Legislation To Overhaul US Patent System 336
FutureDomain sends us to a PC World report on the filing yesterday of legislation to overhaul the US patent system completely. The US has the only system worldwide that tries to ascertain who first invented a thing — everywhere else the criterion is who filed first, and the new legislation would bring the US into line. Identical bills were introduced in both the House and the Senate by, in each case, bipartisan sponsors. The corporate roster of backers includes Microsoft, IBM, Amazon, and nearly everyone else. From the article: "The provisions of the Patent Reform Act would... restrict damages that patent holders can receive for infringement lawsuits, create a new procedure to challenge the validity of a patent after it has been granted, and boost resources for the US Patent and Trademark Office."
Bizarroworld (Score:5, Interesting)
Re:Frankly, this worries me (Score:2, Interesting)
I think I understand the rationale for changing the law, but as an application developer it worries me. I'm not interested in trying to patent software that I create, or any of the techniques that I use. I'm more interested in creating applications that are so compelling that they set a high standard that is difficult for competitors to meet, and then continously innovate to stay ahead of them.
However, I have always felt like I could rely on the fact that I would be able to prove that I had "invented" the software techniques I use in my applications by keeping good records of my design documents, source code control history, etc. My worry with this new proposed law is that someone could take advantage of the fact that I don't care to go through the hassle of patenting aspects of my software and swoop in and patent the concepts themselves.
It almost seems like it could foster a new age of "patent squatters" similar to URL squatters. Opportunists took advantage of the fact that many companies didn't acquire their trademark URLs in the web's infancy. I could easily see a similar technique arising with patents. All you would have to do is:
- pick some successful web sites
- check to see if they're doing anything remotely worth patenting
- see if there's a patent yet for that - file the patent if there's not
- blackmail the web site, threatening to shut them down if they don't pay you a royalty/settlement for the use of "their" technique.
Am I off base here? Of course, I haven't read TFA yet, so I very well could be.Re:First Post! (Score:2, Interesting)
We will see how this proceeds through Congress (Score:2, Interesting)
More like fine-tunning (Score:5, Interesting)
Or the "Get a bunch of specialists in a room and ask them 'How would you solve problem X' and then patent the solutions" approach to "innovation".
Not to mention that the change from a "Prior-art has precedence" system to a "First to patent wins" one means the anybody that has loads of ideas but no money to patent them will loose against "Big corp with loadsa money for whom the costs of filling a patent are short change".
Couple this with the ability to patent business methods (whether encoded as a software/hardware mix or not) and you'll see things like "selling ice-cream on a beach" being patented.
The real revolution would be dropping patents for business methods (software encoded or not) altogether.
The fact that BSA is for it (read: the big boys in the software world), should be ringing alarm bells in everybodies minds.
Re:More like fine-tunning (Score:3, Interesting)
Well, how do you distinguish that from an actual invention, which usually takes two or more ideas that already exist and combine them in novel ways?
The problem is equivalent to distinguishing originality from opportunity. As wireless communication becomes cheaper for example, it becomes economically feasible to do things wirelessly that were not feasible before. Eventually somebody realizes this. Somebody has to be first with this realization, but we wouldn't necessarily count that as creative. If wireless had been dirt cheap for the last fifty years, you could have a reasonably safe presumption of originality, but in an era of rapid technological advance in a field, it turns the patent process into an artificially generated land rush.
What is needed is a definition of non-obviousness -- or maybe a test of non-obviousness -- that can distinguished between opportunistic timing and originality.
uh oh (Score:2, Interesting)
Legalized theft! (Score:3, Interesting)
Also, I'm curious to know what provision there is, if somebody deliberately puts something into the Public Domain, and somebody else applies for a patent on it afterward.
Re:More like fine-tunning (Score:3, Interesting)
It's a bit like officially staking ownership to a piece of land on Mars and then waiting until people get there.
The thing is, in IT related areas, given the speed of technological evolution and the way too long duration of a patent, wild land grabs before the necessary technology exists are a viable business model since technology will often catch up before the patent expires.
Reduce the length of a patent on IT to 2 years and all these parasites will go away.
Beter yet, eliminate patents for business methods altogether.
At the moment, in the US, the concept of "doing something" is patentable. Instead, patents should only be awarded to "the mechanics of a solution that allows the doing of something". If somebody else comes up with a beter solution the patent doesn't cover them, but if they tune or tweak your solution they have to pay you to sell their version of the solution.
This is how you get innovation instead of stagnation.
That means that "One-click shopping" would not be patentable but "An implementation of one-click shopping" would be patentable. If your implementation is sofware then it's already covered by copyright, the only reason you would need a patent for this is if hardware was involved.
For whatever is left, the "obvious to a specialist in that field" test would provide a good test of "inovativeness". If i try and patent "A mechanism for asysnchnously sending and receiving text messages over a TCP/IP network" and you go and ask a couple of specialists in the field "How would you do a mechanism to asysnchnously sending and receiving text messages over a TCP/IP network" and one or more come up with the same mechanism as me (by the way, that would be e-mail), then that mechanism is an "obvious solution" and thus not patentable.
Re:Pork for the big companies (Score:4, Interesting)
Certainly, since your claimed expertise isn't technology, I'll repeat this again. IBM has had a monopoly for over 50 years in the mainframe business. There was an anti-trust case taken by the U.S. government back in the 1950's IIRC against them. Contrary to popular myth, the mainframe business is very much alive and well, and in Q4 last year, it was their largest growth segment.
I say "almost all" because there's a small startup which is selling mainframe-class computers which runs IBMs software directly. IBM didn't like this, so they filed a Software Patent lawsuit against the company.
The company is called "Platform Solutions", and they are apparently using Linux to achieve their emulation.
So, in short, IBM has filed a Software Patent lawsuit against a Linux company. Here's some Press Coverage:
"IBM's decision to sue Platform Solutions is another indication that the company is becoming more aggressive about defending its intellectual property in an effort to extract more revenue from its extensive patent trove." [informationweek.com]
IBM has a VERY long history of patent abuse in the mainframe business; software patents are only the latest variation on a theme. Please check Wikipedia if you want to learn more about the Consent Decree that IBM had to operate under until possibly recently.
"Actually, some of the reform these guys have proposed and the briefs they have written for SCOTUS cases have been in favor of things that would REDUCE the number of patents."
Prove it (but you can't). The standard argument is that first-to-file INCREASES the number of patents, since large companies find it easier to generate more patents than small companies do.
"First to invent is a mess."
And First-to-file stifles innovation. It is pure pork for the big companies. The patent system was supposed to be about encouraging innovation, not stifling it. I agree the whole system needs to be redone. But First-to-file is neither necessary nor sufficient to bring about the changes that are needed.
"Um, working prototype is currently a requirement FOR ALL PATENTS. You do not patent an idea, you patent an invention"
Really? Do you mean all those patent trolls who never ship any product have a working prototype? I'm a little surprised to hear this claim from a supposed Patent Attorney. I can think of several Troll companies which don't have a working product. This is usually their standard operating procedure.
A copy of the prototype binary and source code ought to be a part of any current Software Patent, IMHO.
Patented already (Score:2, Interesting)
License terms to follow.
I shouldn't even bother commenting... (Score:2, Interesting)
Re:Wouldn't this actually be a huge step BACKWARD? (Score:3, Interesting)
True, but this is still not an affirmative reason to adopt first-to-file.
Actually, speaking in my capacity as a foreigner, what is happening is quite the opposite. The US is continually trying to bully us into adopting your crazy copyright system.
I wish. You need to look at the big picture. What has happened is that a combination of publishing interests and European governments pushed Berne on the US, a system which we had no input into making and which we were bullied for about a century into adopting. Seeing how successful it was to avoid domestic objections to radical enlargements of copyright by using international pressure (i.e. you could do most of the work through fairly anonymous members of the executive branch in quiet meetings abroad, rather than legislators acting fairly publicly in DC, and then bully the legislators by saying that we needed to fulfill treaty obligations and enact laws to comply with the treaties) this method has been used to 1) force even more laws on the US by setting up treaties that mandate them, and 2) to use the same methods elsewhere, as the US rapidly outstripped the rest of the world in bad copyright laws.
Europeans have been fully complicit with this, however, and the initial effort was still based in the horrible Berne Convention, which Europe deserves the blame for. And many of the worst features of our current law (life plus terms, copyright upon creation, etc.) come directly from Berne and are not of US origin. Don't just blame our special interests.
Re:honest reform = kill all patents (Score:5, Interesting)
Then perhaps the patent system can return to the way it was when it was designed.
Re:honest reform = kill all patents (Score:2, Interesting)
True inventors fit the open source model pretty well, IMHO, they want to take on a challenge for their own enrichment and they want their products to be used by whoever will find them useful but they also do it simply for fun.
I think you're missing the spirit of patents that they are designed for and by those that simply want to, as you put it, capitalize on them. Any inventor that puts on the hat of a patenter is no longer an inventor, he becomes a business man. Certainly, an inventor may want credit for his work, but there must be other ways receive due credit without owning a patent.
Re:First Post! (Score:3, Interesting)
I'm sorry, but what? Are you serious here? Let's say that the cost to research and develop new drugs cannot be recouped in five years, because the price of drugs would either be too high for them to sell or or too low to pay for development. When you factor in the cost of developing and testing drugs that don't make it to market, this does not seem too far fetched. What happens after five years? Other companies that don't have the development costs to recoup can afford to sell generic versions of the drugs at much closer to cost, which would force the original manufacturer to do the same, and thus, it would become impossible for the people who develop the drugs to be profitable.
What happens in this scenario? Because it makes no sense to develop new drugs (because the laws of supply and demand say so), no knew drugs get produced, except in the rare case that a university researcher happens to stumble upon something exciting. Even in that case, it is possible that the cost of testing and bringing to market such a product would still be prohibitively high. In this situation, a good deal of medical research is never done, and many potential cures for many ailments never materialize. While the drug companies won't get all the profits off the new drugs, and while many researchers would be out of jobs, the people who suffer the most are the people for whom life saving medication is never developed.
You glibly say that they should rethink their model, but what makes you so sure that there is a viable model out there to be found? Regardless how efficient you are, development has some sort of inherent cost, and without either a temporary monopoly or substantial subsides, it does not make sense to engage in such development.
Medicine is one of the few places where patents do make a whole lot of sense, and it would be a shame to kill off the work these companies do just because their model doesn't fit with your ideology. It has been said that America's reduction in basic R&D over the last 20-30 years is a large factor in why we are losing our technical superiority. Do you really want to put the last nail in the coffin?
Re:It's simpler, raise the threshold of "innovativ (Score:2, Interesting)
If you look at a patent application, it actually works the opposite of the way you showed above. It would look like this:
Patent of the nail as:
(1) A piece of metal
(2) The claims in (1) where it has a sharp edge.
(3) The claims in (2) where it is inserted into other objects.
(4) The claims in (3) where the purpose is to hold them together.
Then you would have three things after that talking about other similar things. Generally if you read the claims in a patent it is the claim right in the center that they really care about. Anything other than that is gravy. The patent is written expecting that certain claims will be thrown out. Unfortunately the idiots at the Patent office just rubber stamp these thing, after a short wait of 3 years these days.
Patents are 17 years renewable for another 17.
As for the drug companies. In the large majority of cases, by the time they actually get the drugs to market, 15 years have passed. Reduce the patent time and you will cease to see R&D done. They will find other places to put their money.