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Legislation To Overhaul US Patent System 336

Posted by kdawson
from the none-too-soon dept.
FutureDomain sends us to a PC World report on the filing yesterday of legislation to overhaul the US patent system completely. The US has the only system worldwide that tries to ascertain who first invented a thing — everywhere else the criterion is who filed first, and the new legislation would bring the US into line. Identical bills were introduced in both the House and the Senate by, in each case, bipartisan sponsors. The corporate roster of backers includes Microsoft, IBM, Amazon, and nearly everyone else. From the article: "The provisions of the Patent Reform Act would... restrict damages that patent holders can receive for infringement lawsuits, create a new procedure to challenge the validity of a patent after it has been granted, and boost resources for the US Patent and Trademark Office."
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Legislation To Overhaul US Patent System

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  • Bizarroworld (Score:5, Interesting)

    by N8F8 (4562) on Thursday April 19, 2007 @09:18AM (#18796683)
    This only magnifies the problem with the existing system where only the big guys can AFFORD to file patents and actually enforce them.
  • by xiard (866646) on Thursday April 19, 2007 @09:26AM (#18796787)
    Damn, I knew I should have previewed. And now, a more legible version.

    I think I understand the rationale for changing the law, but as an application developer it worries me. I'm not interested in trying to patent software that I create, or any of the techniques that I use. I'm more interested in creating applications that are so compelling that they set a high standard that is difficult for competitors to meet, and then continously innovate to stay ahead of them.

    However, I have always felt like I could rely on the fact that I would be able to prove that I had "invented" the software techniques I use in my applications by keeping good records of my design documents, source code control history, etc. My worry with this new proposed law is that someone could take advantage of the fact that I don't care to go through the hassle of patenting aspects of my software and swoop in and patent the concepts themselves.

    It almost seems like it could foster a new age of "patent squatters" similar to URL squatters. Opportunists took advantage of the fact that many companies didn't acquire their trademark URLs in the web's infancy. I could easily see a similar technique arising with patents. All you would have to do is:

    • pick some successful web sites
    • check to see if they're doing anything remotely worth patenting
    • see if there's a patent yet for that - file the patent if there's not
    • blackmail the web site, threatening to shut them down if they don't pay you a royalty/settlement for the use of "their" technique.
    Am I off base here? Of course, I haven't read TFA yet, so I very well could be.
  • Re:First Post! (Score:2, Interesting)

    by Sandbags (964742) on Thursday April 19, 2007 @09:33AM (#18796867) Journal
    OK, so have we're coming in line with the rest of the world where little inventors and small time research firms can get screwed because some inside guy leaked details and a major corp like Microsoft or Verizon throws a bunch of money at the idea to develop it first, then patent it before the small guy can even finish his write up and submit it. in other words, we're implementing a system where big corps can steal ideas for little guys who are too slow, too poor, or simply don't know how too file a patent, and then these small guys get NOTHING.
  • by SamShazaam (713403) on Thursday April 19, 2007 @09:34AM (#18796883)
    The USPTO has been a laughing stock for years and any effort to reform it should be applauded. Still, this is only the starting point and we will have to wait and see how it changes as it goes though the legislative process. This reform has been needed for quite some time.
  • by Aceticon (140883) on Thursday April 19, 2007 @09:35AM (#18796893)
    Judging from the article this does nothing to limit the "Doing something that everybody has been doing for years ... over the Internet"; "Doing something that everybody has been doing for years ... wirelessly" kind of patents.

    Or the "Get a bunch of specialists in a room and ask them 'How would you solve problem X' and then patent the solutions" approach to "innovation".

    Not to mention that the change from a "Prior-art has precedence" system to a "First to patent wins" one means the anybody that has loads of ideas but no money to patent them will loose against "Big corp with loadsa money for whom the costs of filling a patent are short change".

    Couple this with the ability to patent business methods (whether encoded as a software/hardware mix or not) and you'll see things like "selling ice-cream on a beach" being patented.

    The real revolution would be dropping patents for business methods (software encoded or not) altogether.

    The fact that BSA is for it (read: the big boys in the software world), should be ringing alarm bells in everybodies minds.
  • by hey! (33014) on Thursday April 19, 2007 @09:49AM (#18797083) Homepage Journal

    Judging from the article this does nothing to limit the "Doing something that everybody has been doing for years ... over the Internet"


    Well, how do you distinguish that from an actual invention, which usually takes two or more ideas that already exist and combine them in novel ways?

    The problem is equivalent to distinguishing originality from opportunity. As wireless communication becomes cheaper for example, it becomes economically feasible to do things wirelessly that were not feasible before. Eventually somebody realizes this. Somebody has to be first with this realization, but we wouldn't necessarily count that as creative. If wireless had been dirt cheap for the last fifty years, you could have a reasonably safe presumption of originality, but in an era of rapid technological advance in a field, it turns the patent process into an artificially generated land rush.

    What is needed is a definition of non-obviousness -- or maybe a test of non-obviousness -- that can distinguished between opportunistic timing and originality.
  • uh oh (Score:2, Interesting)

    by Ryan Monster (767204) on Thursday April 19, 2007 @10:16AM (#18797471)
    Although this idea sounds great because it brings us in accordance with the rest of the patent systems in the world, there is a problem. The problem is that first to file systems, as opposed to first to invent, promote sloppy, careless filing. If you have to file first to claim your patent right, you will be inclined to broadly, generally claim your invention just so you can file it before anyone else does. It will increase the paperwork in the patent office to amend the poorly drafted original claims. That's how I see it.
  • Legalized theft! (Score:3, Interesting)

    by VernonNemitz (581327) on Thursday April 19, 2007 @10:17AM (#18797497) Journal
    That's what it means, if filing first is all you need to do. Just steal somebody else's idea and file it first.
    Also, I'm curious to know what provision there is, if somebody deliberately puts something into the Public Domain, and somebody else applies for a patent on it afterward.
  • by Aceticon (140883) on Thursday April 19, 2007 @10:18AM (#18797505)
    These kind of patents are filled before it becames economically feasible to do so.

    It's a bit like officially staking ownership to a piece of land on Mars and then waiting until people get there.

    The thing is, in IT related areas, given the speed of technological evolution and the way too long duration of a patent, wild land grabs before the necessary technology exists are a viable business model since technology will often catch up before the patent expires.

    Reduce the length of a patent on IT to 2 years and all these parasites will go away.

    Beter yet, eliminate patents for business methods altogether.

    At the moment, in the US, the concept of "doing something" is patentable. Instead, patents should only be awarded to "the mechanics of a solution that allows the doing of something". If somebody else comes up with a beter solution the patent doesn't cover them, but if they tune or tweak your solution they have to pay you to sell their version of the solution.

    This is how you get innovation instead of stagnation.

    That means that "One-click shopping" would not be patentable but "An implementation of one-click shopping" would be patentable. If your implementation is sofware then it's already covered by copyright, the only reason you would need a patent for this is if hardware was involved.

    For whatever is left, the "obvious to a specialist in that field" test would provide a good test of "inovativeness". If i try and patent "A mechanism for asysnchnously sending and receiving text messages over a TCP/IP network" and you go and ask a couple of specialists in the field "How would you do a mechanism to asysnchnously sending and receiving text messages over a TCP/IP network" and one or more come up with the same mechanism as me (by the way, that would be e-mail), then that mechanism is an "obvious solution" and thus not patentable.

  • by btarval (874919) on Thursday April 19, 2007 @10:37AM (#18797831)
    "Can you please tell me what monopoly IBM has? Are they a HUGE multi-national corporation? Yes, but a monopoly they hardly are."

    Certainly, since your claimed expertise isn't technology, I'll repeat this again. IBM has had a monopoly for over 50 years in the mainframe business. There was an anti-trust case taken by the U.S. government back in the 1950's IIRC against them. Contrary to popular myth, the mainframe business is very much alive and well, and in Q4 last year, it was their largest growth segment.

    I say "almost all" because there's a small startup which is selling mainframe-class computers which runs IBMs software directly. IBM didn't like this, so they filed a Software Patent lawsuit against the company.

    The company is called "Platform Solutions", and they are apparently using Linux to achieve their emulation.

    So, in short, IBM has filed a Software Patent lawsuit against a Linux company. Here's some Press Coverage:

    "IBM's decision to sue Platform Solutions is another indication that the company is becoming more aggressive about defending its intellectual property in an effort to extract more revenue from its extensive patent trove." [informationweek.com]

    IBM has a VERY long history of patent abuse in the mainframe business; software patents are only the latest variation on a theme. Please check Wikipedia if you want to learn more about the Consent Decree that IBM had to operate under until possibly recently.

    "Actually, some of the reform these guys have proposed and the briefs they have written for SCOTUS cases have been in favor of things that would REDUCE the number of patents."

    Prove it (but you can't). The standard argument is that first-to-file INCREASES the number of patents, since large companies find it easier to generate more patents than small companies do.

    "First to invent is a mess."

    And First-to-file stifles innovation. It is pure pork for the big companies. The patent system was supposed to be about encouraging innovation, not stifling it. I agree the whole system needs to be redone. But First-to-file is neither necessary nor sufficient to bring about the changes that are needed.

    "Um, working prototype is currently a requirement FOR ALL PATENTS. You do not patent an idea, you patent an invention"

    Really? Do you mean all those patent trolls who never ship any product have a working prototype? I'm a little surprised to hear this claim from a supposed Patent Attorney. I can think of several Troll companies which don't have a working product. This is usually their standard operating procedure.

    A copy of the prototype binary and source code ought to be a part of any current Software Patent, IMHO.

  • Patented already (Score:2, Interesting)

    by dzerkel (89036) on Thursday April 19, 2007 @10:57AM (#18798173)
    I'm afraid you are all infringing on my patent on "Whining in a long, well thought-out post on slashdot about pending legislation, but never finding the time to email your representative."

    License terms to follow.
  • by tknn (675865) on Thursday April 19, 2007 @11:06AM (#18798291) Homepage
    but I can't help myself. The whole point of patents is to encourage public disclosure of the idea. It protects the person who discloses their invention so that they will do so. Otherwise people would merely rely on trade secret and contract. Imagine if you bought a computer and you had to sign a contract promising you would never open the thing up or be liable for millions of dollars for theft of trade secret. Now, instead, you can open the thing up to see how it works and tinker with it all you want, but you can't profit off the inventor's ideas. Our current system actually discourages this by allowing people to keep secret what they have invented for a while and then claim to have invented it first. The first-to-file will encourage quicker disclosure of inventions, and reduce court costs as it will be a lot easier to prove who was first. This will reduce the cost of litigation for small companies, as it will be obvious who filed first most of the time. What I would like to see is public review and challenge of patents. If the USPTO is too busy to prior art search. Let patents be easily challengeable on the basis of prior art. Put up the patent, a comment thread to point out prior art, and should the patent-holder try and enforce the patent, let that thread be examined for prior art to see if the patent is valid. So we presume a patent is valid (since this is what happens anyway), but we make it a thin presumption. To encourage only valid patents, we can just make the invalid patentholder responsible for returning all sums gained from the invalid patent plus all costs incurred in disproving the patent and government court costs. The costs of patent battles are absurd, but this is a prisoner's dilemma where everyone has their hand in the cookie jar. New regulation is the only way to break out of the impasse, and this, at least, should be a bit better.
  • by cpt kangarooski (3773) on Thursday April 19, 2007 @11:36AM (#18798817) Homepage
    We care because a lot of people here are saying "This couldn't possible work! I can imagine it will lead to all kinds of bad effects like this..." and they then go on to describe something that is known to not happen in the rest of the world where first-to-file has been the norm for decades.

    True, but this is still not an affirmative reason to adopt first-to-file.

    Actually, speaking in my capacity as a foreigner, what is happening is quite the opposite. The US is continually trying to bully us into adopting your crazy copyright system.

    I wish. You need to look at the big picture. What has happened is that a combination of publishing interests and European governments pushed Berne on the US, a system which we had no input into making and which we were bullied for about a century into adopting. Seeing how successful it was to avoid domestic objections to radical enlargements of copyright by using international pressure (i.e. you could do most of the work through fairly anonymous members of the executive branch in quiet meetings abroad, rather than legislators acting fairly publicly in DC, and then bully the legislators by saying that we needed to fulfill treaty obligations and enact laws to comply with the treaties) this method has been used to 1) force even more laws on the US by setting up treaties that mandate them, and 2) to use the same methods elsewhere, as the US rapidly outstripped the rest of the world in bad copyright laws.

    Europeans have been fully complicit with this, however, and the initial effort was still based in the horrible Berne Convention, which Europe deserves the blame for. And many of the worst features of our current law (life plus terms, copyright upon creation, etc.) come directly from Berne and are not of US origin. Don't just blame our special interests.
  • by glindsey (73730) on Thursday April 19, 2007 @12:29PM (#18799819)
    True, so here's a solution: tie patents to individuals rather than corporations. Make them non-transferable, and make corporations ineligible for owning patents (and throw out the rest of the archaic, railroad-boss-purchased "corporate personhood" bullshit while we're at it).

    Then perhaps the patent system can return to the way it was when it was designed.
  • by tilde_e (943106) on Thursday April 19, 2007 @12:51PM (#18800187)
    I challenge you to list 5 famous, successful inventors who's primary focus was reaping profits as they designed their inventions.

    True inventors fit the open source model pretty well, IMHO, they want to take on a challenge for their own enrichment and they want their products to be used by whoever will find them useful but they also do it simply for fun.

    I think you're missing the spirit of patents that they are designed for and by those that simply want to, as you put it, capitalize on them. Any inventor that puts on the hat of a patenter is no longer an inventor, he becomes a business man. Certainly, an inventor may want credit for his work, but there must be other ways receive due credit without owning a patent.
  • Re:First Post! (Score:3, Interesting)

    by Ibag (101144) on Thursday April 19, 2007 @01:05PM (#18800419)
    This is mostly Big Medicine, and if Big Medicine can't manage to be profitable at the prices the public is willing to pay (generic prices) without patent protection, then they (and the public) need to rethink the model: The public can either have new drugs and pay a lot to support the development costs, or have cheap generic drugs and no new ones. Supply and demand, free-market style (without the protectionism of patents).

    I'm sorry, but what? Are you serious here? Let's say that the cost to research and develop new drugs cannot be recouped in five years, because the price of drugs would either be too high for them to sell or or too low to pay for development. When you factor in the cost of developing and testing drugs that don't make it to market, this does not seem too far fetched. What happens after five years? Other companies that don't have the development costs to recoup can afford to sell generic versions of the drugs at much closer to cost, which would force the original manufacturer to do the same, and thus, it would become impossible for the people who develop the drugs to be profitable.

    What happens in this scenario? Because it makes no sense to develop new drugs (because the laws of supply and demand say so), no knew drugs get produced, except in the rare case that a university researcher happens to stumble upon something exciting. Even in that case, it is possible that the cost of testing and bringing to market such a product would still be prohibitively high. In this situation, a good deal of medical research is never done, and many potential cures for many ailments never materialize. While the drug companies won't get all the profits off the new drugs, and while many researchers would be out of jobs, the people who suffer the most are the people for whom life saving medication is never developed.

    You glibly say that they should rethink their model, but what makes you so sure that there is a viable model out there to be found? Regardless how efficient you are, development has some sort of inherent cost, and without either a temporary monopoly or substantial subsides, it does not make sense to engage in such development.

    Medicine is one of the few places where patents do make a whole lot of sense, and it would be a shame to kill off the work these companies do just because their model doesn't fit with your ideology. It has been said that America's reduction in basic R&D over the last 20-30 years is a large factor in why we are losing our technical superiority. Do you really want to put the last nail in the coffin?
  • by wmelnick (411371) on Thursday April 19, 2007 @02:03PM (#18801417)
    You seem to have missed the point here. All of those things exist. They are just not being enofrced properly. You are not supposed to be able to patent "common sense", such as the patent on creating a cursoe on a 1-bot field by XORing the bits. The problem is that the people in the patent office aree not qualified to look at that and say "duh, of course that's how you would do that".

    If you look at a patent application, it actually works the opposite of the way you showed above. It would look like this:

    Patent of the nail as:
    (1) A piece of metal
    (2) The claims in (1) where it has a sharp edge.
    (3) The claims in (2) where it is inserted into other objects.
    (4) The claims in (3) where the purpose is to hold them together.

    Then you would have three things after that talking about other similar things. Generally if you read the claims in a patent it is the claim right in the center that they really care about. Anything other than that is gravy. The patent is written expecting that certain claims will be thrown out. Unfortunately the idiots at the Patent office just rubber stamp these thing, after a short wait of 3 years these days.

    Patents are 17 years renewable for another 17.

    As for the drug companies. In the large majority of cases, by the time they actually get the drugs to market, 15 years have passed. Reduce the patent time and you will cease to see R&D done. They will find other places to put their money.

What the scientists have in their briefcases is terrifying. -- Nikita Khruschev

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