×

Welcome to the Slashdot Beta site -- learn more here. Use the link in the footer or click here to return to the Classic version of Slashdot.

Thank you!

Before you choose to head back to the Classic look of the site, we'd appreciate it if you share your thoughts on the Beta; your feedback is what drives our ongoing development.

Beta is different and we value you taking the time to try it out. Please take a look at the changes we've made in Beta and  learn more about it. Thanks for reading, and for making the site better!

Court Says USPTO Can Change Patent Rules

kdawson posted about 5 years ago | from the mixed-message dept.

Patents 83

bizwriter writes "Many large companies have been closely monitoring the Tafas v. Doll lawsuit over whether the US Patent and Trademark Office has the power to change the patent application process in significant ways, so as to restrict the scope of patents and the chances of getting one. The US Court of Appeals for the Federal Circuit has finally spoken, with a split court ruling that the USPTO does have the necessary authority. The case stems from a court challenge to four new rules the USPTO put in place in 2007. A number of tech companies including Microsoft, IBM, Oracle, Apple, and Intel have supported the rule changes, which would strengthen their positions and make it more difficult for small companies to create, protect, and bring to market disruptive technology. These companies didn't have it all their way, as the appeals court said that one of the four rules conflicts with existing patent law and sent the other three back to a lower court for further review. If the decision is sustained by a full review of all 12 Federal Circuit appeals judges, it could be a blow to biotech and pharmaceutical companies, which depend on being able to obtain large numbers of patents. Expect further appeals on this one, and for the only beneficiaries in the short run to be the lawyers."

cancel ×
This is a preview of your comment

No Comment Title Entered

Anonymous Coward 1 minute ago

No Comment Entered

83 comments

Bias against big firms? (4, Insightful)

bencoder (1197139) | about 5 years ago | (#27310175)

"which would strengthen their positions and make it more difficult for small companies to create, protect, and bring to market disruptive technology."

What? There is nothing like this in the article itself. And how exactly does a limit of 5 unique patents per invention strengthen their positions? From my perspective patents only serve to stifle progress in this age of accelerating change. I can understand why they helped back when things moved slower, but that's not the case anymore.

Re:Bias against big firms? (1)

bencoder (1197139) | about 5 years ago | (#27310225)

5 unique patents per invention

Sorry. that should have been "5 unique claims per invention" (i.e. 5 unique claims per patent)

Re:Bias against big firms? Wanna see overly (1)

davidsyes (765062) | about 5 years ago | (#27313987)

broad, nebulous, all-inclusive-for-them/all-deprivation-for-others patent?

http://www.freepatentsonline.com/4594817.html [freepatentsonline.com]

http://www.wikipatents.com/4594817.html [wikipatents.com],

then, compare to:

http://www.yesicanusechopsticks.com/thesequel/capsule/ [yesicanusechopsticks.com]

It's high time that even decades-old patents be overhauled... We have innumerable types of pens, tables, chairs, automobiles, book shelves, sofas, scanner and printer devices, cabinets, trash cans, shoes, refrigerators... Is anyone out there sitting on proof that there is a cartel collecting royalties on THOSE items or numerous others?

It's not as if a bunk bed is as seminal as a special pain-free needle/injector for patients to self-administer multiple times a day, and not as if it is as significant as wiper blades or the Botts Dots, or special alloys...

But, for big companies to possibly preempt smaller firms and individuals from obtaining patents on "disruptive" technology or other things, the only defense left is to immediately and constantly diffuse/dissseminate information and details on every step along the way, with anciliary information to work around and back toward the patent. This will teach the big bastards they are NOT going to be allowed to hem in tech and non-tech patents for themselves, their leashpullers, and those that otherwise bow to them.

Re:Bias against big firms? Wanna see overly (1)

davidsyes (765062) | about 5 years ago | (#27316271)

http://en.wikipedia.org/wiki/Capsule_hotel [wikipedia.org]

"[edit] History
The first capsule hotel was the Capsule Inn Osaka, designed by Kisho Kurokawa and located in the Umeda district of Osaka. It opened on February 1, 1979 and the initial room rate was ¥1,600.[citation needed]"

It seems to me that since (if i can assume this) Japan is a party to Berne/Copyright, patent and other treaties that the USPTO might have to modify the patent awarding and downgrade it or flag it as open to fair and immediate nullificaiton or challenge. I'm assuming that the original (Japanese) designers didn't sell or sublicense any patents rights to the US.

It's possible that for some reason even the Japanese were not the first conceptual artists of such bedding arrangements. After all, mausoleums are similar, with row after row, and column after column of "sleep/rest" slots, although for the dead.

Since the *dead* don't need ventilation, reading, and other "creature comforts", it's only obvious that the living *would*. I would like to safely assume that anyone making or designing for build any similar bunks is only offering/forcing fair, legitimate, and useful competition. And, in the USA, when was the last time any of us walked into a bedding or furnishing store and found front/rear-entry bunks? Of course, while most US bedroom layouts may not be conducive to such bunking arrangements, the lack of visibility of such bunks shouldn't be seen as some "niche" or "novelty" supporting claim, either.

Re:Bias against big firms? (-1, Redundant)

Hasney (980180) | about 5 years ago | (#27310287)

Yeah, I'm a bit confused to this BIAS as well. I've seen 20 patents "protecting" the same thing when you look at the back of some electronics. How would limiting them to 5 help them?

Re:Bias against big firms? (2, Interesting)

Arancaytar (966377) | about 5 years ago | (#27310643)

Concurred. This pro-patent analysis seems very unreasonable in a time where patent lawsuits are mostly crazy monkey trials where an unproductive, greedy company seeks to prevent people from innovating by protecting things that have long become common knowledge or accepted practice.

Thanks to the accelerated rate of innovation enabled by technology, there is a turning point where the damage done by keeping the lid on an invention outweighs the incentive.

Nowadays, ideas are becoming cheaper, whereas implementing them to enable new ideas is a costly and risky investment. The result is people trying to patent what boils down to day-dreams and doodles (approximately "adding a scroll-bar to a window to allow that window to contain more text than it has space for"), not in order to actually accomplish anything with them, but in order to prevent other people from putting these ideas into practice without a cut of the profit.

Re:Bias against big firms? (4, Insightful)

Theaetetus (590071) | about 5 years ago | (#27311135)

This pro-patent analysis seems very unreasonable in a time where patent lawsuits are mostly crazy monkey trials where an unproductive, greedy company seeks to prevent people from innovating by protecting things that have long become common knowledge or accepted practice.

Confirmation bias. We only ever hear about plane crashes, too.

I think you mean publication bias (2, Interesting)

cvd6262 (180823) | about 5 years ago | (#27311999)

Though both may operate in the GP's comment.

In psychology and cognitive science, confirmation bias [wikipedia.org] is a tendency to search for or interpret new information in a way that confirms one's preconceptions and to avoid information and interpretations which contradict prior beliefs.

Publication bias [wikipedia.org] arises from the tendency for researchers, editors, and pharmaceutical companies to handle experimental results that are positive (they found something) differently from results that are negative (found that something did not happen) or inconclusive.

A plane landing safely doesn't make the news while a crash does. This may skew our perception of air travel. The same for patent trolls: A relatively small number of malefactors get more press than all the useful ways patent law works.

Re:Bias against big firms? (3, Informative)

Austerity Empowers (669817) | about 5 years ago | (#27312459)

Confirmation bias. We only ever hear about plane crashes, too.

Possibly, but in both large tech companies I have worked for (one of which used to be well known for huge, world changing inventions), I have been in a position to monitor patent submissions.

They're largely crap. My present company is the worst offender (but fortunately patents only in self defense, so far) but both produce a tremendous amount of bullshit patents.

It's very rare that I see an idea novel enough and essential enough to warrant a patent. Usually I see an attempt to mine the area, harming only people for whom a single lawsuit could bankrupt them, but ignoring equal or larger predators because it'd be too expensive to bother. This is to say, they exist for anti-competitive purposes.

Don't get me wrong, I know that the verbage in the summary about "small businesses" is code for "patent trolls", and I'm not trying to make the case that abuse is rampant only amongst big businesses. The entire system is not serving the intended purpose anymore, it's being used to prevent, restrict or channel innovation, to the detriment of the society which created the system.

Re:Bias against big firms? (0)

Anonymous Coward | about 5 years ago | (#27324997)

Wow. I am stunned that you think something that gives a limited monopoly would be anticompetitive. That means that your view of patents is completely in line with exactly what they are supposed to be. Shocking.

Seriously, slashbots. No shit a patent is anticompetitive. It is a government-sponsored limited-duration monopoly given in exchange for the disclosure of a process, apparatus, etc, that isn't known or obvious. While all you monkeys weep from your ivory towers about how everything is obvious, and feel "it's very rare that I see an idea novel enough and essential enough to warrant a patent," no one asked you. It is naturally an imperfect system where a patent examiner has to make a determination what would be obvious to one having ordinary skill in the art. What would be obvious to this hypothetical person is going to be different depending on who conjures him up.

But of course I speak to someone that has helped out with the problem, volunteering THEIR time and THEIR energy to the PTO's peer review project, right? No? You've just wasted your time bitching on slashdot and done nothing?

Fuck you. You don't get a vote.

Re:Bias against big firms? (1)

jonaskoelker (922170) | about 5 years ago | (#27313271)

We only ever hear

Ah, so it's not

Confirmation bias.

but Selective Reporting.

Confirmation bias is what happens when you foul-play the relative weighting of evidence that you know of for vs. against your conjecture.

Selective Reporting is having the evidentiary weighting foul-played for you by the media (for present purposes this includes /.) by only letting you know about some of the evidence (giving the rest an effective weight of 0).

Okay, so once you know about Selective Reporting, you can try to give the untold stories a non-zero weight, but it's hard and you're reduced to guess. With confirmation bias, you're not reduced to guessing, so they are different.

As an example of confirmation bias is my thinking regarding the evolution vs. creationism debate: I tend to believe scientific over religious evidence without verifying that the science is Good Science (tm).

If I had verified the science, and it was good, I would only have been "guilty" of believing in A Good Argument. What's that, Reality Bias? ;)

Selective Reporting is when Fox News only reports about the good things McCain have done and the bad things Obama have done.

Re:Bias against big firms? (4, Informative)

Zordak (123132) | about 5 years ago | (#27311439)

Okay, I'm a bona fide registered patent attorney, and I actually litigate against trolls. It is maddening to see them make some of their more credibility-stretching arguments to a court. Bad patents are my great nemesis. But the truth is, these were very, very bad rules, and everybody knew it. I know it's popular to knock the patent office on Slashdot, and yes, some bad patents have issued (I've litigated against some of them), but these rules are not the answer.

The first problem is the limit on continuations, which was flagrantly in violation of statute. That's the one that got struck down, and without it, the others are not so meaningful. Actually, leaving continuations while limiting RCEs actually just creates MORE delay. So this doesn't fix the pendency problem. The second problem is an inventor often doesn't know what the patentable part of his invention is when he first files. I always tell my clients to give me very, very detailed disclosures, because chances are what you think is your invention turns out to not be patentable, or turns out to be only one of several patentable aspects of your disclosure. So most of my applications will have fewer than the 5/25 claim limit, but sometimes you need more flexibility, because you don't know which patents are going to survive examination, and it's much better to just cancel a claim and fall back on an existing alternative than to have to amend a claim.

As for anti-business bias, I write patents for both really big companies you definitely know (and quite possibly hate) and little individual inventors. Guess who loses under these rules? The little guy, every time. This basically shuts down the ability of any little guys to take an idea to market and make money, because the ONLY competitive advantage they have against the big guys is their patents. This means that little guys will never disclose their ideas to big guys, because in most cases, your patent is the only protection you have against them just taking your idea and doing what they want with it.

So yes, there are bad patents. Yes, there are trolls. Yes, I despise them as much as you do. In fact, I wrote a comment for the law review when I was in law school about the problem of patent trolls. My analysis was that the only way to shut down trolls without stifling legitimate inventors was to strengthen the obviousness standard, and specifically, to let go of the rigid adherence to the "Teaching, Suggestion, or Motivation" test. Just when I was ready to submit it for publication, the Supreme Court came out with KSR and adopted my exact reasoning (if only I'd sent them my paper, maybe I could have claimed credit). These rules do nothing to further innovation. They were the product of inept bureaucrats (including a director of the USPTO who was not even statutorily qualified for the position) trying desperately to pin their own failures on the patent bar by making it look like so-called "abuse of continuations" was the real problem. The truth is, only a very small percentage of applicants are doing anything remotely abusive with continuation practice. The real problem was Dudas and his cronies at the USPTO. These guys were appointed as political payoff, and they ran the place like payoff political appointees (i.e., ineptly). They railroaded these rules through, totally ignoring comments and concerns from the patent bar, applied them retroactively to existing applications, ignored statute, and then presented them in a sham unveiling where they solicited questions from participants, then ignored all of the questions submitted and at the end, instead answered a bunch of pre-canned softball questions they had carefully crafted themselves (hint to inept bureaucrats: it looks suspicious when you have power point slides for supposedly answering questions in real time). The whole thing was shady, abusive, and dishonest.

Re:Bias against big firms? (1, Insightful)

Anonymous Coward | about 5 years ago | (#27311701)

Guess who loses under these rules? The little guy, every time.

Please explain how that differs from the status quo, wherein a big company has an almost limitless litigation war chest, and the "little guy" does not.

In the US legal system, whoever has the most money for lawyers, wins.

Re:Bias against big firms? (1)

Zordak (123132) | about 5 years ago | (#27313443)

Because if the case is valuable, the little guy can get an attorney to represent him on contingency. Even my very conservative firm that ONLY takes matters on an hourly basis and NEVER takes contingency cases is considering taking some patent plaintiffs' work on a contingency basis.

OT: Your sig (1)

Just Some Guy (3352) | about 5 years ago | (#27311807)

IANYourL. This post is my rambling, not legal advice. Do not rely on this post for any reason.

Out of curiosity, why do lawyers in public forums almost always say that? I'm not your IT guy, but I don't disclaim technical advice I give you. Neither am I a doctor, but I'll hypothesize about medical stuff without prepending "IANAD" to every statement. In fact, I only see those disclaimers from lawyers, and seemingly every time a lawyer chimes in on legal stuff. Why is that?

BTW, I do mean that as a serious question. Is it a requirement of the bar or something?

Re:OT: Your sig (4, Informative)

Zordak (123132) | about 5 years ago | (#27312011)

Because you can sue a lawyer for negligently giving you bad legal advice, especially if he creates the impression that he represents you. Yes, there are people in the world who really are stupid enough to think that a random post on Slashdot is legitimate legal advice (or at least claim they did, trying to strike it rich). So when you sue me, exhibit A is my .sig.

Re:OT: Your sig (1)

Just Some Guy (3352) | about 5 years ago | (#27312177)

Isn't that true of almost any field, though? If I give you bad IT advice here and you follow it to the letter, trashing your data or otherwise compromising it, wouldn't I face the same exposure?

Re:OT: Your sig (0)

Anonymous Coward | about 5 years ago | (#27312557)

If I give you bad IT advice here and you follow it to the letter, trashing your data or otherwise compromising it, wouldn't I face the same exposure?

Technically you might, but the public preception is that lawyers are more affluent and than IT professionals. So the worst you can normally expect is someone badmouthing your skills to their friends and co-workers.

Re:OT: Your sig (1)

endofanera (1309847) | about 5 years ago | (#27312591)

There are also state by state licensure requirements for lawyers, with criminal penalties attached to them. Most attorneys are only licensed to practice law in a handful of states at most. Applying law to facts in a professional capacity in a state in which you are not licensed is a no no, and one that bars you belong to wouldnt look upon any more highly than the bar of a state you werent licensed in. Of course, the likelihood of anyone inferring an attorney client relationship from a post on /. and acting in reliance upon it, and then suing you or contacting a state bar association about that is slim, but a small disclaimer attempting to prevent that is still probably not a bad idea.

Re:OT: Your sig (1)

NeoSkandranon (515696) | about 5 years ago | (#27314011)

Two lines of thinking here...(and both could be wildly inaccurate)
1) Lawyers, medical practitioners, even engineers (as in, taken the FE & PE, licensed, etc) are held to a standard of practice, legally and via professional organizations that control licensing. IT, for example, has no such established "standard" by which to prove negligence.

2) IT (again for example) workers generally don't have "clients" as such, they work for a company. Knowing that, it would be hard to argue that one has given the impression that he or she is "representing" you without being in a consultant-client relationship already.

Re:OT: Your sig (0)

Anonymous Coward | about 5 years ago | (#27312629)

Yes, there are people in the world who really are stupid enough to think that a random post on Slashdot is legitimate legal advice (or at least claim they did, trying to strike it rich).

It must be awful for lawyers to have to live in such a litigation prone society :(

Re:OT: Your sig (1)

Zordak (123132) | about 5 years ago | (#27313469)

You jest, but in Texas, after all of our insurance-industry-fueled "tort reform," lawyers are about the only people left you can sue.

Ahhhh....the insurance industry... (1)

ibsteve2u (1184603) | about 5 years ago | (#27325107)

One of the REAL powers behind the throne. Little happens, that does not gain the approval of or is not at the behest of the insurance industry. For instance, if every American is required by law to pay the insurance industry health care premiums, we will have national health care.

If not, not.

While they are unlikely to do anything to make health care better, cheaper, and more readily available - quite the contrary, in fact - they will get their pound of flesh.

No matter how many politicians they have to buy.

Re:OT: Your sig (2, Insightful)

fizzup (788545) | about 5 years ago | (#27312665)

You should know that putting it in your .sig is not sufficient. I have signatures disabled in my post viewing preferences. I find most of them to be without value. You should add your disclaimer to anything you write, because I didn't even know that your post was not advice.

Re:OT: Your sig (0)

Anonymous Coward | about 5 years ago | (#27313945)

Agreed. I'm not logged in, and can't see your signature.

Re:OT: Your sig (1)

NeoSkandranon (515696) | about 5 years ago | (#27314099)

I wonder if a court would consider his disclaimer a "good enough" effort, since you've willfully disabled that functionality.

Re:OT: Your sig (2, Interesting)

SydShamino (547793) | about 5 years ago | (#27315175)

I turned signatures off nearly a decade ago. I just can't see a trivial user preference like that being crucial for a legal case.

Of course, I can't see a slashdot post from a lawyer as crucial for a legal case, either.

Re:OT: Your sig (2, Interesting)

Zordak (123132) | about 5 years ago | (#27316951)

True, it's not perfect. But the totally effective thing to do would be to get a signed non-engagement letter from every Slashdot user and AC, co-signed by their own attorney for best results, clearly indicating that I don't represent them. Sometimes you just go with "good enough." Some people have .sigs off, but most don't. And sometimes, if I want to be extra careful, I will add an extra inline disclaimer.

Re:OT: Your sig (0)

Anonymous Coward | about 5 years ago | (#27320951)

People without accounts cannot see your sig. You may want to append it to the end of all your posts.

Re:OT: Your sig (0)

Anonymous Coward | about 5 years ago | (#27315017)

It's like this. Tech savvy geeks take precautions against computer trouble that the average person doesn't take. Lawyers take precautions against legal trouble that the average person doesn't take. People pay extra attention to their specialties.

Re:Bias against big firms? (2, Interesting)

Temujin_12 (832986) | about 5 years ago | (#27312143)

I am not a bona fide registered patent attorney, but it seems to me that requiring a certain level of investment towards the development of the entity behind a patent (relative to what the investment capability of the filer is) would go a long way towards making the business of being a patent troll unprofitable. Once it's unprofitable to be a patent troll, they'll go away.

This would basically make the patent system a two-way street. If the government is going to grant you a patent and help you protect it (by providing the legal system, courts, etc.), you'd better make it worth their while by investing in the idea which in turn puts money back into the economy. Make patents less of an enumeration of ideas and more like a business proposal made to a bank.

Your fundamental flaw is not understanding patents (1)

ahbi (796025) | about 5 years ago | (#27313421)

1) A patent is a NEGATIVE right, not a positive right.
A patent doesn't give me the right to practice my invention, only prevent others from doing so.
For example, ...
I can patent an improvement to a GM engine (which they have patents on).
But, because GM has existing patents on their engine, you can't start making knock-off GM engines that include your invention.
Now, if you are clever, you can make an adapter kit that, once someone has bought a GM engine from GM, they can adapt their GM engine to make use of your invention.
The reason is, patents tend to be layered unto of one another.

So, requiring that people sell their invention won't work because it tramples on other's patents.
This is why some industries (e.g., semi-conductors) rely on cross-licensing deals.

2) The patent system is already a two-way street.
You give the public knowledge of your invention (versus keeping it a trade secret), and the government gives you an invention.
If you aren't willing to pay that price (give up your trade secret) you can go the Coke formula route and hope that no one comes up with a Pepsi or RC for your product.

Not that patent trolls aren't a problem, it is just that your solutions assume a different architecture than exists.

Re:Your fundamental flaw is not understanding pate (1)

Thinboy00 (1190815) | about 5 years ago | (#27316523)

So, requiring that people sell their invention won't work because it tramples on other's patents.
This is why some industries (e.g., semi-conductors) rely on cross-licensing deals.

That's not what the OP said. He said "investment". In your GM example, sale of the adapter kits could be considered "investment".

2) The patent system is already a two-way street.
You give the public knowledge of your invention (versus keeping it a trade secret), and the government gives you an invention.

Not a fair one, since the public's knowledge of your invention is worthless unless you license them. If someone innovates upon your innovation, they need your permission. A patent just means they can innovate first, ask second, and pray not to be sued third. On a side note, WTF does "the government gives you an invention" mean? A more accurate phrasing would be "the government gives you a monopoly." We all know from economics 101 that monopolies tend to be bad for the public in the long run (see M$ for an empirical example).

If you aren't willing to pay that price (give up your trade secret) you can go the Coke formula route and hope that no one comes up with a Pepsi or RC for your product.

Trade secrets are much weaker, legally speaking, than patents.

Re:Your fundamental flaw is not understanding pate (1)

Zordak (123132) | about 5 years ago | (#27317109)

We all know from economics 101 that monopolies tend to be bad for the public in the long run (see M$ for an empirical example).

Actually, we tend to believe that perpetual monopolies are a bad thing. Copyright is dangerously close to just being a perpetual monopoly. The term is ridiculously long, and we are seeing problems from that. But we decided way back in Article 1 of our U.S. Constitution that a limited monopoly would be a good thing to "promote the progress of science and useful arts." Maybe you disagree with that individually, and you're entitled to believe whatever you want. But the general consensus is, and has been for more than 200 years, that limited monopolies in exchange for certain disclosures give a net benefit to society. I could go on for pages about the quid pro quos and disclosures that would be kept trade secrets, or not disclosed at all, and all the theory behind that. But that's really beyond the scope of Slashdot posts, and I suspect that at the end of the day, you wouldn't be convinced anyway.

Re:Your fundamental flaw is not understanding pate (1)

Schmorgluck (1293264) | about 5 years ago | (#27318957)

That's not what the OP said. He said "investment". In your GM example, sale of the adapter kits could be considered "investment".

Except that to sell them, you need to have them manufactured, and unless you own a factory, in many cases, you can't, because without a patent nothing prevents the contract manufacturer from stealing your inventions.

That's an important part of what the patent system had initially been designed for: to protect inventors from manufacturers.

Re:Bias against big firms? (1)

Zordak (123132) | about 5 years ago | (#27313773)

The problem is that not everybody who has great ideas has the money and/or business sense to run a business. I have seen plenty of brilliant people who could not run a business with any amount of money. As a society, we still want their inventions, so we let them license the technology to others rather than make it themselves.

Re:Bias against big firms? (1)

Thinboy00 (1190815) | about 5 years ago | (#27316557)

From the OP:

requiring a certain level of investment towards the development of the entity behind a patent (relative to what the investment capability of the filer is)

Since when does such a person have nonzero investment capability?

Re:Bias against big firms? (1)

Zordak (123132) | about 5 years ago | (#27316817)

After you've paid $10,000 -- $20,000 or more to get a patent issued, how much are you personally going to have to "invest" in the technology? Now take a poll of your friends and family. How much will they each have left to "invest" in the technology? Some try to file applications on their own to save on the attorneys' fees, and with very, very few exceptions, they end up with worthless or near worthless patents. The truth is, the cost of a patent is already prohibitive to many deserving people with good ideas who just can't come up with the money. What do we accomplish by raising that particular bar, except ensuring that nobody except really rich companies get patents? I don't want to live in that world, because I actually root for the little guys. I want to see them succeed.

Re:Bias against big firms? (0)

Anonymous Coward | about 5 years ago | (#27323973)

As a patent examiner I've only dealt with a few pro se applicants. Absolutely dreadful spec worse claims. Get a lawyer!

Re:Bias against big firms? (1)

russotto (537200) | about 5 years ago | (#27314535)

The first problem is the limit on continuations, which was flagrantly in violation of statute.

Which is too bad, because using continuations to update a patent to cover the state-of-the-art while maintaining a past priority date is a favorite patent troll tactic.

So most of my applications will have fewer than the 5/25 claim limit

It's hard for me to see why that one is procedural rather than substantive.

Re:Bias against big firms? (1)

Zordak (123132) | about 5 years ago | (#27320117)

using continuations to update a patent to cover the state-of-the-art while maintaining a past priority date is a favorite patent troll tactic.

This was more the Lemelson tactic. You can't do it anymore because the calculation of the patent term changed. If the state of the art changes, you can only "update" your claims if the state of the art was already in your original disclosure. If it was, then you really are the inventor, and I don't have a problem with you getting those claims. The other option is filing a CIP as the state of the art changes, but you can't file on matter you didn't invent yourself (and if you do, your patent is void). So again, I have no problem with you getting claims to stuff that you yourself actually invented.

It's hard for me to see why that one is procedural rather than substantive.

The two-continuation rule was a hard limit (with some possible exceptions in extraordinary circumstances). The 5/25 rule is not a hard limit. After 5/25, you have to file a "search document" that makes your application astronomically more expensive to file, and wipes out a lot of its value because it forces you to box yourself in. So technically, you could still file more than 5/25, but it would be tremendously expensive, and you would have to do the patent examiner's job for him.

Re:Bias against big firms? (1)

bl968 (190792) | about 5 years ago | (#27320323)

That is the issue isn't it the patent bar doesn't want the law and process to be more settled. Uncertainty for the patent bar means that they get more work and thus make more money.

Re:Bias against big firms? (1, Interesting)

Anonymous Coward | about 5 years ago | (#27311193)

I agree.

1) A big company can drive a small company out of business by using their patent on widely adopted technology.
2) A small company may have ideas to make existing patent into a disruptive technology or more cheaply but unable to do so due to big company holding on to the patent.
3) A big company have more patents in their portfolio to play with. A small company may try to sue a big company for 1 patent but the big company can overrun the small company with counter sue with 5-7 patents of their own.
4) A big company got the money and the lawyers to spend on patent lawsuit game. A small company may hold a valid patent but can't afford the long costly lawsuit.

Re:Bias against big firms? (1)

petermgreen (876956) | about 5 years ago | (#27327093)

3) A big company have more patents in their portfolio to play with. A small company may try to sue a big company for 1 patent but the big company can overrun the small company with counter sue with 5-7 patents of their own.
And this is WHY we have "patent trolls". Only a firm that has no products of thier own can really win in a patent lawsuit against a megacorp.

Re:Bias against big firms? (1)

Archimagus (978734) | about 5 years ago | (#27311797)

From my perspective patents only serve to stifle progress

Except that without patents, if someone truly does invent something unique, they will have no chance at selling it, as a large company will just take the idea and out produce the small guy giving him no chance at success.

Re:Bias against big firms? (1)

falconwolf (725481) | about 5 years ago | (#27320609)

From my perspective patents only serve to stifle progress

Except that without patents, if someone truly does invent something unique, they will have no chance at selling it, as a large company will just take the idea and out produce the small guy giving him no chance at success.

An inventor has the first mover advantage [wikipedia.org]. Perhaps a compromise can be struck, say a patent term of 5 maybe 10 years. Now if an inventor comes up with something potentially valuable they may take it to a number of angel investors [wikipedia.org]. These investors could then compeat with each other to offer the inventor the best deal. Or pool their resources together.

Falcon

Re:Bias against big firms? (2, Interesting)

darkmeridian (119044) | about 5 years ago | (#27312493)

Small pharmaceutical companies usually discover the novel compounds that may have medicinal value. However, it is the big companies that can perform human testing and bring it to market. Small companies may find it difficult to cover all medicinal uses for their products with only five patents. For instance, Viagra was designed for heart problems but turned out to be useful for erectile dysfunction. With these limitations, it is theoretically easier for big companies to bully small companies into giving up their invention without paying full price for it.

That is the argument for it, anyway. Who knows?

Re:Bias against big firms? (1)

falconwolf (725481) | about 5 years ago | (#27319283)

"which would strengthen their positions and make it more difficult for small companies to create, protect, and bring to market disruptive technology."

What? There is nothing like this in the article itself.

Actually there is something like it in the article: "An additional criticism was that the rules would favor large established companies with existing patent portfolios and hamper smaller firms that are often sources of disruptive technologies and business models."

From my perspective patents only serve to stifle progress in this age of accelerating change. I can understand why they helped back when things moved slower, but that's not the case anymore.

This I totally agree with. If patents are to be kept, issued, then the patent term should be shortened as well as narrowed. A patent application should be accompanied by a working example. And there should be no patents on business methods or software.

Falcon

Re:Bias against big firms? (1)

badkarmadayaccount (1346167) | about 5 years ago | (#27335645)

Nahh, that last bit will never work...
Better idea, switch business methods with formal product delivery theories and economics theses, ruling them down to (relatively) solid science, which would be quite harder to emulate with something trivial. And in order to get a software patent, you must provide verbatim source code, possibly with a full language specification, and documentation. That would make software patents quite possible, but also - quite useless.
And while we're at it - compiled binary is not a full fledged (!) derivative work of the source code, because it retains too little information from the original. So you can't actually license binaries in any form directly, only source code, and automatically give permission to use the binaries to any source code licensee. </crackpipe>

in order to get a software patent (1)

falconwolf (725481) | about 5 years ago | (#27335815)

you must provide verbatim source code, possibly with a full language specification, and documentation.

Software is already protected with copyrights. But then again with copyright terms being so long maybe it would be better to patent software. At least then it wouldn't be closed and protected for ever.

Falcon

Re:in order to get a software patent (1)

badkarmadayaccount (1346167) | about 5 years ago | (#27358185)

Precisely my point. Also, I wanted compiled binaries to not have full copyright rights, so as to make them unprotected. Making protecting compiled works worthless, source only. I guess though I'm not such a good programmer, hanging out on slashdot has made me more precise and logical. Not to mention improved my spelling...

Cheers, especially to CmdrTaco.

Hmmmm (4, Insightful)

Anonymous Coward | about 5 years ago | (#27310189)

Maybe it does help the larger IT companies more than smaller ones in the sense that the larger ones have the resources to submit more patents, but it only restricts the small ones (or anyone) from making lots of separate claims within each patent. This should make each individual patent easier to follow. That's good, right? You can still patent your small company's disruptive technology but you're effectively encouraged to focus on actually patenting that and not laying claim to everything under the sun and moon while you're doing it.

Moderation question (1, Interesting)

Anonymous Coward | about 5 years ago | (#27311421)

According to the moderation log, my above comment has currrently been modded +4, as follows:

    50% Insightful
    30% Informative
    20% Interesting

Question: How does that work? I could see +2/+1/+1 giving total +4 and 50%/25%/25% but what combination of points could get +4 with 50%/30%/20%?

Method of hiding the amount of controversy (1)

tepples (727027) | about 5 years ago | (#27312089)

Question: How does that work? I could see +2/+1/+1 giving total +4 and 50%/25%/25% but what combination of points could get +4 with 50%/30%/20%?

The old system showed the raw number of points for each reason, up until that infamous post in "Oracle Breakable After All" [slashdot.org] that had literally hundreds of moderations. So Slashdot switched to percentages to make the controversy level of someone else's post harder to determine. But people could still infer the controversy level from the precise percentages: if they're all close to multiples of 9%, then it's likely that 11 moderations were applied. So Slashdot switched to rounding the percentages to the nearest 10%, and fudging them to add up to 100%.

But would such a Method of hiding the level of controversy in a moderated discussion have been patent-worthy?

Details on the rules (5, Informative)

langelgjm (860756) | about 5 years ago | (#27310213)

A somewhat better description of the rules can be found here. [ip-watch.org]

They include things like limiting the number of claims to 25 (some patents include hundreds of claims, I believe; these are the heart of the patent, as they define what exactly might be infringed); and setting a limit on the number of requests for reexamination (I think that currently, you can just refile indefinitely, and that many applicants do just that, hoping that eventually an examiner will give up and accept their patent application).

Re:Details on the rules (1)

Ryan Monster (767204) | about 5 years ago | (#27310569)

I don't think you meant requests for reexamination, which are generally a Good Thing. A reexamination is a way to try to invalidate an already issued patent. Solid patents can usually withstand a reexamination, while poor ones can be invalidated by a reexam with relatively low costs.

Maybe you meant Requests for Continued Examination (RCE)?

Re:Details on the rules (5, Informative)

Theaetetus (590071) | about 5 years ago | (#27310695)

A somewhat better description of the rules can be found here. [ip-watch.org]

They include things like limiting the number of claims to 25 (some patents include hundreds of claims, I believe; these are the heart of the patent, as they define what exactly might be infringed); and setting a limit on the number of requests for reexamination (I think that currently, you can just refile indefinitely, and that many applicants do just that, hoping that eventually an examiner will give up and accept their patent application).

For the former, it's not as big an issue in high technology, but it's a much bigger issue in pharmaceuticals and biotechnology, where a 100-claim set is actually reasonable, due to the numbers of species or minor changes to a drug that they're claiming as dependent claims.

For the latter, one slight note I'd add is that the requests for continuing examination still have to move prosecution along... You can't just keep saying "my invention is A", have the examiner say "A is not novel", and file a continuation saying "my invention is A", unless you want it rubber stamped. Instead, it's more about narrowing the claims until you get to "Okay, my invention is A and B, when you use it to do C and D".

Shame Examination doesn't run like the ideal (0)

Anonymous Coward | about 5 years ago | (#27323163)

The BIG problem is:
The Examiner doesn't say "A is not novel"
The Examiner says "A is not novel because the Moon is made out of green cheese"
1) The Moon is not made out of green cheese.
2) Why is the composition of the Moon relevant?

You can't effectively Appeal because the Examiner can always pull your Application out of Appeal and claim "A is now not novel because Chewbacca is a Wookie".

I wouldn't have to take so many damn Continuation Requests if I could get the Examiner to do something reasonable or stick with their WFT idea of why things aren't novel.
Arguing with them is like watch someone badly ski moguls. They stick to a messed up coarse only to change when you go over their head to another messed up course.

Examiner laziness is a big issue.
Couple this with them not having enough time (IIRC, they allotted 8 hrs per case) to perform a prior art search, and you have junk Examination.
I tell you, well done Examinations are deadly. They just pole-ax you. But instead I spend most of my time running an Examiner's Training Course.

Things would move along much much faster if the Appeal Board was truly separate and worked as an adversarial procedure between the Examiner and Inventor. Like a real Appeals Court does.

The devil is in the details (1)

Drakkenmensch (1255800) | about 5 years ago | (#27310237)

That means that you can't go patenting "a visual display to transmit data in visual form over a rapidly updated and refreshed rectangular optical screen" and then go sue every television and LCD display maker under the sun. So much for my idea to patent breathing.

This is a poor substitute (5, Interesting)

gravesb (967413) | about 5 years ago | (#27310379)

for Congress re-writing the law in a comprehensive matter. If Congress does so, courts have to defer to the new laws. With the USPTO doing it, every rule change will be heavily scrutinized by courts, and it will take years of start and stop rule making to come up with an ad hoc, disjointed rule set. But at least someone is doing something.

Re:This is a poor substitute (4, Insightful)

langelgjm (860756) | about 5 years ago | (#27310431)

On the other hand, if Congress tries to rewrite it, every industry lobbyist will be pushing their own agenda at Congress. And I would tend to think that the USPTO has a better idea of what needs to be done in terms of reform than Congress.

Re:This is a poor substitute (3, Interesting)

cvd6262 (180823) | about 5 years ago | (#27311299)

True. My first reaction was like the GP: The Constitution grants congress the authority to protect intellectual property ("inventions"). I don't see the Patent Office mentioned anywhere therein. While it makes sense that an office would be creating for the application of congressional rules, granting that office the authority to change the rules is tantamount to dereliction of duty.

But then, like you, I looked back at the last dozen-or-so congresses and realized I don't have much faith in them upholding the Constitution either. Whether it's unlawful search and seizure or bills of attainder, I'm pretty sure most of our elected officials flunked high school government.

There is one difference between having congress set the rules and allowing the USPTO do it: We can vote out the congress.

Delegation, not dereliction (1)

tepples (727027) | about 5 years ago | (#27312195)

While it makes sense that an office would be creating for the application of congressional rules, granting that office the authority to change the rules is tantamount to dereliction of duty.

Dereliction? I believe you misspelled "delegation". If the Congress wants to "secur[e] for limited Times to [] Inventors the exclusive right to their [] Discoveries" by creating a federal agency that specializes in finding the way to do so that best "promote[s] Progress", let them.

There is one difference between having congress set the rules and allowing the USPTO do it: We can vote out the congress.

The Congress can always legislate away a USPTO regulation if it feels the need.

Re:Delegation, not dereliction (2, Insightful)

cvd6262 (180823) | about 5 years ago | (#27313255)

I can accept that.

Will you agree there are some authorities that congress should not delegate away? IMHO, governance of property rights is only of those authorities.

Here in NY, we have a great deal of regulating offices that the state legislature created (as you point out, they were well authorized to do so), but now these offices exist without state oversight, yet they wield power greater than the elected officials who created them.

Child protective services offices in many states operate under this lack of oversight.

Re:This is a poor substitute (0)

Anonymous Coward | about 5 years ago | (#27312471)

My first reaction was like the GP: The Constitution grants congress the authority to protect intellectual property ("inventions"). I don't see the Patent Office mentioned anywhere therein.

I don't see anything specific at all in the Constitution:

"To promote the progress of science and the useful arts by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries."

The language is extremely vague, allowing Congress the full range of options from doing nothing (no laws at all) to establishing a property regime (creators get permanent rights through a series of laws extending the finite term).

In other words, don't look to the Constitution for guidance in this area.

Re:This is a poor substitute (2, Insightful)

cvd6262 (180823) | about 5 years ago | (#27313105)

Good point. I mean it. It's too bad you posted AC. Someone with mod points might not see it.

Re:This is a poor substitute (0)

Anonymous Coward | about 5 years ago | (#27313551)

True. My first reaction was like the GP: The Constitution grants congress the authority to protect intellectual property ("inventions"). I don't see the Patent Office mentioned anywhere therein.

I'd have to see the bill that created the USPTO, but, presumably, Congress authorized the USPTO to be able to make decisions on patent rules. The necessary and proper clause would give Congress the ability to authorize an agency it created to make rules without Congress's express direction.

Re:This is a poor substitute (0)

Anonymous Coward | about 5 years ago | (#27311423)

And I would tend to think that the USPTO has a better idea of what needs to be done.

Of course, vested interests usually do.

You don't honestly think that the USPTO bureaucracy will make any rule change that won't benefit them and their patent lawyer friends at the expense of the wider community do you? The USPTO is hardly objective.

still lost (0)

Anonymous Coward | about 5 years ago | (#27310419)

this sounds like a hidden win for open source. someone verify the meaning of this

Re:still lost (1)

marcosdumay (620877) | about 5 years ago | (#27310557)

That looks like an explicit win for freedom of initiative and progress. Looks like a win for open source too, but as a consequence of that freedom of initiative part.

TFA is biased and maybe disingenuous (0)

Anonymous Coward | about 5 years ago | (#27310479)

TFA tries to spin this issue like it's David and Goliath. It looks more to me like the new rules are biased against patent trolls.

In biotech, there has been kind of a land grab mind set. Companies used new technology, which they didn't invent, to sequence every little bit of dna so they could patent genes. These gene patents weren't really creative and were more a matter of who could do the work fastest and get to the patent office first. The result was bad. It gave a couple of companies a hammer lock on diagnostic techniques that used certain genes. The result sure didn't benefit society or encourage innovation. These patents were evil and anything that puts a limit on them is a good thing.

Re:TFA is biased and maybe disingenuous (2, Interesting)

jonwil (467024) | about 5 years ago | (#27311563)

whats needed is to make it illegal to patent any DNA sequence found in nature (be it plant, animal or human). If the company has cooked up a sequence in a lab (ala Monsanto), yeah sure, give them a patent on it.
Further to this though there would be a complete ban on any patent covering any part of the human genome. So when we start doing genetic manipulation and gene therapy on humans in the future, we dont have a situation where someone has gene therapy and then gets sued for having kids and passing on the gene therapy to them or something like that.

Re:TFA is biased and maybe disingenuous (1)

Mendokusei (916318) | about 5 years ago | (#27311991)

"whats needed is to make it illegal to patent any DNA sequence found in nature (be it plant, animal or human)."

That's called a 101 rejection. Any examiner with half a brain will instantly reject anything found in nature, be it DNA or any other natural phenomenon.

Re:TFA is biased and maybe disingenuous (0)

Anonymous Coward | about 5 years ago | (#27312127)

Pretty sure that's not needed. Drug companies currently can't get patents on chemicals found in nature, hence all the hotrodded insulin varieties -- not as much that diabetics need 5 different absorption rates of insulin, but that human insulin can't be patented, and so can't be differentiated.

I'm not sure on what basis precisely natural chemicals are not patentable, but it should apply to natural DNA sequences as well,

Which? (0)

Anonymous Coward | about 5 years ago | (#27310827)

The US Court of Appeals for the Federal Circuit has finally spoken...

Umm, WHICH Federal Circuit? Come on people, at least give us the basics!

Re:Which? (2, Informative)

compro01 (777531) | about 5 years ago | (#27311473)

There is only one federal circuit. There's also 11 other circuits (numbered 1-11), plus the DC circuit.

Re:Which? (0)

Anonymous Coward | about 5 years ago | (#27312475)

Well what do you know, looks like I was wrong. Thanks for pointing that out.

For those following along at home, it looks like the Federal Circuit has jurisdiction on certain subject matters. None of those happen to be things I follow, so I hadn't heard the distinction before.

Citation [wikipedia.org]

F.rist stop (-1, Offtopic)

Anonymous Coward | about 5 years ago | (#27311167)

spot when done For of events today, ca8s can become

Friskt 5top (-1, Offtopic)

Anonymous Coward | about 5 years ago | (#27313435)

BUWLA, 0r BSD clean for the next

Support your small business! (3, Insightful)

Brandybuck (704397) | about 5 years ago | (#27314275)

A number of tech companies including Microsoft, IBM, Oracle, Apple, and Intel have supported the rule changes, which would strengthen their positions and make it more difficult for small companies to create, protect, and bring to market disruptive technology.

If you want to support small companies and get more disruptive technologies to the market, ABOLISH PATENTS! Sheesh.

Handing out exclusive monopolies doesn't help small business, it props up big business and hinders innovation. The proponents say it foster innovation, but it only fosters getting to the first rung of the ladder. Once you have a monopoly on the first rung, everyone has to pay royalties to get to the second and third. Big businesses love patents, because they beat down their small business competitors, and prevent new ones from rising. (Actually, big businesses love most regulations, for exactly the same reason).

Re:Support your small business! (0)

Anonymous Coward | about 5 years ago | (#27325043)

Go hug a tree, hippy. You clearly have no idea how easy it is for large companies to steal ideas or outright copy them from inventors that don't have a patent and that don't know anything walking into a pitch-my-idea meeting. Patents are a necessity not in getting a product to market, but to keep it from getting stomped out

enjoy life on the commune

Check for New Comments
Slashdot Account

Need an Account?

Forgot your password?

Don't worry, we never post anything without your permission.

Submission Text Formatting Tips

We support a small subset of HTML, namely these tags:

  • b
  • i
  • p
  • br
  • a
  • ol
  • ul
  • li
  • dl
  • dt
  • dd
  • em
  • strong
  • tt
  • blockquote
  • div
  • quote
  • ecode

"ecode" can be used for code snippets, for example:

<ecode>    while(1) { do_something(); } </ecode>
Sign up for Slashdot Newsletters
Create a Slashdot Account

Loading...