Forgot your password?
typodupeerror
Patents Government News Politics

Lawmakers Take Another Shot At Patent Reform 154

Posted by timothy
from the but-I-thought-of-it-first dept.
narramissic writes "Patent reform legislation was introduced yesterday (PDF), which, if it passes, would be the first major overhaul of US patent law in more than 50 years. (It should be noted that the new legislation is very similar to the Patent Reform Act of 2007, which died on the Senate floor last year.) The legislation would bring US patent law in line with global laws, and introduce 'reasonable royalty' provisions, which change the way damages are calculated and would reduce the likelihood of massive payouts for some patent holders. Representatives from Google, HP and Intel were quick to say that the changes would cut down on frivolous patent lawsuits. But the Innovation Alliance, a group representing patent-holders that oppose the legislation, said that it would 'devalue all patents, invite infringement — including from companies in China, India and other countries — and generate more litigation that will further strain the courts.'"
This discussion has been archived. No new comments can be posted.

Lawmakers Take Another Shot At Patent Reform

Comments Filter:
  • changes (Score:3, Interesting)

    by Anonymous Coward on Wednesday March 04, 2009 @02:16PM (#27067109)

    0. Any patent not being sold in a current product line shall pass into public domain.

    Might as well add this to copyright reform too.

    • Re: (Score:3, Insightful)

      So you think that a company has to develop a product and put it on the market before getting a patent? By your reasoning, that's the only way they could get one, and doing that leaves them open to having other people a)copy their idea and then b) using that copy as "prior art" to fight the eventual patent. Do you even take one second to think before posting?
      • Re:changes (Score:4, Insightful)

        by erroneus (253617) on Wednesday March 04, 2009 @02:43PM (#27067487) Homepage

        YES. That is why a whole bunch of products are protected by those "Patent Pending" labels and the like. At the very least, a patent needs to have been applied for but not necessarily granted.

        There are a LOT of "inventions" that can be imagined for which adequate materials have not yet been developed. What if I were to patent "antigravity panel that uses an unknown material that acts against gravity when power is applied"? This panel material is critical to the invention and I can claim to have first thought of its use even before the material with said properties has been developed.

        Patents need to GET USED not trolled. A great test for using a patent is actually producing a product for sale that works.

        So the "protection" you are looking for is the "patent pending" label.

        • Re:changes (Score:4, Insightful)

          by sir_eccles (1235902) on Wednesday March 04, 2009 @03:14PM (#27067825)

          For a start your anti gravity patent wouldn't get granted because you haven't reduced it to practice. In simple terms this means you haven't worked out all the details and written them down.

          But just suppose you knew of a new material that made your thing work. You can make it in teeny tiny amounts on your kitchen table. But you need a big pile of cash, time, a large lab and a team of research scientists to take that kitchen table process and scale it up.

          You could go round to some banks (ha!) or maybe a venture capitalist or some bored millionaire asking for help. But they all turn you away because under your system, you can't get patent protection until you have a product. So they all walk away because the risk is too great.

          There are many inventions like this that are filed for by people who don't have the means to commercialize or even build a single prototype. For them, patents offer a valuable thing they can get that has value to investors.

          • Re: (Score:3, Informative)

            by coolsnowmen (695297)

            You should look into what an "invention disclosure is"
            http://www.patentapplications.net/disclosure/index.html [patentapplications.net]

            I believe you can begin the patent process WAY before actually receiving a patent, and thereby protect yourself from people copying your product (in USA atlease) if/when you are given your notice of allow-ability.

            Then if someone has decided to copy your product you can force them to stop, or license it to them and sit back and make money off of their work (because they are making money off of yours).

        • by dgatwood (11270)

          In other words, the law should read:

          In that patents are intended to protect actual inventions, no patent shall be granted on any hypothetical product or service, nor on any portion thereof, until such time as that product or service is rendered in a form suitable for use by others and is made openly available to the public in the form of sales of the product or use of the service. Should the product or service be removed from the market, the patent shall expire two years after the date that the product or

          • Re: (Score:3, Insightful)

            by srleffler (721400)
            The trouble with that is that some technologies take effort to develop from the concept stage to the "marketable product" stage. Unless devices can be patented before this development is done, there is no way to secure financing to develop the product. Prototyping is expensive and takes time. Designing a final product takes further time and money. Building production capacity to actually make that final product takes still more time and money. Who is going to pay for that if someone else could start selling
            • by dgatwood (11270)

              Nothing in my suggested wording prevents a patent from existing in a provisional state prior to the release of the product. Something like this would merely prevent patent litigation until the person or company who filed for the patent actually makes a product. If somebody steals a company's design, that company can still collect damages for any product their competitor produced without a patent license all the way back to the original provisional filing date. They just can't file the suit until they act

            • by mdmkolbe (944892)

              So add a grace period at the start of the patent where you don't have to market it (say 2 years). After that if you haven't started selling it, then the patent expires.

        • by jonbryce (703250)

          Without details of the material, what's the invention here? Your idea isn't much use outside a science fiction book.

        • Re:changes (Score:5, Insightful)

          by SCHecklerX (229973) <thecaptain@captaincodo.net> on Wednesday March 04, 2009 @03:20PM (#27067895) Homepage

          which is why IMHO:

          1) get rid of software and business method patents
          2) in order to patent something, you need to have a working model, or show that you have the means to produce said model within a certain timeframe.

          I've had plenty of ideas. Some of them I could have patented. Why didn't I? I had no intention of going through the effort of building any type of prototype. If someone else does all of the work without ever seeing your work, then you should have no right to any type of money from that work, squatter.

        • Re:changes (Score:4, Informative)

          by techno-vampire (666512) on Wednesday March 04, 2009 @03:47PM (#27068251) Homepage
          YES. That is why a whole bunch of products are protected by those "Patent Pending" labels and the like

          You do realize, don't you, that all the words Patent Pending [wikipedia.org] do is put people on notice that they may be liable for damages later, if and when the patent is granted? In the US, at least, the phrase has no legal effect whatsoever, and is only used as a warning that borrowing the idea now might lead to trouble later.

          • Re: (Score:3, Informative)

            by digitalunity (19107)

            It is not completely without legal ramifications. For instance, the very same Wiki entry you linked cites this:

            35 U.S.C. 292 False marking.
            (a) Whoever, without the consent of the patentee, marks upon, or affixes to, or uses in advertising in connection with anything made, used, offered for sale, or sold by such person within the United States, or imported by the person into the United States, the name or any imitation of the name of the patentee, the patent number, or the words "patent," "patentee," or the

          • by steelfood (895457)

            Correct. But it's enough to discourage other people from outright copying the idea. At the very least, it makes other companies hold off on releasing their own products until they know the turnout of the patent application.

            That is as it should be. A patent-pending notice shouldn't have any legal power. If it did, then there's no point in having the patent application process; all you'd need is the patent-pending application process.

            Now, you can argue to change things so that there are two classes of patents

          • Re:changes (Score:4, Insightful)

            by Eskarel (565631) on Wednesday March 04, 2009 @09:04PM (#27072195)

            It's not so much the Patent Pending label that's important it's actually having the pending patent.

            There's no reason we can't have provisional approval for products that don't exist quite yet. The problem is patent protection for products which don't exist and which the patent holder never intends to actually create, or which are actually impossible to build beyond theory.

            Essentially the basic question comes down to whether patents are designed to protect and promote ideas or whether they're designed to protect and promote implementation.

            If you put stringent requirements on actual implementation of patents, you have the potential to shaft the little guy. You'd have to ensure a number of additional protections such as ensuring that large companies can't just refuse to fund new ideas and then develop them after the patent has expired due to lack of implementation. That's certainly possible to do though.

            The flip side of that argument is that patents which aren't turned into products stifle innovation because they stop anyone else from developing said product, and harms society as a whole.

            All that aside, patents which are overly generic, vague, or which even given full funding the "inventor" couldn't actually create, should not under any circumstances be granted, and should be culled where they have already been granted. To use an example that's been mentioned earlier. If you can build a tiny anti-gravity machine, but it's prohibitively expensive to build a full scale one without some other development, you should probably get a patent. If your full scale one cannot function without some additional development, then you haven't actually invented anything and you shouldn't.

            • Essentially the basic question comes down to whether patents are designed to protect and promote ideas or whether they're designed to protect and promote implementation.

              I may well be wrong here, but my impression is that the original intent of patents was to protect the implementation, as you had to have, at the very least, a working model to get a patent. (Note that Abraham Lincoln actually built a model of his invention, which still exists, although a full-scale copy was never made.) Now, it seems tha

        • It seems to me that the majority of patent trolling that occurs today is tied to business processes and algorithms. Since these are very easy to put into service, the proposal to require them to be in use before granting a patent won't address the one area where patent reform is most needed.
      • by sjames (1099)

        I would say that SOME time needs to be allowed to get from patent to production, but it should be considerably less than the full life of the patent. For example, if after 5 years you are essentially no further towards offering a product than you were the day the patent was applied for, you probably never will.

        Likewise, if you introduce the product and it flops to the point that you withdraw it from the market AND you don't manage to sell or license it to someone else, the patent should go away to give othe

      • by Alinabi (464689)
        I don't know what AC thinks, but I think there should be a grace period after obtaining a patent and failure to bring a product to market within said grace period should place the invention in the public domain. Five years sounds like a reasonable time frame, but the actual limit should be based on statistical data.
        • failure to bring a product to market within said grace period should place the invention in the public domain.

          That would be just fine, as far as I'm concerned. If nothing else, it would completely kill the patent troll's business plan. Of course, there are sometimes problems that slow down bringing a patent to market and it might be fair to have a way for a business to get an extension to the grace period, but they'd have to prove that they were really working on it and not just stalling. As always, t

      • Actually, you have 1 year to file a patent application from when you offer a product for sale that uses what's claimed in the application. If you take longer than a year, then your own work would count as a reference against you under 35 USC 102(b).

        If somebody did copy your work in the interim, and then they tried to use their copy to invalidate your patent, their copy would be a 102(a) reference (unless, of course, you waited more than a year afterwards to file your application). You would simply have to

  • Huh? (Score:5, Informative)

    by Savage-Rabbit (308260) on Wednesday March 04, 2009 @02:17PM (#27067127)

    ...it would 'devalue all patents, invite infringement -- including from companies in China, India and other countries...

    Pardon my ignorance, but even if that is true does it matter? These countries, especially China, have a long history of not respecting patents and they don't look set to change that attitude.

    • Re: (Score:3, Insightful)

      by TubeSteak (669689)

      Further, since when is a patent's value determined by how big of a legal payday (triple damages) you receive for infringement?

    • by jeti (105266)

      The governments you're thinking of will change their attitudes when enforcing patents will gain their own industries a net profit.
      It already happened in Japan and other eastern countries.

  • by Bob9113 (14996) on Wednesday March 04, 2009 @02:18PM (#27067129) Homepage

    But the Innovation Alliance, a group representing patent-holders that oppose the legislation said that it would 'devalue all patents, invite infringement -- including from companies in China, India and other countries -- and generate more litigation that will further strain the courts.'

    These guys really need a new PR firm. Vague insinuations about the threat of SEAsia and clogged courts is soooo pre-9/11. It's all about child porn and terrorism now, guys - get with the program.

    • Re: (Score:3, Funny)

      by soren202 (1477905)
      Reforming patent laws would flood the market with cheap knock off products of currently patented technology. This flood would spur the growth of child porn leading to more abused children, as well as allow terrorists in the middle east to purchase newer, up to date technology.

      Don't support perverts and terrorists! Help the children and support America! Don't pass patent reform laws!
    • Re: (Score:3, Interesting)

      by mcgrew (92797) *

      That comment was soooo 2002ish. Child porn, drugs, gambling, and prostitution ARE terrorism these days, Bob - get with the program.

    • It's all about child porn and terrorism now, guys - get with the program.

      Maybe they can combine them to, you know, improve their pitch and make the effects of patent reform sound doubly scary and dire. If we don't all want to go home and lock our doors when they are through then this PR firm hasn't done their job to make patents safe for trolls everywhere.

    • Nah, Child Porn and Terrorism are soooo last administration. Now its all about saving American jobs...

  • I'd rather go one step further - instead of measures that will reduce patent troll-filed lawsuits, why not add a punitive measure?
  • by defile39 (592628) on Wednesday March 04, 2009 @02:18PM (#27067135)

    This is a good first step. The US *should* be on a first to file system. Venue for patent suits *should* be restricted to venues that make sense (rarely ED TX).

    But some provisions go too far. Damages should be linked to some market definition - NOT what the trial court thinks is reasonable. Also, we need a change to the laws that provide incentive for innovation in regulated industries. Patents are most valuable in the life sciences. We need reform here. We need to better align value with innovation. We've still a long way to go.

    • Re: (Score:3, Insightful)

      by Valdrax (32670)

      The US *should* be on a first to file system.

      Why?

      Why shouldn't the person or company that actually invented it first get the reward? Why should we put a premium on getting your legal paperwork in order first over getting your research and development done first? While I like the bit about people working on the same type of invention at the same time getting some immunity from patents issued to one of the parties, I don't see why the person with the fastest lawyers should be the one to profit from everyone who comes later.

      • by defile39 (592628)
        Practical reasons. The US is (I believe) the only country with a first to invent system. Why stay that way? Also, it is a lot easier to adjudicate a first to file system. There is less to prove when inventorship disputes arise. This simply gives people a kick in the pants to get to the patent office. Lawyers and inventors will adapt. The first to invent will most likely become the first to file by default (in most instances).
        • Re: (Score:2, Insightful)

          by holmstar (1388267)

          Yeah, but patents are damn expensive. If Joe Blow invented a thingamabob in his garage, there is little chance he could afford to patent it.

          So Joe goes out and tries to find a financier to pay for the patent. But one of his prospective financiers decides to cut joe out and just "invent" the thingamabob themselves. They file for a patent and Joe is screwed. Since first to invent doesn't matter, he can never invalidate the financier's patent.

          Granted, most patents are filed by companies, not Joe Blows, but

          • It doesn't have to cost ridiculous amounts of money to obtain a patent. Despite what patent lawyers may tell you, if you have sufficient time and effort you can obtain a patent all by yourself. The filing fees are more than some can afford, but are not outside the realm of reasonableness given the amount of patent examiner time needed to evaluate the application.

            The most difficult part of a patent application is writing concise claims and properly citing any prior art.

            Current USPTO fee list [uspto.gov]. Note, you even

            • Re: (Score:2, Insightful)

              The fees for the patent filing itself are less of an issue than the skills needed, which is where the patent attorneys or patent agents [energy.gov] make the big bucks and the cost of obtaining patents rises sharply. There are extremely stringent application requirements, and small errors or the failure to include minor details can disqualify the entire patent application. It is often beneficial to the Joe Blow or small company without experience with the process to hire someone if they can afford it (which is a big "if

          • by Eskarel (565631)

            Well to begin with, Joe needs to have a signed agreement with his financier regarding his invention in any event.

            From there, the primary reason patents are expensive and difficult in the US is because the US is not a first to file system.

            An incredible amount of money and time has to go into researching, verifying, and defending claims of prior art. The process is convoluted, arcane, and expensive.

            In a first to file system, it doesn't have to be that way. Joe Blow should only need to fill out the required pa

        • Re: (Score:3, Insightful)

          by russotto (537200)

          The US is (I believe) the only country with a first to invent system. Why stay that way?

          For the same reason the US switched to first to invent. (The US used first to file in the past)

      • by JimboFBX (1097277)
        I agree, why should we be first to file? Its not like you can just claim you did something, you need a dated legally recognized document that has a witness's signature that claims you came up with an invention, and you have to file for the patent within a reasonable time frame of that document (i.e. 30 days ish). If you don't do that, then it is just like first to file. Seems like our system is just an improvement IMO.
      • by Pinky's Brain (1158667) on Wednesday March 04, 2009 @03:54PM (#27068343)

        Patents should reward putting your invention out in the open. Having a huge period in which to do secret development is the anti-thesis to what patents should reward.

        The only problem with first to file is that there is no grace period.

        Lawyers hate grace periods, because if a paper without a million of legalese claims holds any value in court that diminishes their contribution to patents ... they see the exact wording of those legalese claims as somehow more important than the subject covered. Which is ridiculous ... in the areas I'm an expert I can recognize the innovative parts of a paper better than a lawyer can capture it in claims.

        I think the first to file vs first to invent difference is just being played up by lawyers to disguise the fact that the real thing they want to get rid of is the grace period.

      • by shutdown -p now (807394) on Wednesday March 04, 2009 @04:16PM (#27068647) Journal

        Why?

        Because "first to invent" encourages the tactics similar to that of submarine patents:

        1. Invent something.
        2. Wait for others to invent it too and start using it.
        3. File for the patent.
        4. Sue everyone who had been using your invention.
        5. Profit!

        • by naasking (94116)

          1. Invent something.
          2. Wait for others to invent it too and start using it.
          3. File for the patent.
          4. Sue everyone who had been using your invention.
          5. Profit!

          Actually, if everyone is using it, it is no longer innovative, ie. it is common knowledge to experts in the field, and so would not qualify for a patent.

          • by samkass (174571)

            Actually, if everyone is using it, it is no longer innovative, ie. it is common knowledge to experts in the field, and so would not qualify for a patent.

            Just the opposite. The ability of a company or companies to monetize a new invention is actually one measure of its novelty, at least in the US system as it exists today.

            • by naasking (94116)

              Just the opposite. The ability of a company or companies to monetize a new invention is actually one measure of its novelty, at least in the US system as it exists today.

              In order to patent, it must not be common knowledge to practitioners in the field. Monetization has nothing to do with this particular clause. You can monetize plenty of old technologies, but they are disqualified because the techniques are common knowledge.

              Of course, then comes the onerous task of determining what lead time between publica

        • Indeed. I propose also that there be new rules for certain patentable product categories such as pharmaceuticals whereby:

          a) A patent application is filed upon a drug reaching a stage of development where efficacy in treating, preventing or curing a disease or condition has been demonstrated.
          b) Clinical trials are completed until final FDA approval is issued.
          c) Patent is issued, issue date being that of the FDA approval date. Patent duration is to be 5 years.

          The key with a plan like this is that the long per

        • You have to show due diligence in reducing your invention to practice (usually meaning filing your application) from before they start using/selling their invention until you actually do reduce your invention to practice. Most patent trolls don't bother building what they are asserting, so camping on the idea to try to catch someone later will likely result in your application being rejected or your patent being invalidated.

          It's much easier and safer to just invent something, get your patent, and then wait

    • by Aladrin (926209)

      Damages should be linked to some market definition - NOT what the trial court thinks is reasonable.

      Why, so that the law can be out of date before it's even passed? The market is constantly changing. The only way to have reasonable amounts is to let the court decide what's reasonable then and there.

      • by defile39 (592628) on Wednesday March 04, 2009 @02:51PM (#27067569)

        Let me explain the debate a bit -

        The bill proposes to link reasonable royalties to what the court deems is the value of the technological innovation of the patent. This removes any market valuation of the patent, i.e. what a patent holder can extract from a potential infringer through a negotiated settlement. Instead, the court will assign the value of the patent by sitting back and thinking about how valuable the technology is in this instance. What it fails to take into consideration is that, in most cases, patents can be used to PREVENT someone from making, using, selling, etc. the invention.

        This inherently devalues the patent. If you can only extract the value of the added quantum of technology added by the patent, you sometimes won't be able to get damages at all. For instance, if an infringer used your patented technology, but they could've alternatively used some public domain non-infringing technology, you won't get much in the way of a damages award. There is a problem with this arrangement - it changes the fundamental nature of a patent.

        • by Aladrin (926209)

          "it changes the fundamental nature of a patent."

          Isn't that the point? The fundamental nature of a patent right now is 'a tool to sue someone with'. Instead, it should be a tool to help grow your business. If you patent a process that can be done just as easily/well/efficiently/etc with a public domain process, it has no value anyhow!

    • by mcgrew (92797) *

      Damages should be linked to some market definition - NOT what the trial court thinks is reasonable.

      Why?

      Also, we need a change to the laws that provide incentive for innovation in regulated industries.

      Such as what? Why should regulation stifle innovation?

      Patents are most valuable in the life sciences.

      If you're talking about genetic engineering, I don't think life should be patentable. Your neighbor plants some genetically engineered corn and it pollinates your crop and you owe Monsanto patent fees. Why shoul

    • by steelfood (895457)

      Damages should be based on the market value of your product and the scale of infringement.

      This prevents your competition from undercutting you with the same product, and it discourages large companies from integrating your invention without a licensing agreement. It also completely stops patent trolls in their tracks, because patent trolls have no product on the market and no intention of bringing a product to the market.

      The only detriment to this is somebody else coming out with a product convered under yo

  • by morgan_greywolf (835522) on Wednesday March 04, 2009 @02:18PM (#27067137) Homepage Journal

    The Innovation Alliance, which opposes these patent reforms, include some of the best and brightest in patent/IP trolling [innovationalliance.net]. One prominent company is the Canopy Partners, which is famous for its previous ownership of The SCO Group and Tessera, which is suing everyone in the wireless industry right now.

  • "...it would devalue all patents, invite infringement â" including from companies in China, India and other countries.

    Er, yeah, because other countries have such a high regard for patents and trademarks(cough, black market, cough) today...

  • by Weaselmancer (533834) on Wednesday March 04, 2009 @02:34PM (#27067371)

    But the Innovation Alliance, a group representing patent-holders that oppose the legislation said that it would 'devalue all patents, invite infringement - including from companies in China, India and other countries

    Yeah, because our American patent system has certainly stopped China and India from infringing thus far! Are these people nuts? Why the hell should these countries obey our patent laws regardless of whatever they happened to be? We're not the law there!

    And another thing while I'm at it:

    The legislation would bring U.S. patent law in line with global laws

    This legislation would have the best chance for getting China and India to respect our patents, since we'd be adhering to a global standard and not a local one.

    So this Innovation Alliance is, as far as I can tell - arguing against the very legislation that would have the best chance of supporting its agenda. In other words - yeah. They're nuts.

    • by TubeSteak (669689)

      Yeah, because our American patent system has certainly stopped China and India from infringing thus far! Are these people nuts? Why the hell should these countries obey our patent laws regardless of whatever they happened to be? We're not the law there!

      There are treaty obligations that over ride (or force conformity upon) local laws.
      You can't just say "we're not the law there" and expect to be right 100% of the time.

      • by steelfood (895457)

        Treaty laws override local laws only if the government deems it to be so.

        It's a catch-22.

        The only thing that really works in this case is negotiation and soft power.

  • don't touch it (Score:3, Insightful)

    by Maxo-Texas (864189) on Wednesday March 04, 2009 @04:49PM (#27069021)

    17 years is bad. but it ends comparatively soon.

    i'm sure if they touch it , it is going to come out at 50 years or longer.

Facts are stubborn, but statistics are more pliable.

Working...