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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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  • First Post! (Score:5, Funny)

    by tygerstripes (832644) on Thursday April 19, 2007 @09:13AM (#18796605)
    Er... I mean "Prior art!"
    • Re:First Post! (Score:4, Insightful)

      by halivar (535827) <bfelger&gmail,com> on Thursday April 19, 2007 @09:17AM (#18796661) Homepage
      No, no more prior art. If you filed first, screw prior art. It's yours.

      I think this is going to break it worse than it already is.
      • Now I can finally put in my patent for fire!
        • by jdray (645332)
          Don't you mean "method for modifying the stable state of chemical compounds by rapid oxidization" ??
      • Re:First Post! (Score:5, Insightful)

        by ThosLives (686517) on Thursday April 19, 2007 @09:29AM (#18796821) Journal

        I have to agree here - this is a horrible development.

        In my view, the extreme solution is this:

        1. No patents will exist as of 2025.
        2. You can get new patents up to 2025
        3. Any patent existing before 2025 will be in effect but expire on 2025.

        A more agreeable solution would be this: Patents only last 5 years.

        That will truly spawn innovation, because for anyone to make a buck, they will have to create new novel things. And the consumer will benefit, because innovations in manufacturing efficiency will mean that things take fewer resources to manufacture and last longer - differentiation will be in the product attributes, not in the patent portfolio. Sure, some people will claim they won't be able to recoup development costs or whatever, but that will just mean that development costs will have to come down or people will actually have to *gasp* do something truly innovative to get business. 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).

        • by dsanfte (443781)
          A short migraine is still a migraine. The patent system is a clusterfuck.
        • Re: (Score:3, Insightful)

          by ect5150 (700619)
          Mostly big medicine? How long are any of Intel or AMD's chips in development before they reach affordable levels? Sure, dual core CPUs may come come out right before your 5 year mark, but how expensive were these? Its true that if its 5 years, you'd see generic dual cores and costs would come down. Intel and MAD would just quit making new ones because they could take their money someplace else.

          Same thing with the game consoles market. How long was that Cell processor Sony was making in development? We
        • Re: (Score:3, Interesting)

          by Ibag (101144)
          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 d
      • Re:First Post! (Score:5, Insightful)

        by jguthrie (57467) <jguthrie@brokersys . c om> on Thursday April 19, 2007 @09:30AM (#18796829) Homepage
        Prior art determines patentability, not the determination of who the inventor is. Look, patents are issued to inventors. In order for that to happen, the inventor must be determined. Right now, the standard in the US is "first to invent", which means that the patent office has to examine the evidence and determine who invented the invention first. Now, since they obviously can't trust anyone's word on the subject, they have to examine evidence which is usually (always? IANAL) in the form of notebooks that have to be properly kept. In the absence of other evidence, the first person to file is declared the inventor.

        Now, this is not to say that the bill would not break the US patent system any more than it already is, but one really can't tell that just from reading a summary. You should read the actual bill before concluding that it makes any problems worse.

        • Re:First Post! (Score:4, Insightful)

          by mikeisme77 (938209) on Thursday April 19, 2007 @10:09AM (#18797365) Homepage Journal

          I think it's already pretty clear that it will be bad as it will benefit patent trolls and hurt technologies developed by consortiums or open source projects (neither of which tend to patent their ideas--consortiums just establish standards that define the technologies, and open source projects normally don't waste the money on patents). For example, look at the Verizon vs. Vonage case where Verizon was the first to patent, but as of a Slashdot story yesterday it seems that a consortium of various IT companies actually met and established the standards/protocols/underlying technology of VoiP in question at least a year prior to Verizon filing for a patent.

        • Re:First Post! (Score:5, Insightful)

          by plover (150551) * on Thursday April 19, 2007 @10:34AM (#18797769) Homepage Journal

          You should read the actual bill before concluding that it makes any problems worse.

          I have two arguments against your statement, and I'm only half joking.

          First, the bill is backed by every large technology corporation. The only bills large corporations ever approve of are ones that increase their profits, usually at the expense of smaller companies or individuals. And if both Microsoft and IBM agree to it, this trips all my warning alarms and signals about "bad ideas".

          The other argument is that Congress is horribly, horribly broken, and I simply do not trust them to pass good or useful legislation. This country needs fewer laws, not more laws. In general, if they're passing a piece of legislation, it's going to be bad for us regardless of the topic.

          That said, I'm actually looking forward to reading the bill. I mean the USPTO is already pretty screwed up, so this offers the faint glimmer of hope that it really will reform them. But I'm also prepared to be severely disappointed.

      • The same prior art applies in a first to file system. If it is out there and published/used/known, then it is prior art and can be used to reject patent claims.

        Trade secrets, however, get a good hosing. If you keep something secret and someone else patents your secret, you could suddenly find yourself paying royalties.
      • by vtcodger (957785) on Thursday April 19, 2007 @10:18AM (#18797515)
        ***No, no more prior art. If you filed first, screw prior art. It's yours.***

        I'm pretty sure that's incorrect. Prior art should still hold in that you can't patent something that was described by DaVinci, Ben Franklin, Alexander Graham Bell, Erosthanes, or some dude in Ohio in 1998 on his web site. What first to file means is that the USPTO no longer needs to flip a coin when it gets three applications for the same thing and needs to determine who made the invention when.

        See http://www.heise.de/english/newsticker/news/86141 [heise.de] which makes if pretty clear that Germany -- a first to file country -- considers prior art in judging the validity of patents.

        Of course, I'm no patent expert, and the US Congress with a little help from the lobbiests is capable of coming up with absolutely abominable legislation . But I'd keep an open mind on this one at least for a while for a while.

    • Re: (Score:2, Informative)

      by Anonymous Coward
      I mean "Prior art!"

      Nothing to do with prior art - prior art invalidates patents in first-to-file countries* as well as first-to-patent countries.

      It's more when two inventors develops something novel at the same time. Who gets the patent? First to invent - or first to file?

      * Which include the Phillipines as well as the US?
      • by ThosLives (686517)

        It's more when two inventors develops something novel at the same time. Who gets the patent? First to invent - or first to file?

        Nobody, because it's "obvious to one skilled in the art"?

        Actually, if two people develop it, it's no longer 'novel' by definition and so fails the validity tests.

      • by fyngyrz (762201) *

        It's more when two inventors develops something novel at the same time. Who gets the patent? First to invent - or first to file?

        It has never been first to invent anyway -- that's just a red herring. The entire question is, who has the money to defend the patent in court. Because if you don't, the odds are, you're going to lose it as soon as someone wants it. It's a corporate favoritism scam. It's always been a scam. It's not just a scam because of this, either. If we both invent something, you might ta

        • But then what about companies that spend MILLIONS of dollars making a product, with thousands of people having worked on at least a small part of it? Even if they did keep a secret, they'd only have a few months in the marketplace before some knock-off-vendor was making cheap copies or doing the same thing with their products.
        • by yog (19073) *
          fyngyrz: "And before the pharma trolls come out of the woodwork, just take most of the damned legislation and regulation off pharma companies, and they'd be fine. We'd get new drugs at a much higher rate, and yes, just as happens now, sometimes there would be problems, despite testing"

          If only that were the case. Patents are the least of pharma's issues. Liability is the number one reason that new drugs are not being developed or released. There is a whole industry of class action lawyers constantly sear
    • Re: (Score:2, Interesting)

      by Sandbags (964742)
      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,
  • by Anonymous Coward on Thursday April 19, 2007 @09:14AM (#18796621)
    Are they going to patent this new system? or can I steal the idea!?
  • Big Corp mass patent departments will continue to swamp the USPO and now can do it without worry of prior art. Just shoot me now. (only kidding...eh?)
    • by Carewolf (581105) on Thursday April 19, 2007 @09:23AM (#18796743) Homepage
      No. Prior art stays the same. If anyone has published a the same idea before it is not patentable (in theory, in practice USPO will still not check it),

      The old system just had the option of companies not filing patents and not publishing their results could come in and claim they invented the idea first.

      The new system is much less corrupt and more open.
      • Re: (Score:3, Informative)

        by MrNJ (955045)
        No. Under the current system, the first to invent has 1 year (I think) to use the invention without worrying about "race to the Patent Office" that exists in the "first-to-file" countries. If anything, changing the system to the "first-to-file" rule would result in more filings because companies would be pressed to file as soon as possible to establish priority. Instead, the Congress should clarify the non-obviousness requirement and perhaps require USPTO to hire examiners with experience in the software
        • by Tony Hoyle (11698)
          Actually you have that backwards.

          In most of the world publishing is valid prior art on the day it happens. You can try to file a patent on something like that but it'll be struck down on the first challenge.

          In the use publishing is *not* prior art unless you've been published for at least a year. That means if you for example you release a program that does something cool you *must* patent prior to release or lose it - hence you end up with the clusterfuck that is the US patent system, because damn obviou
      • No. Prior art stays the same. If anyone has published a the same idea before it is not patentable... The new system is much less corrupt and more open.

        Define "publish" - because in theory anything I put on paper is copyrighted, but trying to get a plagiarism suit proven based on my napkin scribblings of a kid wizard at a school named Frogwarts is gonna be tough.

        I suppose prior art is a type of "publishing" but this makes it even harder for a patent to get overturned. Most of the headaches of the curre

  • So, they want to change it so that it's 'in line' with being broken? It's like me throwing a pot on the ground, someone saying "Hey, that pot is broken", and me saying "No, it's a cracked pot, it's no longer broken."
  • by elrous0 (869638) * on Thursday April 19, 2007 @09:17AM (#18796655)
    The biggest problem with patents right now is companies patenting all sorts of things, ideas, systems, etc. that they didn't invent. A great example is Microsoft trying to patent [slashdot.org] "spectator mode" in games (despite the fact that PC games have been doing it for YEARS).

    This legislation basically sounds like a free pass for companies to do this, and throw out the idea of "prior art" altogether. It's little wonder the big IP corporations are behind this (since they have the resources to file scores of patents, strong-arming out the little guys who may have actually invented them). And it's little wonder the patent office is behind it (since it GREATLY simplifies their job). But, for the consumer in particular, and for innovation in general, this could be one of the biggest bonehead moves out legislators have ever made (and that says a LOT).

    • by SpacePunk (17960)
      It would vindicate the entities in the U.S. that 'filed first', and in the present system didn't invent the item which makes their patent illegal. I smell large amounts of money, and am wondering which person in Washington D.C. suddenly has a huge wad of cash to spend.
      • by fyngyrz (762201) * on Thursday April 19, 2007 @09:58AM (#18797213) Homepage Journal
        I smell large amounts of money, and am wondering which person in Washington D.C. suddenly has a huge wad of cash to spend.

        It isn't just money, you know. It is the promise of jobs after government employment. Low-rate loans. "Speaking" engagements. Lecture tours. Book deals. Boats. Houses. Sex. Vacations, junkets and "fact-finding" missions. Access to people in power. Tips - market and otherwise. All manner of free dinners and drinks. Power for its own sake. Oh, and of course - money.

        There is no more corrosive environment than a political position in Washington DC. It's a wonder our representatives don't outright grow horns the first day on the job. Sadly, a 100% corrupt person looks just like one that isn't.

        • Re: (Score:3, Insightful)

          by Prof.Phreak (584152)
          It's a wonder our representatives don't outright grow horns the first day on the job.

          "Anyone who is capable of getting themselves made President should on no account be allowed to do the job."-Douglas Adams
    • by daeg (828071) on Thursday April 19, 2007 @09:23AM (#18796747)
      It also means that every company, big or small, will have to try to patent EVERYTHING. If you don't, you risk becoming an infringer later. The law will make patents a necessity for operating even the smallest of business, and could easily render nearly every business out there an infringer.

      The horse had a bad broken leg before, now we're going to add a bullet through its skull and still try to ride it.
      • by elrous0 (869638) * on Thursday April 19, 2007 @09:33AM (#18796863)
        And, that in turn means that innovation will stagnate because it will become impossible for any small company of individual to invent ANYTHING which doesn't infringe on some big corp's patent. Only the most powerful corps (with the connections, reciprocal patents, and $$ to make deals with OTHER big corps) will be able to innovate. The little guy (like the guys who founded Netscape, Google, YouTube, etc.) will be completely shut out of the game.
    • by JTL21 (190706) on Thursday April 19, 2007 @09:38AM (#18796941) Homepage
      In the rest of the world published prior art still disallows patents.

      Filed first is just the decider when two applications are made for the same invention (which was secret until the applications).

      In most of the world the person who gets to the patent office first gets the patent and the one who gets there second gets nothing. In the US you can claim that you invented it before the other party and try to prove it with dated notes etc. which were previously not published. In theory the first to have the invention gets the patent not the first to file. This leads to messy legal fights.

      In the rest of the world the incentive is to file (and therefore publish) first which gives a clearer decision on this issue.

      Joseph
      • Of course, this is why it would be unconstitutional to go to a first to file system: the Constitution only permits patents to be granted to inventors, not to johnny-come-latelies. Yes, interferences can be messy to conduct, but it's the only way, and frankly, it's probably the best way; no one ever said that a fair patent system would be easy.

        As for what the rest of the world does, who the hell cares? First, standardization is not something that makes a patent system achieve its goals better. Second, just b
        • by radtea (464814) on Thursday April 19, 2007 @10:51AM (#18798073)
          As for what the rest of the world does, who the hell cares?

          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.

          These people remind me of nothing so much as a Renaissance mystic's response to Galileo's observation of the Jovian moons. He said that because there were seven seas on the Earth and seven openings in the human skull, there must be only seven planets in the heavens, so Galileo must be wrong. It "just made sense" to him that extra planets were impossible.

          Empirical evidence is always the final arbiter of reality, and should be the final arbiter of policy, and the people here who are basing their beliefs about the consequences of first-to-file on the contents of their imaginations need to start looking beyond the end of their own cerebral cortex.

          Just look at how attention to foreign implementations has been fucking up our copyright laws.

          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. [theglobeandmail.com]

          Empirical fact. It's not just for scientists any more.
          • Re: (Score:3, Interesting)

            by cpt kangarooski (3773)
            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 y
      • I remember when this method [freepatentsonline.com] was in development. We knew that what was being done was so unusual as to be almost sure to be unique, but needed a way to protect our right to use the method. We were correctly advised by our UK patent agent that our only options were to either publish or file for a patent. As we were in the middle of a contractual negotiation, we absolutely couldn't publish, so had to file a patent application to lay down a prior art date.

        First to file does work, but it means that from your pri
    • That's exactly what I was thinking when i saw that headline..

      I've got a bunch of ideas I wouldn't mind patenting, but haven't a clue how to do it, nor the money to waste on lawyers..

      With this new system, companies would be able to set themselves up doing nothing other than watching smaller companies, then patenting their ideas, only to use those patents to sue the actual creator. That being their entire business model.
      • by Tony Hoyle (11698)
        No you wouldn't because you just publish and it's valid prior art.

        Except in the US under the present system prior art has to be published for 12 months before it's valid.. which is what needs fixing first. Hopefully the new rules will fix this as well.

      • You can still use prior art for defense and file to get the patent scrapped.

        If someone patented something and you possess prior art items, you could still get the patent invalidated but you would not be able to claim the patent for yourself anymore.
  • 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.
    • Re:Bizarroworld (Score:5, Insightful)

      by operagost (62405) on Thursday April 19, 2007 @10:06AM (#18797331) Homepage Journal
      It costs only $150 for a "small entity" to file a patent, and it doesn't take a patent lawyer to present the documentation to the court. If it exists, the patent holder can provide the documentation. The problem lies with inventors who don't patent their work, believing (often correctly) that it is obvious and unpatentable, but the patent office grants one to the "big guys" anyway.
      • Re: (Score:2, Informative)

        by Anonymous Coward
        The problem is that patent law is very complicated, and you need significant experience to write and litigate patents. Writing patents can be done on a budget, but don't expect to get an enforceable patent through the PTO on less than $8k. Also, the cost of patent litigation is quite high, however, if you have a good patent and targets with lots of money, then you can likely get a patent lawyer to take it on a contingency basis. However, the regular legal fees for a patent case are almost always in the l
      • Re: (Score:3, Informative)

        by N8F8 (4562)
        The actual costs for properly documenting a patent are MUCH higher. IANAL and YANAL so look into it sometime. And even if you get one you have to be able to spend the money and time to defend it.
  • It is nice that it is file first, but the costs have to be low enough that plain folks can file. Otherwise, it is the larger and richer ppl who win out.
    • by fyngyrz (762201) *
      It is nice that it is file first, but the costs have to be low enough that plain folks can file. Otherwise, it is the larger and richer ppl who win out.

      It has nothing to do with the cost of filing. It is the cost of defense that you should be concerned about. Compared to that, the cost of filing is nothing.

      • Defense costs will not change. They will still be high as long as we have lawyers. Still need the ability to get the patent.
  • by xiard (866646) on Thursday April 19, 2007 @09:23AM (#18796739)
    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: (Score:2, Interesting)

      by xiard (866646)
      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

  • There's a lot of good news in this bill. The bad news is that with statutory limitations on infringement damages, large companies who are experts in the art of accounting for legal judgments as just another business expense (cough, Microsoft, cough) won't let a little thing like a patent stand in the way of profit.

    Still, if Big Pharma is against it, it's probably a good thing overall.
  • by btarval (874919) on Thursday April 19, 2007 @09:27AM (#18796805)
    "The corporate roster of backers includes Microsoft, IBM, Amazon, ..."

    Each of these companies is well-known for abusing Software patents; the first two in order to maintain their monopolies. Usually "reform" by these folks means "give me a bigger piece of the pie in order to stifle innovation and keep the little guys out".

    Pardon my suspicions, but I doubt this so-called "reform" is here to help us. TFA isn't clear on this, but it sounds like this is just to establish the first-to-file basis of patents, rather thna first-to-invent. First-to-invent is advantagous for the little guy, so it's no wonder the big companies are behind this dubious "reform". This is not good legislation.

    If they really wanted to reform the system, it would be better to either toss out Software Patents (and harmonize our system with much of the rest of the world) or at least require a working prototype before a Software Patent is granted.

    • by thebdj (768618) on Thursday April 19, 2007 @09:43AM (#18797003) Journal

      Each of these companies is well-known for abusing Software patents; the first two in order to maintain their monopolies.
      Can you please tell me what monopoly IBM has? Are they a HUGE multi-national corporation? Yes, but a monopoly they hardly are. What share of the PC market do they own? Oh right, all that was sold off to Lenovo. What percent of the server market? Unix Market? Now, what percent of the OS market is Microsoft? Go re-read the definition of monopoly first. As for abusing patents, Microsoft and IBM have not sued anyone with their patents that I am aware of. In large part because the computer industry would be destroyed. There is sort of a *wink*wink* agreement within the computer industry as it relates to patents. I will give you that Amazon is basically abusing their really shitty patent for 1-click.

      Usually "reform" by these folks means "give me a bigger piece of the pie in order to stifle innovation and keep the little guys out".
      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. At least one item would probably destroy half of their patent portfolios. It is actually kind of funny, but the people who always seem to be on the opposite side of the technology companies in these sorts of reforms are the big pharmaceutical companies. Makes you wonder who is the bigger evil.

      Pardon my suspicions, but I doubt this so-called "reform" is here to help us. TFA isn't clear on this, but it sounds like this is just to establish the first-to-file basis of patents, rather thna first-to-invent. First-to-invent is advantagous for the little guy, so it's no wonder the big companies are behind this dubious "reform". This is not good legislation.
      First to invent is a mess. Speaking as a former patent examiner, it is not pretty and creates about as many issues as it would ever solve. It is out-of-line with the entire world, which allows for other countries to issue the exact same patent to another company than who it was issued to in the US. It also allows companies to come back to back-date their date-of-invention to circumvent prior art, something they would no longer be able to do with the current system. It would also get rid of interferences, for the most part, something that takes up the BPAI time instead of working on appeals, which is far more important to the overall process.

      If they really wanted to reform the system, it would be better to either toss out Software Patents (and harmonize our system with much of the rest of the world) or at least require a working prototype before a Software Patent is granted.
      Um, working prototype is currently a requirement FOR ALL PATENTS. You do not patent an idea, you patent an invention, the actual item. It is actually within the right of the USPTO to ask for a working prototype if the functionality or existence of an item comes into question. This is very rare, but it can be done. So, for a Software patent to be issued, it would actually have to be in some form of use. Removal of Software patents and more importantly business-method patents is important. It would truly create harmonization with the rest of the world, since the US has failed multiple times to convince other nations to allow patentability of software.
      • Re: (Score:2, Informative)

        by kidtruth (1090475)
        "Um, working prototype is currently a requirement FOR ALL PATENTS. You do not patent an idea, you patent an invention, the actual item." Incorrect. You must only reduce your idea to practice, which means you can make a detailed list or explanation of your invention rather than a working prototype. You can patent something that doesn't exist, or doesn't work. It only must THEORETICALLY work. Of course, if the language is not extremely specific as to what the invention does, the patent claims will not pr
        • by thebdj (768618)
          Um, no. 35 USC 101. I cannot remember how many times they told me you had to have the actual invention. None of this theoretical BS goes. If so, people could get away with patenting their "theoretical" anti-gravity machines and perpetual motion machines. They can exist in theory but they do not really exist.
          • by NearlyHeadless (110901) on Thursday April 19, 2007 @10:44AM (#18797949)
            http://www.uspto.gov/web/offices/pac/doc/general/i ndex.html#model [uspto.gov]

            Models or exhibits are not required in most patent applications since the description of the invention in the specification and the drawings must be sufficiently full, clear, and complete and capable of being understood to disclose the invention without the aid of a model.

            A working model, or other physical exhibit, may be required by the Office if deemed necessary. This is not done very often. A working model may be requested in the case of applications for patent for alleged perpetual motion devices.

            When the invention relates to a composition of matter, the applicant may be required to furnish specimens of the composition, or of its ingredients or intermediates, for inspection or experiment. If the invention is a microbiological invention, a deposit of the micro-organism involved is required.
      • Can you please tell me what monopoly IBM has?

        For a former patent examiner I am quite surprised that you don't know the history of IBM's monopolies in both mainframe and PC computing, and the fact that they used their patent portfolio very aggressively to protect those monopolies. Though AFAIK they were never convicted of legal monopoly status.

        It took serious money for Compaq to reverse-engineer their BIOS enough to run MSDOS on their first PC clone. For years afterward there were various BIOSes that had d
        • by thebdj (768618)
          And again I repeat, in the current world, not the world of almost 20-30 years ago, what monopoly does IBM have?
      • 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.

  • And I'm sure I won't be the only one to ask this.

    There are many things broken with the current patent system, but how exactly is a first-to-file system better? Seems like this only makes it easier to patent the useless and ridiculously broad crap that the current system is clogged with.
    • Re: (Score:3, Informative)

      The advantage of the 'first to file' rule is it prevents the situation where A patents something and B goes "Oi! I thought of that last year. Honest. Ask my cousin C and pal D". Big companies have an advantage in that kind of trick: 'Sure we did, just ask employees E1 ... En.

      It has no bearing on patenting beer, the sky or sex, which ought to be covered by other rules (novelty and non-obviousness to start, but also the fact that they naturally exist). Or at least it shouldn't have... this is the USPTO w
  • The statement "only country" belies an argumentum ad populum. When we acknowledged the woman's right to vote, we were the only country (or one of the only). So, was that wrong? We are one of the few countries to use the common law system; a system of law that proved its success for over a 1000 years and derived from the rights _rich_ Romans got (such as jury trial), which the peasants did not.

    There's nothing wrong with being the only country, especially when we're right.
    • by ohearn (969704)
      I have no problem if they want to go to a first to file. It does at least simplify the system a lot. Maybe in the process Congress will also realize we are the "only country" (or at least one of a shrinking number) that supports software patents as well. Maybe if we reduce the number of things that can be patented then this will be a good thing over all and people can go back to just using trade secrets.

      At least the bill does seem to give the patent office additional resources to get thier job done.
  • 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.
    • Re: (Score:3, Interesting)

      by hey! (33014)

      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. Eventuall

      • Re: (Score:3, Interesting)

        by Aceticon (140883)
        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
    • by thebdj (768618)

      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".

      I am assuming you are going for an obviousness angle on this, and this IS NOT HOW OBVIOUSNESS WORK! I cannot say that enough. Do you not think these companies had a room of specialists to solve a problem and then work to file a patent? More than one person or one group of people might have the same idea, but that does not make it obvious and it should not make it unpatentable. The only exceptions to this are pretty minimal and usually so absurd they are not work discussing.

      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".

      Just don't buy it. I really

  • by geekoid (135745) <dadinportland@ya ... m minus math_god> on Thursday April 19, 2007 @09:43AM (#18796997) Homepage Journal
    IF you think Patent abuse is bad now, this won't only hurt inventors, it will remove any recourse they have when they have been ripped off.

    This is not reform we need, it is reform large corporations need.
    Yes, the patent system needs some changes, but that is no reason to accept ANY change just for the sake of change.

    What the patent needs is to remove business methods and software patents. The rest of it is pretty good, expcially compared to other countries.

    Contact you legislators and tell them no, this isn't broken.
  • The patent system is broken in many ways.
    This particular "prior art" rule, wasn't one of them.
    The US patent system just got worse.
  • This makes patent trolling far easier. It "solves" the patent problem by making any legal recourse impossible. I need to get elected dictator.
  • First to file (Score:2, Insightful)

    by paulxnuke (624084)
    So if I invent something, can't afford to pay thousands of dollars for a patent, and someone else finds out and patents it, I'm screwed? I can either keep my invention a secret and hope no one thinks of it, or let it become known and wind up paying a lawyer for the right to use it?

    The new procedure for challenging validity (whatever it might be, and if it addresses such cases at all) is likely to cost even more (requires a lawyer, where it's at least theoretically possible to get a patent without one for on
  • BSA (Score:5, Insightful)

    by BigDumbAnimal (532071) on Thursday April 19, 2007 @10:12AM (#18797413)

    But several tech trade groups and companies ... Business Software Alliance (BSA) -- praised the sponsors for reintroducing the updated bill.
    If the BSA is for it, I'm against it. They are by definition anti-consumer and anti-business (not named Microsoft).
  • uh oh (Score:2, Interesting)

    by Ryan Monster (767204)
    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. Tha
    • Although this idea sounds great because it brings us in accordance with the rest of the patent systems in the world

      What the hell makes that 'great?'

      If it's a good idea, then it needs to be good on its merits. It cannot become a good idea just because it is a popular one. In fact, it happens to be a bad idea, and probably unconstitutional in the US, since it rewards early filers, and not the actual inventor. (The second guy to 'invent' something is no more the inventor than the one millionth guy; I could com
  • Damage Caps Suck (Score:5, Insightful)

    by Bob9113 (14996) on Thursday April 19, 2007 @10:17AM (#18797487) Homepage
    The provisions of the Patent Reform Act would... restrict damages that patent holders can receive for infringement lawsuits

    Ahhh, I love that. So it's going to be enough for the big guys (who are all backing it) to kill upstart competition. But if the big guys think they can ship a lot of product, they can simply; ignore the little guy's patent, bury him in lawyers if they do get sued, and in the unlikely event that the little guy can withstand that onslaught, the most the big guy risks is one quarter's worth of profits. Excellent.
  • Who said that they couldn't make the system any worse?

    That takes more than a lack of intelligence or a lack of common sense, it takes a lack of that something special that sets politicians apart from the rest of us.

    TWW

  • is this a good idea? So lets say someone invents something, doesnt have the money to produce it large scale and doesnt patent it and instead publishes it and tons of people use it and impplement it individually, then ten years later some megacorp patents it, now all of a sudden those tons of people are violating this corps patent? I call bullshit. Placing something in the public domain, or actually implementing it, should trump a later 'filing' of a patent on it.

    Also patents shuld be for actual inventions,
  • How's this for a compromise:

    First to file is presumed to be first to invent.
    2nd to file gets no rights but can cancel the patent.
    Fraudulent first-files don't count. The next guy in line is the first to file.
    • If I invent before you do and you file your independent work before I do, it's evidence that the invention is "obvious" and nobody gets the patent. This won't apply if you got wind of my invention. In the case of overlapping applications, only the unique parts can be patented.
    • Once you get wind of my
  • What I'd like to see is a sliding scale for patent protection duration. If a patent is filed by an individual or a small business (defined by some amount of annual revenue), the protection would be maximized in order to allow them the time to develop and market the invention and profit from their idea. A bigger business, though, would be able to more rapidly develop and market an invention to a wider audience, and I think that their protection should be minimized. This would keep big companies from monopoli

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