FTC Issues Report Critical Of Patent Policy 206
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."
It's true (Score:5, Insightful)
Funny coming from this Administration (Score:4, Insightful)
Yup! (Score:4, Insightful)
that sounds like an important change (Score:5, Insightful)
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.
Re:Simple solution... (Score:3, Insightful)
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:
At a quick glance, your seems like an OK idea. But I imagine it will make things harder for legitimate inventors and not affect the abusers. Much like the tired old saying, "if you outlaw guns, only outlaws will have guns." It will only just hurt the people who actually follow the rules.
Problem is lack of incentives & accountability (Score:3, Insightful)
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.
Whats really needed to fix the patent system (Score:5, Insightful)
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.
Re:Funny coming from this Administration (Score:2, Insightful)
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 system as-is is suboptimal. An optimal system would improve the economy, because patents would only be issued for truly innovative, developed ideas, and companies would license those ideas because it would improve their profits over what they would otherwise do.
Improving the patent system is good for the economy. It's only bad for those who patent obvious things and try to license them.
Re:Presumption of validity is the main problem (Score:5, Insightful)
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?
Re:Simple solution... (Score:3, Insightful)
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 which run into the thousands), which I haven't listed because Slashdot's lame-ass junk filter keeps me from doing so.
Of course, if you mean we need to increase the penalty, consider that a lot of the submarine patents that have been wielded by evil companies like PanIP are generated by people who would qualify as "small entities". Discouraging frivolous applications is a good way of cutting down on the work load of USPTO examiners, but what we need is to eliminate bad granting of patents - giving them more time isn't necessarily going do the job if the patent examiner isn't well versed in the field that the patent is being granted in.
I'm thinking mandatory public/peer review is the key (think public probationary period)... If it isn't deemed original by a board of voluntary examiners drawn from the field, then it doesn't pass go. If someone objects with evidence of prior art during the 1 year public review period, the patent automatically goes back for reexamination. 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. No more pie-in-the-sky speculative patents without any actual work to back them up.
Re:Google (Score:2, Insightful)
Re:Problem is lack of incentives & accountabil (Score:3, Insightful)
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.
Re:Timeliness. (Score:4, Insightful)
There is a difference between sounding obvious after I only hear the the goal the item accomplishes, vs. sounding obvious after seeing all the details of the solution. If a simple phrase that describes the concept of the alleged invention is sufficient for a practitioner in the art to build a working implementation in a short time without seeing any of the details, then yes, it is bloody obvious and not worth of the high standard that patents should be (but aren't) held up to.
Re:There is an easier solution, and it's FREE (Score:2, Insightful)
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 the order of 50k-100k in legal fees, as opposed to 10-20k for getting a patent. So it's not a practical idea, but it's definitely an interesting one.
Of the FTC's proposals, the pregrant opposition is the one that's likely to have the biggest effect in practice, I think.
Slashdot People Against The USPTO (Score:2, Insightful)
"Patent Pending" (Score:3, Insightful)
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.
Re:Slashdot People Against The USPTO (Score:3, Insightful)
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.
right on! (Score:2, Insightful)
The point is, that no candiate is ever going to agree with you on everything. Some of you really need to get a sense of proportion. I'm all for a vigourous debate of ideas. Just because someone disagrees with you doesn't make them evil incarnate. I'm not saying that the character of a leader is unimportant, but most people are far too eager attribute bad motives to people they disagree with and to excuse the behavior of those on "their side".
Re:Slashdot People Against The USPTO (Score:5, Insightful)
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.