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Patent Reform Bill Unable To Clean Up Patent Mess 92

Posted by Zonk
from the need-a-rake-and-a-hose dept.
First to submit writes "Ars Technica analyzes the Patent Reform Act that has passed the House and is being debated in the Senate. Unfortunately for those longing for real, meaningful patent reform, the bill comes up short in some significant ways. 'Despite the heated rhetoric on both sides, it is unclear if the legislation will do much to fix the most serious flaws in the patent system. A series of appeals court rulings in the 1990s greatly expanded patentable subject matter, making patents on software, business methods, and other abstract concepts unambiguously legal for the first time.'"
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Patent Reform Bill Unable To Clean Up Patent Mess

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  • To be fair... (Score:5, Insightful)

    by Starteck81 (917280) on Wednesday March 26, 2008 @02:49PM (#22872300)
    ... it is kind of hard to legislate common sense.
    • Re:To be fair... (Score:5, Insightful)

      by Jarjarthejedi (996957) <{christianpinch} {at} {gmail.com}> on Wednesday March 26, 2008 @03:06PM (#22872510) Journal
      Especially when it doesn't seem all that common to the legislators. Software patents being silly doesn't seem like common sense to someone for whom software is the magical system that does all sorts of handy things via some system. It seems very patentable then...
      • seems to be the only way then... (AI applied to business)

        Presentation Oct 2005 http://www.cwi.nl/pr/CWIiB/2005/ [www.cwi.nl]

        Abstracts (doc format) [www.cwi.nl]

        A.I.
      • by samkass (174571)
        Software patents "being silly" ISN'T common sense. It's an opinion. And it's perfectly valid to disagree about these things without insulting people, thank you.

        Many people with many years in the software industry still see software patentability as valid, so please stop being condescending.

        • by Weedlekin (836313)
          "Many people with many years in the software industry still see software patentability as valid"

          Because the software industry doesn't just employ programmers. There are also lawyers, many of whom depend on the existence of software patents to run their mansions and pay people to scrape the barnacles off the bottoms of their yachts. Think of all the poor servants who'd lose their jobs if software patents became illegal, and those lawyers were reduced to living in houses without proper servant quarters, garag
          • Software patents "being silly" is only "common sense" if the software is only part of the control system of some larger, device. General purpose computers turn all that on its head, because software isn't just the control system for the product, it IS the product.

            Now, you could make an argument that it still shouldn't be patentable (but do you really think copyright is preferable? 20 years vs. effectively indefinite, that's a great choice) or even be protected IP at all. But in that world, software would
            • by Weedlekin (836313)
              I assume you've answered the wrong post. If this is not the case, then I fail to see the relevance of your missive, or why you're quoting things that I didn't write.

    • by gnupun (752725)

      ... it is kind of hard to legislate common sense.
      If it's so easy, why don't you patent a clever idea, build a product based on the idea, and profit?

      That's right, you can't, because it's not easy.

    • by jamstar7 (694492)
      Especially in an election year, with the legislation in question hurtful to your campaign contributors. It's almost enough to make a politician swear off hookers, Congressional pages, and blow. I highly doubt this 'reform' bill will make any reforms. My money is, it gets neutered to the point of uselessness, then passed just before the elections so that the Congresscritters can say, "Hey, we did something about the problem" and get re-elected.

      The 'something' will of course mean 'make things worse'.

    • by JAlexoi (1085785)
      Why not?
      Heat - burns
      Water - drowns
      Rocks - are hard

      Here's your common sense, and you won't be seeing any lawsuits with title "I was burnt by my HOT coffee, someone else is liable!".
  • ie (Score:5, Funny)

    by imstanny (722685) on Wednesday March 26, 2008 @02:50PM (#22872304)
    In other words, Ars Technica finds this reform patently absurd?
  • Patent Reform sat on a wall
    Patent Reform had a great fall
    All the King's horses
    And all the King's men
    Couldn't put Patent Reform together again.

    So let's start over.
    • Re: (Score:3, Interesting)

      by gmack (197796)
      All is not lost in this set. Both proposed laws present a definite improvement over the current system so they should be passed. Once that's done we can all start moving on to the harder problems.

      It's a step in the right direction rather than a complete fix.
      • by hedwards (940851)
        Exactly, the problem isn't going to be solved correctly the first try, this is indeed a complex issue and it's better to agree to improvements that definitely help now. The alternative is likely grid lock in which nothing changes, as that is the desired outcome for a bunch of interests. I'd much rather have improvements that make a difference today than the promise of improvements in the future. Even if those future improvements are perfect.

        It is also somewhat unclear how long those court rulings are going
  • Need I say more?
  • by peipas (809350) on Wednesday March 26, 2008 @03:03PM (#22872464)
    I'm sure it's a debate between those in bed with the defensive patent holders and those spooning the offensive patent holders. They dare not make the bill too radical and wake any sleeping giants.
    • More importantly, Common sense doesn't pay the campaign bills. patent Trolls sometimes do, and for a politician, they'll take the sometimes donor over those dumb "voters"
  • only good thing (Score:4, Informative)

    by esocid (946821) on Wednesday March 26, 2008 @03:04PM (#22872484) Journal
    Seems to be that patent trolls have to stick to jurisdictions they have a significant presence in, and can't go to courts that have been sympathetic to plaintiffs in patent cases. This isn't much of a reform to me. What about stopping these common sense patents and business model patents. Until that happens this is just a motion of appeasement, not a real solution to the problems.
    • by dgatwood (11270)

      Agreed. The only real reform would be require the following changes:

      • Patents expire one month after last use of the covered technology in commerce (where commerce explicitly does not include mere patent licensing deals).
      • Patent holders must show reasonable progress towards releasing an actual product based on the patent in an examination. Examinations will occur every six months, with the first examination being held one year after the patent application is received. Failure to show adequate progress w
      • Such changes would adequately fix the biggest problems with the patent system today.

        Yes, but it would cost more to administer, and the USPTO is arranged as a profit center, not to promote the advancement of science and the useful arts.

        Oh, wait...
  • by MikeRT (947531) on Wednesday March 26, 2008 @03:05PM (#22872494) Homepage
    I confess to being totally ignorant of how patents affect most industries, but it seems to me that the real problem with patents in IT is the fact that they grant such long protection for products with such short shelf lives. Several years ago, I tried to explain that to my congresscritter at the time, but he couldn't grok how his argument that we need to protect IT because it is so rapid at innovation actually is an argument AGAINST many aspects of strong IP law as they apply to IT-related products. For example, granting 17 years or more of protection to a video codec means that you own it for its natural life, plus 5-10 years in many cases.

    IMO, patents should cover the schematics of a product, not the ideas that went into the product. A car maker should be able to patent the final design of their latest product, but there should be nothing stopping someone from looking at it, and extending it in some meaningful direction without compensating them. All innovation is, after all, built on someone else's ideas.
    • by Anonymous Coward
      the real problem with patents in IT is the fact that they grant such long protection for products with such short shelf lives.
      True, and here is the problem.
      You can't tell from the claims whether something is a "software" patent or not. Any software patent claim I can engineer to be a piece of hardware. The problem is that there really aren't clear claims that scream software (as from Beugrard claims, which are secondary claims anyhow [never could spell that]) . You can't ban all method claim as that woul
    • While it's true that high-tech patents last too long, technology is also a field where many inventions are easy to implement once you know about them. Without patents, the R&D you do is automatically shared by the whole industry -- which reduces your motivation to do R&D.

      Regarding extensions, a major point of the patent system (as opposed to making everything a trade secret) is to encourage everyone to publish their inventions so others can build up on them. Patents (in theory) only cover actual

      • by dgatwood (11270)

        While it's true that high-tech patents last too long, technology is also a field where many inventions are easy to implement once you know about them. Without patents, the R&D you do is automatically shared by the whole industry -- which reduces your motivation to do R&D.

        The vast majority of R&D in the computer industry happened prior to software patents becoming legal.... Also, in a way, by patenting something, you are required to share everything with the whole industry. They just can't i

  • Filled with pork, unrelated funding requirement and special interest exceptions the bill fails completely to provide any relief to the American citizenry from an unstemmable flood of "with a computer" patent applications.
  • My main gripe with patents is that they use federal regulation establish intellectual property. That means tons of patents and copyrights and trademarks that they layman has no hope of negotiating. I don't see why they can't just write a law establishing that you own your ideas, and that other must secure your consent or give you reasonable compensation before using them.

    Patents and copyrights are intended to prevent people from free-loading off of the work of others, and I think it is pretty clear when t
    • by glwtta (532858) on Wednesday March 26, 2008 @03:19PM (#22872674) Homepage
      Huh? The solution to patent and copyright problems is infinitely broad and permanent patents and copyright?

      I don't see why they can't just write a law establishing that you own your ideas

      How on earth can someone "own" an idea? Better yet, why would you think it's a good idea to try to pretend that someone owns an idea?

      Patents and copyrights are intended to prevent people from free-loading off of the work of others

      That fundamental misunderstanding is part of many of the problems we are seeing with the patent system today: patents exist to give you the first stab at exploiting your ideas. The notion that once someone has an idea it's theirs and no one can ever use it again is just plain ridiculous.
      • by go_to2 (946644)

        How on earth can someone "own" an idea?
        That's easy: I have an idea, but I don't tell you. I still have it, you don't.
        • by glwtta (532858)
          That's easy: I have an idea, but I don't tell you. I still have it, you don't.

          Unless, of course, I arrive at the same idea independently.
          • by go_to2 (946644)

            Unless, of course, I arrive at the same idea independently.
            Then we would both "own" the same idea.
      • by mosb1000 (710161)
        "The solution to patent and copyright problems is infinitely broad and permanent patents and copyright?"

        That's what you said, not what I said. All I said was that there is no need for patents. You read "infinitely broad" into my comment, and that wasn't what I meant. Obviously any law would include exemptions, limitations, and other applicable criteria.

        "How on earth can someone "own" an idea?"

        How can someone own anything? Ownership is a legal construction. Owning ideas is no different from owning land
        • by glwtta (532858)
          Owning ideas is no different from owning land or cars in that respect.

          Again, why? Why do you want to pretend that ideas are physical objects? Ideas have no limited lifespan, thousands of people will routinely come up with the same idea, why would the first person to do so have any sort of absolute claim to it?

          Copyright is currently granted without governmental approval, and it works better than the patent system does.

          There most certainly is government approval, it's just automatic. From what I c
          • by mosb1000 (710161)
            "Ideas have no limited lifespan"

            Nor does land. . .

            "why would the first person to do so have any sort of absolute claim to it?"

            Again, you said that they should have an absoulte claim to it, not me. I just said they should have a claim to it.

            "The concepts of "fairness" or "justice" have nothing to do with this - lots of things are unfair, we don't pass laws to correct them all."

            We certinally try to! That's the whole reason we have laws! Why do you think we have them?

            "If I'm remembering this correctly, the
          • The main difference between patents and copyright is that, by definition, two different people cannot independently create the same copyrightable work

            Yes they can. If Alice and Bob each independently create the exact same thing, then each one of them can get a copyright on it, and each can do whatever they like without infringing on the other. This is because copyrights do not require novelty, like patents do. It's unlikely, the more complex a work is, but the law does permit it. The main thing with copyrig
            • by glwtta (532858)
              Yes they can. If Alice and Bob each independently create the exact same thing, then each one of them can get a copyright on it, and each can do whatever they like without infringing on the other.

              Which is what I was saying, except I would say that they created two distinct copyrightable works, which happen to be identical. My point was that one of the main problems with the patent system - granting of obvious, broad patents that prevent others from doing common things they arrive at independently of the
              • My point was that one of the main problems with the patent system - granting of obvious, broad patents that prevent others from doing common things they arrive at independently of the patent-holder's work - does not exit for copyright; and that may be the main reason why automatic copyright makes a lot more sense than automatic patenting the OP was suggesting.

                Automatically granted copyrights do not make any sense at all; it's a terrible idea.

                Copyrights are meant to serve the public good by encouraging the c
    • Re: (Score:2, Insightful)

      by dedalus2000 (704571)
      reverse engineering is the basis of the computer industry. if compaq had not reverse engineered the original IBM pc bios there would never have been a commodity PC industry. which would have greatly slowed the pace of computer uptake. so basically one software patent could have stopped the entire PC market from happening.
      • Re: (Score:1, Insightful)

        by Anonymous Coward
        Bill Gates acknowledged as much in a 1991 memo [bralyn.net]:

        PATENTS: If people had understood how patents would be granted when most of today's ideas were invented, and had taken out patents, the industry would be at a complete standstill today. I feel certain that some large company will patent some obvious thing related to interface, object orientation, algorithm, application extension or other crucial technique. If we assume this company has no need of any of our patents then they have a 17-year right to take as m

      • From what I recall, IBM's design was in fact patented.

        Compaq used the cleanroom design [wikipedia.org] technique to determine the operating parameters and logic, and then re-implemented those specs with an original package.
    • by marnues (906739)
      Why should I worry about a lawsuit for reverse engineering software? What exactly has someone else lost by my converting machine readable code into human readable code? The fact that you think someone can own on idea is disturbing on a whole other level. Or even that you think copyright and patents assign ownership...
    • by DrWho42 (558107) on Wednesday March 26, 2008 @05:42PM (#22874586) Homepage
      Patents and copyrights are intended to prevent people from free-loading off of the work of others

      This statement is factually false. Go and read the US Constitution if you want to know what patents and copyrights are actually intended to accomplish.
    • I don't see why they can't just write a law establishing that you own your ideas

      I don't see why they can't just write a law establishing that pi is 3.

      But seriously, you own your ideas as long as you keep them a secret. Once you reveal your idea (copying it into other peoples' brains) you can't own it. I don't mean it's not just or not desirable; I mean that it's not possible. You just transmitted it to someone, so you don't exclusively have it anymore, unless you're going to cut open other peoples' sk

      • by adona1 (1078711)

        I don't see why they can't just write a law establishing that pi is 3.

        Well, they did [wikipedia.org], more or less, but those pesky mathematicians shot it down. Damn them and their irregular ways!
    • Re: (Score:2, Flamebait)

      by cpt kangarooski (3773)
      My main gripe with patents is that they use federal regulation establish intellectual property.

      That's just a weird statement, right there. "Intellectual property" is a terrible phrase, which is deliberately meant to confuse people. But basically, if anything, it would refer to a patent (or copyright, etc.) itself, and not the invention the patent pertains to, nor anything which embodies that patent, such as a tangible machine. So you seem to be saying that your gripe with patents is that there are federal
      • by mosb1000 (710161)
        "Ideas are more plentiful than air; why should there be ownership of them. There's certainly no scarcity."

        I would like to point out the following message listed on the comment page:

        "The Fine Print: The following comments are owned by whoever posted them. We are not responsible for them in any way."

        Why would Slashdot claim that I own the comment I've posted here? There's certainly no scarcity of comments. That's an important question, and I encourage you to think about it.

        "So you seem to be saying that you
        • Why would Slashdot claim that I own the comment I've posted here?

          You've got me. They're often wrong. For example, my comments are in the public domain, and people frequently post works that they don't have rights to.

          I suspect that they were trying to say that they don't make any claim on what people post here. If so, they could have worded it much better.

          No, my gripe is federal regulation. I don't like the way that people have to submit an application to the patent office in order to have their intellectual
          • by mosb1000 (710161)
            "1. The courts are bad at this, and the PTO specializes in this. 2. The courts have more important things to do, and the PTO doesn't. 3. The courts are already very busy, and in order to get on with #2, it would help if they weren't so much busier. But this is the PTO's business. People already complain a lot about the PTO not doing its work properly so as to reduce the number of patent cases in the courts."

            Well, it's the courts who hear the patent law cases, not the patent office. If they are bad at it, t
            • Well, it's the courts who hear the patent law cases, not the patent office.

              No, the PTO is staffed with patent law specialists. Even the examiners have to be well-versed in it. And the PTO does have administrative courts with ALJs; they hear some patent law cases. The Article III courts, OTOH, have to be more general, as they hear civil and criminal cases of every kind. Even the Federal Circuit isn't all that great at these things.

              In fact, I don't believe that the patent system even produces fewer lawsuits
  • Watered down legislation such as this is clearly the result of the massive influx of dollars into the pockets of our politicians via the industries who thrive on ridiculous structures like the US Patent Office. Until we force our representatives to get off that teet we are foolish to expect anything less.
  • Tax Patents (Score:4, Insightful)

    by Dan667 (564390) on Wednesday March 26, 2008 @03:09PM (#22872548)
    Nothing says goodbye like a tax.
    • Amen brother. Preach on!

      Just as a "maintenance fee," a tax would encourage businesses to drop patents that are no longer immediately relevant to them.

      I just wish it was "citizens" and not "businesses" that had the control of the patents, like the original writers of the laws intended.

      • But corporations ARE "persons". That's what the law says.
        • Re: (Score:2, Informative)

          by Jurily (900488)
          Which is also not what the original writers of the laws intended. Sorry.

          http://www.straightdope.com/columns/030919.html [straightdope.com]
          • Intent and judicial interpretation are 2 different things.

            One has force of law, the other one doesnt. Can you guess which one?
            • Intent and judicial interpretation are 2 different things.

              One has force of law, the other one doesnt.

              While this is true, judicial interpretation is intended to interpret the original intent into a force of law.

              And as much as it may sound otherwise, I am not trying to be funny by that statement.

              • That's exactly it: I know you arent being funny. That was its original intention behind juridical "lawmaking".

                Instead, we got what should have been expected: the current crop of politicos embed their judges for their interpretations. Personally, making judgments against the Constitution should be an impeachable offense, but none of the congress wants to touch that one.
    • by Smidge204 (605297)
      Depending on your application, filing a patent already costs upwards of a grand. What could a tax possibly do besides hurt the smaller players in the game?

      =Smidge=
    • Patents have maintenance fees that are due every couple of years. If you fail to pay, the patent becomes abandoned and unenforceable. That is basically a tax. A policy behind it is to give the public the patented invention if the inventor doesn't want it anymore.
  • The established 'business' entities have too much... 'investments' riding on patents, as such a meaningful reform will never happen. What winning card player will ask to be dealt a new hand?
  • Technoliberation (Score:4, Insightful)

    by Creepy Crawler (680178) on Wednesday March 26, 2008 @03:18PM (#22872664)
    It is not true that the map of freedom will be complete
    with the erasure of the last invidious border
    when it remains for us to chart the attractors of thunder
    and delineate the arrhythmias of drought
    to reveal the molecular dialects of forest and savanna
    as rich as a thousand human tongues
    and to comprehend the deepest history of our passions
    ancient beyond mythology's reach

    So I declare that no corporation holds a monopoly on numbers
    no patent can encompass zero and one
    no nation has sovereignty over adenine and guanine
    no empire rules the quantum waves

    And there must be room for all at the celebration of understanding
    for there is a truth which cannot be bought or sold
    imposed by force, resisted
    or escaped.

    Greg Egan as Muteba Kazadi
  • by flajann (658201) <flajann.linuxbloke@com> on Wednesday March 26, 2008 @03:24PM (#22872732) Homepage Journal
    As we all know, patents today are little more than big sticks Very Big Corporations (VBCs) use against each other to gain leverage in the marketplace. The original intent of the patent is long since lost.

    Some real consideration should be given to getting rid of patents altogether. Really, do they serve any real usefulness other than the stuff of Big Corporate Sticks? It's way too expensive for the little guy to get a patent; still even more expensive for the little guy to defend his patent against VBCs that have deep pockets.

    But, seriously, what would happen to the marketplace if patents were to be thrown out tomorrow? Would innovation cease? I don't think so. It would change for sure, but it may actually change for the better, giving the Little Guy an edge, a leg up, since he would not fear being crushed out of financial existence by VBCs.

    Really, I don't know how the patent examiners could possibly be knowledgeable about all the various areas of mathematics, science, and technology that has grown exponentially since patents were created.

    • While I admire and once subscribed to the opinion, "Do away with patents entirely," and for the same reasons as you present, you are neglecting one major drawback.

      What precious little protection the little guy had from VBCs has evaporated when you remove patents. Corporate espionage is much easier to leverage when you are a VBC and much harder to defend against when you are a little guy. Without patents, little guys cannot protect their trade secrets effectively because they no longer have the government

    • by magixman (883752)

      But, seriously, what would happen to the marketplace if patents were to be thrown out tomorrow? Would innovation cease? I don't think so.

      The classic argument is that without patent protection drug companies would not make the huge investments needed to create new drugs since they could be cloned the day after they went to market.
      The answer IMO is not so much what should be allowed to be patented but rather for how long. The length of time needs to be tied to the cost of the invention so that this cost c

  • And honestly, when you "gain leverage" in the marketplace, and in this case politics as well, there is some level of spooning or money involved.
  • I want to file a patent to cover all really stupid and pathetic legislation, it's a broad far reaching concept that I feel is over used, obviously I invented stupid and pathetic legislation otherwise how would I right now be patenting it? I suppose though, it's been around far longer then i've been alive, so I won't ask for backward royalties, i'm a forward thinker.
  • First question you have to ask is who owns all these patents are they americans or foriegn companies/individuals. If its the latter then your patent system is working against you to make you less competivitve. In fact it could even kill whole industries. Is that what you really want?

[Crash programs] fail because they are based on the theory that, with nine women pregnant, you can get a baby a month. -- Wernher von Braun

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