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Patents Government The Courts

Has the Supreme Court Made Patent Reform Legislation Unnecessary? 99

Posted by Soulskill from the reply-hazy-try-again dept.
An anonymous reader writes: As Congress gears up again to seriously consider patent litigation abuse—starting with the introduction of H.R. 9 (the "Innovation Act") last month—opponents of reform are arguing that recent Supreme Court cases have addressed concerns. Give the decisions time to work their way through the system, they assert. A recent hearing on the subject before a U.S. House Judiciary Committee (HJC) Subcommittee shined some light on the matter. And, as HJC Chairman Bob Goodlatte, a long-time leader in Internet and intellectual property issues, put it succinctly in his opening remarks: "We've heard this before, and though I believe that the Court has taken several positive steps in the right direction, their decisions can't take the place of a clear, updated and modernized statute. In fact, many of the provisions in the Innovation Act do not necessarily lend themselves to being solved by case law, but by actual law—Congressional legislation."
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Has the Supreme Court Made Patent Reform Legislation Unnecessary? More

Has the Supreme Court Made Patent Reform Legislation Unnecessary?

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  • I am Faraday (Score:5, Insightful)

    by invictusvoyd ( 3546069 ) on Tuesday March 03, 2015 @10:08PM (#49177865)
    you owe me 10000000 tiriion dollars for the electric motor .. assholes

  • Legislation? (Score:3, Interesting)

    by garyisabusyguy ( 732330 ) on Tuesday March 03, 2015 @10:11PM (#49177875)

    What I relief, I expect Boehner and McConnell to pull their conservative troops together and whip this up in a jiffy...

    well?

  • Necissary, not sufficient. (Score:5, Interesting)

    by pavon ( 30274 ) on Tuesday March 03, 2015 @10:18PM (#49177913)

    Granted, the biggest problem with the patent system has been that the criteria for patentability has been so loose, and the recent Supreme Court rulings will certainly do more to fix that root cause than the recent patent reform bills. Hopefully going forward these new rulings will improve the quality of patents approved and upheld in court, which is by far the single most important reform needed in the long run.

    But in the meanwhile there are more than 20 years of bad patents that have been granted, and the costs of defending against a patent lawsuit is still far greater than the cost of settling. We need to make it less expensive to challenge existing patents if we don't want them to continue to be a burden for the next 20+ years. That is exactly what the reform bills were about. They were designed to be complementary to the Supreme Court rulings, addressing a different parts of the problem.

    • Sounds good in theory, but the deep pockets can still push an inventor into bankruptcy by challenging a patent. This doesn't protect the little guy at all.

      • Re:Necissary, not sufficient. (Score:4, Insightful)

        by wisnoskij ( 1206448 ) on Wednesday March 04, 2015 @12:18AM (#49178367) Homepage
        OK, but then patent reform was never suggested by anyone to be Entire Legal System Reform. It would be impossible to change that fact without completely remaking the legal system.

      • Re: (Score:2)

        by pavon ( 30274 )

        Apart from the loser pays part (which I dislike as well), the rest of reforms were about limiting the ability for either party to draw out the pre-trial proceedings, which wouldn't harm legitimate small plaintiffs.

    • You're not even a little bit fearful that "patent reform" isn't doublespeak for bringing patents more inline with copyrights or some such nonsense?

      Call me paranoid, but with the secrecy of TPP still lingering in the wings, I don't really trust Congress to approach this sanely, We may have a sudden outbreak of common sense, but I trust that more to come from the courts than lawmakers at this point.

      Sad but true.

      • You're not even a little bit fearful that "patent reform" isn't doublespeak for bringing patents more inline with copyrights or some such nonsense?

        I'm not. Patent term has only ever been extended once, to comply with an international treaty (the Paris Convention on Intellectual Property), and even then, it was a negligible change (20 years from filing, given an average 3 year delay from filing to issuance vs. 17 years from issuance). Compare that to copyright getting extended every time someone blinks.

        There's a simple reason for this. The people pushing for longer copyright terms are the publishers who want to commercially exploit their property for as long as possible, and they've got tons of money; the people pushing for shorter copyright terms are... the public. And we have no lobbying money. So, it's an easy guess as to which one wins.

        But patent is different - Apple wants their patents to last a long time, but they want Microsoft's to last a short term, and vice versa. Unlike copyright, where you don't really get Sony Pictures wanting to make a Paramount screenplay without paying royalties, you actually do have tons of large companies wanting to use each other's patents. No one wants longer terms, because all of their competitors have patents they want to use. So, there's no pile of lobbying money pushing on just one side of that equation, and patent terms don't get extended.

        Disclaimer: I am a patent attorney. But the above should make sense regardless of your opinion of my work.

        • Re:Necissary, not sufficient. (Score:4, Insightful)

          by ColdWetDog ( 752185 ) on Wednesday March 04, 2015 @12:25AM (#49178389) Homepage

          Enlightened self interested wins every time.

          • Enlightened self interested wins every time.

            Alas, it is much less common than ordinary self-interested self-interest.

        • Not that I doubt specifically, but here's my problem:

          If what you say is true, we wouldn't have the problems with the patent system that we have now. It should be mostly self-regulatory, with less trivialness since companies have an interest in each other's patents. This is clearly not the case, and as you can point to Apple or Microsoft, I can point to drug and agricultural companies that effectively pursue perpetual patents. Not all patents are created equal, and if you hold the keys to a cash cow, or a DN

    • In a shocking development, the answer to the question posed by the headline is once again "no".

    • Granted, the biggest problem with the patent system has been that the criteria for patentability has been so loose, and the recent Supreme Court rulings will certainly do more to fix that root cause than the recent patent reform bills. Hopefully going forward these new rulings will improve the quality of patents approved and upheld in court, which is by far the single most important reform needed in the long run.

      I think you're misguided. The criteria for patentability has never been bad, and has actually gotten worse since the recent change to "first to file".

      The problem is it's impossible for anyone to know what can or cannot be patented without spending hundreds of thousands of dollars hiring an entire team of lawyers to search through the back catalogue of patents and inventions and court precedents.

      The patent office does not have enough staff to do proper research while a patent is being filed. If they did prop

      • Re: (Score:2)

        by pavon ( 30274 )

        I think you're misguided. The criteria for patentability has never been bad, and has actually gotten worse since the recent change to "first to file".

        Yes it has been, and your following paragraphs demonstrate clearly why this is so

        The problem is it's impossible for anyone to know what can or cannot be patented without spending hundreds of thousands of dollars hiring an entire team of lawyers to search through the back catalogue of patents and inventions and court precedents.
        The patent office does not have enough staff to do proper research while a patent is being filed. If they did proper research, they would only be able to approve a handful of patents per year with the number of employees currently working at the PTO.

        The problem with the current system is that the PTO has taken the approach of only rejecting patents if they can find documented evidence that someone has done the exact same thing before. If there is a single independent claim for which they can't find exact prior art in a timely manner, then they approve the patent, regardless of how similar it is to other prior art. They deliberately ignore the obviousness of the patent beca

        • The problem with the current system is that the PTO has taken the approach of only rejecting patents if they can find documented evidence that someone has done the exact same thing before. If there is a single independent claim for which they can't find exact prior art in a timely manner, then they approve the patent, regardless of how similar it is to other prior art. They deliberately ignore the obviousness of the patent because they don't want to have to defend subjective decisions against appeal.

          The recent Supreme Court rulings have forcefully asserted that this is not acceptable. The law clearly states that obviousness is one of the criteria for patentability and therefore the USPTO and courts must take that into consideration when deciding patentability.

          Do you have a citation for any of your claims? Because I've got a half dozen patent applications on my desk under obviousness rejections, and I'd love to be able to push them aside because the PTO didn't actually issue them.

  • Scylla and Charbdis (Score:3)

    by rmdingler ( 1955220 ) on Tuesday March 03, 2015 @10:27PM (#49177947) Journal
    I'm no Doomsayer, but which group of really old people should I be rooting for to straighten out this proprietary nightmare: the Congress or the Supreme Court?

    • I'm no Doomsayer, but which group of really old people should I be rooting for to straighten out this proprietary nightmare: the Congress or the Supreme Court?

      I suspect the Supreme Court is a bit less corrupt.

      • Re: (Score:1)

        by Anonymous Coward

        I suspect the Supreme Court is a bit less corrupt.

        Then you are an idiot who should really research this courts decisions.

        • Please enlighten us on why they are more ans not les corrupt than congres. I have read their recent decisions and think the GP is correct. SCOTUS is less corrupt than congres in appearance if not practice.

          But here is a hibt, wherher you like or dislike a decision or fail to grasp the reasoning does not mean corruption.

  • Here is the text (Score:5, Informative)

    by phantomfive ( 622387 ) on Tuesday March 03, 2015 @11:18PM (#49178137) Journal
    Here is the text of the law in question [congress.gov]. Parts that interest me (ianalbirp):

    1) Formalization of 'Covenant Not to Sue.'
    2) Makes it harder to sue the customer when the manufacturer commits a patent violation.
    3) Commissions various interesting studies on the effectiveness (or on the negative effects) of patents.

    There might be more but I only have so much tolerance for reading legalese......

    • Re: (Score:3, Informative)

      by Anonymous Coward

      None of those are the objectional points of the "reform" bill.

      The main complaint about the patent reform bill is that it institutes a "loser pays" system that will make it impossible for small inventors to bring suit against large corporations. The AIA (the last reform bill) already substantially increased the cost that individual inventors had to pay to be able to sue large corporations. Because of the new IPR and CBM petitions, a patent holder needs to have several hundred thousand dollars in cash on ha

      • That's a good point, I read that in the bill but didn't understand its significance when I read it.

      • Isn't that more of a problem with the whole legal system, rather than a problem with patent reform?

        Having a "loser pays" system in a "fair" system (where the side that has the law on their side actually wins) is fairer than not having that system. Because without "loser pays", the side that wins may be in a worse situation than if they had just given up in the first place (they may win 50k, but spent 100k on lawyers).

        Think about the current system from the other side. A small company is sued by a big one ov

      • Re:Here is the text (Score:4, Insightful)

        by abhi_beckert ( 785219 ) on Wednesday March 04, 2015 @07:43AM (#49179517)

        The main complaint about the patent reform bill is that it institutes a "loser pays" system that will make it impossible for small inventors to bring suit against large corporations. The AIA (the last reform bill) already substantially increased the cost that individual inventors had to pay to be able to sue large corporations.

        What "small inventors"?

        The cost to file a patent is already so high that small inventors do not ever patent anything. It's a total waste of time to try and protect them because they are a class of people who simply do not exist at all.

        A far bigger problem is when small companies, say ones with five or six employees, are sued for patent infringement. They can't afford to defend themselves even if they don't infringe on the patent. If you could rack up millions of dollars defending yourself and have the patent holder be forced to pay your legal fees if the court rules that you did not infringe on their patent, then that would be quite an improvement. Then lawyers would be willing to work pro bono in patent defence lawsuits.

  • Goodlatte is a Republican who represents Virginia's 6th Congressional District. Any credible editor (i.e. not the Slashdot ones) would make sure that American legislators are identifed by, at a minimum, their State and party.

  • we might be at a time (Score:1)

    by Anonymous Coward

    When patents serve no further purpose to society, as mere methods to stifle competition and society advancement.

    Example of modern patent: we know that atoms are constructed of subatomic particles. We know how all molecules are made and we have secretly mapped it all out do that we know all possible combinations. We know how t rearrange matter into new shapes doing things with the basic properties of the universe. We know how math works and how information can be displayed in various ways. We know new inform

    • The entire purpose of patents is to stop competition, yes, by granting a short term monopoly to an inventor. In exchange, society gets the invention. The current problem is not that patents grant the holder that short term monopoly. The first problem is that software is authored; not invented. And the second problem is that "inventors" break the social contract by failing even to attempt bringing the product to market. The third problem is that the people who review and grant patents can not do so comp

      • Good luck trying to actually prove that not having patents does more harm than having sane patents. You can't really prove it. It was another social experiment like the ones before it. Without patents, people will sit on secrets and use security by obscurity which could prevent or lose inventions that benefit society. Which is the reason patents were created; however, today we better understand this situation. Furthermore, this is the information age where secrets are not well hidden for long.

        Employers ha

        • It's trivially proven. Without intellectual property rights, competition in innovation is *only* a matter of who can produce the fastest, with the most efficiency. So, in other words, for every significant invention or innovation, the inventor gets screwed by people with enough money that they can already buy Congress. Without patents, there is zero motivation to innovate.

          Patents have some bad effects, sure, but a qualitative comparison of those effects with some imagined scenario where all the bad ce

          • Being first to market doesn't count then... Trade secrets still continue today and corporate espionage is at an all time high. So they still have plenty to hide which they can not patent. Before patents, or even before they existed as they do today there was plenty going on in the world and secrets were a bigger deal. Things did disappear as a result but things also leaked out.

            Innovation is a meaningless word today. Mostly it is applied to things that are not true inventions but applications of inventions

  • Precedent is good if you can afford to go through court and fight it... especially when trolls like to shop for a venue that's most favorable to them and least to their opponents. While reform might not stop all lawsuits (and certainly the trolls will try for some loopholes where possible) it should hopefully do better at knocking cases out before they even hit the courtroom.

  • They have to take the patent cases out of the regular court system where places like east texas can be used to load the dice. Maybe create a federal patent court that specializes in patent cases would do the job - so you cannot shop for the best venue. They also have to make the plaintiff pay court costs for failed lawsuits plus maybe 10% of the claimed damages which would be split between the defendant and the courts/government. They also have to tighten up what is patentable, and for the most part soft
  • Any time a headline ends with a question mark, the answer is a resounding "No."

  • A friend's boss saw him talking to a valve actuator using a tapping device and told him to talk to the patent lawyer about the invention. The "invention" was using a single wire to talk to something inside containment areas where drilling holes was a bad thing so wires could cost about a million a conductor. The resulting patent application didn't have that bit in it. It did have the use of a single wire for sending code using a keying device to another device. He ended up with a patent for using Mors

  • While SCOTUS has made some sensible rulings recently, the lower courts are still making decisions as if nothing has changed.

  • Switching from "first to invent" to "first to file" makes no sense to me. If you're working on something for several years and some asshat hacks your computer, copies all the data, then files the patent, why should they get credit for it? Beyond that, I don't understand how some filers seem to be able to get patents in a few months while others take YEARS to even get reviewed. Something doesn't smell right here. And then there's the patent troll problem. Why has nobody put forth legislation that requir

    • Switching from "first to invent" to "first to file" makes no sense to me. If you're working on something for several years and some asshat hacks your computer, copies all the data, then files the patent, why should they get credit for it?

      If you can show that they did, they won't.

      As to why it makes sense - the rest of the world uses a first to file system, only the US was different. This harmonizes patent law and makes it more predictable for businesses, which is a good thing. And finally, despite hundreds of posters on Slashdot telling you how big a change this was and how it guts patent law, the switch from first to invent to first to file affects about 20 patent applications per year, out of half a million filed - there were, on average,

  • Patent law invented largely fol physical inventions in a bygone age where the pace of change was at least an order of magnitude slower certainly need deep revising. As does the notion of what can be legitimately patented. Patenting software is like patenting a mathematical proof or a bit of music.

    IP law granting all rights to one party (copyright) for on the order of 99 years or more make no sense at all in an era of rapid innovation and when copying is as easy and ubiquitous as breathing rather than what

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