative)

    by KiahZero (610862) on Wednesday October 31 2007, @05:15PM (#21189661)
    http://www.patentlyo.com/patent/2007/10/surprise-pto-co.html [patentlyo.com]

    Interesting that there were no amicus briefs for the Patent Office.

  • Capitalism requires clear ownership (Score:4, Insightful)

    by whoever57 (658626) on Wednesday October 31 2007, @05:21PM (#21189735) Journal
    One of the tenets of the capitalist system is clear ownership of property. How can one invest if the ownership can be taken away.

    Yet, the current patent system dies exactly this. The abuses that are possible under the current system allow for someone to develop a product and later, through the monopoly granted under the patent system, effectively have that intellectual property taken away.

    The problems are many: submarine patents, the fact that the possible award of punitive damages discourages searches for pre-existing patents, the over-broad patents that may or may not apply. Uncertainty kills investment and the current patent system provides plenty of uncertainty.

      • The government grants me a monopoly right to my house. If someone else tries to live in it, I can call the police and have them thrown out. I can even shoot them with government permission if they refuse to leave. Does that mean it's not property?

        • You clearly don't know what rivalrous means. (Score:2, Informative)

          by Anonymous Coward
          > The government grants me a monopoly right to my house. If someone else tries to live in it, I can call the police and have them thrown out. I can even shoot them with government permission if they refuse to leave. Does that mean it's not property?

          I think you totally misunderstood what a "rivalrous" good is. Rivalrous is what your house is. Think of a shirt: two people can't wear it at the same time and three is right out. That's why it's rivalrous: multiple users interfere with each other.

          The mono
        • but if your house is exactly like somebody else's you've never seen the govt can't TAKE it away from you... IF you used somebody's patent in your new house YOU bought and paid for, then that's EXACTLY what happens... with software that happens a LOT.

  • I'm curious... (Score:3, Interesting)

    by wizardforce (1005805) on Wednesday October 31 2007, @05:28PM (#21189791) Journal

    The new rules are intended to speed patent reviews by the chronically understaffed USPTO. Among other things, they limit so-called "continuing applications" through which inventors can modify existing patent applications. Murphy said the new rules would "severely limit the level of patent coverage you can get for an invention" if they are allowed to take effect.
    so basically the argument that is being made is that if company A patents a technology/drug whatever and finds a new use for it they can extend the patent to include that finding? To what end?

    The drug manufacturer contends that it, and other companies that invest heavily in research and development, needs the freedom to broaden their patent claims when new applications for their inventions are discovered.
    so if someone other than them discovers a new application of their drug, who gets the rights to that finding? the company that developed the drug in the first place or the one that made use of it in a compeltely new way?
    • If you're genuinely curious about this, feel free to shoot me an email. The explanation is beyond the scope of a /. post, at least it is for me right now.

    • Re:I'm curious... (Score:4, Informative)

      by Janthkin (32289) on Wednesday October 31 2007, @06:04PM (#21190173) Homepage
      so basically the argument that is being made is that if company A patents a technology/drug whatever and finds a new use for it they can extend the patent to include that finding? To what end?

      Here's the 10 cent version: continuations are used when:
      a) your inventor comes up with a new way of extending his invention (continuation in part);
      b) you disclosed multiple distinct inventions in the original application, but only filed claims at one of them (continuation);
      c) the patent office is being dense, and you have to argue your claims repeatedly (request for continuing examination); or
      d) the patent office grants some of your claims, and you want to get an issued patent AND continue to argue about the others (continuation).

      • Here's the 10 cent version: continuations are used when: a) your inventor comes up with a new way of extending his invention (continuation in part); b) you disclosed multiple distinct inventions in the original application, but only filed claims at one of them (continuation); c) the patent office is being dense, and you have to argue your claims repeatedly (request for continuing examination); or d) the patent office grants some of your claims, and you want to get an issued patent AND continue to argue abou

      • I am not a lawyer, but my take on this is:

        Here's the 10 cent version: continuations are used when:
        a) your inventor comes up with a new way of extending his invention (continuation in part);

        That sounds to me like it should be a completely new patent application.

        b) you disclosed multiple distinct inventions in the original application, but only filed claims at one of them (continuation);

        That too sounds like you should have to file a new application for the new inventions.

        c) the patent office is being de

      • this sounds like it's directly to address what guys like lemmelson did. They would create an over broad, but unrealized application, then manipulate the patent later to include what they see other people doing that's only tangent to the original patent. That defeats the purpose of publishing the patent for other people to build from if those future inventions that might be "clean" can be "stolen" when they change the published patent after the fact.
    • The short answer is that finding a new use for an invention has never meant that the invention itself could be patented for longer. However, a new patent for the method of using the item could be patentable.

      Example that I am dredging up from my (sometimes inaccurate) memory of the MPEP: A shoe polish compound that is well known in the prior art is discovered to have a new use in repelling insects that was not previously known. Since this is an inherent property of the shoe polish the discoverer cannot get
  • The patent office says the new rules would speed up the patent process, but critics say they hurt inventors.

    Inventors? Or just multi-billion-dollar transnational conglomerates?

    • The patent office says the new rules would speed up the patent process, but critics say they hurt inventors.

      Inventors? Or just multi-billion-dollar transnational conglomerates?

      Multi-billion-dollar transnational conglomerates tend to hire a lot of inventors. Some of them do use patents as a key part of their business model [industryweek.com]. It is likely that efforts that undercut such business models would mean that such companies would be less effective at capitalizing on the innovations produced by their inventor

  • What percentage of patent filers in the last few years were by inventors? 10%? Any intelligent guesses?
    • 100%. That's the law. Only inventors can file patent applications.

      Oh, did you mean "What percentage of patents rights were *assigned* to individual inventors?" Probably a lot less. How many individual inventors received compensation for this patent right assignment beyond their salaries? Somewhat more.

      What, exactly, is your point?

  • ...the fraudulent support for software patents, as software is in no way material of patentable character.

    Once that is done, the patent office will have more time to spend on patent applications that do have patentable material.

    Software is of abstract ideas, natural law and physical phenomenon, and of this a sub set is mathematical algorithms of which all four of these areas are universally considered NON-PATENTABLE!

    see Abstraction Physics [abstractionphysics.net] for the fundamentals.
  • Why oh Why are the courts involved at all?

    As the Constitution clearly enumerates Patents and Copyrights are the exclusive domain of Congress. Ostensibly they can grant patents, take them away, and establish an agency with congressional oversight to regulate the patent process.

    If this isn't a judge specificaly appointed by Congress to Adjudicate the Patent process, I have a hard time believing this injunction is going to last.

    • Why oh Why are the courts involved at all?

      Checks and balances again. The courts are involved because Congress, once again, dropped the goddamn ball.

      You know, when dogs get rabies, becoming irrational and dangerous to humans, they are taken out and shot. Congress may or may not have rabies (although some its members often act like they do) but they have certainly become irrational and dangerous. What are we going to do about them? Shoot votes at them?

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