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Senate Passes Landmark Patent Reform Bill 362

Posted by samzenpus
from the problem-solved dept.
inkscapee writes "The US Senate is congratulating itself for passing a 'landmark' piece of patent reform legislation. Some key elements are 'first to file' instead of first to invent, and ending fee diversion, which means fees paid to the Patent Office will actually fund the Patent Office. Curiously, this practice has resulted in a backlog of 700,000 patent applications. The House is reportedly working on a similar bill, and soon harmony and rationality will triumph."
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Senate Passes Landmark Patent Reform Bill

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  • wait (Score:5, Insightful)

    by CSFFlame (761318) on Wednesday March 09, 2011 @03:34PM (#35433964) Homepage
    Isn't first to file REALLY bad? It helps patent trolls doesn't it?
    • Re:wait (Score:5, Insightful)

      by Gumshoe (191490) on Wednesday March 09, 2011 @03:41PM (#35434066) Journal

      Isn't first to file REALLY bad? It helps patent trolls doesn't it?

      Yes. It's a disaster. In effect if you invent something you now have to patent it or possibly suffer the consequences from a patent troll. It's a money spinner for the patent office if nothing else.

      • by tepples (727027)

        In effect if you invent something you now have to patent it or possibly suffer the consequences from a patent troll.

        You appear to claim that the law has been changed such that publication of an invention outside of a patent no longer makes the invention not "novel". Can you cite a particular piece of language in the bill supporting your claim?

      • Re:wait (Score:5, Insightful)

        by IP_Troll (1097511) on Wednesday March 09, 2011 @04:21PM (#35434662)
        First to file encourages people to file for patents sooner rather than waiting for someone else to file and cutting them off with a first to invent claim.

        First to file doesn't favor patent trolls, they can't patent the invention if someone else was using it publicly and didn't bother to patent it.

        If anything it cuts off patent trolls because they can't keep inventions a secret waiting for someone else to file a patent, and then usurp that patent from the original filer.
        • Interesting. I was thinking first to file would favor but patent trolls but your explanation makes sense to me.

        • Re:wait (Score:5, Informative)

          by skids (119237) on Wednesday March 09, 2011 @04:42PM (#35434962) Homepage

          They used to file, then before they got approved, refile with amendments and just keep doing that until someone with something close enough to their patent came along, then refile with one last final amendment to make their patent close to what the unfortunate victim had started to market.

          That was called a "submarine patent" and they fixed that a while back. This is probably aimed at killing the practice you just mentioned, which was what trolls turned to after that.

        • but it creates it's only share of problems described above. First to File would be fine if our patent office would stop rubber stamping stuff like 1 click shopping...
        • Re:wait (Score:4, Interesting)

          by Jane Q. Public (1010737) on Wednesday March 09, 2011 @04:43PM (#35434988)
          First-to-file does favor companies and corporations indirectly, if not necessarily patent trolls.

          Backyard and basement inventors (who make up a surprisingly large percentage of true innovation) in many cases do not have the money to file right away. Although the patent search situation is much better than it was some years ago, it can still take money, research, and time to file, and the services of a patent attorney, while not technically necessary, can be an advantage.

          These are things that many companies and corporations have readily at hand, or can easily afford to do. Not so the independent inventor.

          There are a few protections in place, but there is still no doubt that first-to-file favors the big players over the little. That is a very bad situation, and I argue that it is worse for inventors in America than the problem it is supposed to solve.
          • Re:wait (Score:5, Informative)

            by h4rr4r (612664) on Wednesday March 09, 2011 @04:46PM (#35435044)

            So then they should publish their works. The patent system was created to move knowledge into society. If you want to keep your widget a secret you do not deserve protection. It was not made to protect anyone or let anyone profit from anything.

      • FWIW China also uses the first to file system for both patents AND trademarks. The system has already stung a few large corporations who didn't know the law of the land. The court system there makes it impossible to fight as well.
      • by h4rr4r (612664)

        No, you just have to publish to so you can provide prior art. The whole point of the patent system is to provide a limited monopoly in exchange for showing the public how to make your widget. So either patent or publish or STFU.

    • From TFA -

      Chuck Grassley (Iowa), the Ranking Republican on the Judiciary Committee, and Orrin Hatch (R-Utah) were original co-sponsors of the bill.

      The moment I saw THAT name, I already know this bill is bought and paid for by special interests. This is the same MAFIAA loop that tried to rape us with the INDUCE act [corante.com]. I think we'll all be so very f_cked if this f_cker passes. Epic Fail does not even begin to describe the this...

    • by PickyH3D (680158)

      It definitely does help patent trolls. Prior art is still a blocking requirement, but now if the patent troll is able to file first, then your invention is unpatentable, and you are open to a lawsuit from the troll, which you must defend at your own cost.

      All the while they can sue everyone else as well. Fabulous...

      From the article:

      Excluded from the bill was a controversial amendment, backed by many tech companies, that would have eased the process for initiating an in-house administrative review process at

    • by Bruce Perens (3872) <bruce@perens.com> on Wednesday March 09, 2011 @05:23PM (#35435576) Homepage Journal

      Currently, a patent applicant can pre-date their application by 364 days and claim that they made the invention before the Open Source project, standards committee, or whatever they are eavesdropping. With first-to-file, there is no more pre-dating of inventions, so this loophole is closed and the Open Source project, standards work, etc. is more defensibly prior art.

      There has been no prosecution for lying on a patent application under perjury laws since 1974, when the patent office closed its enforcement department. Lawyers sometimes get penalties if they are caught in inequitable conduct, but not the lying applicants. Thus, there was no penalty for pre-dating your invention.

    • by anyGould (1295481)
      From TFA:

      The Senate bill would transition the Patent Office to a so-called first-to-file system, bringing the U.S. system in line with the patent regimes of much of the rest of the world. The shift would confer patent rights on the first inventor or company to file an application, rather than the current first-to-invent system.

      So, since the rest of the world already does it this way, I'd say you'll have to look elsewhere for your troll problem.

  • by Sonny Yatsen (603655) * on Wednesday March 09, 2011 @03:36PM (#35434000) Journal

    I'm sure someone's going to start asking whether a First-To-File system affects the prior art doctrine and whether it means big companies can steal ideas from open source projects and patenting them. Let's dispense with some misconceptions.

    Misconception 1: This destroys the prior art system.
    * This isn't true. A prior art will still cause an application to be denied under 35 USC 102. This means that if any sort of prior art is published (i.e. available to the public) that would anticipate or render an application invalid, it would still operate to render the application unpatentable. Remember, the law requires all patents to be "novel" and "nonobvious".

    Misconception 2: This would mean big companies can steal ideas from open source projects and file applications on them.
    * This isn't true either. The open source project would function as prior art against the later application. Even though there is a first to file system, it doesn't mean that the first person to file can steal ideas that were out there and use it as their own.

    The first to file system only really works in a very specific context - where you have two inventors who filed an application on almost identical types of inventions within a short period of time. Under the current system, there has to be a very fact-intensive and time consuming process of determining who was the first inventor - which means going through years of lab notebooks and correspondences to pin out the priority between two applicants. This is very expensive, very time consuming, and it's also taxing on the court system and the USPTO. A First to File system makes it much easier - priority can be determined within seconds of looking at the filing date.

    • by Synn (6288)

      Great explanation. Thanks.

    • Second Place: The First Loser
    • Re: (Score:2, Insightful)

      by Anonymous Coward

      I don't know much about the new legislation, but considering that the provision in current law, that "... all patents to be "novel" and "nonobvious"." has been frequently ignored, I'm not sure the specific context you mention would be the limiting factor in practice.

    • by Drakkenmensch (1255800) on Wednesday March 09, 2011 @03:46PM (#35434164)

      Remember, the law requires all patents to be "novel" and "nonobvious".

      What will become of the dozens of geniuses who patent laser pointers as "cat exercise systems"?

      • by meerling (1487879)
        That's not because of a flaw in the patent system, just a massive flaw in the patent examiners. (Incompetence, Corruption, Overworked, or Laziness, your call.)
        • by shawb (16347)
          Which, in theory, should be somewhat alleviated by the patent office now holding on to the license fees rather than passing them on to patch the general budget. Well, unless corruption is actually one of the largest driving factors. Which, having worked in a beaurocracy, I highly doubt.
      • I'm patenting my laser pointer as a cat bowling device.

        http://www.youtube.com/watch?v=aFztjgfDWDA [youtube.com]
      • True fact. I was using a HeNe laser as a "Cat Exercise System" in '81 or '82, but after going to Purdue, I used it as a "Let's have Fun with the Drunks System".
        From the towers of Cary Quad, I could get drunks to follow the spot and even run into trees.
    • by Cyberax (705495) on Wednesday March 09, 2011 @03:47PM (#35434190)

      This isn't true. A prior art will still cause an application to be denied under 35 USC 102. This means that if any sort of prior art is published (i.e. available to the public) that would anticipate or render an application invalid, it would still operate to render the application unpatentable.

      Yeah, sure. Like USPTO concerns itself with prior art searches. Or like you're going to waste hundreds thousands of dollars in multi-year lawsuits if a patent troll approaches you with 'an offer you can't refuse'.

      • So... how is that different from now? Patent trolls trample over prior art with the system as it is today, the change to first to file doesn't change that in the slightest. All it does is reduce the costs associated with a review if two similar applications are received at nearly the same time. Incidentally, this is exactly how most of the Western world's patent systems work, and they have no more, and often quite less, trouble with patent trolls than the US does.

        • by Cyberax (705495)
          It will make it easier for patent trolls. It's quite hard to get a patent revoked due to prior art and courts also tend to side with patent holders. The 'first to file' system needs also the 'prior use' clause - anyone who was using the invention prior to the filing date should get an automatic license for this patent.
          • by daedae (1089329)
            No, anyone who was using the invention prior to the filing date should (and, theoretically, does) prevent the patent from being granted. Unless you're suggesting that a free prior use license for existing instances and making everybody else pay for a license is somehow better than prior art blocking a patent, and you're suggesting that getting a prior use license would be be easier than getting a patent revoked/blocked.
        • Re: (Score:2, Insightful)

          by Anonymous Coward

          Old system:
          I invent something, somebody catches wind of it and puts in a patent application, then I send in a patent application showing I've been working on it for longer. I get a patent.

          New system
          I invent something, somebody catches wind of it and puts in a patent application, then I send in a patent application showing I've been working on it for longer. They get a patent because they filed first and I can't afford to take them to court to get it reversed. I lose. Or I do have enough money, they lose

          • by perpenso (1613749)

            I invent something, somebody catches wind of it and puts in a patent application, then I send in a patent application showing I've been working on it for longer. They get a patent because they filed first and I can't afford to take them to court to get it reversed. I lose. Or I do have enough money, they lose the patent and now NOBODY has a patent. I needed patent protection so I could license out my product. I still lose.

            Why did you not file as you were inventing, before someone else discovered what your were doing? If you were trying to max out the time your invention would be under patent then you knowingly took a risk, trading a longer protection period for increased risk of discovery. With a US patent lasting 20 years it seems you got greedy and lost. Even if it took ten years to get to market you would have ten years of monopoly. Furthermore licensing can occur during development. It may even be financially beneficial

          • by Sun (104778)

            I needed patent protection so I could license out my product. I still lose.

            Too bad for you. You should have done one of two things:
            1. Made your invention public, either through a patent (a provisional patent costs very little money) or through publishing.
            or
            2. Made sure no one gets wind of it.

            The patent system was established to give inventors to publish their inventions so that society at large can benefit from it. You attempted to to circumvent that, and, indeed, lost. Why is that not a win for the system,

    • As long as you have the money to go after the patent in court because,

      Excluded from the bill was a controversial amendment, backed by many tech companies, that would have eased the process for initiating an in-house administrative review process at the Patent Office for challenges to patents that have been granted, a measure billed as a less costly alternative to private litigation.

      IMHO this bill is a disaster; it's regulatory capture and not reform.

    • by billstewart (78916) on Wednesday March 09, 2011 @04:02PM (#35434418) Journal

      The Senate bill is S.23, aka "America Invents" [gpo.gov], sponsor Patrick Leahy, who's been trying to get patent reform done for years.
      Bill status query at thomas.loc.gov (not sure if these are persistent) [loc.gov], Computerworld article [computerworld.com], National Journal with some brief comments from pro/neutral/con parties [nationaljournal.com], SF Chron article [sfgate.com].

      Silicon Valley businesses large and small were mostly against it, IBM was for it. Dianne Feinstein attempted an amendment to remove the First-to-File part, but voted for it anyway after that failed. Barbara Boxer voted against.

      The US patent system has been first-to-invent for a long time, while Europe has been first-to-file. There's lots of other detail, largely intended to reduce the amount of patent litigation, improve the coordination with non-US patents, potentially improve the problems with patents on things with prior art and obviousness, and affect some tax issues."

      • by Drishmung (458368)
        First-to-invent is more moral... OK, you can stop laughing now. Yes, I suppose you're right, this is the patent system as it actually exists rather than as we'd like it to exist...

        In practice, first-to-invent does not result in a more moral outcome. It encourages deceit ("I invented it last year, before this similar device entered the market. Honest, I did.") and litigation. It's more complex, so it's slower and more expensive. Most (?) other countries have first-to-file. As far as I'm aware none have ever

    • by dgatwood (11270)

      The open source project would function as prior art against the later application.

      Maybe, maybe not. It would have to be shown that the open source project was in use by people in the United States prior to the date that the other company "invented" their product (which is not the filing date for the patent).

      It's not at all clear whether online publication is considered publication for patent litigation purposes because it is easy to change and falsify dates. Thus, the project itself might or might not be

    • by billstewart (78916) on Wednesday March 09, 2011 @04:08PM (#35434512) Journal

      One big difference between the First-to-File system and First-to-Invent is that with First-to-Invent, you can publish your invention and then file the patent within a year of publishing it, while it's very difficult to do that with first-to-file. I'm not sure how important that is in practice; one major impact it had in the US was the RSA patent and other patents that were affected by another US quirk, which is that the military can declare your patent application to be classified and prevent publication (nearly forever), and Publish-then-Patent made it possible for R, S, and A to get their work out.

      • You can still patent and publish at the nearly the same times. Have your press release written, journal articles through the in-house review, etc..., and as soon as you've got that postmark or electronic submission time stamp you flip the switch to punch the others out too. If you screw up and get your PR out there a little early there's still very little chance someone else can write up and submit the patent before you've got yours in (although I wouldn't want to be in that position), especially in a "th
      • There always will be a problem with secret Military Patents. You invent something, and get a patent. There could be an identical patent that is classified. Once the secret is out, and the original patent is declassified, you could lose your patent because it was invented a decade before.
    • by yakatz (1176317)

      While this might be the intent of the new rules, here is why some people are skeptical:

      First, how many small companies/individuals can afford to hire a patent attorney to help them wade through the many forms required to request a re-examination of a patent for prior-art?

      Second, once the patent has been issued the big corporation (with in-house council and the budget for lawyers) usually wins (as the Eastern District of Texas [wikipedia.org] has [slashdot.org] shown [slashdot.org] many [slashdot.org] times [slashdot.org]).

      They can file in court in a district that is known to be fri

      • on examination by a tech person instead of a lawyer, many would be thrown out before they got very far

        You realize PTO agents are necessarily "tech people," right? You don't need a law degree to be one, but you absolutely must have a technical degree (well, there are a few exceptions if you just took a bunch of chem/physics in college but didn't major in it, but for example, I have a BS in abstract math and a law degree, and I cannot become a PTO agent because I lack the requisite tech background).

        Not to men

    • by vldragon (981127)
      If there are multiple inventers coming up with the same thing at aproximantly the same time you would think the invention wouldn't be patantable as it should be considered obvious by the fact that more than 1 person came up with it.
    • by BenFenner (981342)

      The first to file system only really works in a very specific context - where you have two inventors who filed an application on almost identical types of inventions within a short period of time.

      Why is that even a specific case to consider that needed clarifying? Wouldn't two inventors coming up with almost identical types of inventions within a short period of time necessarily evoke the "obvious/trivial advancement" disqualification?

    • > The first to file system only really works in a very specific context - where you have two inventors who filed an application on almost identical types of inventions

      AND, when a crook steals an idea from the inventor and files the application.

      But who cares, as long as the patent office can award patents efficiently? I mean why don't we dispose of judge and jury and just make the guy with most expensive lawyers the automagic winner of a trial, too? :)

      • I mean why don't we dispose of judge and jury and just make the guy with most expensive lawyers the automagic winner of a trial, too? :)

        Isn't that the way it works already?

    • Misconception 1: This destroys the prior art system. * This isn't true. A prior art will still cause an application to be denied under 35 USC 102. This means that if any sort of prior art is published (i.e. available to the public) that would anticipate or render an application invalid, it would still operate to render the application unpatentable. Remember, the law requires all patents to be "novel" and "nonobvious".

      This should be true, but since the patent office often approves patents without doing a proper prior art check, then it probably won't work this way in practice. What needs to happen is for this "patent reform" bill to allow the patent office to be sued for issuing a blatantly invalid patent. If there is obvious prior art or it is obviously vague, then they could be sued for the cost of invalidating the patent plus some other damages (such as loss of sales if case of an injunction). The patent office would

    • "Under the current system, there has to be a very fact-intensive and time consuming process of determining who was the first inventor - which means going through years of lab notebooks and correspondences to pin out the priority between two applicants. This is very expensive, very time consuming, and it's also taxing on the court system and the USPTO."

      Perhaps so. But it is still the right, just, and proper way to do it.

      • We do not exist, pay taxes, or work for the convenience of the federal government. On the contrary: we pay the federal government to do right by us. First-to-file has this principle exactly backward.
    • by sdguero (1112795)
      But is it a bad thing for innovation? That is the question that slashdotters care most about.

      I would argue that yes it is bad for innovation (for a variety of reasons that are scattered throughout this forum), and good for lawyers like yourself who now have one more thing to argue over while charging innovators even more fees and further confuscating the issue of patent reform. After all, true patent reform would mean an end to wealthy IP attorneys who contribute nothing to society. And we can't have tha
  • by cbs4385 (929248)

    For a patent, it should be the first to walk into the office with a working prototype, and that implementation is what the patent should cover.

    • Re: (Score:2, Troll)

      by ByOhTek (1181381)

      Consider:

      Joe Schmoe is familiar with with the production of FOO. FOO is expensive to produce, an individual probably could produce one without prohibitive cost.
      Joe has figured a way to make BAR, an item significantly better than FOO, but it still costs about the same as FOO.
      Joe wants to sell BAR to companies, doesn't want them to steal it from him. With a first-to-prototype style of patent, Joe has no protection.

    • For a patent, it should be the first to walk into the office with a working prototype, and that implementation is what the patent should cover.

      It would be interesting to know what percentage of patents are granted that actually have a working prototype these days. I have no idea, but would speculate it's fairly small.

    • Re: (Score:2, Insightful)

      by Atrox666 (957601)

      I invent things that could be used to cause harm. Sharing this technology with a murderous criminal organization like the US government would be immoral. Should I have no right to my own work?
      The people who invent things should be rewarded, right now it is corporate parasites that get rewarded all too often and all too much.
      I also don't feel like paying war criminals for the rights to my own work.
      Forcing people to pay to not be ripped off is a protection racket and should be considered a crime like any othe

  • It seems that "first to file" places a burden on inventors to patent as soon as they can, which may be very, very expensive.

    What happens if I invent something and show it to some friends, then one of them takes my idea and patents it before I can because of whatever reason (he has money, connections, etc.)? That seems dreadfully unfair to me, especially if I can demonstrate that I had the idea first by showing recordings, demos, etc.

    I see it like this: IIRC, Franklin didn't patent his stove design. What if

    • by Rinisari (521266) *

      I yield to this explanation [slashdot.org].

    • by Sonny Yatsen (603655) * on Wednesday March 09, 2011 @03:44PM (#35434114) Journal

      Then the patent is invalid on the basis of 35 USC 102(f):

      "A person shall be entitled to a patent unless -
      (f) he did not himself invent the subject matter sought to be patented."
      http://www.uspto.gov/web/offices/pac/mpep/documents/2100_2137.htm#sect2137 [uspto.gov]

      • by BitZtream (692029)

        Of course ... you would actually have to PROVE the person didn't invent it which is far easier said than done, don't you think?

    • by Microlith (54737)

      I see it like this: IIRC, Franklin didn't patent his stove design. What if he'd sold one to someone, they quickly realized he'd not patented it, then they patent it. That gives them a right to his profits, without having done any work, all because he neglected to patent his invention before selling it.

      It could be a problem, if the USPTO ignores prior art that directly covers the application at hand. If first-to-file allows them to post the applications publicly within a short time frame, you could easily po

    • by ibpooks (127372)

      In your example, neither man would be eligible to patent the design as the offering for sale to the public discloses the invention to the public, which constitutes prior art.

      • by necro81 (917438)
        If memory serves, the person who actually invented it may still file for a patent for up to one year after the first public disclosure. Generally, businesses will still try to file a patent before the first public disclosure, but that is largely a strategic decision, not a legal one.
      • Nope. An inventor has up to a year after public use/offers for sale to patent. If, during that time, someone else files for patent before the inventor (say one of the purchasers), they'd get priority with first-to-file, not the actual inventor. Now, 102(f) is there to safeguard against fraudulent claims of inventorship, but if it can't be proven one way or the other, the inventor is SOL. Under the old system, the inventor could have used notebooks and other materials to prove his claim to the invention
    • by ByOhTek (1181381)

      Conversely, what if a prototype for something is too costly for an inventor, but it has a high likelihood of functioning? Doesn't the inventor deserve some protection to either (a) get the backing for financing the prototype, or (b) selling the idea to companies which could afford to make the prototypes?

      • by SirGeek (120712)
        No. If you can't produce something that works, then odds are no one else can either. and therefore NO ONE deserves protection. The lack of a prototype requirement is a big cause for most of the patent troll crap
        • Not necessarily. An guy can sit down and draft something up (including mathematical and theoretical demonstrations), but he should still be able to patent even if he can't afford to build his own foundry, get the payload into orbit, or you know... buy enough palladium for his ARC reactor ;) (Not everyone has Tony Stark's financial superpowers).

          That's also why an inventor has a year to file after public disclosure. Where the strategy changes is whether public disclosure to gather capital is wise if you're

    • I see it like this: IIRC, Franklin didn't patent his stove design. What if he'd sold one to someone, they quickly realized he'd not patented it, then they patent it. That gives them a right to his profits, without having done any work, all because he neglected to patent his invention before selling it.

      No, the person who bought the stove would still have to prove they invented it. And if Franklin could prove he sold him a model that looks just like the one the fraudster is trying to patent, it'd be pretty easy for Franklin to prevail.

      That doesn't mean this is a good change - it will clog the patent system as people rush to file prematurely - but it's not as bad as some are making it out to be.

    • Franklin would still have prior art.
  • Reform? (Score:2, Insightful)

    by Anonymous Coward

    There's nothing reformatory about this bill. The patent trolls and lawyers are well pleased.

  • by rritterson (588983) on Wednesday March 09, 2011 @03:52PM (#35434274)

    Other comments have taken to clearing up some of the misconceptions regarding first-to-file versus first-to-invent so I won't duplicate them. However, one thing not yet pointed out is that the vast (VAST) majority of the rest of the world uses a first-to-file system.

    By switching our system, it reduces the burden on an inventor (and thus the legal cost) of obtaining a world wide patent as the systems become closer to the same. And note that Europe has not considered switching to first-to-invent as a way to combat patent trolls, which says something about how much the USA switching will help/hurt trolls.

  • by Waffle Iron (339739) on Wednesday March 09, 2011 @03:54PM (#35434298)

    Backlog, schmaklog. The real reform we need would be to reduce the number of patents issued by orders of magnitude. The bar for patentability should be raised from "not blatantly obvious to below-average freshman engineer" to "that's freakin' genius". That would simplify things for everybody, eliminate most of the huge burdens on society involved with accounting for tens of millions of extant patent claims, while still ensuring that people with genuine Big Ideas get rewarded.

    IMO, it would be an improvement to make the patent system a reality show like The Apprentice or American Idol. Allocate something like 100 possible patents each year to each field of industry, then have juries (not bureaucrats) review all of the applicants in rounds, make the would-be idea monopolists defend their claims in public. Keep voting applications off the island until the few truly worthy patent candidates still stand.

  • The patent service is not perfectly screwed up. The Florida Voter Registration System should take charge. If they can steal an election as they already have they can screw up most anything. Then if that is not screwed up enough we can use Florida's Department of Children and Family Services as the agency from hell. They can mess up absolutely anything. They even are able to kill little children assigned to their care.

  • by PPH (736903)

    I can clean most of that up right now. Just search through applications which read "Do blah, blah, blah using the Internet" and throw them out. If blah, blah, blah was an innovation by itself, let them re-file without "Internet". Otherwise, the general case for doing generic stuff was placed into the public domain by ARPA a long time ago.

  • IP theft is a real problem and I am concerned that the real effect of a first to file system is that it will reward those companies that have the best corporate spies. Being nearly impossible to prove theft of an invention if one covers their tracks, the real deterrent to this type of theft has always been the risk that the inventor would be able to show an earlier invention date. With a first to file system as long as the thief covers their tracks and creates a false paper trail then they can get away

  • "...soon harmony and rationality will triumph." From the US Government, surely you jest!
  • you will soon see bastards attempting AND succeeding to patent very basic mechanics of the machinery and systems that run modern society.

    just one thinks that we have hit the rock bottom of the pit that is capitalism, now we are really at a point of allowing ownership of basic logic. way to go.
  • by shadowofwind (1209890) on Wednesday March 09, 2011 @06:16PM (#35436252)

    fees paid to the Patent Office will actually fund the Patent Office

    Doesn't this mean that an even larger number of ridiculous patent applications will be approved, since everyone's salary will be dependent on the available budget? Now there's an incentive to massively expand the number of patent awards, with no comparable incentive for quality.

  • by labnet (457441) on Wednesday March 09, 2011 @07:10PM (#35436938)

    - patent owners must be commercially utilizing their patent to keep it. (within 4 years of patent application)
    - software and business process should not be patentable (ie 1 click)
    - accidental infringement be not initially punishable
    - the bar for novelty to receive a patent be way higher than it is now.
    - patent application / renewal fees be based on number of patents held
    eg x = v * n(n+1)/2 where v = the base patent cost.
    Lets say v = $100
    1 Patent = $100/annum to maintain
    2 Patents = $300/annum to maintain
    10 Patents = $5.5k/annum to maintain
    100 Patents = $500k/annum to maintain
    1000 Patents = $50M/annum to maintain

    This would force very large companies / trolls to only keep their best patents and toss out the dross polluting the patent system.
    You would need rules to stop companies spawning sub related companies to get around the intent.

  • by istartedi (132515) on Wednesday March 09, 2011 @08:35PM (#35437656) Journal

    We should just go to compulsory licensing. If you think that your product might infringe a patent, you place 10% of the sales price in escrow. You keep a record of each sale (something most businesses do anyway), and at the end of the year you have an escrow account that's 10% of gross sales. If you think you are in the clear, you escrow nothing.

    OK, are you with me? Those who claim that your product violates a patent have 1 year after your fiscal year ends to make a claim against the money you escrowed. If they don't make any claims, you pocket the money with interest.

    If any patent holders make claims during that year, at the end of that year (as long as two years from the first violating sale), two things may happen.

    1. You may disburse the escrow funds to claimants, based on the number of patents violated. e.g, You violate 2 Farbco patents and 1 Spimco patent, Farbco gets 2/3 of the money and Spimco gets 1/3. This gets a bit more complicated if you have multiple product lines, but you get the idea.

    2. You may contest the claims, but if you do, you are subject to the usual civil claims process. If you didn't escrow anything, this is your only option.

    Most people would probably opt for (1), unless the claims are really frivolous.

    A system like this would have a number of consequences. First, software given freely would have an escrow of zero--immunity from suits. Per-seat service contracts (ala Red Hat) might be a different story. Yes, commercial free software would have to maintain the escrow. Really, I'd like to see software patents just go "poof!", but one thing at a time. Secondly, "suppressive" patents would not exist. If there realy is a car that runs on water, all I have to do is build it and escrow the money from sales. This might even silence the conspiracy theorists. Ditto for things like restrictions on large battery packs for electric vehicles. Nobody can stop me from building it--they can just tax me 10% for the duration of their patent. If my car is 10% better than theirs, it's worth building. If they aren't building the car, they still get paid; but they can't just sit on the patent at the behest of Big Oil.

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