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Congress Tackles Patent Reform 261

Posted by Zonk
from the new-employer-similar-to-the-previous-one dept.
nadamsieee writes "Wired's Luke O'Brian recently reported about Congress' latest attempt to reform the patent system. In the article O'Brian tells of how 'witnesses at Thursday's hearing painted a bleak picture of that system. Adam Jaffe, a Brandeis University professor and author of a book on the subject, described the system as 'out of whack.' Instead of 'the engine of innovation,' the patent has become 'the sand in the gears,' he said, citing widespread fears of litigation. The House Oversight Committee website has more details. How would you fix the patent system?"
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Congress Tackles Patent Reform

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  • by stratjakt (596332) on Friday February 16, 2007 @06:00PM (#18044888) Journal
    And then I would patent it.

  • by pjrc (134994) <paul@pjrc.com> on Friday February 16, 2007 @06:01PM (#18044902) Homepage Journal
    Definitely the first step in patent reform is to solicit the opinions of the hoards of thoughtful, article-reading slashdot users.
    • Re: (Score:3, Funny)

      by Anonymous Coward
      Both of them?
    • by zappepcs (820751) on Friday February 16, 2007 @06:10PM (#18045036) Journal
      Actually, I don't think that you are far wrong. Peer review has helped make a lot of processes more competent. It would also relieve the patent reviewers of the burden of having to be experts in all types of varied fields. The patent listings are not the sole source of prior art, and should also not be used to determine uniqueness and other reasons for granting a patent. As it is, if they don't know of prior art they seem to just grant the patent.

      Things are easy to understand or figure an answer for some types of patents, but others present a much larger issue(s) with regard to patents. Does anyone remember how the recent cancer treatment was treated in the news because it couldn't be patented? Patents are driving businesses in directions that are not in the interest of the community. Peer review might well stop the onslaught of stupid patents leaving more room in the business roster for developing things that can't be patented in order to simply make some money and take bragging rights.

      The current patent system has 'frozen' the business community into a position where many won't invent or improve if it can't be protected by patents. This destroys the value of patents rather than protects them. Company A may have patented an invention... fine. Now if company B wants to innovate on their products, they will have to fight company A's patent or take their chances in court. This is due to company A being given a stupid patent on obvious technological furtherance of prior technology.

      Peer review would help to bring sense to this situation, even if at first it brings confusion IMO.
      • by OakLEE (91103) on Friday February 16, 2007 @09:15PM (#18046858)
        I think peer review does merit consideration, but I have two big concerns with any implementation of it.

        The first concern is time. A peer review period will increase the time it takes to get a patent. The USPTO already has a huge backlog of applications, and the average time to get a patent is two years. Increasing the wait time further would both increase the backlog and delays, which in turn would disincentivize people from applying for patents.

        The second concern I have is ensuring fair peer review. The main problem with peer review is the significant risk that peers will abuse the nonobviousness requirement when judging a patent application.

        First there is the problem of hindsight. Many improvements seem obvious with the benefit of hindsight. For example its very easy to sit back now and say that pipelined architecture CPU's were an obvious evolution from single instruction execution architectures, but that would be ignoring all of the time and effort put into designing and building one. An invention has two parts, the conception of the idea, and its reduction to a working model. A patent should reward both and the effort put into the latter is often lost in hindsight.

        The second big issue I have is in the potential for peers to abuse the review process to deny patents specifically for commercial gain. If IBM, AMD, and Intel were in an arms race to invent some new processor technology and AMD built it first, should IBM and Intel be able to protest the nonobviousness of the invention merely because they were also developing it, but failed to come up with a working model? Or for that matter, would a company be willing to risk publicizing their invention through the patent process if it were likely to be struck down on peer review? They would be better off keeping it secret (if possible) and trying to utilize it secretly in order to recoup their investment. Part of the benefit of patent laws is that society gets the benefit of knowledge entering the public domain after the patent period expires. I'm not sure a system that potentially encourages secrecy of knowledge is in the best interest of society.
        • Re: (Score:3, Insightful)

          by Znork (31774)
          All the problems you name are intrinsic to the current patent system. The system is inherently unbalanced, a completely unbudgeted system where those who hand out the temporary monopolies are not fiscally responsible for the ultimate cost to the economy. As there are no fiscal constraints, quantity of granted patents has become the main interest of the system participants, which in turn grows the rest of the problem in a non-linear fashion.

          Personally, I think the whole system has to be scrapped and replaced
    • Definitely the first step in patent reform is to solicit the opinions of the hoards of thoughtful, article-reading slashdot users.

      Be careful, I think Slashdot beat you to the punch on that idea.

    • Re: (Score:3, Informative)

      by Dufftron 9000 (762001)
      Done. Though it is just a pilot program so far.


      http://dotank.nyls.edu/communitypatent/index.php [nyls.edu]

  • by Polo (30659) * on Friday February 16, 2007 @06:04PM (#18044948) Homepage
    I just hope they don't help things like Sonny Bono did.
    • Re: (Score:2, Funny)

      by BoberFett (127537)
      Actually we'd be better off if congress would all do what Sonny Bono did.

      Yeah, yeah, tasteless. Mod me down if you must.
    • by Tatarize (682683) on Friday February 16, 2007 @08:33PM (#18046554) Homepage
      How dare you sir, Bono saved the ailing copyright system. I mean, seriously under the old system the copyrights would expire after like 50 years after your death. This simply would not do! We needed an additional 20 years after our deaths to make publishing any work during our lives worthwhile.

      Why just the other day I was talking to a friend who wanted to write, what would certainly be a very profitable, book for years to come. But, was leaning against it because he could only collect money for 50 stinking years after his death. I informed him of the Sonny Bono Copyright Extension act which upped that to 70 years after his death. He perked right up and started writing that same day!
  • by nadamsieee (708934) on Friday February 16, 2007 @06:05PM (#18044954)
  • by EveryNickIsTaken (1054794) on Friday February 16, 2007 @06:05PM (#18044960)
    Granted, the patent system is being abused left and right and is often used just as a precursor to litigation, but is it reasonable to believe that anything that this Congress produces will alleviate any of the problems?
    This issue, along with IP, Copyrighting, and DRM should ideally be tackled all at once. However, given that both Republicans and Democrats regularly side with big business, I would expect no change whatsoever to open up competition and innovation.
    • Re: (Score:3, Insightful)

      but is it reasonable to believe that anything that this Congress produces will alleviate any of the problems?

      These people have spent most of their adult lives, in the pursuit of power. The concept of: "the best thing they can do to help, is get out of the way." is near impossible for them to understand. We don't need legistators to make more laws, we need them to clean out the bloatware that is our legal system. 50% of the time congress is in session, the focus should be on removing old defunct laws/prog
  • by Erwin_D (960540) on Friday February 16, 2007 @06:07PM (#18044978) Homepage
    This may rquire some reform in labour laws first, but...

    The USPTO needs to assemble a panel of 4-year-olds. Each time a patent application comes in, the panel would be asked how they would implement the title of the patent (they do not see the content). If the panel comes up with a process resembling the original patent, it would be denied.

    Simple...
  • Where to start.. (Score:5, Insightful)

    by cowscows (103644) on Friday February 16, 2007 @06:08PM (#18044994) Journal
    Make patents shorter term, 5-10 years. Things move very quickly these days. If you can't get it out to market in a few years, then you don't have anything specific enough figured out to patent. Patents should only be allowed for very specific implementations of an idea/product/process/whatever. No patenting what you're trying to do, just the way that you're doing it.

    Along with better criteria for awarding patents, there should be penalties for people who flood the PO with lots of stuff, hoping that something will stick. Make there be a sizeable penalty for submitting patents that gets rejected. Give a person/corporation a few freebies, a couple per year that can get rejected with no penalty, just to protect the little guys who aren't quite aware of what they're getting themselves into.

    And don't make the patent office earn their budget through the number patents they grant. That's like funding a police department purely on how many crimes they solve per year, when we'd rather they find ways to prevent the crimes in the first place.
    • by abradsn (542213)
      Look dude. Sometimes we invent things that are revolutionary and take multiple years just to develop it. I've spent the last 3 years just reducing to practice a new and wonderful idea.

      So, keep your ignorant generalities to yourself.

      By the way, for you spelling idiots that troll slashdot looking for mis-spelled words... Shut up!

      By the way, I happen to agree that the system is screwed as it is currently. I opt for trade secrets and copyrights, and hope until it gets close enough to release. At that point
    • Give a person/corporation a few freebies, a couple per year that can get rejected with no penalty, just to protect the little guys who aren't quite aware of what they're getting themselves into.

      Life gets tricky fast...

      Does a corporation with 1000 engineers get more freebies than a company with 3? If so, how do you prevent them from focusing all of those freebies in one small and rapidly evolving technology sector, thereby locking out the smaller players even more so than with the current situation?
      • by Surt (22457)
        I think you misread his idea. You don't get the patent for free, you get denied without penalty your first N rejections. I would make it a flat N regardless of company size. Larger companies have the resources to be more careful, and thus shouldn't need the protection any more than a small time operation.
    • Re:Where to start.. (Score:5, Informative)

      by Dufftron 9000 (762001) on Friday February 16, 2007 @06:45PM (#18045492)
      The current patent term is 20 years from the filing date. As there is a 3 year backlog before most cases even get looked at these days they are not getting much more time than the 17 years they were granted previously. Also, the pace of technology is not constant in all industries. Drugs are expensive and and take years to develop. If they had to recoup all the costs and get profits in 5 years imagine how much a bottle of pills would cost.

      The concept that people should not be able to seek patents while working on development is not really applicable as the USPTO does not require a working model anymore. If you show completeness of the concept and give strong evidence that it would work then you have done the job.

      Applicants are required currently to pay for an RCE after every other rejection. The RCE is equivalent in cost to a full initial examination fee. They only get freebies if the examiner does not do a good job.
      The USPTO does not get paid by the number of patents granted a year. The revenue is generated from examination fees, maintenance fees and other fees on applicants and patent holders. The money then goes to Congress who allocates the budget back to the PTO. Even if the PTO wanted to make money by just granting patents Congress would likely keep the excess anyway.

      • by drinkypoo (153816)

        Applicants are required currently to pay for an RCE after every other rejection. The RCE is equivalent in cost to a full initial examination fee. They only get freebies if the examiner does not do a good job.

        So what you're saying is that the system penalizes individuals, who cannot afford to endlessly resubmit patents?

        The USPTO does not get paid by the number of patents granted a year.

        Except that the more bad patents the USPTO accepts, the more bad patents will be filed, which results in more examinati

    • by steelfood (895457)
      And don't make the patent office earn their budget through the number patents they grant.

      This is indeed ridiculous. But I do think compensation per review is a good incentive. Compensation, after all, makes for a speedier process. But while quantity increases, quality, however, suffers.

      In truth, I don't think patent examiners should be determining the validity of patents at all. I think independent domain experts should be doing it. Categorize the patents my field of relevancy (patents should be able to fal
    • by kansas1051 (720008) on Friday February 16, 2007 @07:06PM (#18045730)

      Make there be a sizeable penalty for submitting patents that gets rejected.

      The reason your idea would not work is that there is no duty to conduct a comprehensive search for a prior art before filing a patent application. The reason that there is no such duty is that a full search of every printed publication that is in existence would cost hundreds of millions of dollars. Under Federal Rules (37 CFR 1.56), patent applicants are required to submit material art that they are aware of, and patent applicants commonly submit dozens of prior art references for consideration by the USPTO. If an applicant (or its attorneys) violate Rule 56, the patent can be invalidated for inequitable conduct.

      Additionally, due to the billions of prior art references that exist, invalid patents are often granted without any fault whatsoever by anyone. Should my client in Arkansas be punished (for a sizable penalty as you suggest) for not being aware of a 1990 paper (written in Greek) that is only accessible by manually flipping through a card catalog in Athens? The 1990 Greek paper, indexed only in a physical card catalog in Athens, would be prior art that could invalidate my client's patent, why should he (or I) be punished for not finding it?

    • Pfft. 5-7 years. No extensions, no exceptions, period. If it's going to take you multiple years to develop your product, you should have to rely on trade secret and copyright laws. If someone else discovers the same thing during that period and beats you to patenting -- guess what? It was obvious to other people in the field! That makes your idea non-patentable in the first place.

      Make patents non-transferrable. That way companies can't game the system by having their engineers filing patents individu
  • by radarjd (931774) on Friday February 16, 2007 @06:10PM (#18045030)
    One of the requirements of a patent filing is that the inventioned be "enabled" by the specification in the patent 35 USC 112 [cornell.edu]. I have always thought an interesting way of handling business method / software patents would be to require any patent which requires a computer include the actual code needed to enable the invention.

    This gives us several benefits: 1) it's more analogous to a physical invention where all the parts have to be described in detail; 2) the source code to enable an invention would be free and public knowledge at the expiration of the patent; and 3) it's useful for others to understand exactly what the inventor is trying to claim as part of his patent. The public would benefit from a better description of the invention, competitors could determine exactly what a patent is supposed to do, and the patentor would not have to face the specter of business method or software patents being eliminated in their entirety (which I'm sure more than a few people will call for).

  • My quick fix... (Score:5, Insightful)

    by bitkid (21572) * on Friday February 16, 2007 @06:10PM (#18045038) Homepage Journal
    Patent holders must license or produce the product before they can sue anybody. That should make it a lot more difficult for patent trolls.

    Prohibit people from suing private citizens for patent infringement - or at least limit the damages/legal costs for them.

    Make with-holding prior-art from the examiner an offense; have the people sign an affidavit or something, and enforce it.

    Have a higher burden of proof for the non-obviousness. Have the people that apply show to the examiner how their idea is different from what's out there.

    No patents on business methods, algorithms, living organisms and such. This is ridiculous and got out of whack due to some messed up court ruling ("anything useful under the sun [] should be patentable"). Make a law to reserse said court ruling.

    Maybe a public review period where prior art can be submitted to the examiner?

    More examiners. I read somewhere that they have only about an hour or so to search for prior art, due to the small number of examiners the USPTO has.
    • Re: (Score:3, Insightful)

      by drinkypoo (153816)

      Patent holders must license or produce the product before they can sue anybody. That should make it a lot more difficult for patent trolls.

      But then if I can't afford to produce the product, I'm not going to be offered what it is worth, because anyone can copy the product and I cannot retaliate.

      Of course, the corollary is that I can sell my prototype, then I can claim that the other business has taken over the market for my patented invention so even if I wanted to I couldn't run a business that produced t

  • by cunamara (937584) on Friday February 16, 2007 @06:11PM (#18045052)
    Overbroad patents seem to be the most troublesome thing. Patents should be limited to operable technologies and abstract ideas should not be patentable. An example is the idea of "one click purchasing." The technology to provide that service would be patentable, but not the idea of one-click purchasing. Ditto having a Web site that makes recommendations to customers based on past purchases- the technology would be patentable but the idea would not. I've picked on Amazon.com in both cases, but there are plenty of similar ideas that have been patented and over which litigation has occurred. Great for trial lawyers but not so much for just about anyone else.
  • How come they don't invent useful, everyday conveniences like Patent Leather [wikipedia.org] anymore?
  • Have multiple systems. It would be the most effective way to have the patent system. Perhaps one system for drugs, another for software, another for &c.... This way different types of inventions could have different patent lives, different protections against copying, you name it.
    • by NoTheory (580275)
      This is a really bad idea. One of the nice parts of innovating, hopefully, is that you're not restricted by previous classification. If you're forced to shoe horn your patents into a preexisting category to get it approved, then there will be all sorts of mis-classified patents, or people disguising things that would be obvious in another domain in other domains. And on top of that, what about cross-disciplinary patents? Where do you file if your ideas bridge patent areas?
  • by exp(pi*sqrt(163)) (613870) on Friday February 16, 2007 @06:16PM (#18045112) Journal
    The whole point of a patent is that you tell the world how your invention works in exchange for a monopoly on that invention. The 'engine' part comes from the fact that anyone can read a patent for idea and then develop innovative improvements based on it. So patents provide a mechanism for driving continual innovation. But to quote Borat: naaaat!

    The moment you work for a company that develops inventions and you meet their IP lawyer they tell you "if we knowingly violate someone else's patent then we're fined three times as much as if we didn't know. So under no circumstances read anyone else's patents.". So the whole thing is a complete scam and everyone involved is complicit. How come it needs a professor to say what everyone who works in IP has always known?

    • by rlwhite (219604)
      The 'engine' part is supposed to be based on EXPIRED patents, not current ones. The problem is that by the time patents expire someone else has already not only figured out a way to do it without reading the patent, but improved it as well. In many cases multiple groups have done so without ever knowing the product existed. That's because patent lifetimes are too long and the patents too obvious.
      • If what you say were true then patents would be kept secret until expiry. Patents are made public when they are granted (before, in fact) so that people can (1) improve on old inventions (which may require the inventor to license the old invention before it can be implemented) and (2) learn about the state of the art so as to invent things 'around' current inventions.
        • Re: (Score:3, Informative)

          by rlwhite (219604)
          Patents are made public initially in exchange for the protection. This ensures eventual release into the public domain and makes it known what is actually to be protected. Compare it to copyright. The only cases in IP law where public revelation isn't necessary for protection are trade secrets, which have no mechanism to enter the public domain.
    • For all patent supporters, here's a simple question:
      - *How* would software and business patents encourage innovation?

      Seriously. How many of you try to get ideas by looking at a patent database?

      *crickets chirping*

      Okay. I'm sure some of you have tried looking at published patent applications, just for kicks or because it's your job. Of the people who have, how would you describe the software/business patent application?

      1) It's easy to understand and provides enough details to implement the patent.
      2) It's ambi
  • by ClayJar (126217) on Friday February 16, 2007 @06:21PM (#18045168) Homepage
    I think the time has certainly come for congress to "fix" the patent system. Heaven knows we don't need that thing reproducing!
  • by Beryllium Sphere(tm) (193358) on Friday February 16, 2007 @06:23PM (#18045200) Homepage Journal
    Scrap the triple damages for "willful" infringement. People should be encouraged to look up patents so they can license existing inventions instead of wastefuly duplicating effort. That's what the system was supposed to be for.

    Related, allow a patent search that meets some reasonable criteria (e.g. done via the patent office) to be a defense against infringement.

    Allow economic damages only. If you're not trying to get money out of your patent then you shouldn't get money out of infringers.

    Patent office should keep some engineers, or maybe 10-year-olds, on staff. When an application comes in, these people are asked "how would you solve the underlying problem?" If they come up with the same answer as the patent application within a day, the application is thrown out for obviousness.
  • Two changes (Score:5, Interesting)

    by BCoates (512464) on Friday February 16, 2007 @06:23PM (#18045202)
    1. Get rid of the "presumption of validity". Patents, once issued, are assumed to be valid unless proved otherwise, but actually doing the legwork on every single patent to make sure it's good before approving just isn't feasable, so lots of bogus patents get passed.

    But courts still defer to the patent office unless the case is unambiguously bogus.

    Move to something more like the copyright system, where having a copyright issued only proves that you had a claim as of a certain date and that your paperwork was in order.

    The burden of proof would then be shifted to the patent holder to prove that their patent was valid as part of an infringement lawsuit, back where it belongs.

    2. Get rid of or at least weaken submarine patents. The obvious way to do this is to make it so that no damages can be collected for actions before the patent holder files an infringement lawsuit.
  • Not gonna happen (Score:4, Insightful)

    by tsotha (720379) on Friday February 16, 2007 @06:23PM (#18045208)
    The idea this congress is going to make changes in the patent system that actually benefit society as opposed to patent-holders is daft. Congress has been bought and paid for - look at what they did for Disney when they "reformed" the copyright laws. Nope, if Congress changes anything it will be to extend the length of patents and make them more difficult to challenge, which is the exact opposite of what needs to be done.
  • Ideas (Score:5, Interesting)

    by Omnifarious (11933) * <eric-slash&omnifarious,org> on Friday February 16, 2007 @06:24PM (#18045224) Homepage Journal
    • Abolish business method patents completely
    • For someone to enforce a patent, they should either be an individual who filed the patent or a company that makes a product that uses (or is strongly related to) the patent
    • Make the lifetime of any software patent be 5 years. (I would prefer software patents be abolished entirely, but if they're going to exist at all, they need a much shorter lifetime to account for the pace of change in the software world)
    • Make the government liable for up to $500000 (and peg the amount to the consumer price index) in legal costs for anybody who sucessfully defends a patent on the grounds of prior art or obviousness.
    • Alternatively, the legal costs could be split between the patent enforcer and the government with the government picking up the tab if the enforcer went bankrupt. Though, that change risks the strong danger of the government not wanting to grant patents to people who didn't have the resources to defend them.

    • Oh, and one more thing...

      The working model requirement should be re-instituted. If you can't make a working device that demonstrates the patent, you shouldn't get the patent.

      Also, a patent that can't be easily understood by a competent practitioner in the field in which the patent is granted should be consider void. Patents are there to spread knowledge, and ones that don't are useless. They should not be written in a special patent version of legalese like they are now. They should be written in the

    • Constitution: "by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries"

      Patents should be held by the people that invented it and non-transferable. To be "exclusive", no contract should be enforceable placing restrictions on the inventors re: their patent -- even for 'works for hire'. A company could still enter into an agreement with the inventors to have use of the technology and even to sublicense it to others, but could not prevent the inv
    • by AusIV (950840)
      Lots of problems with those ideas. Often, products are developed by fairly large research teams. If the patent is under the name of that one individual, he could defect and take the patent and work of his former co-workers with him, then sue the company that paid him to develop it.

      I would agree with software patents having a limit of 5 years, but 5 years certainly isn't right for everything, and I'm not sure I like the idea of having to categorize items, as every so often there is something so new and orig

  • by Gryffin (86893) on Friday February 16, 2007 @06:26PM (#18045242) Homepage

    How would you fix the patent system?

    Easy. Stop allowing patents for concepts, knowledge, ideas, methods, algorithms, etc.; and allow them only for things. Ideas are easy; it's implementation, marketable products, that are hard, and worthy of economic protections.

    Patents are founded upon the concept that we all benefit as a society when those who develop products that make our lives better and/or easier are given a chance to benefit financially from those products, and hence have an incentive to undertake the often difficult development and production of them in the first place. Allowing patents on ideas, etc. has no such benefit, other than for the patent holder.

    Hey, if I was a smart guy, I could sit around in my underwear, simply thinking up ideas and filing patents on those ideas, and possibly end up very rich someday; but what have I provided society as a whole? Squat. Less than squat, in fact, if I use my patent to club someone who decides to actually bring my idea to fruition, preventing, deterring or delaying that idea from implementation.

    Which is exactly what's happening under the current system: anyone who actually wants to create a product, whether it's a next-generation power source, a ginchy playtoy, or a cure for cancer, first has to evaluate the risk of some "submarine patent" held by some patent troll robbing them of the fruits of their work -- the real work, that of actual implementation.

    "Invention is 1% inspiration and 99% perspiration."
    -- Thomas Edison

    Quit letting lawyers and speculators control the 1%, and set the 99% free.

  • FOSS and Four Rules (Score:3, Interesting)

    by flaming error (1041742) on Friday February 16, 2007 @06:27PM (#18045268) Journal
    I'd add a new kind of FOSS patent, where the idea immediately becomes public domain and anybody can implement it. Useful to defend ideas from commercial interest patents.

    For commercial interes patents, this is what I'd do:

      1) Patent gives grantee a monopoly for three years, then it expires and becomes public domain. You've got three years to make your killing, then you have to compete on a level field.

      2) Be stricter about giving them out - patent really has to be for something professionals of the field hadn't already thought of.

      3) Make it easier to challenge patents; if a challenger can produce prior art, patent is immediately voided, and grantee is barred from applying for new patents for ten years. If grantee had won any civil judgments regarding the patent while it was in force, any monetary judgments must be completely refunded, along with losers' legal fees.

      4) No patents may be granted that could prevent other entities from implementing official industry (IEEE, IETF, ASME, NIST, ...) standards. If grantee belongs to standards bodies, they must disclose all patents granted and pending, or their behavior is tort fodder for competitors.

  • There are already some good ideas on what should be done to the patent system, so allow me to make a few predictions on what will actually happen if congress does get around to revising the patent system.
    • Patents will become much more expensive. This will be ostensibly to either cover the cost of searching for prior art, or to make junk patents less appealing. This will effectively keep anyone but large corperations from filing patents.
    • Rules regarding software patents will be fleshed out which will expl
  • by Bellum Aeternus (891584) on Friday February 16, 2007 @06:32PM (#18045344)

    Disallow patenting an idea of how to do something. Proof of concept must exist. Limit software parents to 10 years and require that the source code and all source code for updates and/or patches be given to the USPO. After the 10 years expires the source code becomes public domain to be used by startups, students, and competitors.

    Deny all patenting of genetic and biological technology.

    If a company cannot make a profit off an idea that they have sole access to for a decade, then that idea or company is faulty to begin with anyways. Let somebody else have a chance to make the idea work.

  • by Ungrounded Lightning (62228) on Friday February 16, 2007 @06:33PM (#18045356) Journal
    Eliminate all patents on software and business methods.

    Barring that: Consider "doing X with a computer" - where doing X without a computer is a well-known process and the computerization is a straghtforward analog - to automatically be "obvious to a practitioner of the art", and unpatentable in it own right. (If "doing X without a computer" is patented, of course, "doing X on a computer" would similarly be "doing X" and

    Software doesn't need patent protection.

      - Copyright (even absent the crazy extensions in the last few decades) is adequate to avoid direct copying.

      - The the time needed for the competition to recognize a profitable product, reverse-engineer it, write a replacement, and bring it to marketability is adequate to let innovators recover their investment plus profit and establish themselves in the market niche they create.

    Most "business methods" have similar characteristics regarding payback of development costs. Further: Patenting them is so fundamentally anti-competitive that it makes no economic sense.

    Keep patents restricted to things like physical inventions, manufacturing processes, drugs, and the like, which do have a big development cost that needs a significant time to recover.
  • How would you fix the patent system?

    1. Patents expire X years after the invention, not X years after approval. Get rid of the incentive to drag the process out.

    2. Add (or enforce) a requirement that a patent must describe the invention in a manner comprehensible to someone with expert skills in the field and in sufficient detail to allow that expert to implement the patent. A finding by a court that the applicant has failed either of these two duties is grounds for invalidating the patent in court.

    3. Allow
  • show a good faith effort to capitalize on their patent

    this will prevent patent spam: a**holes just filing patent after patent with no intention of capitalizing on the invention, but every intention of suing if anyone else ever actually makes money off the idea

    so it couples the state of holding a patent with the intent to move forward with it. you can hold a patent, but if you don't do anything with it, it ceases to protect your idea. "dead" patents, patents that are filed and just sit there unused, become e
  • by The G (7787) on Friday February 16, 2007 @06:36PM (#18045382)
    Here's how I'd approach the problem:

    (1) Every year, a patent recipient names the price of an unencumbered license, $X.
    (2) Every year, to renew the patent, the patentor pays $X*(2^r) for r being the number of previous renewals.
    (3) As soon as a patent is not renewed for a year, it ends.

    What this means:

    (a) It is not practical in the long term to use a patent to prevent something from being built -- a high $X means a high renewal fee.
    (b) Patents that are genuinely useful get renewed; patents that are just so much legal cow-dung will not be profitable to renew for as long.

    Problems with this scheme: The exponent constant might need to vary by field; the scheme would have to be revised for design patents and plant patents; might conflict with various treaties; might be preferable to restrict the ability to use a small X one year and a larger one the next year (require X to be non-increasing?).
  • One thing that should not change is the current practice of granting a patent to the person who can show that they produced an innovation first. The corporations' desire to switch to "first to file" will only serve those who can afford to keep armies of patent lawyers on staff, and who can file thousands of applications per year. Basically it favors and preserves the incumbents. The Horatio Alger story of the individual inventing something in his garage will become a fading myth.
  • "No one's life, liberty, or property is safe while the legislature is in session."
    Will Rogers said "Be thankful we're not getting all the government we're paying for."and
    "With Congress, every time they make a joke it's a law, and every time they make a law it's a joke.",
    "This country has come to feel the same when Congress is in session as when a baby gets hold of a hammer." -

    Amen, Brother. Amen.

    Read more Will Rogers here [mises.org]

  • Aside from completely abolishing the patent system, my suggested patent scheme is to put a total limit N on the # of currently-valid patents (to make it both easier to search to see if you are violating a patent, and to put bounds on the "slow-down" effect that patents have on the smaller innovations that occur on a regular basis in society).

    Once you've got a strict limit on total # of patents valid (making them a fairly rare resource), then you can use a competitive process to play off the merits of each p
  • There was a time when Copy Write Laws applied to software. It makes sense, because the hardware has already been designed and is working,(If you are Intel, it is pretty much most of the time). The only thing that the hardware is doing is reading machine instructions, and then executing those instructions already engineered into to chip. Patenting the instructions sequence is the issue. But that makes no sense because the patent already exists by the CPU maker as a process of executing ANY SEQUENCE of ma
  • by Dracos (107777) on Friday February 16, 2007 @06:53PM (#18045596)
    • Declare software and business methods unpatentable.
    • Disallow corporations from holding patents.
    • Reduce patent terms to 5 years.
    • Patents held by publicly funded institutions immediately go into the public domain.

    My first item is simple common sense, at least to anyone on /..

    Second item would restore patents to individuals. The concept of patents was not designed or intended to foster large portfolios wielded by legal entities with mountains of cash and armies of lawyers. It was not even designed with Edison in mind. Restore patent holding to the actual living, breathing inventors, and let their employers have first refusal on any patentable item developed with company funds.

    Third, business moves a lot faster than it did 50, 100, 200 years ago. Allowing patents to last 20 years is absurd in today's market.

    Public Universities should not be allowed to be complicit with large corporations in holding patents hostage, especially in the science and medical fields. Actually, this could be made irrelevant by #2.

    In general, reform the entire system to be oriented toward individual inventors, rather than Corporate innovation squatters.

    If Congress does anything about this, it won't be caused by any domestic forces. The EU is gaining strength in these areas and pushing lots of reforms through. If the US wants to continue trading with Europe, many of America's draconian laws will have to be updated, including patents.

    • Damnit man, I like the cut of your jib. You make too much good sense.

      Quick now, lock the door and hide a pack of hungry lawyers should after you in seconds.

    • Re: (Score:3, Interesting)

      by OakLEE (91103)

      Second item would restore patents to individuals. The concept of patents was not designed or intended to foster large portfolios wielded by legal entities with mountains of cash and armies of lawyers. It was not even designed with Edison in mind. Restore patent holding to the actual living, breathing inventors, and let their employers have first refusal on any patentable item developed with company funds.

      A quick note, in the US only individual persons can hold a patent. That person can then assign the pate

  • Have the cost of filing a patent increase with every patent that you file in a given year. A small company that files a few patents a year will pay the normal rate. Large companies will see their per-patent cost increase as they file hundreds or thousands of patents per year. The additional money will go to hire more examiners.

    This plan will allow small companies to continue filing patents without paying more. It will also act as a disincentive for large companies (like IBM) to ask their employees to
  • Make the USPTO liable for damages, wrongly-paid royalties and legal fees caused by patents that are eventually found to be invalid. Fund the USPTO's legal damage budget by docking up to 25% of the salary of its employees. If this were done, they would certainly be just a little more careful about what patent claims they rubberstamp.
  • ...disallow patents for software and it will make a big difference on the work load of the patent office.

    Abstraction Physics [threeseas.net] is a perspective on software that shows software is in no way shape or form of a nature patentable. It actually falls into the three main things universally accepted as NOT patentable. Physical phenomenon, natural law and abstract ideas. The forth is math algorithms as many claim software is that, but math is a subset of abstractions.

    As a thing to do, take any software patent and re-w
  • Or could we? Could we just drop patents from this point forward and limit the power of the existing ones until they expire.

    If problems come up I'm sure we can make laws to deal with them. Maybe I'm just a small town fool, but I think everything would continue better and faster than normal. This is not the 90's ... ummm ... 18-90's anymore. We don't need to be persuaded off the farm to make and market devices. Many of us do that for a living. In fact I expect without patents we'd innovate even faster, being
  • Right now, a patent can only be rejected if it is obvious, if there is prior art, or if it doesn't describe the invention in enough detail. If a patent examiner is handed a patent that is precise but incomprehensible, he has no grounds on which to reject it. I propose the following be added to the policies of the USPTO:

    A patent shall be rejected if it either
          - fails to use standard terminology where appropriate, in a way that makes reading of the patent more difficult
          - describes aspects of the invention which are minor or irrelevant but not novel in excessive and unnecessary detail, or
          - is in any other obfuscated, in the opinion of the examiner.

    The typical patent is a very long description using precise but completely non-standard terms. Patents spell out in detail things that a person in the field would use one or two words for, and as a result, patents are hard to read, hard to search and hard to judge. Bad patents slip through the cracks not because the patent examiners don't know what they're doing, but because the patents themselves are extremely difficult to read.
  • The patent office has some obvious problems, but in all these comments it sounds like the litigation not always the patents is the problem. Would much of the problem be solved if court fees were regularly charged to the loser of a case? Would this take care of big business bullying the small companies and other issues that come from a lack of money?
  • I would fix the patent system the same way a vet fixes a cat.
  • Patents are a form of intellectual property. As such they should attract a property tax. If you don't pay the tax you lose the property.

    I'd suggest say $5000 per year per patent but I'm sure it could be adjusted depending on what kind of patent it might be. For instance a "software" patent might attract a high tax load same as a highly desirable view lot attracts a higher tax load. Fair is fair eh?

    In the case of a company with a patent portfolio of say 10,000 patents this might generate $50,000,000 in t
  • by rossz (67331) <ogre@gee k b i k e r.net> on Friday February 16, 2007 @07:47PM (#18046138) Homepage Journal
    A number of posters are arguing that the patent period needs to be reduced to some rather short interval, typically around 5 years. The problem is, it often takes about that long just to get the financial backing to turn your patented widget into a viable commercial product. A too short of a patent period and no one would be stupid enough to fund a patented project. Just wait a few years and you can skip paying the inventor his share.

    The problem has never been how long a patent lasts. The 20 year period is actually quite reasonable. The problem is how easy some really stupid shit can be patented, and how much of a pain it is to get a bad patent revoked.

    Unfortunately, I'll bet money that Congress will do to patents what they did to copyright, make a bad situation worse. (bad for the little guy, wonderful for the megacorps).
  • How would you fix the patent system?

    I would limit the total royalty fee. That way you could develop a product without fear of getting slapped out of the blue with a huge show-stopping royalty.

    As far as how to divie up the fixed chunk, that can get a little sticky and has led to endless debates. Perhaps have the patent claimants fight over who gets a stake and how much rather than the manufacturer. This shifts the burden away from the manufacturer. The Mfr pay their fixed max percentage, and let the patent
  • by dublin (31215) on Friday February 16, 2007 @08:32PM (#18046542) Homepage
    As I've stated here on /. in the past, there is an easy way to fix the patent system, which I've improved over the years. The patent system is not ideal, but it has been a stunningly effective engine for driving economic development and technological progress for centuries, especially in the US. It does NOT need to be abolished, nor does it need major surgery - what it needs, instead, is the addition of a simple self-regulation mechanism that will remove the incentive for most abuses. (For some more detail on why I think patents are a *very* good thing, check out a letter I wrote to LWN way back in 2000: http://lwn.net/2000/0420/backpage.php3#backpage [lwn.net])

    The following addresses the US patent system, which for all its myriad faults, is in many ways the best in the world (at least as far as creating incentives for progress.) I don't address foreign patent systems here because, 1) I don't know them well, and 2) the ones that I do know a bit about all too often serve only the interests of large corporations with deep pockets.

    How to Fix Patents Easily ("Dub Dublin's Proposal for Patent Reform"):

    Part One: Instead of the current fixed length term of patents (20 years, in the US), make the term of patents adjustable on a sliding scale that is inversely proportional to the number of patents *issued* in that category in the trailing twelve months.

    Part Two: Keep the reasonable cost of patent filings, but after a relatively low threshold of filings (say, 50 or so), make subsequent filing fees rapidly accelerate with the number of patent applications filed (also figured over the trailing twelve months).
    This has many benefits:
    • Although it doesn't fix everything, it fixes the most serious problems, with the huge bonus that it's simple to understand, easy to implement, and doesn't require a lot of tinkering in the future.
    • It ensures that truly new breakthroughs (say, antigravity or Mr. Fusion) or breakthroughs in sleepy areas for which there isn't much patent activity (steam-powered cars) would still receive maximum patent protection, preserving strong incentives for first movers in those areas. (FWIW, I favor setting the term in median-activity categories at around 12 years, with slower ones going up to 25 years, and more frenetic ones falling to as little as 3 years.)
    • In areas of furiously developing technology, the falling term reacts automatically to the pace of the market, adding a market-driven component to the patent process. This fundamental disconnect between the patent system and the state of the market (which largely drives and is driven by the pace of technological development) is the largest reason our patent system seems problematic (and to some degree, anachronistic) today.
    • It also ensures that as more and more people are issued valid, but possibly trivial or copycat patents in a patent "land rush", the value of those patents begins to fall rapidly as the terms decrease, possibly to as little as three years in very rapidly developing areas. (In today's world of Internet and software patents, anything longer than five years is darn near forever, anyway, but these shorter terms would keep those systems, methods, and processes from being unusable (for decades) by others wanting to (wisely) avoid deliberate infringement.) A bit of ambiguity about the term your patent application will buy you in a hot area is an intentional damper on excessive speculative patents.
    • As markets cool down and the number of patents falls off, the terms begin to increase again, creating some incentive for a continued incremental improvement or renewed activity in more mature markets.
    • Because it's market-based, it doesn't require prescient knowledge or the implementation of rules that will themselves someday be completely out-of step with the environment around them.
    • Similarly, Step Two places an effective limit on the number
  • by chris_sawtell (10326) on Friday February 16, 2007 @09:53PM (#18047076) Journal

    The whole patent farce has long since past its use-by date so let's just terminate it by repealling these unjust laws and treaties.

    It was created to boost invention and innovation, by giving a defined monopoly for a set period in exchange for the publication of pretty precise specifications of the invention. It did what it was supposed to do for quite a few years, while the things patented were relatively simple manufactured objects. That was then, now the patent system gives the inventor an absolute monopoly for a set - imho excessively long - duration in return for the publication of totally obfuscated plans. Thus, in effect, depriving society as a whole from full exploitation of the ideas behind the patent for 20 years. Two items which come to mind immediately are the cavity magnetron, as used in microwave ovens, and xerographic copying. Neither of these really flourished until the original patents ran out. I'm sure there are 'hundreds', i.e. millions, of similar examples. I believe that commercial success from the implementation of ideas should stand on on its own. In my not so humble opinion it's morally wrong for the State to prevent improvement of manufactured things by competitors, but that is what is happening now-a-days. In practice patents make it impossible to make a better mousetrap. While that's merely wrong, using trade treaties to impose the whole crooked and corrupt mess on other societies, well that's just Satanic. But that's what is happening today and is the root reason why the US is seemingly loathed by the second and third tiers of the world's population. To put it simply, that's what caused 9/11. Now, USA: Please fix it and rejoin the Family of Nations.

  • Abolish it (Score:4, Insightful)

    by Russ Nelson (33911) <slashdot@russnelson.com> on Saturday February 17, 2007 @01:56AM (#18048458) Homepage
    I wouldn't fix the patent system. I would abolish it. The trouble with the patent system is that when it's time for something to be invented, multiple people invent it at the same time. Inventions don't come from a vacuum. They come from a recognition that a problem experienced by many people needs to be solved. Thus, the major impetus for creating a solution comes from the public who has the problem. So why should somebody own a solution just because they created it, when the solution has just as much to do with the existance of the problem as the existance of the problem-solver?

    Or, more succinctly, all solutions are obvious in the context of the problem.

"The pyramid is opening!" "Which one?" "The one with the ever-widening hole in it!" -- The Firesign Theatre

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