Patent Reform Bill Introduced in U.S. House 263
kanad wrote to mention a ZDNet article covering the introduction of the Patent Reform Act of 2005 to the U.S. House of Representatives. From the article: "Probably the most sweeping change would be the creation of a process to challenge patents after they are granted by the Patent and Trademark Office. 'Opposition requests' can be filed up to nine months after a patent is awarded or six months after a legal notice alleging infringement is sent out. The bill is supported by the USPTO and Microsoft who have been recently asking for patent reforms ." More details of the bill are available at the Congressman's website."
9 months? (Score:5, Insightful)
well... (Score:5, Insightful)
reexamination works pretty well, but there's a backlog. of course, this new system is gonna get backlogged REAL fast.
Another major change would be to award a patent to the first person to submit their paperwork to the Patent Office. Currently, patents are awarded to the first person who concocted the invention, a timeframe that can be difficult to prove.
i dunno about this. 'first to apply' has major disadvantages.
Re:Peer Review - Solution (Score:5, Insightful)
I think you need to look at the history of the Jeep.
Microsoft's Motivation? (Score:3, Insightful)
No more patents for little guys. (Score:5, Insightful)
Then the little guys will have to fund their own patent defense. The big guys have a clear edge here because they have more resources.
They already have the ability to do that in a litigation case, but this gives them the ability to do it preemptively. That last word is becoming increasingly popular.
Unfair corporate advantage? (Score:1, Insightful)
Re:Peer Review - Solution (Score:2, Insightful)
You want sweeping? I got sweeping! (Score:5, Insightful)
Sounds good. Or is this one of those bills where it does the opposite of what it sounds, the way the Clean Skies initiative leads to dirtier skies?
"said Smith, a Texas Republican.
Never mind, I can guess the answer now.
"The Business Software Alliance was quick to praise the bill,"
Well, there's a strike against it.
"saying in a statement that it goes a long way toward "improving patent quality, making sure U.S. law is consistent with that of other major countries and addressing disruptions caused by excessive litigation."
Uh huh. Whenever they trot out the "Let's make sure our laws are consistent with other countries," you know the fix is in.
You want sweeping? Here's sweeping: No software patents. Period. They are already protected under copyright law.
Re:Peer Review - Solution (Score:4, Insightful)
I come up with a patent. It's gonna make a lot of money, much better way of doing X.
All the people who are doing X already get to decide if I get the Patent.
Am I the only one who sees a conflict of interest here.
And the possiblity of a Patent Cartel. If you're in the big five, we'll let you get a patent. If you're an independent inventor, then you have no chance. We the big five, will use our patents to keep competition out. And we get to decide who gets patents. Gimme some of that.
First to File (Score:5, Insightful)
In other words, just because you were the first person to invent a device, it doesn't mean that you can rightfully own a patent for it. So if some young inventor creates something and some other company swipes it, it is a race to the patent office. I am guessing that a big company's lawyers know a shortcut or two.
Not What We're Looking For (Score:3, Insightful)
It has no provision regarding eliminating "business method" (read: software) patents. This bill won't do anything but clog up the patent office more with so-called opposition requests.
It would be interesting if the Judiciary committee could be swayed to eliminate software patents. If your congressman is on the committee [house.gov], let them know how you feel.
Re:More twists and turns (Score:4, Insightful)
Letting a Congress full of lawyers make the laws is like putting the drug companies in charge of creating diseases.
IMHO a bicameral legislature is ok, except they did it wrong. One branch should be in charge of making laws, and the other repealing laws. AND it should take a 2/3s majority to create a law, but only a 1/3 vote to repeal a law.
Re:How about 9 months after first challenge? (Score:3, Insightful)
What the patent system needs is to take a page from the trademark system, which is the only part of intellectual property law in the US that works well.
Under trademark law, if you find something you think it infringing, you HAVE to defend your trademark... or your lose it. If you aren't using your trademark, you lose it (after 5 years.) This would largely eliminate intellectual property companies (that have no real products), and would also end the process of submarine patents.
This bill needs to be opposed (Score:5, Insightful)
Additionally, this is probably more likely to harm the rare, but important small inventors, since it can take them a bit longer to muster the resources to file.
It also harms the public, since it ignores the decision of an inventor to not get a patent, and thus allow the invention to lapse into the public domain right away. If this passes, not only would the inventor have to decide not to seek protection, but so would any other johnny-come-lately.
First-to-file, as opposed to first-to-invent, is a stupid idea. As usual, it was pioneered abroad (much like a lot of the stupid copyright laws we've been seeing for the last few decades) and is being pushed on the US for no good reason other than to standardize on whatever everyone else is doing. That all the other kids are jumping off cliffs is no reason for us to do it too. Our laws should be based on good policy, without regard for what other countries do.
Re:Peer Review - Solution (Score:3, Insightful)
Errr....the purpose of the patent system is to prevent the established, moneyed old boy network of entrenched industry from telling small upstarts "thanks for the idea, now get lost".
Re:Be suspicious (Score:4, Insightful)
And...? (Score:3, Insightful)
Then said "young inventor" needs to keep his/her invention (and other supporting materials) away from prying eyes. Oh wait, that's how it is now too!
Re:Be suspicious (Score:3, Insightful)
That was my first thought too. I've seen some of the stuff Microsoft has been granted patents for, and a lot of it is stuff that's been used by many others for a long time.
The only thing I can think of is that Microsoft, Oracle, and probably several other companies are trying to get software patents in through the back door, then go and sue everyone who uses anything remotely similar in open source, GPL, shareware, or freeware.
But then again, I frequently cast a doubting eye on anything the government calls "reform."
This is not the way to fix the patent system (Score:5, Insightful)
I understand that Microsoft wants to eliminate patent shops, but many provisions in the proposed legislation do more than that. The simplest way to eliminate EOLAS-type lawsuits would be to demand that the invention be implemented within five years of being filed and raise the bar so that only very or highly non-obvious applications are accepted.
Clearly, Microsoft doesn't want to raise the bar because that would invalidate many of their own patents. What Microsoft wants to do is make patents the exclusive domain of well established corporations and eliminate any threats that startups might pose to them.
Again, read it carefully. There are many ways to solve these problems, but these provisions are specifically aimed at decreasing the power of independent inventors.
Proposal: Lowering the penalties for willful infringement.
Result: Encourages willful copying without paying inventor.
Proposal: First to file rather than first to invent
Result: With this provision, Microsoft and/or IBM could make regular passes of SourceForge and file patents on all innovative work there. On hearing of any new product from a startup, they could patent the techniques used in that product immediately. Note that even if they didn't receive the patent, there would be no penalties. In fact, they would benefit because by filing first they eliminated the possibility that the original inventor could receive a patent.
Proposal: Allowing judges rather than the patent office to review challenges,
Result: I'm not sure what this means because the details aren't spelled out. In the best case, it is a needed fix because it catches mistakes made by the patent office when a bad patent slips through. What worries me is the choice of forum. In the worst case, it is shifting challenges from the patent office to a courtroom. The same thing could be accomplished without moving it to the courtroom by simply funding the patent office. The purpose of moving it to the courtroom - which is more expensive for the government - could be to allow large corporations to crush independent inventors or self-funded startups who cannot afford the legal costs. Or it could be to make it prohibitively expensive for the open source community to challenge bogus patents by Microsoft. Either way, the specification of forum is of some concern. The patent office may not be effective, but its best aspect is that small inventors can afford it.
There is a need for patent reform, but the brief description of this legislation sends up warning flags. Raise the bar on what can be patented and fund the patent office so it can spend more time reviewing. Allow patents to be challenged if the inventors haven't creating a prototype within five years of filing. These and several other approaches would be far simpler and more effective at solving the current problems than Microsoft's proposals.
-- N
Why issue the patent in the first place? (Score:2, Insightful)
Just the fact certain big companies support the bill should give the normal people reason to pause and examine this bill critically. It looks like another band aid solution than "Probably the most sweeping change... " hype.
Re:You want sweeping? I got sweeping! (Score:3, Insightful)
No, they're not. Implementations are protected under copyright law. Patents are supposed to protect truly innovative methods of solving some particular problem, and I see no reason why those involving physics or mechanical engineering are more deserving than those involving information processing. The problem isn't software patents. The problem is stupid patents, whether they be one-click shopping (software), or swinging on a swing sideways (hardware).
Re:This bill needs to be opposed (Score:4, Insightful)
> lot of the stupid copyright laws we've been
> seeing for the last few decades) and is being
> pushed on the US for no good reason other than
> to standardize on whatever everyone else is
> doing.
Very wrong. You've just been had by your governement. YOUR governement brings this in somewhere at the WIPO or UN; makes them write harsh regulations so YOUR governement can go back to the US and tell everyone "its international standard, we have to do this".
We see this with the EU as well. Local governments effectively drive through regulations by lobbying for them in the EU and using "it's official, the EU says it, we have to" in front of their own people.
Pattern? (Score:3, Insightful)
Re:More twists and turns (Score:3, Insightful)
Someone has been reading too much Heinlein...
Prior art challenges (Score:4, Insightful)
Why only six months? Why not forever? After six months of a patent's existence, only the person with prior art could file an objection.
If the interest of the law is justice, then it shouldn't matter when an error is discovered. It also shouldn't matter that some company has made an investment in a particular technology based on the belief that their patent is good.
If you didn't think of it first, you shouldn't get a monopoly on it, ever.
Re:Microsoft will challenge everything (Score:1, Insightful)
No need to invent now, just have to have a patent office ready and waiting to patent other peoples invention! And best of all its completely legal!
Ah, more zealotry. The entire planet is first-to-file EXCEPT the US, this is a long anticipated change to bring us in line with the world. And you must still be the inventor as per Title 35 USC 102(f).
So in other words, you're totally wrong, as is typical of Slashdot posts.
The little man unites (Score:2, Insightful)
Sweeping? How about no patents period! (Score:3, Insightful)
I think software patents must go NOW because they simply won't work in the information age, but lets make no mistake about it. All patnet monopolies are evil.
Consider for instance the way that large pharmacutical industries acted when they sued African countries in the world court for attempting to make generic AIDS drugs.
If I said (like them) that I have no incentive to make AIDS drugs without owning patents, and I said like them that I was kind with charitable programs to the Africans - how is that really any different than saying "I have no incentive to grow cotton without slaves on the plantation, and I am kind to my niggers"?
Don't worry. After heavy pressure, the pharmacuticals dropped the lawsuit and got the US govt to buy 13 billion of patented ADIS medications for Africa at the taxpayers expense instead.
Completely untrue (Score:4, Insightful)
Not true, the entire planet is first to file ONLY IF THE INVENTION IS NOT DISCLOSED BEFOREHAND. The USA on the other hand doesn't require you to keep the invention secret before filing.
European company X invents something but discloses it.
American patent scam company Y comes along and patents it in the US.
The only thing preventing this now is that American company Y has to be able to show they are the first to invent it, and anyone can point to the European companies product as prior art.
This would remove that obstacle permitting non inventors to receive patents for things they didn't invent.
Re:"first to file" is a terrible idea (Score:3, Insightful)
However, I do agree that the first to file system is a bad idea. The rest of the world (that is, just about every other country) does not.
Re:And...? (Score:4, Insightful)
This breaks open source and open systems.
Re:Sweeping? How about no patents period! (Score:4, Insightful)
I think software patents are bullshit. How can you patent a shadow casting algorithm based on a text description of it? You can *copyright* specific code, but the algorithm itself is too intangible to be patented. You can patent a hammer, but not how you swing it.
On the other hand, solid, mechanical or chemical devices don't fall into this category. They represent real cash outlay to devise and develop. This costs money. If it didn't there would be "Open Source Cars" on the road right now, and "Open Source Microwave Ovens" in the kitchen that you walk into the "Open Source Store" and pull off the shelf for free.
If anyone has a premise that's broken, it's you.
And as for R&D costs, I happen to know people who work at pharmaceutical companies, and my sister-in-law works at 3M (another big R&D firm). It's not unusual for 3M to spend $10 million to develop a new type of adhesive that's "just a little stickier" then their current one. Research is *DAMNED* expensive. Drug research is doubly so, because you are looking at a 7-15 *YEAR* cycle of testing through the FDA. Fast-tracked drugs might cut that down to 3-5 *YEARS*. That's time where your R&D is complete, all the money is spent, and you can't make a penny of profit, because you can't sell a thing. *NOR SHOULD YOU* as the drug has not proven to be safe. At the end of a cycle of R&D, Testing, Studies, Review, Testing, and finally Marketing (and yes, marketing is part of drugs in the modern market. It's part of every other market, why are Pharmas *evil* for daring to market?) the costs can *easily* be in the Billions of dollars.
You cite insulin as a drug "discovered by accident". Well, if you consider "by accident" as 5 years of lab work, 10 years of refinement and testing, and hundreds of man-years in the succeeding decades to improve, perfect, and synthesize the drug as "an accident" then you're right. Read about how insulin was discovered. Yes, the "lab assistant" found the insulin link "by accident" (in a controlled study with hundreds of tests, etc., etc.), but it's not like they were selling it over the counter the following Tuesday. So, you want to call bullshit, I call bullshit on you.
I've watched the patent process first hand when my dad developed a (we'll call it a widget, since it's for a very specialized and technical field) widget. He designed it, developed prototypes, tested it, showed it worked, put the protoypes into the hands of the industry experts in order to improve it, perfect it, and finally, after spending about $250,000 of his own money, he went on to patent it. He was able to negotiate with an industry company to manufacture and use the widget, but unfortunately passed away (from cancer) before he could make one red cent of profit from it. The company has since started manufacturing the widget without owning the patent and my mother (who now owns the patent) has started the process to sue them for patent infringement.
Explain how that makes my dad or mom evil?
Re:FUBAR (Score:1, Insightful)
I think you're making an assumption that invention must follow a particular path -- namely, funded and patented by uninterested parties solely for financial gain -- and circularly basing your conclusion upon that premise.
Also, the 99% and 1% sentence doesn't make sense to me. Even talking solely about direct financial reward, what makes large-scale research more than proportionally risky compared to small-scale research? It seems the opposite to me, with both the economies of scale and the higher chances of large-scale research unexpectedly covering small areas of tangential benefit.
Re:Microsoft will challenge everything (Score:3, Insightful)
First-to-file is frightening, and is blatant rape of everything patents were designed to do. It means if you're contracting with someone, they could patent your deliverables before you get the chance, and therefore would be the ones with exclusive rights to sell/reuse your contracted work -- leaving you in the lurch.
I see a future where you have to work out patent rules as a matter of contract law before working for or with another company, and even before taking on employees! It will be a world where people are continually filing streams of useless patents just to prevent being sued for infringement on their own creative works. This could effectively kill OSS, since it would allow a patenting company (or a major IT group) to browse mailing lists, usenet, and source archives, filing blindly in hopes of beating out the originator, while at the same time forcing individuals to constantly waste money on filing fees for work that's probably not even patent-worthy in the first place. If an author doesn't file a patent, they risk being dragged to court as an infringer on someone else's patent of their work. 'Draconian' just doesn't quite capture this.
Then again, maybe this will be the tipping point, the thing that makes the American Public sit up and say "What happened to (FireFox / Open Office / Linux / etc.)?" and finally come around to the fact that Software Patents don't help anyone. Software is, and should be, protected solely by copyright (maybe a slightly broader interpretation of 'copy', and with a very limited term -- perhaps only 1.5 - 3 years).
I just don't understand how this would help anyone, even Microsoft! After all, if the legal lines have been drawn, then all of the little guys they're currently ripping off will have to start filing patents left and ri -- oh, yeah, then Microsoft could flex its legal muscle by challenging every patent that comes through (and file counter-patents at the same time), and through legal bullying they could basically bankrupt the inventor AND steal his innovation at the same time. I guess it would help the patent-mongering megalithic corporations.
How can our legislature be so stupid/corrupt/nearsighted to let these things slip through? I guess it's the new Republican mindset that the US is a coalition of corporations, not a nation of people. Gives new meaning to legislation that's supposed to be "Good for America"...
If this goes through, we may have to start a dues-payable coalition to patent members' innovations just so they cannot be later enforced - a kind of FSF/Copyleft for patents. But all the while, we'll still be pumping money into a corrupt patent office, and still facing legal persecution from the big clearinghouses.
Jasin NataelRe:Microsoft will challenge everything (Score:3, Insightful)
Methinks you're forgetting the cartel-like behavior of all the major players in this game. It's unlikely that MS would really interfere with its buddies, rather choosing to pick on the little guys with big ideas and patent innovations coming from academia. Before this law, a published paper or a delivered product was a pretty solid indicator of prior art. Effectively, they're throwing prior out out the window as a reason for rejecting a patent.
Jasin Natael