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New Patent Reform Proposal Focuses on Education 66

Posted by ScuttleMonkey from the all-your-eggs-in-one-basket dept.
CNet is reporting that a new proposal before Congress is attempting to increase the number of federal judges who specialize in patent litigation. From the article: "The proposal prescribes $5 million each year in federal funding over the next decade for "educational and professional development" programs for designated judges and to pay the salaries of new, specially appointed clerks with patent expertise. Under the bill, patent cases would continue to be randomly assigned to judges, but with a notable exception. Any judge who practices within a court district offering the pilot program but who chooses not to sign up for the extra training would have the option of transferring patent cases to a program participant." Techdirt also has a short writeup on why this specialization might not necessarily be a good thing.
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New Patent Reform Proposal Focuses on Education More

New Patent Reform Proposal Focuses on Education

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  • Worrisome (Score:5, Insightful)

    by LiftOp ( 637065 ) on Saturday May 20, 2006 @12:13PM (#15372341) Homepage
    It's federally-funded, but it'll likely be industry that does the education. I see lots of ways some careful "teaching" could skew the courts.

    • Re:Worrisome (Score:1, Insightful)

      by Znork ( 31774 )
      The only way to create a non-skewed system would be to introduce fiscal responsibility, like for any other state-run welfare system.

      The implementing agency for the patent system (PTO plus courts) should get a limit; patents are only allowed to exact a tax of 5% of the economy as a whole. Once it surpasses that they either have to stop granting patents at all, or each patent holder would get lower royalties.

      With the current situation, none of the involved parties have an interest in keeping any form of limit
      • Actually, you could do something simpler: only allow a small, fixed number of valid patents at any given time (10,000?).

        Use some kind of "competition" process (auction?) so that patentable ideas "compete" with each other to be awarded patent "slots" (which become open due to expiration, or because patent is thrown out due to prior art or obviousness).

        This kind of process would encourage due diligence by the people bidding for patents (since they wouldn't want to pay a whole lot of money just to see their pa
        • This is an absolutely brilliant idea. The fact that the number of patents is fixed would put pressure on the government to optimize the patent term to make it as short as possible while still encouraging commercialization. You *must* submit this idea to influential politicians.
          • Dunno, I'm so cynical about the government right now that I figure anything different than the status quo will be automatically rejected unless it either helps a politician's "buddies" or satisfies some ideological or political goal.

            I'd have to personally know an "influential politician" before I would feel like I could trust them to actually care about whether the patent system is working or not.

            Even if there WERE such a politico who was excited about reforming the patent system, the system itself (as is t
        • "Actually, you could do something simpler: only allow a small, fixed number of valid patents at any given time (10,000?)."

          I recall reading some time that, I think it was Jefferson, envisioned having maybe a dozen patents active at any one time.

          But, yes, a fixed number would work too, altho that wouldnt specifically control the economic consequences and constraints of the system, just build in a self-regulation, which is the most important thing.
      • a limit; patents are only allowed to exact a tax of 5% of the economy as a whole.
        Great idea.

        "Sorry Doc, I'm afraid I can't grant you a patent for your cancer cure cookies. The guy before you tipped us over quota with his automatic WiFi buttwiper."

    • I've got a better idea for patent reform. Take any application that isn't a physical invention (i.e. something that cannot be implemented on a general purpose computer or expressed in terms of pure mathematics) and reject it out of hand. Business practices, software, physical theories, etc. Then fine the individual filing the patent for wasting the patent offices time.

      No? Oh I forgot, this isn't about innovation or helping inventor, or preventing information getting locked up in trade secrets. It's about pr

  • Nice... (Score:4, Insightful)

    by suv4x4 ( 956391 ) on Saturday May 20, 2006 @12:19PM (#15372361)
    Don't just make patents lighter (like 2-3 years validity) or reduce the effect of patent trolls or make areform to reduce bad patents which are obvious and have lots of prior art. No. Don't even think about it.

    Instead train more judges to handle all the cases, you may even throw in an education program to turn honest inventors and workers into patent trolls, libel case extortionists and DMCA abusers.

    It'll make a for a whole lot better world!

    PS: Why the hell are we training patent judges who can't tell a "cold fusion reactor with a working model" patent from a "1 click buy button" patent, and not train judges who have a clue of computer technology (the place where most of the patent trolls grow)?

    • Re:Nice... (Score:3, Insightful)

      by Original Replica ( 908688 )
      Why make the responsiblity of the Governemnt lighter by makeing an efficient patent system? That would result in less Government control, which is never going to be voted for by professional politicians. This is the messy end of Roosevelt's New Deal, the role of governemnt grows and grows, it now exists mainly to feed itself.
      • Comment removed based on user account deletion
        • Because flat tax doesn't make sense. Sure, it's fair at first, but when you start extemping things like higher education, it becomes regressive. Rich people are more likely to benifit. Besides, the USA has a regressive goverment. Rich people gain more from programs, while poor people lose out. In the Netherlands, you get more services per taxes you pay. But giving people value for taxes is "socialism" and "evil" on this side of the Atlantic. Somehow, getting what you pay for seems pretty good to me, inste
      • What does patent reforms have to do with the New Deal? What part of the proposal increases the role of government? How would reducing the role of government improve the patent system?
        • How would reducing the role of government improve the patent system?
          A shorter time limit on patents or a requirement to produce the patented item or some other simple clear way to disrupt patent trolls and encourage innovation would be good for our patent system. The would be less litigation and therefore less government involvement and a heathly environment for new and progressive products and ideas. Specialized judges will result in more patent litigation, because that's what judges do, they preside over
    • "Don't just make patents lighter (like 2-3 years validity) or reduce the effect of patent trolls or make areform to reduce bad patents which are obvious and have lots of prior art. No. Don't even think about it."

      IM SURE THEY NEVER THOUGHT IT OF Mr guy who drives a 4x4 SUV...

      No obviously they never thought about these things becuase you said so!

      Your light hearted attempts at sarcastic elitist humor are what is wrong with the world... God damn post modernists...
      • Mr guy who drives a 4x4 SUV...

        I'll enlighten you here: having a nick called suv4x4 doesn't mean I actually drive a 4x4 SUV. How about you, are you the kid who... uhmmm.. ? Should I fill it in myself? The kid who peed his pants or something?

  • CAFC (Score:5, Interesting)

    by the eric conspiracy ( 20178 ) on Saturday May 20, 2006 @12:21PM (#15372363)
    The author of the article presents CAFC as if it were uniformly a bad experience. This is not exactly the case. Prior to CAFC the state of patent litigation was very bad - judges with no experience in patent law were making arbitrary decisions that arbitrary and inconsistent, venue shopping was the order of the day, many really valid patents and important were being overturned, etc.

    While CAFC has resulted in some quite bad decisions, it has at least brought some consistency. Now that there is this consitency it is up to Congress to correct the patent law to exclude or refine the scope of patent law.

    • CAFC an improvement? (Score:3, Informative)

      by jizmonkey ( 594430 )
      The CAFC has led to more widespread patenting, both in terms of raw numbers of patents and in subject matter -- we went from Flook and Diehr to having all software be patentable, for example. And yet the reversal rate on appeal is still 50%.

      Patent litigation has grown from a specialist niche, a side job of patent prosecution boutiques, into one of the very few areas of law where billing is practically unlimited. Good, cheap firms like Finnegan bill $4m for a case, good, expensive firms like Weil bill four t
    • Sure . . . except for the fact that most patent policy has been nearly single-handedly established by the judiciary for the last, oh, fifty years or so.

      Between the establishment of the CAFC and Lehman's revamping of the USPTO as a PBO (yes, I know it didn't become a PBO until after Lehman, but he got the ball rolling as it were) I think the patent system might interestingly be considered captured by a burgeoning patent industry (as in, regulatory capture); i.e. is the USPTO fast becoming the 21st century's
    • While CAFC has resulted in some quite bad decisions, it has at least brought some consistency.

      I don't know about you, but I'll take a court that returns a wrong/Bad decision 50% of the time, instead of a court that returns a Bad decision 90% of the time, even if the latter is more "consistent."

      Consistency isn't necessarily a good thing, if it's in the wrong direction.

      Inconsistently good is better than consistently bad any day.
      • From my experience it went from being wrong 90% of the time to 50% of the time, and it resulted in more predictable results.

        The negative was that it expanded the amount of material considered patentable, especially business processes.

  • the government strategy (Score:5, Insightful)

    by free space ( 13714 ) on Saturday May 20, 2006 @12:24PM (#15372369)
    1- Let some problem annoy too many people until everyone ask them to intervene.

    2- Introduce a solution that is worse than the problem, and only helps gov & friends.

    3- when people complain, say "Hey, didn't you ask for it?"

    That happened with CAN-SPAM, and now apparently will happen to patents.
    I wonder how the government proposed "Copyright reform" would look like.

  • Great plan! (Score:4, Funny)

    by agent dero ( 680753 ) on Saturday May 20, 2006 @12:29PM (#15372383) Homepage
    Because if the military and the social security system have taught us anything

    it's that you can fix a bureaucracy by throwing more bureaucracy at it...

  • Who is paying for all this? (Score:5, Insightful)

    by NevarMore ( 248971 ) on Saturday May 20, 2006 @12:34PM (#15372399) Homepage Journal
    If you do buisness with any American company, YOU ARE.

    I don't just mean the $5 million a year (a drop of piss in the bucket of American government spending), but the entire patent issue at large.

    For 'targeted' products, like the iPod, eBay, or Amazon, you're paying some money up front that the producer is setting aside to pay for lawsuits. After a ruling, the cost of that payout is being passed on to the consumer.

    I'm not speaking against it, thats how capitalism works and I love it. It just seems that so often people cheer on a lawsuit without realizing what it does to all of us. There is a time and a place for severe financial punishment, but it is abused and I'm certain it affects all of us.

    • It just seems that so often people cheer on a lawsuit without realizing what it does to all of us.

      It's very seldom I've seen anyone in this crowd cheering on any kind of patent litigation, at least not in the last year or two.

  • Unintended Consequences II (Score:5, Interesting)

    by richg74 ( 650636 ) on Saturday May 20, 2006 @12:34PM (#15372402) Homepage
    The Techdirt article talks about some of the problems with the CAFC, which essentially boil down to having a government regulatory authority "captured" by the regulated industry. You can, of course, see this in the Patent Office itself, where there have been periodic pushes to define greater efficiency == more patents granted.

    Any judge who practices within a court district ... but who chooses not to sign up for the extra training would have the option of transferring patent cases to a program participant.

    It isn't clear that this has been thought out very well. Suppose an "untrained" judge does not opt to transfer the case to a "trained" one. Will that be grounds for appeal? Can a litigant request a "trained" judge? I think one can safely assume that the parties with deep pockets will game the system if it's possible.

    • I think one can safely assume that the parties with deep pockets will game the system if it's possible.

      I think one can safely assume that the parties participating will game the system if it's possible.

      And I wouldn't have it any other way.

  • UK Judges (Score:5, Interesting)

    by Anonymous Coward on Saturday May 20, 2006 @12:35PM (#15372407)
    In the UK the Judges are patent specialists. They are pretty smart too considering the wide range of subject matter they are able to assimilate. I recall reading that prior to one complex case on biotechnology a prof from one of the Oxbridge colleges came in to give the judges a crash course which they just lapped up.

  • Transparency (Score:2, Interesting)

    by ikejam ( 821818 )
    One would hope the course content would be available for the public to understand/critique.

  • $5M Global Tuition (Score:3, Insightful)

    by Doc Ruby ( 173196 ) on Saturday May 20, 2006 @01:10PM (#15372520) Homepage Journal
    Useful technology people make at least $100K annual salary, and cost at least twice as much to support in infrastructure, benefits, management, etc. Even if the government has economies of scale that means people cost $150K. $5M pays for 33 people. If the program suffers from typical government inverted economies of scale waste, it could pay for less than a couple of dozen.

    Meanwhile, the patent system protects $TRILLIONS in annual income for American (and global) corporations. They've got less than half a percent of the take to fix it?

    Sounds like they're spending $5M on "educating" the public with propaganda that they're fixing the debased system, rather than actually making it reflect how intellectual property works in the modern world.
    • "Useful technology people make at least $100K annual salary,"

      Oh, really?

      I make $11/hour (CDN) and I am a technology person (tech support), and the people that I help I think would certainly say that the service I provide for them is "useful".

      Every person that contributes to society is useful to society, weather your the guy in a wearhouse sending stationary to high powered exectuives to sign important business deals (or draw doodles) or exectutives of multinational companies that employ thousands.
      • You are replacable.

        The really useful guys are hard to replace.
      • Are you qualified to advise the Justice Department, Judicial Branch, PTO - or even a single IP registrant - on serious technology issues, as this article refers to? If your tech qualifications are sufficient, your economics and business qualifications are abyssmal, if you're earning only C$11:h, and you think you're qualified. And that's the US government, not Canadian (with its respective economies and legal system).

        BTW, that's "warehouse", "stationery", "executives".

        Sounds like you've already exhausted yo

  • Comment removed (Score:3, Interesting)

    by account_deleted ( 4530225 ) on Saturday May 20, 2006 @01:27PM (#15372576)
    Comment removed based on user account deletion
  • They're letting judges voulenteer to take these cases and not be trained... but if they don't want to do thie voulenteer work, they can hand it off to others who ARE trained? America at it's finest.
  • So if you've got a crack in the foundation which undermines the whole structure of patent law and shows up as ugly cracks throughout the system, a little glue and paper will fix that right up.

  • It seems like this is only half of the equation. While I think training judges in patent litigation is a great step to make, I feel that what is even more necessary is to have the patent office reevaluate its system and methodology for giving out patents. I think then they wouldn't need to train so many judges, and the judges would just be a good backup for those patents that slip through (as well as the legitimate cases).

    But I'm preaching to the choir here, I guess.

  • How About Spending Less Money (Score:3, Interesting)

    by Anonymous Coward on Saturday May 20, 2006 @01:51PM (#15372676)
    There are three straightforward problems with the patent system:

    1. Business Prcoess Patents

    If experienced Federal Judges weren't wasting their time looking at this abomination of the meaning of patent they would have plenty of time to research and rule on real patents like "The Cotton Gin".

    2. "Self-Funding Process" whereby the Federal patent system rewards itself for making bad patent law. Is it more important for the Patent Office to do good patent analysis on truly novel inventions or to declare as many "ideas" novel as possible and thus garner more funding for itself.

    3. Patent "portfolios" are used as sticks to beat down and stifle innovation by large corps against small innovative businesses (and against other large corps) rather than the original purpose which was to grant, for a limited time, exclusive royalties to those who put forth the effort to develop unique ideas and market them.

    Of course, pointing out flaws in the US government these days is like shooting ducks in a barrel. Think Rome, circa 410 AD.

  • The simplest reforms are best (Score:3, Interesting)

    by xkr ( 786629 ) on Saturday May 20, 2006 @01:53PM (#15372682)
    Most people in the patent industry [patent attorneys, entrepreneurs, corp senior management] agree that the single best reform would simply be more, and better paid examiners. Right now, the US Patent office is a profit center for the Federal Gov't. How about if it just got to keep (more) of the money it raises through filing fees? The current rules in place are 'reasonable.' The biggest problem is that rushed and weak examiners don't always do a good job.
  • As always, Congress completely misses the actual problem when working out a solution. Hey, if they didn't propose half-baked sollutions, they might actually have to do real work.

    Here's what I don't get about this deal: as far as I can tell, judges who don't understand the technology are not the problem. If a judge doesn't know an inline for-loop from an EJB, does that really mean that he/she can't tell whether someone is infringing on the one-click patent? Furthermore, assuming that they are technically sav

  • Educate The PTO (Score:2, Insightful)

    by frankenheinz ( 976104 )
    Heck, by the time a judge sees a bogus patent, a lot of damage is already done. Why not just spend the money to educate (or better staff) the PTO's examiners to help keep a lot of these junk patents applications from ever seeing the light of day? (Besides, 'educating' a judge is largely the job description of an attorney.)
  • Patents on software came into existing through the small court door where the skill of abstraction manipulation was used to argue for it by those inherently skill at such, due to the nature of soiftware.

    With this in mind, what needs to be taught so that this skill will exposed and seen through when it is being unfairly biased?

    There is this issue of "state of the art" of what is supposedly "computer science" but then there is "Abstraction Physics" which applies to not only software but to anything we do with

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