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Senate Panel Backs Patent Overhaul Bill

Soulskill posted more than 3 years ago | from the then-patented-their-support-and-demanded-licensing-fees dept.

Patents 243

mvar writes "A bill to reduce the likelihood of massive damage awards in patent disputes took a step forward with approval by the Senate Judiciary Committee. The committee voted 15-0 to back the legislation that would give judges a major role in determining how important a particular patent is to a product, so that infringing minor patents would not lead to huge damages. The bill (PDF) also gives patents to the first inventor to file, rather than the first to invent, making the patent application process easier for companies who apply for patents in multiple countries. This year, Microsoft, the Pharmaceutical Research and Manufacturers of America and the Biotechnology Industry Organization support the patent legislation, while Dell, Cisco and others oppose it." Microsoft's blog post in support of patent reform calls for a quick review period for newly-granted patents and the acceptance of prior art submissions from third parties.

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It's a start (2)

TaoPhoenix (980487) | more than 3 years ago | (#35102878)

Well this is interesting. Do we like the track record of judges, or will they all file in East Texas where "a big corp clearly has better ideas on what to do with an idea that they were (second) to sell"?

We also need (1)

Xenious (24845) | more than 3 years ago | (#35103506)

some kind of rule where you can't just file wherever you want. Not sure if having to file where you live or possibly where the corporate HQ is would help....

Re:We also need (2)

Grond (15515) | more than 3 years ago | (#35103638)

The courts have been tightening the rules on venue for a while now. East Texas in particular is starting to lose cases. Example 1 [patentlyo.com] . Example 2 [patentlyo.com] . Example 3 [patentlyo.com] .

Not sure if having to file where you live or possibly where the corporate HQ is would help....

In cases with large corporations with offices all around the country there may be more important factors than the location of the corporate HQ. Consider a company based in Washington state with a research office and production facility in Florida. Sure, corporate HQ is in Washington, but all of the witnesses (e.g. the inventors) are in Florida. Important documents related to production costs and the like are in Florida. So in that case perhaps Florida makes more sense as the venue rather than forcing all of the witnesses to fly to Washington. Venue is complicated, and it can be hard to make the rules flexible enough without being so overinclusive that places like East Texas become available.

Prior Art is No More (2)

Gr33nJ3ll0 (1367543) | more than 3 years ago | (#35102880)

Well..... that fixes all the problems with prior art, now there is none!

Re:Prior Art is No More (1)

Anonymous Coward | more than 3 years ago | (#35103416)

Exactly; that's what I came here to say. If it is "first to file" and not "first to invent" there is no prior art. In fact, it would cause a run on the patent office as people go file tons of patents for things that were invented long ago and never patented due to prior art.

Re:Prior Art is No More (4, Insightful)

Java Pimp (98454) | more than 3 years ago | (#35103522)

First-to-file does not negate or eliminate prior art. First-to-file applies to parties independently coming up with the same invention (without existing public knowledge of such an invention) and granting the patent to the first to file.

Prior art can still be used to show that the first to file didn't actually do the inventing.

Interestingly enough, the Microsoft blog linked to in the article specifically mentions and endorses the use of prior art in countering patents.

WTF? (4, Insightful)

Cyberax (705495) | more than 3 years ago | (#35102888)

"The bill (PDF) also gives patents to the first inventor to file, rather than the first to invent"

WTF?

Re:WTF? (5, Insightful)

a_n_d_e_r_s (136412) | more than 3 years ago | (#35102916)

Perfect now big companies can steal ideas from other countries and patent them in the USA. And the smaller damages means it won't cost as much for Microsoft and other big companies when they are convicted of infringing on others patents. This is really good for big companies that like to infringe on smaller companies patents.

Re:WTF? (1)

horza (87255) | more than 3 years ago | (#35103220)

Why do you perceive it as stealing from other countries? The objective of the patent system is to get inventors to contribute their invention to the sum of human knowledge, in return for a time limited monopoly on the invention in the country in which they file.

If I am a widget manufacturer X in the UK that has invented and patented the sprocket, and the UK is my only market, then as a business decision I may decide to only file in the UK. If a widget manufacturer in the US decides to file it there then it doesn't affect me as I don't do business in the US. If the US widget manufacturer then tries to export back to my local UK market he will be in violation of the UK patent, thus my market is still protected.

Furthermore, if a rival US widget manufacturer thinks that another widget manufacturer is simply copying the UK patent, he can try and get the US patent invalidated citing the UK patent as prior art.

Phillip.

Re:WTF? (1)

TFAFalcon (1839122) | more than 3 years ago | (#35103244)

What don't have enough money to file the patent in both the UK and US? And by the time your widget earns you enough money to file, a big corporation has already filed for the patent in every country except the UK?

Re:WTF? (1)

MysteriousPreacher (702266) | more than 3 years ago | (#35103562)

If your widget is on the market then it may qualify as prior art. The international thing is presumably a problem right now if the U.S. is the only one operating a "first to invent" system. I'm assuming that a PCT patent could be rejected if its validity hinged on the inventor claiming to be the first to invent, and the UK IPO is probably not accepting that if used to challenge a patent that someone managed to file in the UK before the US guy got a chance to file.

Re:WTF? (4, Interesting)

Yvanhoe (564877) | more than 3 years ago | (#35103324)

But after 3 years of UK success, the UK manufacturer wants to compete in US. "No" says the patent troll, you got to pay the "foreigner tax" first.

Having to pay a license to lawyers to be authorized to sell your own invention is not really what the patent system is supposed to be.

Re:WTF? (1, Insightful)

0123456 (636235) | more than 3 years ago | (#35103424)

Having to pay a license to lawyers to be authorized to sell your own invention is not really what the patent system is supposed to be.

That's exactly what the patent system is supposed to be: you invent something yourself, then discover that you can't use your own invention because someone invented it before you and has a piece of paper saying they own it.

There are few really unique and innovative inventions which someone else in the field couldn't come up with independently.

Re:WTF? (3, Insightful)

cmarkn (31706) | more than 3 years ago | (#35103858)

No, you missed the point. The guy who invented the sprocket and got the patent on it in the UK but not the US. US Widgets Inc sees the UK patent and files it in the US -- even though they didn't invent it. Now the UK inventor wants to expand his sales into the US. Bam! He gets hit with a patent suit because US Widgets owns the patent here. The judge decides that the inventor has to pay to sell his own invention, because he was not the first to file, merely the first to invent.

Re:WTF? (1)

LingNoi (1066278) | more than 3 years ago | (#35103372)

So lets take a real world case rather then your made up case.

BlueJ comes up with an innovative way to display code. Microsoft implements and patents it in Visual Studio.

If prior art was taken out then Microsoft could sue the author of BlueJ? Fuck that shit. One set forward, two steps back. ugh...

Re:WTF? (2)

MysteriousPreacher (702266) | more than 3 years ago | (#35103700)

(a) NOVELTY; PRIOR ART.—A person shall be enti- tled to a patent unless—
‘‘(1) the claimed invention was patented, de- scribed in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention

There's more to it than that, but there's the most relevant section of the bull.

Re:WTF? (1)

DrgnDancer (137700) | more than 3 years ago | (#35103896)

Not one is talking about removal of prior art though. In fact later in the summary (not the article, the summary) it talks about Microsoft's support for improving prior art claims by allowing third parties to submit them. Presumably this means that if I know that a company has filed a patent on something I already released into the public domain, I can personally call the patent investigator and submit evidence of prior art before the patent is approved.

Re:WTF? (1)

Scott Wood (1415) | more than 3 years ago | (#35103498)

How is that US widget manufacturer contributing an invention to the sum of human knowledge? Why do they deserve a monopoly on the US market for those widgets?

Re:WTF? (1)

Dachannien (617929) | more than 3 years ago | (#35103334)

In fairness, the bill institutes "derivation proceedings", in which someone can assert that someone else's patented invention was actually derived from their own invention and wasn't original to the patentee. This is similar to today's "interference" proceedings, except the complainant gets to file a petition to directly initiate such proceedings. The derivation proceedings would initially take place before the USPTO rather than in court, decreasing litigation costs (at least initially, as the results may be appealable to the Federal Circuit).

This is essentially what's meant by "first inventor to file", as opposed to simply "first to file". If two inventors independently come up with the same invention, then the one who makes it to the office first wins.

Re:WTF? (5, Informative)

Svartalf (2997) | more than 3 years ago | (#35102928)

That only benefits the big companies... Filing is friggin' expensive. Tens of thousands of dollars are involved with the filing of a Patent. First to file means whomever has the resources will get to it first. That's NOT reform.

Re:WTF? (5, Insightful)

Sonny Yatsen (603655) | more than 3 years ago | (#35103068)

Well, there are two major reasons why a first-to-file system may be advantageous. First, the United States is unique among the nations of the world in having a first-to-invent system. This means an inventor can gain priority over another inventor who filed before the first inventor if he can prove that they invented something first. Every single other country in the world uses a first-to-file system. To change US law to permit the first-to-file system would harmonize US law with every single other country's laws, simplifying the matter for inventors. It also gets rid of weird results like a family of patents that protect in every other country but the US.

Secondly, it's cheaper for all parties. A first-to-file system can determine who gains priority in a patent by simply looking at the dates. On the other hand, a first-to-invent system almost always devolves into massive lumbering multi-million dollar litigation suits where hundreds of attorneys and document reviewers pour though millions of pages of notes to prove one party reduced something to practice before another party. It also takes years to go through the courts, which is not helped by the already heavy backlog of cases in the Federal Courts. Plus, while a first-to-file system doesn't help the small inventor, a 102(g) fight priority fight in the courts REALLY doesn't help small inventors. They can't afford the potential millions of dollars that may be lost permanently if they lose such a case, or even to settle.

Re:WTF? (0)

Anonymous Coward | more than 3 years ago | (#35103136)

indeed. and the evidence needed to show diligence from conception to reduction is a big hill to climb. unless you're a 'professional' small inventor and know what you need to do, you'll likely be screwed over in an interference proceeding or court fight. a gap in evidence of as little as a few days has been held as enough to disprove diligence.

Re:WTF? (4, Interesting)

Cyberax (705495) | more than 3 years ago | (#35103150)

I'm reading it and it's horrible.

For comparison, Russia has a 'first-to-file' patent system. However there's a clause that earlier inventors receive an automatic license to use the patent, and it also could lead to patent's invalidation. I don't see anything like this in the new bill.

Re:WTF? (2)

Nerdfest (867930) | more than 3 years ago | (#35103160)

Doesn't this screw over people who invent something and don't want it patented, or can't afford to?

Re:WTF? (1)

mangu (126918) | more than 3 years ago | (#35103316)

Doesn't this screw over people who invent something and don't want it patented, or can't afford to?

No. Those people wouldn't have a patent anyway, so why should they complain?

If you are an inventor who cannot afford to patent your inventions you need an investor to finance you. You would need a partner anyway if you are poor and wish to produce your invention.

If you want to give your invention as a gift to the world you should patent it and licence the patent for free. Yes, it sucks, paying for the patent process if you just want to release it for free, but that's the way it is when you have patents, no matter if the priority goes to the first to invent of to the first to file.

Re:WTF? (1)

noidentity (188756) | more than 3 years ago | (#35103380)

Doesn't this screw over people who invent something and don't want it patented, or can't afford to?

No. Those people wouldn't have a patent anyway, so why should they complain?

Maybe they would like it to be available to all, rather than locked away.

Re:WTF? (0)

Anonymous Coward | more than 3 years ago | (#35103548)

Then you patent it and then allow unlimited open licensing of the patent. If your idea is a good one, solicit donations with the understanding that people are paying in to keep the patent under a completely open license. If your invention is worthwhile, you can probably raise enough donations to afford the patent fees and make a tidy little profit.

Re:WTF? (1)

rtfa-troll (1340807) | more than 3 years ago | (#35103606)

All you need to do is to publish it clearly and openly. This establishes prior art which makes it impossible to patent. It's better to patent and donate to a FOSS patent pool, for example, but publishing is still a big thing.

Re:WTF? (1)

MysteriousPreacher (702266) | more than 3 years ago | (#35103750)

If they just want to give it away then all they need do is publish sufficient details of their invention. That'll establish prior art which'll prevent others from being able to patent it. In a vague sense it's a bit like releasing in to the public domain, except the inventor retains the right to file a patent within a certain time period - but no-one else can.

Re:WTF? (1)

TFAFalcon (1839122) | more than 3 years ago | (#35103492)

But the moment you let your investor know about your invention, he can go and patent it.

Re:WTF? (1)

Scott Wood (1415) | more than 3 years ago | (#35103604)

I need an investor to write software? Even if I have one, I need to burn valuable startup capital patenting every little aspect of my product that someone might want to patent?

Does "first to file" only make a difference with prior inventors that did not disclose, or does it interfere with prior art that has been made public by way other than patenting?

Personally, if there are multiple independent inventors within a short period of time (disclosed or otherwise, as long as you have evidence that it happened, and was independent), I think that should invalidate the patent altogether as being an obvious progression from the current state of the art. Or at least give joint rights to the patent to everyone involved.

Re:WTF? (2)

DrgnDancer (137700) | more than 3 years ago | (#35103960)

If you want to give your invention as a gift to the world you should patent it and licence the patent for free. Yes, it sucks, paying for the patent process if you just want to release it for free, but that's the way it is when you have patents, no matter if the priority goes to the first to invent of to the first to file.

Theoretically they don't need to file. Simply publish your invention specifics (online would do I'm sure), and you've established prior art. No one else can patent your idea, because it's already existent in the public domain. If, as the second article in the summary suggests, they also change the law to allow third party submission of prior art, then it wouldn't even be difficult to defend your public domain invention.

Re:WTF? (1)

reebmmm (939463) | more than 3 years ago | (#35103332)

No. Well, sort of no. The system isn't much different for that person than it is under the current system.

The first file only impacts the situation in which two people file a patent application at or about the same time. The first to file rule says that one with the earlier postmark wins, essentially. Under the current rules, someone can have filed later in time but shown by evidence that they had possession of the invention sooner by proof of diligence and non-concealment.

I think that there is a lot of confusion in this thread about what First to File really means.

Re:WTF? (0)

Anonymous Coward | more than 3 years ago | (#35103822)

Obviously, the only legal difference can arise if Party A and Party B have filed and invented in different orders. Without loss of generality, assume Party A invented first, and Party B filed first. Under this new system, Party B gets the patent. Maybe Party B can sue Party A for patent infringement, I don't know.

The big question is, what happens to prior art? There are arguments against prior art "counting" only if it has been published - for one thing, that would turn all patentable trade secrets into time-bombs.

Re:WTF? (1)

kanweg (771128) | more than 3 years ago | (#35103450)

If you don't want something to be patented, publish it (in as much detail as possible). Cost: next to zero.

Bert

Re:WTF? (1)

Nerdfest (867930) | more than 3 years ago | (#35103882)

... and get sued by the first person to file?

Re:WTF? (1)

FictionPimp (712802) | more than 3 years ago | (#35103188)

My problem is this, let's say I come up with a cool way to do something on a web page. I see it as a trivial solution to a problem (let's say 1 click buying). I never patent it.

Now some company (say amazon) develops the same thing months or years later, patents it and sues me.

Another example, let's say a open source product comes up with a revolutionary way to use a trackpad. Now let's say apple implements and patents that method in their next release of OSX. We can't expect a lose org of programmers to have the cash to patent everything they give for free to the community.

Would this system protect me? Or do I need to try to patent every silly trivial software idea I might come up with? In which case, I should just stop trying to develop software, the risk is too much and the cost for patents is too high to bother.

I may be completely misinformed about patent law. In fact I'm sure I am. I'm just trying to wrap my head around this. It seems like a all around bad idea.

Re:WTF? (1)

Sonny Yatsen (603655) | more than 3 years ago | (#35103212)

Replacing first-to-invent with first-to-file doesn't mean it also gets rid of prior art. In the situations you presented above, your solutions will act as prior art which may anticipate or render the subsequent invention obvious during prosecution or during reexamination or during litigation.

Re:WTF? (1)

FictionPimp (712802) | more than 3 years ago | (#35103370)

So then, after their patent is invalid, can I file?

Re:WTF? (2)

Sonny Yatsen (603655) | more than 3 years ago | (#35103482)

Only if it's within the 1 year bar after publication. The US Patent system doesn't want people to dedicate new inventions to the public (by publication) and then, after some indeterminate time, take it back from public domain by filing a patent on it. If you published and more than a year went by before you file a patent, then your own publication will act as prior art against you.

Re:WTF? (1)

srealm (157581) | more than 3 years ago | (#35103318)

On the other hand, with things like software and business model patents, this is disastrous.

1. Some open source developer creates some cool piece of software, algorithm, or whatever.
2. Big Company (tm) see's this and decides it's cool, and files patent.
3. Big Company (tm) sues open source guy (and any other competitors it feels like) over said patent.
4. Open source developer who invented the cool software/algorithm/etc. is forced to abandon his/her own code because or fight in court - probably signing the rights over to Big Company (tm) to avoid being sued (just the cost of defending against a suit is big enough to make most people give up, even with smaller damages).
5. Profit for Big Company (tm) as they re-brand open source developer's code in their own name.

The cost and effort of filing for patents means that a lot of open source developers, and small businesses just won't do it. First to File combined with software patents has the potential to be a nuclear device in the software world - where only the bigger players are protected (by having large patent portfolios that they can use against each other) - the smaller fish are now no longer protected by being able to prove they actually invented their own code first - because they just didn't have the resources to file a patent on it.

Sure, First to File is easier for the patent administration office - but this is one case where 'well everyone ELSE is doing it that way' is not a good excuse for changing the law. There are some things (for example health care) where the US can and should take a page from other country's books (socialized medicine is really not a bad thing - and no, it won't create a nanny state, but your health should be a fundamental right, just like your freedom of speech). The first-to-invent part of patent law is something where the US got it right and the rest of the world didn't, they took the easy route - but not necessarily the better one.

So I say, keep 'prior art' or get rid of software & business model patents (which should never have been allowed in the first place). Losing the former without ditching the latter doesn't bring the US in line with the rest of the world anyway (very few places in the world allow software patents) and the combination is disastrous.

Re:WTF? (2)

Sonny Yatsen (603655) | more than 3 years ago | (#35103404)

I keep seeing this type of argument here, but this is untrue. Prior art isn't being abolished by a first-to-file situation. Remember, prior publications constitute prior art. The open source project, by virtue of being earlier and published (wouldn't be much of an open source project if it wasn't) to the public would constitute as prior art to Big Company (tm)'s patent and can be used to invalidate Big Company (tm)'s patent or application.

Also, in regards to business model patents - they are rather weak now after the In Re Bilski case, which essentially invalidated a hedge fund business model as unpatentable subject matter. Same thing with algorithms, by statute, mathematical algorithms and other similar things like physical laws, things found in nature, etc, etc, are not patentable subject matter. Also, pure software patents are also found by the USPTO to be unpatentable (they must be tied to a device or some sort of transformation).

Re:WTF? (1)

TooManyNames (711346) | more than 3 years ago | (#35103664)

Harmonizing with what the every other country does may sound appealing, but that doesn't make first-to-file more just. In the situation you described (where a patent family is protected in every other country but the US), why shouldn't that be the case? If someone can prove that they were in fact the first to invent (within statutory time limits) despite someone else filing first in other countries, why shouldn't they be able to invalidate the latter inventor's claim to an invention? In the situation you describe, at least the US will protect the actual inventor, even if every other nation does not.

You bring up the costs associated with a 102(g) priority fight as being prohibitively expensive for small entities arguing their case. This is true, but at least they have the capability and option of arguing. In this case, the small entity can yield priority to whoever filed first if they deem the costs involved in following through with litigation to be too high. In a first-to-file system, they don't even have that choice; they are simply denied rights to something they invented if they were a little late on filing.

The laws for allowing first-to-invent claims were put in place for good reasons, and, while matching the rest of the world is in vogue, I'd argue that this is one situation where the US, and not everyone else, is correct.

Re:WTF? (1)

Asic Eng (193332) | more than 3 years ago | (#35103076)

Hmmm - does this effectively abolish prior art? If I file a patent on what my competitor has been doing for years, then I'll get the patent award.

Sounds dangerous - everybody would have to file everything unless they want to be deprived of using their own ideas. It's a tax on innovation - no wonder Microsoft likes it.

Re:WTF? (1)

shentino (1139071) | more than 3 years ago | (#35103140)

That's only if nothing but previous patents qualify as prior art.

Re:WTF? (1)

grim-one (1312413) | more than 3 years ago | (#35103174)

I don't see why it would abolish prior art.

Any published or public work is prior art, invalidating any later patent applications. This would prevent your example and is reasonably similar to how patents work now.

Any trade secret or unpublished work is fair game for patenting. This would be the scenario where two inventors in separate labs create something in parallel - the first to file wins (or if they choose to publish - prevent) the patent.

Re:WTF? (1)

MysteriousPreacher (702266) | more than 3 years ago | (#35103348)

Not really. If your competitor comes up with an amazing invention but keeps it secret then it can't be considered prior art, so you could indeed file a patent. If however the invention becomes public prior to your filing it then constitutes prior art. The downside to filing a patent is that the thing in question becomes a matter of public record. People not wanting that to be the case could maintain the thing as a trade secret, with the risk of someone else patenting it.

Everybody has to either file, publish details of their invention to sufficiently establish prior art, or operate in secrecy and hope that no-one else could independently develop the same invention.

Re:WTF? (1)

horza (87255) | more than 3 years ago | (#35103364)

First to file is standard for every country outside of the US, and prior art is still equally important. You are correct that companies do file a lot of defensive patents, but then do anyway under first to invent. Don't forget that for a patent to be granted, it has to be non-obvious to somebody skilled in the art, so you can try filing everything everybody does but 99.99% will be a complete waste of money.

Rather than being a tax on innovation, it reduces the burden by giving much clearer rules which eliminate one potential reason for a court case... and it is the latter which is the greatest burden and the person with the deepest pockets often wins.

Phillip.

Re:WTF? (1)

TooManyNames (711346) | more than 3 years ago | (#35103112)

I'm glad somebody brought this up. First to file obviously makes contesting an inventorship date easier, but certainly not more fair. In any event, the laws and regulations as currently written impose a time limit for filing (relative to another inventor filing a patent application, among other things), so it's not like somebody could just wait for a patent to become successful, and then say "I invented first, gimme!" As for dealing with international patents, it's pretty simple: follow the rules and time limits of the PCT and, if you're interested in a PCT filing, don't assume that national filing requirements agree entirely with the international filing requirements.

The max cap on damages is nice, but the adoption of first to file could use some work.

Re:WTF? (1)

Cyberax (705495) | more than 3 years ago | (#35103196)

"it's not like somebody could just wait for a patent to become successful, and then say "I invented first, gimme!""

Why not? If you've got a patent for something that has already been invented, then why should you be able to use it at all?

Re:WTF? (1)

rtb61 (674572) | more than 3 years ago | (#35103222)

Of course first inventor to file is corporate doublespeak, for first ass hat to steal somebody elses idea because they didn't patent it and then demand payment from them for inventing it. Your idea, you now me money for legally stealing it. Basically a thieves 'R' us patent system, especially targeted at those that share ideas, rather clamouring greedily for every cent and crippling future development.

Re:WTF? (1)

reebmmm (939463) | more than 3 years ago | (#35103400)

This is ridiculous. First to File does not eliminate derivation (i.e., taking someone else's invention) and does not eliminate prior art. In fact, the reform bill includes new rules regarding derivation.

Regarding prior art, prior use, prior sale, prior publication, prior patenting, etc. are all still grounds for invalidity.

Moving to a first to file system only means that everyone needs to "rush" to the patent office to file. Which, in reality, is not much different than it was in the case of two near simultaneous patent applicants since the later-filer-but-earlier-inventor has to show diligence and non-concealment in getting an application on file to overcome the earlier-filed application.

Re:WTF? (1)

X10 (186866) | more than 3 years ago | (#35103360)

Does this mean that "prior art" is no longer recognized? I mean, if I can prove in court that I invented something first, would this give the right to my invention to a company filing my patent before I do? That makes life harder for individual sofware developers who don't have - or are not willing to spend - the cash to file a gazillion patents. Why not just set criteria for filing patents as to allow only patents that really are major inventions?

Re:WTF? (1)

0123456 (636235) | more than 3 years ago | (#35103488)

Why not just set criteria for filing patents as to allow only patents that really are major inventions?

How would big companies keep small competitors out of the market if they could only patent major, really innovative inventions?

Patents reward publication, not invention (2)

zzatz (965857) | more than 3 years ago | (#35103628)

The Constitution authorizes the government to issue patents to reward the publication of inventions. Making information widely available to the public is the ONLY reason for the government to be involved at all with inventions. Government has no business rewarding invention itself.

Re:Patents reward publication, not invention (1)

stinerman (812158) | more than 3 years ago | (#35103880)

Let's look at the actual text of Article 1, Section 8:

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries

A plain reading shows that Congress can only grant a patent to an inventor, not just any person who happens to file for the patent. IIRC an IP attorney (perhaps cptkangarooski) stating that he believed a first-to-file patent regime would be unconstitutional.

Wolf in sheep's clothing (3, Insightful)

locallyunscene (1000523) | more than 3 years ago | (#35102942)

legislation that would give judges a major role in determining how important a particular patent is to a product, so that infringing minor patents would not lead to huge damages

Okay that sounds good, what's the catch?

patents to the first inventor to file, rather than the first to invent, making the patent application process easier for companies who apply for patents in multiple countries

... and making it much harder for anyone who is not a large company with money to throw at patent applications. Also could someone familiar with patent law explain how changing this one particular law in the U.S. makes it easier for companies to file in other countries?

Schumer's amendment would have allowed companies sued over such patents to ask the U.S. Patent and Trademark Office to declare them invalid without resorting to litigation.

"I feel very strongly about this issue," said the Democrat from New York. He could not guarantee he would vote for patent reform once it hit the Senate floor if it was not in the bill.

So 90% of what would have protected smaller innovative companies was removed and what is left is further patent domination for the bureaucratic styled corporations.

Other provisions in this year's 99-page bill aim to prevent bad patents from being issued by allowing third parties to provide information on why an application should be rejected.

Useful, but not nearly as useful as the above proposed amendment.

The U.S. Patent and Trademark Office has asked for the right to set its own fees in order to hire more examiners and upgrade technology so it can chip away at a massive backlog of patent applications.

The bill would give the patent office authority to set fees, but requires that the smallest applicants get relief on application fees.

They'll need it with the flood of "first to file" applications coming in.

In short.... (0)

Anonymous Coward | more than 3 years ago | (#35102974)

If corporate America likes it, it means the little guy gets screwed.

So, I'm the little guy, I invent something, and big corp steals the idea and uses their influence and legal teams to patent the idea first.

Yep, I'm hating it already.

Re:Wolf in sheep's clothing (1)

RobbieThe1st (1977364) | more than 3 years ago | (#35102986)

Mod this guy up! As far as prior art goes, it looks like it can't be patented so long as it's already in use or described in a document publicly published - at least, that's how I read it. I wonder where this leaves Internet publication methods...

cairo conflict shows media mindphuking (-1)

Anonymous Coward | more than 3 years ago | (#35102950)

the state channel shows ten folks out for a walk, claiming maybe 10,000 of them. in real life, it's more like 10 million. pay attention, that's something we can still afford to do, & leads to possible understanding. the gulf may have been a model for the world for mass news FUDging. it's sure looks like the wwworld isn't 'b(uy)ing' more fairytail stories from US.

assange nominated for peace prize? world gone mad? (-1)

Anonymous Coward | more than 3 years ago | (#35103142)

maybe not. we haven't acknowledged responsibility for anything at all anywhere, yet. our 'secrets' that the rest of the world is reading as we continue to remain silent, which is our available 'right', seem to be more relevant than presented to US by our media.

Why look? (1)

jimmerz28 (1928616) | more than 3 years ago | (#35102982)

"quick review period"

Yes I'm sure just a cursory glance at newly-granted patents is more than sufficient!

This doesn't seem nearly radical enough =(

Judge by the cover... (1)

pipatron (966506) | more than 3 years ago | (#35103002)

Just look at who are backing this, and you can clearly see that it's a very bad thing for the consumer and average citizen.

Re:Judge by the cover... (0)

Anonymous Coward | more than 3 years ago | (#35103184)

Because Dell and Cisco are dedicated to doing what is best for the consumer and protecting the average citizen?

Shooting something down just because of who is backing it is a little cynical. If Microsoft back it then I'd guess Gates would too even if he's not at the helm any more, and I wouldn't ignore everything he does (i.e. his behemoth donations to science and charity) just because Microsoft has issues.

Re:Judge by the cover... (1)

TapeCutter (624760) | more than 3 years ago | (#35103252)

"Just look at who are backing this, and you can clearly see that it's a very bad thing for the consumer and average citizen"

Yes, because prejudice is much easier than analysis.

Re:Judge by the cover... (1)

noidentity (188756) | more than 3 years ago | (#35103532)

No, the point here is to see whether it's companies who have a history of lobbying for changes that seem benign, but turn out to be corrupt. There the cover IS a good indicator of the content, in a way that you might not even realize on a cursory examination of the content itself.

Re:Judge by the cover... (1)

rtfa-troll (1340807) | more than 3 years ago | (#35103688)

Microsoft is currently using patents in their strategy to destroy competitors. This is designed to allow them to make more profit on less development. By definition, anything which helps Microsoft is partly bad for the consumer. The only possible other explanations are that a) Microsoft is wrong about what is good for them or b) it's a double bluff. Neither of which seems likely.

Helps companies but leaves individuals out (2)

ciaran_o_riordan (662132) | more than 3 years ago | (#35103006)

Large companies, who can afford to defend themselves in court, will benefit from this. Same is true for Microsoft's case against i4i where they want to make it easier to invalidate patents in court.

For small and medium-sized companies, and for individuals, this won't help.

In software, people need the freedom to use the commonly used video formats, and the freedom to make a website to sell stuff. For a small company, the court case would cost more than the profits they'd be trying to protect.

Patents simply don't work for software. They *might* work for things where all mass production is done by large companies (e.g. pharma, cars), but for things which ordinary people do, such as writing books and writing software, patents don't work and must be abolished. Reform is not enough.

* http://en.swpat.org/wiki/Why_software_is_different [swpat.org]
* http://en.swpat.org/wiki/Why_abolish_software_patents [swpat.org]

Re:Helps companies but leaves individuals out (1)

$RANDOMLUSER (804576) | more than 3 years ago | (#35103132)

From Microsoft's (and other big companies) perspective the problem with the current system is that you have to throw facts (and time) at the Patent Office to get an inconvenient patent invalidated. The new system would merely require throwing lawyers (but NOT bribes, oh no, not bribes) at a pliable judge. Problem solved, pesky upstart squished.

Re:Helps companies but leaves individuals out (1)

bunratty (545641) | more than 3 years ago | (#35103156)

Just glancing at the page for reasons why to abolish software patents, I see the claim that nearly all software is patentable, and it's easy to come up with software that is patentable. Inventions are supposed to be non-obvious to be patentable. If the patent office simply enforced this simple rule, the problems with software patents would be fixed. We don't need to abolish software patents.

As for your arguments about writing books, books (and software) are copyrighted, not patented. Inventions (such as algorithms) are patented. A software implementation of an algorithm is copyrighted, but the algorithm itself is patented. If you can't understand the difference between patents and copyrights, I don't think you can reason sensibly about patents and copyrights. Understand what you're discussing before you start discussing it.

clarifications (1)

ciaran_o_riordan (662132) | more than 3 years ago | (#35103320)

Your first paragraph is overly optimistic. The Mpeg h.264 video format is covered by over 1,000 patents. Raising quality might get rid of 5 or 10% percent, or in a dream world 50%, but that would change nothing, you'd still need the MPEG LA cartel's permission to use that format.

Your 2nd paragraph is correct*, software and books are copyrighted. Algorithms and plots are not. Plots are not patentable, and neither should algorithms be.

( * To be more correct, you've over-simplified in saying that algorithms are patentable - only specific implementations to a technical problems are patentable, not the algorithm itself.)

Re:Helps companies but leaves individuals out (1)

Wolfbone (668810) | more than 3 years ago | (#35103508)

If the patent office simply enforced this simple rule, the problems with software patents would be fixed. We don't need to abolish software patents.

In view of the ironic 'Understand what you're discussing before you start discussing it.' which you aimed at Ciaran, i think it's only fair to ask you for the theoretical and empirical economic support on which you base that assertion. :P

The main problem... (1)

wealthychef (584778) | more than 3 years ago | (#35103050)

... is that we don't have enough patent office workers, and very few are any quality. They make a low salary, there aren't enough of them, and they leave shortly after starting (within 2 years, I heard). If we had enough to do a careful review, maybe the current law would suffice. This law is the equivalent of trying to make software fast by removing all the useful work it does. Process is streamlined, but results are crap.

code for "death to prior art" (1)

spikenerd (642677) | more than 3 years ago | (#35103092)

"first inventor to file, rather than the first to invent" sounds like code for "prior art no longer matters". Think about this for a minute. You invent something. You try to use it. You get sued into oblivion because someone else filed first. Or how about this one: You invent something. You don't believe in patents, so you give it to the world for free. Someone files and locks it down. Or how about this one: You are sued for doing something that everyone has been doing for fifty years. When you try to defend yourself, your defense is struck down because prior art no longer matters--you didn't file first.

Re:code for "death to prior art" (4, Insightful)

ThosLives (686517) | more than 3 years ago | (#35103206)

"First to file" doesn't eliminate the "novel, useful, unobvious" requirements on a patent. If an invention is already in the field and in use, first to file won't be the thing that locks it up. Instead, it will be the same thing that happens today when people get patents on obvious or preexisting "inventions".

First to file simply eliminates the fights over who invented things first. Of course, I'm of the opinion that if there is a "who invented it first" fight then the patent under question should immediately be invalidated or rejected, because near-enough simultaneous development by disparate parties means the invention is "obvious to those skilled in the art" QED.

Re:code for "death to prior art" (1)

$RANDOMLUSER (804576) | more than 3 years ago | (#35103422)

There are two versions of the "who invented it first" argument; there's the "idea whose time has come" type, say Newton vs Leibniz on calculus; and here invalidation of both claims is probably an option, even if we ignore the money to be made by SOMEBODY holding a patent. But secondly, there's the question as to whether invention was independent, or even fraudulent, as in Elisha Gray vs Alexander Graham Bell and the telephone. Bell basically won on first-to-file because Gray didn't have good enough records to prove he was first-to-invent. So is a real inventor supposed to miss out because somebody tried to steal his idea?

Re:code for "death to prior art" (1)

HeckRuler (1369601) | more than 3 years ago | (#35103490)

Except the "novel, useful, unobvious" requirements on a patent are hardly ever the reason that patents get rejected. Come on, "exercising a cat with a laser pointer", "displaying an insanity bar", "[fill in the blank] on a [specialized hardware]". I had someone trying to convince me to patent a super-basic PCL printer driver just because it was on an flow computer (it's an embedded device for measuring flows, like on an oil pipeline). That's bullshit. But it probably would have gone through. If the system truly worked like it was supposed to, sure. But it doesn't.

Also, your opinion is crap. Repeat after me: "Anyone can sue Anyone for Anything."
I can fight the patent on lead-free solder. I don't have a case, and I'd be thrown out of court, but there'd be a fight. Perhaps what you want is an option for the judge in the patent fight to simply anull the patent as trivial, effectively making both parties lose. The problem with that is that neither party would fight for that.

Re:code for "death to prior art" (0)

Anonymous Coward | more than 3 years ago | (#35103296)

I see nothing that says prior art dosen't count. Didn't Microsoft want third parties prior art to be taken into acount.

Prior art, especially if published openly, would still bust a patent or invalidate getting one.

Re:code for "death to prior art" (1)

horza (87255) | more than 3 years ago | (#35103432)

I don't understand. Why does first to file rather than first to invent invalidate the whole concept of prior art?

Phillip.

Re:code for "death to prior art" (1)

MysteriousPreacher (702266) | more than 3 years ago | (#35103454)

"first inventor to file, rather than the first to invent" sounds like code for "prior art no longer matters". Think about this for a minute. You invent something. You try to use it. You get sued into oblivion because someone else filed first. Or how about this one: You invent something. You don't believe in patents, so you give it to the world for free. Someone files and locks it down. Or how about this one: You are sued for doing something that everyone has been doing for fifty years. When you try to defend yourself, your defense is struck down because prior art no longer matters--you didn't file first.

Most of that isn't possible. If you invent something and publish it to the world then it becomes prior art. You could certainly be sued if you tried to make us of your secret invention and someone filed before you did. Establishment of prior art doesn't appear to be changing. What's changing here is that anyone wanting to protect their invention had better file or make their invention public in order to prevent someone else from filing. I'm not entirely sure what constitutes publishing in this case, but it doesn't seem possible to retroactively patent anything that hasn't yet been patented.

Setting up a Predator's Paradise (0)

Anonymous Coward | more than 3 years ago | (#35103104)

Congress drops even the facade of integrity.

Doesn't this kill prior art defense? (1)

deathguppie (768263) | more than 3 years ago | (#35103130)

The thing that scares me about this is that if this passes it will allow people with the resources to file patents on other peoples (with lesser resources) inventions. As things stand no one can patent something Ive created with any reasonable expectance that their patent can be defended in court. This law would basically allow patent trolls to scour open source software and patent anything they see. How could we expect to defend against anything like the wave of filings this would create?

Re:Doesn't this kill prior art defense? (1)

Sonny Yatsen (603655) | more than 3 years ago | (#35103326)

No, this is untrue. As noted by myself and others, prior art remains in place. Anything that was published (i.e. those open source software resources you mentioned) prior to your invention is prior art.

Re:Doesn't this kill prior art defense? (1)

Script Cat (832717) | more than 3 years ago | (#35103718)

Does this mean, if I have a business and I make some product of do some process but never bothered to patent it. I assumed it was obvious. Someone could patent it and then sue me and put my company out of business.

Re:Doesn't this kill prior art defense? (2)

MysteriousPreacher (702266) | more than 3 years ago | (#35103984)

Depends on how a court interprets the phrase "public use". If the invention is used in secret by the inventor and his buddies sworn to secrecy, and the business cards incinerated to avoid disclosure, then it's probably not public use. If the invention is used reasonably openly in the company and being use to create products that are distributed outside of the company then I'd expect a judge to rule it as prior art. Of course that isn't guaranteed, which is possibly why the phrase could be better defined. The problem I think they try to avoid is that by defining things too tightly a law becomes more prone to loopholes or ageing. e.g. a law that specifically tackled the transmission of death threats via telex would probably not cover the same things done by fax.

NO. (1)

Wdi (142463) | more than 3 years ago | (#35103356)

Of course anything published, in any reasonably accessible medium, before the filing date of a patent (and Open Source is here actually the prime example, because it is so simple to show that it was in the wild before the filing date) is prior art and invalidates any patents filed on its algorithms later.

Contrary to what scare mongers imply here, Open Source clearly gains from this.

3..2..1.. steal (0)

Anonymous Coward | more than 3 years ago | (#35103138)

"The bill (PDF) also gives patents to the first inventor to file, rather than the first to invent, making the patent application process easier for companies who apply for patents in multiple countries." I can see this leading to inventors losing their rights to an invention because a business getting hold of the idea before the inventor can. Hopefully there is something in the bill that will make it so this doesn't happen... I'm not holding my breath. I lost my faith is our legislators a long time ago

Re:3..2..1.. steal (1)

Grond (15515) | more than 3 years ago | (#35103570)

First to file means the first inventor to file. Priority is based on filing rather than date of inventorship, but the applicant still has to have invented the claimed invention. The law wouldn't change 35 USC 102(f): "A person shall be entitled to a patent unless he did not himself invent the subject matter sought to be patented."

First to file is the way things work in the entire rest of the world. The US is the only country that uses a first to invent system. The Philippines did until several years ago, but now we're the only ones. I'm not citing that fact to argue that we should switch, only that switching is unlikely to cause the sky to fall.

Open source? (0)

Anonymous Coward | more than 3 years ago | (#35103146)

What if I write some nifty GPl code. Then microsoft patents the "business logic" behind it. Am I wrong, or is this bad for open source?

Re:Open source? (1)

Grond (15515) | more than 3 years ago | (#35103706)

No, this doesn't change the fact that the applicant must still have actually invented the claimed invention. 35 USC 102(f) [cornell.edu] : "A person shall be entitled to a patent unless he did not himself invent the subject matter sought to be patented."

Remember, every country in the world other than the US uses a first to file rather than a first to invent system. There are advantages and disadvantages to both systems, but the disadvantages are not anything like that. First to file does not enable theft or ripping off of inventions.

Great! Meanwhile we can't even keep the lights on. (0)

Anonymous Coward | more than 3 years ago | (#35103176)

Our president has promised to bankrupt coal companies who want to build power plants, and now we're sitting here in our houses wondering if we'll be hit with another rolling blackout today. Obama pretty much telegraphed that he wanted to preside over the post-industrial collapse of the West, and you idiots still voted for him. Then he shits all over Mubarak, whom he praised as a strong ally as recently as May, but he could have cared less about protesters in Iran trying to win their freedom last summer. Face it, LibTards: Obama is a Manchurian Candidate who strongly favors anti-western Islamist despots. America's word means nothing as long as Obammy is in power.

and how is ice buildup on power lines Obama fault? (1)

Joe The Dragon (967727) | more than 3 years ago | (#35103214)

and how is ice buildup on power lines Obama fault?

Wednesday's rolling blackouts were not caused by a failure to predict demand accurately or to keep enough plants online, Doggett said, but by a widespread mechanical failure of more than 50 power generating units all over the state.

Hm... (1)

JustAnotherIdiot (1980292) | more than 3 years ago | (#35103234)

"The bill (PDF) also gives patents to the first inventor to file, rather than the first to invent"

BRB, filing patents.

First to file is very bad for academia. (4, Insightful)

seeker_1us (1203072) | more than 3 years ago | (#35103402)

You need to be able to publish your stuff in academia as fast as possible, once you have good results. Waiting for the patent filing process (just the filing) can delay it badly. If you have first to invent, you can do your invention, then publish while you are doing the patent filing.

This will cripple innovation in America's Universities as researchers are forced to choose between publishing and patenting.

Re:First to file is very bad for academia. (2)

kanweg (771128) | more than 3 years ago | (#35103486)

But then, those scientist were shooting themselves in the foot because they were denying themselves patent protection abroad (outside the US).

Getting your article published takes a while. You can send it to the editor with a note that it should be kept confidential for patenting purposes and as far the patent office is concerned you're fine.

Bert

This saddens me (1)

puterg33k (1920022) | more than 3 years ago | (#35103516)

I vote no, here's why...

It's nearly at the point that only someone well off can actually file for a patient. This will ensure that a corporation will have to sponsor the patient, thus; the individual will only get a partial amount of the funds he potentially would have created. Only, the corporation owns the patient.

rant

How much further are the "power elitist" going to push away the middle class? Is it really a goal for them to rid America of the middle class? What the hell would be their motive? Perhaps to create a surplus labor force (this would take generations)? Meanwhile, exploiting "lesser" nations? At this rate we're the lesser...

When will we (what's left of the middle class) step up and take part in OUR democracy, or what's left of it? When is it that we will unite ourselves and stop arguing semantics (mostly over religion)? The same religion that was ment to unify the people is now being used to destroy it for profit. I feel the future is bleak; I really have no hope in our bi-partisan (separatist) voting methods. We're fooled; they've been burning our churches down whilst robbing our banks on the other side of the town!

conclusion: this is all apart of a much larger problem.

/rant

The Summary Overstates Things (1)

Grond (15515) | more than 3 years ago | (#35103542)

From the summary: "A bill to reduce the likelihood of massive damage awards in patent disputes took a step forward with approval by the Senate Judiciary Committee. The committee voted 15-0 to back the legislation that would give judges a major role in determining how important a particular patent is to a product, so that infringing minor patents would not lead to huge damages."

Judges already have a significant role in the damages determination. First, in some cases the right to a jury trial is waived, so the judge is solely responsible for the damages calculation. Second, even in jury trial cases, the judge determines what evidence the jury sees. Generally evidence on damages is presented by dueling expert witnesses from each side, and the judge may exclude a witness or part of the witness's testimony on various grounds. Third, the judge may modify the jury's award of damages in certain circumstances. Fourth, certain parts of the damages calculation are always performed by the judge anyway.

Then there's this: "determining how important a particular patent is to a product, so that infringing minor patents would not lead to huge damages." That's not a new idea. One of the main ways damages in patent cases are determined is via the Georgia Pacific factors, named after the case where they were set down [google.com] . Four of the factors are these:

"The utility and advantages of the patent property over the old modes or devices, if any, that had been used for working out similar results.
The nature of the patented invention; the character of the commercial embodiment of it as owned and produced by the licensor; and the benefits to those who have used the invention.
The portion of the profit or of the selling price that may be customary in the particular business or in comparable businesses to allow for the use of the invention or analogous inventions.
The portion of the realizable profit that should be credited to the invention as distinguished from non-patented elements, the manufacturing process, business risks, or significant features or improvements added by the infringer."

As you can see, the law already takes into account how important a patent is to a given product. So it's not clear how much this reform would actually change things. What it almost certainly will do, however, is lead to a spike in litigation and appeals as parties try to figure out exactly what the law means.

Any time the law changes, uncertainty is introduced. In the presence of uncertainty, parties find it hard to come to settlement agreements. So they ask the courts to figure things out. That takes time and costs money, which is something that large, established players have and that small, newer players do not. Legal reform efforts are fraught with unintended consequences.

The elephant in the room (1)

Krakadoom (1407635) | more than 3 years ago | (#35103550)

So the bill addresses the first to invent problem. Without addressing the major issue with the way prior art is defined at the moment. The scope of material examined with regards to prior art is way too narrow, which is a major (if not the biggest) reason for the ridiculous patents that are granted these days, even though you can point to something someone else has already brought to market that employs the same techniques and whatnot.

That makes this bill if not pointless then only a very tiny first step.

The problem that needs to be resolved... (1)

QuietLagoon (813062) | more than 3 years ago | (#35103684)

The large corporations who want to continue to use patents to stifle innovation and competitors will hire lobbyists to get the patent "reform" they want.

.
Look for the patent law to swing wildly in favor of the large corporations and against upstart companies.

Some ideas to help fix the patent system (1)

jonwil (467024) | more than 3 years ago | (#35103916)

1.Introduce a rule where anyone (someone being sued for the patent, someone using the patented technology and not being sued, someone not using the patent at all, whatever) can submit possible prior art for for the patent. Then the patent is re-examined in light of the new prior art. If the prior art is found to be genuine, the patent is ruled invalid and the person who submitted the patent has to pay the costs of the re-examination.
If the prior art is found not to be genuine, the patent stands and the person who submitted the prior art has to pay the costs of the re-examination.

2.Change the methods used for calculating patent damages. They already said that damages would be higher if a patent is important to the product and lower if its less important (which is a good thing) but there should also be a rule whereby a patent that is being actually used or licenced by the patent holder attracts higher damages than one that is simply being held (i.e. patent trolls who hold the patent purely to sue people get less money than those who are actually using or licensing the patent).

3.Ban patents on any genetic sequence or chemical compound found in nature. (so a pharma company that finds a new medicine in a plant in the amazon jungle does not get to claim a patent over that medicine or any genes in the plant responsible for producing that chemical). Chemicals and gene sequences created in a lab would still be eligible for patent protection though. Should it be discovered (and verified) that the complete chemical or genetic sequence does exist in nature and that the occurrence could not have come from the lab-produced version, that evidence would count as prior art and could be used as such under point 1 above.

Also further to this, there would be a complete ban on patenting any genetic sequence found in any human being anywhere on the planet as well as any proteins produced by those genes or any tests for those genes or the proteins they produce.

4.Ban patents on mathematical formulas and algorithms including encryption algorithms and compression algorithms. This would also mean the banning of patents such as the patent granted to eHarmony for its algorithim to match up people based on the answers to the eHarmony questionnaire.

5.Ban business method patents and make it clear that all kinds of business method patents (including those involving a computer system) are not patentable.

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