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FTC Issues Report Critical Of Patent Policy 206

Posted by simoniker
from the patent-leathered dept.
hayek writes "The Federal Trade Commission issued a report yesterday regarding failings in current U.S. patent policy. Among other things, the FTC recommends that the burden of proof on parties challenging patents in court be lowered from the current 'clear and convincing' standard, to the easier 'preponderance of the evidence' standard. Even if you don't think the FTC recommendations go far enough, implementing them would be a good start to solving some of the problems caused by the current system." nolife points out a report at Law.com indicating that, under the current system, "Patent examiners have from 8 to 25 hours to read and understand each application, search for prior art, evaluate patentability, communicate with the applicant, work out necessary revisions, and reach and write up conclusions."
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FTC Issues Report Critical Of Patent Policy

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  • It's true (Score:5, Insightful)

    by r_glen (679664) on Wednesday October 29, 2003 @08:20PM (#7343328)
    When Amazon can patent simple online sales methods [slashdot.org], you know there's a problem with the process.
  • by Anonymous Coward on Wednesday October 29, 2003 @08:22PM (#7343345)
    ...oh, I'd say somewhere from ZERO [uspto.gov] to 25 hours to read a patent.

    It's an oldie but a goodie.
  • First Post! (Score:4, Funny)

    by moquist (233465) on Wednesday October 29, 2003 @08:25PM (#7343360) Homepage
    First Post (TM). Patent pending... damn. I see evidence of prior art.
    • by Xeth (614132)
      Not necessarily. If Patent Office employees won't spend more than 25 hours reviewing a patent that costs thousands of dollars to apply for, do you really think they'll read at -1?
  • by melangeboi (664072) on Wednesday October 29, 2003 @08:28PM (#7343371) Homepage
    Luckily the government is doing something that isnt for corporate interests and Bush campaign donors. I wonder which public servant is going to be asked for a resignation tommorrow? "Only one thing is impossible for God: to find any sense in any copyright law on the planet . . . Whenever a copyright law is to be made or altered, then the idiots assemble." -- Mark Twain
    • Luckily the government is doing something that isnt for corporate interests and Bush campaign donors.

      Actually, this is in general good for corporate interests. It's Ebay who is being forced to shell out millions for a trivial patent. Ditto Microsoft. Ditto Sun. Just as Ford spent decades trying to invalidate the automobile patent, and thousands of other companies forced to pay legal fees and licensing fees to use ideas they would have come up with without any input from the patenter. The patent syste
    • by Brandybuck (704397) on Wednesday October 29, 2003 @10:32PM (#7344150) Homepage Journal
      Bush campaign donors

      <rant>
      Take your damned blinders off and join the real world. Yes, Bush had a lot of big campaign donors. So did Gore. So does every candidate. Maybe Nader didn't take any from for-profit corporations, but he's far from clean in the "no special interests" department.

      Yeah, as you can tell, you just hit my hot button. It's been getting hotter over the last year, and it finally blew. You're the lucky one I get to spew on. This isn't directed at Democrats, because the Republicans do the exact same thing when they don't have a president in office.

      I'm sick and tired of this football mentality the US has about politics. You act like it's a damned football game, rooting for the home team and booing the visiting team. If you're a Democrat then your attitude is that a Republican president can do nothing right. If you're a Republican, then off course the Democratic incumbent is Evil Incarnate. Both sides seem to forget that there's very little real difference between the two.

      Is [Clinton|Bush] really at fault for every evil in the world? You guys certainly act like it.

      Would we still have this patent problem if Gore was in office? Of course we would, you nimwits! Would we still have the MPAA and RIAA? Considering the overwhelming support those two organizations have among Democratic office holders, the answer is again an obvious yes. Would we still be in Iraq? Considering Clinton's military activity, if Gore was anything like him we would be knee deep in conflict somewhere. The only difference would be a higher probability of UN support. BFD!

      Now if Buchanan, Nader or Brown had won the election (by some miracle), then things would have been different. But they still wouldn't provide the perfect paradise everyone claims Bush is denying to them.

      Sidenote: Someone I know made his opinion known in a very emotional way. "Evil #$*&% stupid $&@# Republicans!", he said. Then ten minutes later in the conversation, "I can't understand why my mom voted for Bush." Did he realize he just called his mother "Evil #$*&% stupid $&@#"? I somehow doubt it.

      I don't like Bush. I voted for Brown (while holding my nose). Bush isn't my "home team quarterback". But that's no excuse for me to insert some jab at him with every post I make. All it does for you is to proclaim your home team allegiance. Nothing more.
      • Except for Labor, every economic sector spoke with its money [opensecrets.org] saying Bush would serve its interests better. They were proved right when the anti-trust case against Microsoft fell apart. They were proved right when the EPA got eviscerated and polluters got free rein. They were proved right when Cheney visited the CIA to say "you aren't looking hard enough" to agents who couldn't find the evidence to support the case for a war for the energy industry's benefit in Iraq.

        No, Gore wouldn't have been perfect.

    • Luckily the government is doing something that isnt for corporate interests and Bush campaign donors

      Because, obviously, everything the Bush administration does is inherently evil. Right?

      If 9/11 had happened under a democratic administration all the same "attacks on freedom" would be happening, except the vitriol would be directed at Gore.

      I may be naive, but the further the net develops, the more freedom is created.

      /troll
    • ...who take a bulk of money from the **AA's, not to mention a HUGE bulk from the legal profession in general.

      I'm not saying the Republicans are any better. They might be, but I don't know how you can honestly sit there with such shock as to how this administration might disagee with an oppressive policy that happened to be installed by the last administration and happened to benefit the last administration's contributors. (It's right there on OpenSecrets.org)

      Can you break out of the political dich
  • by jeeves99 (187755) * on Wednesday October 29, 2003 @08:29PM (#7343378)
    "Patent examiners have from 8 to 25 hours to read and understand each application, search for prior art, evaluate patentability, communicate with the applicant, work out necessary revisions, and reach and write up conclusions."

    These are government workers people. You forget that they get coffee every 2 hours, a smoke break every hour, a pastry diversion every 3 hours, and spend 1 out of every 5 minutes keeping the perpetual-motion machine running.
  • Simple solution... (Score:4, Interesting)

    by Anonymous Coward on Wednesday October 29, 2003 @08:31PM (#7343391)
    Force a rather large deposit. If the patent is found to clearly be invalid, don't return the deposit for wasting the examiner's time. To keep this from hurting small inventors, make it only apply to organizations applying for more than 3 in a year.
    • by El Cubano (631386)

      Force a rather large deposit. If the patent is found to clearly be invalid, don't return the deposit for wasting the examiner's time. To keep this from hurting small inventors, make it only apply to organizations applying for more than 3 in a year.

      Two problems:

      • Makes it very difficult for someone little startup capital who has a legitimate process/patentat device
      • What's to stop a company like Amazon having their employees file the application as individuals and then signing it over or exclusively licens
      • What's to stop a company like Amazon having their employees file the application as individuals and then signing it over or exclusively licensing it to the company.

        Well, the easy solution would be to declare it impossible for nonintelligent entities to posses intellectual property. The company can make use of its employee's resources, and can license out its employees services (the patent), but the company cannot own the patent itself. As an added bonus, the inventors who make the company work have guar
      • Currently the patent system is not friendly to small startups anyway. So there is little to lose.

        The deposit should be in the order of $2000. Any company/individual that has any chance whatsoever of succeeding in the real world must be able to raise that amount of capital to lock down their IP. And anyone who is filing more than a handful of patents is either a giant corporate or a serial patent wanker.

        However, don't call it a deposit - call it a bounty. When you file your patent, you put it up. If anyo

    • Interesting idea, but it would have to be quite a large deposit. Consider how many man hours (lawyer man hours at that) go into writing a claim. In order to deter any corporation the deposit would proably have to be 10x that.

      Another tweak towards making it easier for good patents, but not bad one, would be if you took an approach simular to EPA inspections, where your first patent requires little or no deposit, but after every rejection, the deposit amount doubles. Have the amount decay at a slow rate, to
      • The USPTO already has an increasing fee scale for requests for reexamination of patents, and it has a lower "small entity" rate. Of course, this only applies to the one patent. If you carry the penalty over for any new patents filed by the same entity, you could have the desired effect by penalizing a suspect patenting agency.

        On the other hand, many patents are sent back because the application was missing a drawing, or something was poorly labled. If you carry over penalties, then you'd horribly penali
    • How large is large for the deposit amount? We already charge different rates based on whether the application comes from a "small entity":

      (a) Basic fee for filing each application for an original patent, except provisional, design, or plant applications:

      By a small entity (Sec. 1.27(a)) ----$385.00

      By other than a small entity --------$770.00

      This is straight off the USPTO website, and is for the initial filing fee only. There are a host of other charges (such as requests for re-examination

      • The other thing that needs to happen is the re-enacting the requirement that a working model of the invention MUST be demonstrated as part of the patent application

        Sadly, this will never happen as the patent system now stands because how do you prototype a "business process".

        The only change in this field that I can think of that would have better than a snowball's chance in Hell would be to establish a software patent class, with fitting restrictions for software:

        1 - a software program cannot infringe o
  • by rifftide (679288) on Wednesday October 29, 2003 @08:32PM (#7343392)
    Is there a reason why patent claims aren't posted on the www for public comment before they're approved? I can't think of any.
  • Yup! (Score:4, Insightful)

    by twistedcubic (577194) on Wednesday October 29, 2003 @08:38PM (#7343445)
    Now that Microsoft lost a patent lawsuit it's time to fix the system! Sorry to be so cynical, but it looks to me like the Eolas (sp?) case was a godsend.
    • You're not seeing the big picture.

      Sure, this dork extorted $ from M$...

      But it's a dirt dumb patent... a schoolchild could come up with the idea easily and then (if funded) pay some smart patent lawyers to patent it, and make it as brodly reaching as possible.

      My conclusion:

      (patents/copyright are now detrimental to innovation)
    • If you want cynical, consider this:

      Microsoft doesn't WANT to fight Eolas. Eolas can't even dent their $40B bank account. Internet Explorer is the most outdated browser that's still "actively" developed and it STILL rules the web. Even if Microsoft really did have to yank embedded plugin support out of their browser, they'd make a fuss that everyone else has to as well. End result? They can afford licenses for embedding and groups like Opera, Mozilla, etc. can't. Even more fuel for Microsoft's fire.

  • by penguin7of9 (697383) on Wednesday October 29, 2003 @08:40PM (#7343453)
    Among other things, the FTC recommends that the burden of proof on parties challenging patents in court be lowered from the current 'clear and convincing' standard, to the easier 'preponderance of the evidence' standard.

    Given the exceptional nature of patents--extending a government enforced monopoly on ideas and entire markets for decades--one should perhaps even demand that the person defending a patent should provide "clear and convincing evidence" that the patent is valid.

    However, just changing the standard to "preponderance of the evidence" sounds like a good change and something that is long overdue.
  • by u19925 (613350) on Wednesday October 29, 2003 @08:41PM (#7343466)
    I had a thought that USPTO should also accept proposal for patent-free ideas. In this, people should be allowed to submit idea that USPTO should certify that it is free of patent. If USPTO is competent enough to grant patent by saying, this hasn't been done before; they should be able to certify that this doesn't violate any patent. Once it is granted, people should feel free using this idea. In case someone wants to file a patent lawsuit on this patent-free idea, then the burden of proof should be on plaintiff. By default the idea should be considered patent free.

    This would be a tremendous boost to standard organization. We no more will get surprise .gif, .jpg, eolas etc patents.

    The cost of such patent-free filing should be at par with patent filing.
    • by Tau Zero (75868) on Wednesday October 29, 2003 @08:51PM (#7343525) Journal
      Once some describes an idea in open literature, nobody else can even attempt to patent it unless they can prove priority. The inventor has one year to file, in the United States. Once that year has elapsed, the idea cannot be patented.

      So there's your patent-free idea database: publications of any sort. This ought to be obvious, because "obvious" is one of the synonyms of "patent"...

      • by Anonymous Coward
        You're confusing patentability with infringement. If you publish something, someone else can't patent later what you've described, but whatever you described could be infringing on 10 prior patents. You could be the inventor of the pencil with an eraser at the end, but your new device will infringe another guy's patent on the pencil.

        I think what the original poster was proposing was having the PTO issue freedom to operate opinions. These opinions are much more complex than patents--they can cost on th
    • Well you could just attempt to patent the idea (using regular methods) and submit it to an open "idea bank" of royalty free patents.
  • Perhaps it would help to have a public input phase - say a week during which freshly approved applications are posted on the web, and the public has a chance to review and weigh in with prior art, etc. If it was nicely indexed and searchable, helpful /.ers and others with free time might be able to make a difference.
  • by kaltkalt (620110) on Wednesday October 29, 2003 @09:11PM (#7343641)
    The USPTO is the largest income-generating government office behind the IRS. The problem is that they're in the business of issuing patents (and it's quite profitable) rather than in the business of serving the public by properly issuing patents. Why reject a patent application, and the fees that come along with granting a patent, when you can accept the application, take the money, issue a patent (no matter how frivilous), and let the federal courts sort it out later once the lawsuits start to come in.

    The problem is the USPTO has zero accountability, and as long as it's bringing in so much revenue for the federal gov't there is no reason to implement any changes.

    My solution... the people at the USPTO in charge of granting patents should be held personally responsible for every patent they approve. If the patent is later declared invalid by a court, that person must refund (out of their own pocket with no reimbursement from the gov't) all the fees the patent applicant paid.
    • Assuming you're a programmer, how would you feel about being personally liable for every bug and its rammifications?

      It is the system at fault, not the workers. If the USPTO was to be hit with damages for bad calls, then their profit/loss would not look as healthy and people might start asking some questions.

      The voters don't care about patents because so few are impacted (say compared with tax legislation). Imagine if Bush had said:"Read my lips, no more patents." nobody would have cared a shit.

    • Your "solution" sucks ass.

      A better solution is to end all self-funding activity by such agencies. All money ought to be appropriated by the legislature like the constitution says.

      Apply this to the local police too.
    • How many people with any brains would work at the USPTO if your insane scheme was adopted ? Would you ?

      Denuding the USPTO of its staff by making them personally acountable - a principle that does not even apply in the real world - would harldy improve matters.

      Its a quesiton of incentives and motives, not of quality of personnel.

  • by Qzukk (229616) on Wednesday October 29, 2003 @09:16PM (#7343675) Journal
    As helpful as this is, there are better changes that could be made that would further improve the system:

    First, when the USPTO screws up in awarding the patent, the USPTO should cover the cost of fixing it. As it stands, if I have prior art for a patent, I have to pay them to fix what they screwed up. It should be modified so that overturning a patent is free. (Really, they should dock the commission of the person who signed the patent). They could request that you post a bond for the fees until they have decided (with it to remain in bond if you appeal). Furthermore, this process should be made as simple as possible, and not require legal assistance.

    Second, the hobbyist exemption should be expanded and clarified with respect to Free software. While an outright exemption would lead to much rejoicing, a more realistic exemption would be for cases where 1: no money is accepted for the software and 2: the patent holder does not have a competing product on the market. This protects Free Software from submarine patenters who produce nothing but lawsuits, while still appeasing companies who feel threatened by open source by protecting them from direct competition.
    • In addition to the USPTO being given deterrents against granting bad patents, applicants should be given deterrents against filing frivilous patents in the first place, in order to reduce the workload on the patent office and give them time to properly evaluate the genuine candidates.

      Patent holders should be fined if a patent is overturned, perhaps with a fine proportional to the license fees they have extracted. To be fair, they should also be given the opportunity to voluntarily withdraw a patent at any
    • Making the USPTO cover costs would simply push those costs onto the tax payer.

      Docking the pay of a person who accepted the patent would pretty much guarantee you'd have nobody working at the USPTO.

      I'm assuming that no money can be accepted for consultation, modification, documentation, assistance, etc. of the Free Software either. Otherwise it's really not a hobby, is it?
      • I'm assuming that no money can be accepted for consultation, modification, documentation, assistance, etc. of the Free Software either. Otherwise it's really not a hobby, is it?

        So do you want to live in your world of fluffy white clouds and pretty ideals flapping along like butterflies, or do you want to join us here in the real world? I'm sure in your world you have the psychic power to remove the corruption and influence of corporations in the blink of the eye, but back here we have to face the fact th
      • Docking the pay of a person who accepted the patent would pretty much guarantee you'd have nobody working at the USPTO.

        Or it would mean that people working for the USPTO would take their work seriously. Only the workers that chat, play games, or jack off to porn all day will be hurt enough by this to quit their jobs. I'm sure many have noticed that blindly approving patent applications makes their jobs easier by several orders of magnitude, not caring that it also makes work that much harder for countless
    • I have an even better idea. Declare that software is nonstatutory material for a patent. Patents on systems that include software should be evaluated solely on the novelty, etc. of the non-software parts of the system.

      Great idea, huh? Actually, it wasn't mine. The US Supreme Court thought of it first. How the USPTO and lower courts managed to ignore it is beyond me. If Europe legalizes software patents, it will be the first place in the world to officially do so.

  • by rollingcalf (605357) on Wednesday October 29, 2003 @09:35PM (#7343795)
    Not only are patents presumed valid when they are challenged in court, they are presumed valid even before granting, to the extent that the burden is on the patent officer to establish why it should not be granted. That is utterly ridiculous. When someone applies for a patent, they are making a blatant and sweeping claim against the whole human race; essentially, they are saying that no one else in the history of the earth has built something like it.

    Strong statements like that should be backed up with extremely solid evidence. While it is not possible for an applicant to conclusively prove a negative, the burden of proof should still lie on the applicant's shoulders, forcing them to impress the patent examiners and convince them that there is a strong likelihood that they are the first one on earth to put the alleged invention together.
    • by servoled (174239) on Wednesday October 29, 2003 @09:39PM (#7343821)
      The applicant has way to much interest in failing to prove that it has been done for this system to work, and since they can not conclusively prove that it has never been done I really don't see how this would work at all.

      What amount of evidence on the applicants part would convince you that their invention is in fact new, and that they are just ignoring that really good piece of prior art that they conveniently forgot to bring with them?
      • "The applicant has way to much interest in failing to prove that it has been done for this system to work, and since they can not conclusively prove that it has never been done I really don't see how this would work at all.

        What amount of evidence on the applicants part would convince you that their invention is in fact new, and that they are just ignoring that really good piece of prior art that they conveniently forgot to bring with them?"


        I didn't say they have to conclusively prove anything. They just
  • A solution (Score:4, Interesting)

    by puppet10 (84610) on Wednesday October 29, 2003 @09:38PM (#7343817)
    "Patent examiners have from 8 to 25 hours to read and understand each application, search for prior art, evaluate patentability, communicate with the applicant, work out necessary revisions, and reach and write up conclusions."

    I suggest that business method patents be eliminated by statute to reduce the workload on the patent examiners to improve the amount of time to devote to each patent application.
    • I suggest that business method patents be eliminated by statute to reduce the workload on the patent examiners to improve the amount of time to devote to each patent application.

      Recommendation 6 on pages 14-15 basically agrees with you. It talks about the problems caused by allowing software patents, patents on business methods and patents on living organisms, but at the same time does not propose any solution for them. They only say that in the future, further broadening of the scope of what can consti

  • ""Patent examiners have from 8 to 25 hours to read and understand each application, search for prior art, evaluate patentability, communicate with the applicant, work out necessary revisions, and reach and write up conclusions."

    That is 7.5-24.5 hours more than they need when a simple google query returns more prior art than would be needed.

    • Re:Google (Score:2, Insightful)

      by Anonymous Coward
      The problem with prior art taken from the web is that it is incredibly hard to prove the publication date of some random web page. And since prior art must be published PRIOR to the applications effective filing date, most of the web is completely useless anyways.
  • I've had some daft patents accepted and have had some rejections for dumb reasons too.

    This leads me to believe that patent examiners are measured on their performance. I hunch they're measured on both the number of patent applications they crank per week and the number of prior art cases they find.

    Come Friday, I expect the heat is on to make numbers and it comes down to which is the fastest way to complete a case (ie. Is there less paper work to reject or accept an application?).

    Please don't mark this funny

    • by bezuwork's friend (589226) on Thursday October 30, 2003 @01:00AM (#7345015)
      As a past examiner, I can speak to how things were a few years ago. From what freinds tell me, things don't seem to have changed much.

      As you guessed, examiners are measured by performance. Depending on their level and the field of art they examine in, each examiner has a certain number of "counts" they must make each week (actually, it is measured by biweeks).

      Each application has two counts. The first count is granted for the first substantial "office action" on the merits of the case. As a side note, there are sometimes initial things that can/need to be done which do not get the first count as they are not the first action on the merits (such as a restriction of the claims - which is done when two or more inventions are being claimed in the same application). A second count is given when the application is disposed of. Disposal usually happens either by issue, abandonment, or by final rejection (usually this is when a previous office action rejecting at least one claim is repeated because the applicant did not overcome the first office action's rejections).

      Note - if an examiner issues the case in the first action, he or she recieves 2 counts (for very little work). In over 4 years at the PTO, I never got to do this, though others did it fairly often.

      Most examiners have a pretty stressful time. Their bosses can make life almost unbearable if they so choose. Imagine, searching a full day to get good prior art (when you know you need to do a count every 6 hours or so - so you're already behind), and another hour or two to write up the office action. Then after turning it in, your boss says he doesn't like the prior art and makes you do it over.

      Then there are the jumbo cases - applications with 50, 60, even over 100 claims. For those who don't know, the protection a patent gives is defined by claims, which are legal descriptions of the invention. Each claim in a patent sets forth a differnt embodiment of the invention. Each claim must be dealt with in the office action (and rejections of different claims may involve different prior arts). Quite often, after writing up the office action in such a jumbo case, it comes back from the applicant and the examiner realizes one claim was not dealt with properly (happens, examiners are human). Guess what? Another office action, but no count as the office action cannot be made final - a freeby for the applicant.

      And something which might not occur to those outside. When someone gets fired or quits, all their cases must be reassigned. If their cases were not properly done, then a freeby office action is required (they already got the first count) to fix the case.

      The PTO has a lot of problems. For what it is worth, in my experience, most examiners took pride in their work and tried to do the best they could within the limits of the system and their boss.

  • Post a sign on the USPTO door right abobe the night deposit slot that reads "After hours, slide patent candidate through slot. Candidate will not be considered valid without proof of prior art."
  • The only thing for certain is that people reading and posting to slashdot generally lack the slightest clue on the inner workings of the US Patent System. I believe that Slashdot needs to have some sort of informational session teaching readers how the system works. Until then, posts regarding failure of the US Patent system should be halted. The sort of comments and speculation found on the topic here at Slashdot on serve to misinform others. I come to you as a US Patent Examiner. Please consider this sugg
    • If the output of a process is producing unacceptable results, it doesn't require knowledge of the process to determine that it is a failure.

      Regardless of how the patent system works, if inappropriate patents are being granted regularly (and worse, enforced) it means that something, somewhere is broken. No explanation can possibly contradict that.
    • The only thing for certain is that people reading and posting to slashdot generally lack the slightest clue on the inner workings of the US Patent System.

      Not only here on Slashdot, but here, [ffii.org] and here. [eff.org] too.

      The ignorance of the FFII and EFF about software patents is simply astonishing. I've talked to some of these people about their views on patents. Amusing. It's like talking to the Taliban about the importance of women's rights.

    • by waterbear (190559) on Thursday October 30, 2003 @04:56AM (#7345785)
      The only thing for certain is that people reading and posting to slashdot generally lack the slightest clue on the inner workings of the US Patent System. I believe that Slashdot needs to have some sort of informational session teaching readers how the system works. Until then, posts regarding failure of the US Patent system should be halted.

      Contrary to the parent, it's the opposite of "generally lack the slightest clue" that is certain. You only have to read the posts to see that posters come from a vast range. The range certainly includes at least a few lawyers and PTO examiners and their equivalents outside the USA, as well as folk with a wide range of business experiences of patents, and yes, many folk with none, too.

      To me, this breadth of points-of-view seems like a wonderful plus in any discussion. One of the things that can come out of it is some balance, sorely needed in an area where opposite interests really should be balanced out together. The USPTO experts/examiners alone can't produce balance. Most of them really don't know what is done/misdone with the patents they issue.

      Saying "posts regarding failure of the US Patent system should be halted" (until everyone has learned from the USPTO people about their part of the system, which will be never) is like saying we should stop trying to learn from mistakes. Sheesh!

      One of the pluses, to me, of the FTC recommendations is that they look like a move in the right direction to reduce current imbalances.

  • "Patent Pending" (Score:3, Insightful)

    by Stephen Samuel (106962) <samuel@bcgre e n . c om> on Thursday October 30, 2003 @12:04AM (#7344689) Homepage Journal
    It used to be (back when patents were rare) that when a company had a pending patent application would put "Patent Pending" on their products and applications.

    One of the biggest (current) problems with patents is the 'ambush' issue... After something has been in use for years, someone suddenly jumps up and says "We were just assignae a patent for that".

    If people had been aware of the patent application, they would have been able to either
    (1) use another method, or
    (2) file a notice with the PTO about prior art/obviousness to prevent the application from being awarded.

    I'd suggest that Patent rules require someone who is applying for a patent to put a patent pending mark on their products which have patents pending and (a hotlink to) a discription of the patent and it's application number. That would allow people to respond intelligently to the application now, rather than after 5 years of entrenched use, and an entreched patent award.

  • Let's see now, the deluge of silly software patents STRONGLY SUGGEST that this is a model 8-hour day for the examiner:

    get coffee and read paper:
    1 hour
    read and understand ONE application:
    1/2 hour (skim submitter's corporation marks, lookup stock ticker on the NASDAQ)
    yak with fellow examiner about last night's ballgame or movie:
    1 hour
    search for prior art:
    0 (they applied for it, so it must be an innovation, duh)
    evaluate patentability:
    0 (they applied for it, so it must be patentable, duh)
    commu
  • One thing I absolutely don't understand in this report is the stuff about companies not reading each others' patents. Examples:

    "Some hearings participants explained that they do not read their competitors' patents because of concern that learning about others' innovations will expose them to treble damages infringement liability." ...and...
    "The FTC's recommended legislative change would allow firms to read patents to learn about new innovations..."

    Are they saying it's somehow illegal for Company A to r
    • Probably analogous to 'clean room' reimplementation. No chance of dropping bits of B's design into your product
      • No, this is a big difference between copyright and patents. You only infringe on someone's copyright, if it can be shown that what you wrote/created is very similar to what someone else did and if it can be proven that you have had access to this other person's work. I.e., if you, completely independent from someone else, come up with exactly the same thing and you can prove this, then you will not infringe on their copyright.

        Otoh, patents do not make this discrimination. The only exception is that if you
    • Are they saying it's somehow illegal for Company A to read Company B's patents?

      It's not illegal in the normal sense, but willful infringement makes it much easier for the patent owner to claim triple damages [lawnotes.com]. Thus, you're better off never reading patents so you can honestly claim ignorance if you charged with infringement.

      If it weren't inevitable that you're breaking countless patents as soon as you sit down and write a program over a couple hundred lines, this might be insane. But since the odds are eff
  • I'm generally against IP on the principal that owning an idea is literally impossible. That said, patents, trademarks and copyright have encouraged innovation and are very much responsible for the technology economy's existence. That said, there are three changes to patent law that would make total sense:

    a) change the standard from clear and convincing to a preponderance of the evidence.

    b) eliminate submarine patents. Tricking people into infringing and then suing for big $$$ is not just.

    c) eliminat
  • "Patent examiners have from 8 to 25 hours to read and understand each application, search for prior art, evaluate patentability, communicate with the applicant, work out necessary revisions, and reach and write up conclusions."

    And this costs HOW much to apply for? One problem is that the government made the PTO into a profit center by allowing their income to fund other spending/pork. This gives congress a reason to keep the "patent anything" system as-is.

  • Not to rain on the prade, but IMHO patents are evil and provide a false sense of security. Even worse, they are murderous, just ask any child dying of AIDS in Africa - why there are no generics available to treat it? Yeah I know soneone is going to invariably going to respond "well, no cure would be invented to begin with if not for patents spew ..." but that is simply a crock and is like saying noone would develop free software either.

    Also, as soneone who is in an "innovative" company - I just want to

What the world *really* needs is a good Automatic Bicycle Sharpener.

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