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Reform Could Kill EFF "Patent Busting Project"

Posted by kdawson on Tue Feb 05, 2008 05:33 PM
from the shooting-the-messenger dept.
Patents
netbuzz alerts us to a letter the EFF sent today to Senators Leahy and Specter pointing out a deleterious clause in the current draft of the Patent Reform Act of 2007 — which EFF generally supports. As written, the proposal would kill the EFF's Patent Busting Project. Fine print in the bill would limit the time in which a patent could be challenged, by anyone other than those suffering direct financial harm, to one year after the patent's grant. Since the EFF is non-profit it would have a hard time showing financial harm.
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Submission: 'Reform' could kill EFF's 'Patent Busting Project' by netbuzz (955038)
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  • What about consumers? (Score:5, Interesting)

    by Icarus1919 (802533) on Tuesday February 05 2008, @05:35PM (#22313868)
    Couldn't ALL consumers demonstrate financial harm? Stupid patents drive up prices, directly affecting ALL of us.
    • Yes, but there's latency in the system, so that the harm may not be visible within the year, and the majority of the harm will be indirect. Actually, since an invention supposedly does something new, it will be extremely hard to prove direct harm of any kind - even from other corporations, as it's unlikely they're going to be harmed by buying a new component. A new system containing the component, yes, but that is indirect and so they have no redress under this. I'm actually quite puzzled as to who would be

      • If you just wait a year, then sue everyone, no one will be able to challange the patent. You could even say for the first year it is free, so no one can claim financial damage. After that, no one can challange the patent.

        I think you're reading it wrong. For the first year, anyone can claim harm. After that, only those financially harmed (ie, sued, or otherwise prevented from competing) could claim harm. So it's bad, just not quite that bad.

        Still, how does one prevent the EFF folks from starting a sist

        • They would have to create one corp for each bogus-patent in case they loose!
          And if they loose, they would then have to prove that that loosing corp is not the EFF itself.

          • They would have to create one corp for each bogus-patent in case they lose!

            Don't think so. Until they try to market the thing, nobody could claim damages against them, so I don't see a legal reason the same company couldn't make a bunch of the.

            And if they loose, they would then have to prove that that loosing corp is not the EFF itself.

            Nothing to prove. It would be a separate company that so happens to have a lot of the same members. Hell, a lot of nonprofits do the same.

        • Re:Gaming the system? (Score:4, Insightful)

          by Jeremi (14640) on Tuesday February 05 2008, @08:01PM (#22315752) Homepage
          Still, how does one prevent the EFF folks from starting a sister corporation who creates a prototype of a potentially infringing device and claiming 'harm' since they can't sell it?


          I think it's easier than that.... the EFF just needs to compile prior-art information and post it on a public web site, and if and when the patent troll tries to sue anybody, the people/companies being sued (and who are thus "being harmed") already have their case researched for them.

            • Re: (Score:3, Interesting)

              by Z00L00K (682162)
              Sadistic mode:

              An alternative way to game back is to contest every patent granted as soon as the grant comes out by claiming the "Obviousness" and "Prior art" statements. Just make a short use of Google and most patents will fall short. At least that may make the patent office saturated enough to keep their heads down.

              One alternative is to use the Amazon Mechanical Turk [mturk.com] to get help to hunt for stupid patents. Just raise some money first.

  • Who writes this stuff? (Score:5, Insightful)

    by Bryansix (761547) on Tuesday February 05 2008, @05:36PM (#22313888) Homepage
    We need line by line, letter by letter editing comments for bills. I want to know which dumbass sneaked this into the Bill.
    • I want to know which dumbass sneaked this into the Bill.

      Perhaps that dumbass over there checking his balance on the ATM?

      rj

    • Re:Who writes this stuff? (Score:5, Funny)

      by ClamIAm (926466) on Tuesday February 05 2008, @06:37PM (#22314722)
      I think this idea is more insightful than funny, even if the mods appear to be 50/50 on either side at the moment. Anyway...

      I like this idea. It's pretty much the equivalent of applying CVS to the legislative process. Then people can run 'diff' on all the idiotic parts of bills, and find out who's responsible.

      I suppose revolutionary types could then claim "we're not rebelling, we're just a fork!"...

    • Re: (Score:2, Interesting)

      by ohtani (154270)
      WikiBill?

    • Re:Who writes this stuff? (Score:5, Interesting)

      by elsilver (85140) on Tuesday February 05 2008, @07:07PM (#22315096) Homepage
      Good god, no you don't.

      What you want is bills that are accepted or rejected wholesale, as-is, unmodified.

      The last thing you want is to make it easier for someone to add unrelated ammendments, or insert language that totally changes the meaning of the bill. Line-by-line, letter-by-letter editing would make doing this much easier, than the already easy "I submit an ammendment to prepend section 12, subsection (viii), item Q with the word 'not'".

      Bills should be submitted in a take-it-or-leave it fashion. If you think you've got an improvement, submit a whole bill with that improvement and convince the original submitter to withdraw their bill.

      Enough mucking around with pet causes and unassociated pork-barrelling (now, associated pork-barrelling -- that's good and all).

      Anyhow, what do I know. I'm Canadian. You just go keep running your country the way you want to.

      E.

      • Re:Who writes this stuff? (Score:5, Insightful)

        by arb phd slp (1144717) on Tuesday February 05 2008, @07:52PM (#22315632) Homepage Journal
        Once we add CVS and source control the next thing we need is a compiler that actually turns the bill into a final form so that the "not" and "amended to add..." gets added into the sentences so we can see them in context instead of hundreds of pages away.

        The reason no one reads the PATRIOT act is because it's almost all partial-sentence amendments to existing laws that are you can't see in context without access to a law library. Compile the source code of the nation so we can read it!

      • Re: (Score:3, Interesting)

        by Ronin Developer (67677)
        The ability to perform a line by line veto (vs actually line by line editing) is something the President has been asking for over his administration. While a LBL would solve some problems, I believe it's the riders that get attached to a bill that are the real issue. If the President should line veto anything, the entire bill (riders and all) should be rejected/vetoed. The LBL should simply be an indication to Congress that this is something the President would probaboy sign and send it back to the Hous

    • We need line by line, letter by letter editing comments for bills. I want to know which dumbass sneaked this into the Bill.

      Corporate lackeys writes them. What we need for bills are for them to be written so most people can read one within a few minutes and understand it. Of course congress critters have to be able to justify spending so much tyme in Washington so they don't have to work for a living. I propose an amendment to the Constitution of the USA that, like Texas, congress can only be in sessio

    • Re: (Score:3, Informative)

      by OldeTimeGeek (725417)
      Well, you could look here [govtrack.us]

      The amendments - with who submitted them - are here [govtrack.us]

  • Financial harm? (Score:2, Insightful)

    by Anonymous Coward
    Err, what? Of course non-profits can suffer financial harm. Do you think they can't be sued, for example, or stolen from, or anything like that? What can't happen is that their profits are diminished - since they haven't got any -, but they sure can be harmed financially.

  • How is financial harm defined ? (Score:5, Insightful)

    by Alain Williams (2972) on Tuesday February 05 2008, @05:52PM (#22314166) Homepage

    Fine print in the bill would limit the time in which a patent could be challenged, by anyone other than those suffering direct financial harm, to one year after the patent's grant.

    Simple: The EFF buy one copy of software from someone who has had to pay patent extortion. The price that the EFF paid was presumably higher than it would have been if the software house did not have to pay patent dues ... thus the EFF has suffered financially.

    Play these parasites at their own game!

    • Surprise, summary was misleading... (Score:5, Informative)

      by Actually, I do RTFA (1058596) on Tuesday February 05 2008, @05:59PM (#22314264)

      Simple: The EFF buy one copy of software from someone who has had to pay patent extortion. The price that the EFF paid was presumably higher than it would have been if the software house did not have to pay patent dues ... thus the EFF has suffered financially.

      The problem is that the standard is not, as the summary claims " anyone... suffering direct financial harm." Instead, the law is about third-party challenges. In other words, the only way after one year to challenge a patent would as a defense once sued over said patent.

      • ...which brings us to the article/debate posted on /. earlier today...

      • ..... to challenge a patent would as a defense once sued over said patent.....

        So then all the EFF has to do is advertise far and wide that they will defend any victim of a patent troll that tries extortion based on a prior art patent that should never have been granted in the first place. If such a troll sues, the EFF comes with all its researched prior art and skilled lawyers to invalidate the patent.

  • patent incontestability is so bad (Score:5, Insightful)

    by waterbear (190559) on Tuesday February 05 2008, @05:52PM (#22314168)
    The last thing the world needs is incontestable rights that were wrongly granted in the first place.

    I can just hear the bill's defenders saying 'but this limitation would not be incontestability'. But patents are rights that can be asserted against the public generally. So this limitation on who can contest them, would be incontestability by a large section of the persons affected by the rights.

    -wb-

    • The last thing the world needs is incontestable rights that were wrongly granted in the first place.

      I can just hear the bill's defenders saying 'but this limitation would not be incontestability'. But patents are rights that can be asserted against the public generally. So this limitation on who can contest them, would be incontestability by a large section of the persons affected by the rights.

      A patent only grants the holder the presumption of validity. If they ever wish to assert their patent rights,

  • is themselves. They'll end up enslaving themselves. What are these senators thinking? How can this be good for America?

  • Second Patent Office (Score:5, Interesting)

    by steveha (103154) on Tuesday February 05 2008, @06:13PM (#22314446) Homepage
    I suggest that what we really need is a second Patent Office. The first one can go on granting patents as usual. The second one's mission will be to invalidate and throw out as many patents as it can. Patent examiners in the second one will be paid bonuses according to how many patents they manage to invalidate.

    I'm kidding... but only partly. The more I think about this, the more I like it.

    steveha

    • An oversight unit (Score:5, Interesting)

      by jd (1658) <imipak@yahCOFFEEoo.com minus caffeine> on Tuesday February 05 2008, @06:25PM (#22314584) Homepage Journal
      ...would definitely be a good idea. Actually, I'd have two new units, plus the original. You'd then have a pro-active team that actively opposes every patent that is submitted, seeking any possible prior art, any possible flaw, and taking in any filed preliminary challenges in the pre-patent cooling-off time. If the patent makes it through that, it then gets the "gentle" treatment from the regular patent folk. The third unit, the overseers, challenge both subordinate units to prove their points and prove their cases. Anything that gets through the system intact should be entitled to be challenged by anyone, but that challenge may be thrown out without hearing if it's a point already answered within the above chain. Existing patents would then be resubmitted but deemed valid until clearly shown otherwise by the first stage. Historic patents, no longer valid but of major public interest, should periodically be thrown through the same test to see if their granting was actually lawful. Less for any purpose of redress and more as an educational experience.

    • Re:Second Patent Office (Score:5, Insightful)

      by John Whitley (6067) on Tuesday February 05 2008, @06:43PM (#22314796) Homepage
      Heh, I've been making a similar quip/thought-experiment for a long time about having a "de-legislature", the only function of which is to remove law from the books.

      But the real problem with both of these ideas is that the existing organizations (legislatures, the USPTO, etc.) really just need to operate for the good of individual citizens, without undue influence by the desires of powerful individuals, organizations, or corporations.

      Taking my de-legislature case as an example, it'd be just as bad/good as the original depending on the level/lack of influence by external power influences. A corrupt de-legislature removing laws inconvenient to the powerful would be a pretty awful thing. The same problem applies to a corrupt "office of patent revocation"; it'd just make matters even worse than they already are.

      • Re:Second Patent Office (Score:5, Interesting)

        by afidel (530433) on Tuesday February 05 2008, @07:04PM (#22315050)
        Actually I like the idea of a constitutional amendment making all Congressional Bills have an automatic sunset clause of say 10 years and require that all bills be read into law in a Congressional session. That way the legislature has to decide that a bill is still worth the effort to renew. Not only that but it conveniently also limits the size of the law by limiting it to what can be read in x hours. If the founding fathers had any idea how large the federal government would become I'm fairly sure they would have included some similar clause to naturally limit its growth.
        • Now THAT is a wonderful idea. Make everything sunset after 10 years, and make them read the bill aloud prior to the vote.

          One tweak: no vote unless they all stay and sit through the ENTIRE reading. One leaves, even for bathroom break, and it starts over from the beginning.

          And any bill with criminal penalties must have a 3/4 supermajority rather than a simple majority. But repeals only require 25% + 1 vote.
          • Requiring all members of Congress to be present for the entire reading would be a bit ungainly, even in the time of the founders other matters of state or travel might have precluded members from being present. However I DO like the idea of requiring members be present during the reading in order to vote on the measure, perhaps give bio-breaks every 4 hours to make it workable.
    • I think we could use Frank Herbert's "Ministry of Sabotage".

      A goverment agency who's job is to try and keep other agencies, within the same goverment, from gaining power.

  • Solution! I got it! (Score:5, Interesting)

    by MobyDisk (75490) on Tuesday February 05 2008, @06:14PM (#22314452) Homepage
    We should make the patent office liable for damages done and court costs for the bogus patents they issue. They only started rubber-stamping business methods and software patents when they were required to generate revenue. So stop the revenue stream.
  • what you've said it means. The EFF still makes money. It's just got to do some accounting and spending to make sure that it falls within the IRS' definition of a non-profit.

    The problem is EFF isn't in the business of making all the products or offering all the services the patents they're going after cover.
    • Yeah... here in Pittsburgh we have UPMC (University of Pittsburgh Medical Center) that is officially a non-profit, but operates several big hospitals AND an insurance plan. They had "non-profits" last year of over $1 billion (with a B).

  • Just because you are a non-profit organization doesn't mean you aren't harmed. Say you had a cash flow of $2,000. that means 2,000 came in and 2,000 went out. If a "bad" patent caused harm then the cash flow would have been $1,500, instead you spent 2,000. You were harmed to the tune of $500. Whether you show a profit, break even or loose money on you balance sheet doesn't affect whether or not the "bad" patent caused you harm it just affects the final numbers. I can see how this would limit the EFF effort
    • The article summary (surprise) wasn't well written or edited.

      The issue that the EFF would have is that since, as a non-profit engaged in advocacy, they're not likely to be directly financially harmed by most patents. It's not like the EFF sells less software or something due to software patents.

    • Re: (Score:3, Insightful)

      by XaXXon (202882)
      Let's also be clear that "non-profit" does NOT mean "does not make money". It has to do with what your goals are. In a for-profit company, your goal is to make money for yourself or your stock holders or whatever. For a non-profit, your goals relate to the betterment of the community you serve. "Non-profit" actually has very little to do with money. Many non-profits have vast sums of money in trust. In fact, if you spend all your money, you're probably not doing a very good job.
  • 1 year from time of filing to protest? That's not good. Then most companies will wait 1 year before suing anyone since they'll be generally safer from challenges. There should be no limit on challenges. If a patent is bogus, it should be challengable by anyone at anytime.

    Thanks,
    Leabre

  • New Patent troll scheme... (Score:3, Interesting)

    by advocate_one (662832) on Wednesday February 06 2008, @01:49AM (#22318046)
    this proposed bill will make it unbelievably difficult to stop patent trolls...

    1. Get stupidly obvious patent
    2. Wait 1 year and a day
    3. Sue everybody in sight
    4. ??????
    5. Profit...

    • Re:Dangerous!!!! (Score:4, Insightful)

      by ScrewMaster (602015) on Tuesday February 05 2008, @06:24PM (#22314554)
      Have we been bought and sold again fellow netizens?

      Left to themselves Congresspeople generally aren't too bad ... it's the undue influence that's causing most of the problems.

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