Patent Office Head Lays Out Reform Strategy

jeevesbond writes to tell us that Jon Dudas, the Under Secretary of Commerce for Intellectual Property and Director of the US Patent and Trademark Office has laid out a plan for patent reform. "Speaking at the Tech Policy Summit in San Jose, Dudas said that characterizing the patent system as hurting innovation is a 'fundamentally wrong' way to frame the debate. 'I have traveled around the world, and every nation is thinking how it can model [intellectual property governance] after the U.S,' Dudas said. 'It's a proven system, over 200 years old. The Supreme Court, Congress and policy makers are involved [in cases and legal reforms] not because the system is broken. It's not perfect, and we should be having the debate on how to improve.'"

Favorite Quote FTA

[paladinwannabe2]

With the more open environment, companies and individuals could more easily game system, loading up examiners with more and more information from friendly or unfriendly parties. "We certainly can't allow having more information come in and harrassing the applicant, and we can't hold up the timing of application processing," Dudas said.

Because when you're trying to get a patent approved, the last thing you need is people pointing out the prior art, or people double checking your 'facts'- those things are harrassment and hold up the timing of application processing!

Re:Just a few things

[spatley]

Patent law is an economic tweak that is intended to "promote innovation".

Really? I was under the impression that patent law was intended to protect intellectual property. In the same way that real estate law is intended to protect greographical property.

The fact that protecting property makes it more profitable and therefore encourages the creation of it (read: innovation) should really be considered a secondary benefit.

Re:Just a few things

[tambo]

Something I've never quite understood is how it is determined that an invention is "innovative". ... Is it voted upon? Or is it a single guy, following some guidelines?

It's guidelines-based - but those guidelines go back to the first patent act, passed in 1790. (This was a short three years after the adoption of the Constitution, so IP obviously held a very high priority for our first federal government.)

The guidelines are, essentially, three:

1. The invention has to be one of the statutory classes - according to the first patent act, an "art, manufacture, engine, machine, or device." This summary has stood virtually intact for 217 years: today's version (35 USC 101) reads: "process, machine, manufacture, or composition of matter." If it's not one of those, then it's not useful and not patentable.
2. The invention has to be new - it has to be novel and non-obvious. If it's just a rehash of known technology, then it's not "useful" enough to warrant a patent.
3. The invention has to be complete, to the point where the description can teach others how to apply it. The used here is that it must be "described in sufficient detail to permit a person having ordinary skill in the art to which the invention pertains to make and use the invention without undue experimentation." (Long-winded, yes, but it's a good concept.)

So that's a pretty good level of guidance as to what's "useful." The only tweak on all of this is that, according to the Supreme Court (Diamond v. Chakrabarty) [wikipedia.org], these limitations are to be read expansively; i.e., the patent system should err on the side of breadth. In their (unusually eloquent) rhetoric, the Court held that the system is intended to include "anything under the sun that is made by man" in its scope. So you should be able to get a patent on anything that meets, at least basically, these requirements.

That's the theory. The practice is even more rigorous, because the patent process is onerous: expensive, protracted, somewhat uncertain. The pragmatic answer is that "useful" is partially determined by the inventor's subjective assessment of its value. The inventor makes a value judgment: is the invention sufficiently "useful" to warrant the hassle and cost?

- David Stein

Re:Just a few things

[Chandon Seldon]

Patents are a government granted monopoly right. There are a lot of ways to describe that, but I wouldn't use "capitalism". In a purely capitalist system, everyone would be free to compete - not constrained from competing by the government.

patent terms

[falconwolf]

Once convinced Jefferson sat down with an actuary table and calculated a patent term of 14 year with one 14 year extension possible was the optimum length they should last.

I'm pretty sure you're confusing patents and copyright. They're different.

Yes copyrights and patents are different however they both had the same length of duration, 14 years: "a Patent Law (1791) gave inventors exclusive rights to their inventions for 14 years." [grolier.com]

Falcon