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US House Takes Up Major Overhaul of Patent System

samzenpus posted more than 2 years ago | from the cleaning-things-up dept.

Government 205

Bookworm09 writes "The House took up the most far-reaching overhaul of the patent system in 60 years today, with a bill both parties say will make it easier for inventors to get their innovations to market and help put people back to work. Backed by Obama and business groups, the legislation aims to ease the lengthy backlog in patent applications, clean up some of the procedures that can lead to costly litigation and put the United States under the same filing system as the rest of the industrialized world."

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205 comments

"Backed by Obama and business groups..." (5, Insightful)

MyFirstNameIsPaul (1552283) | more than 2 years ago | (#36534380)

I'm sure this will work out well for small businesses.

Re:"Backed by Obama and business groups..." (1)

jaeric (1446553) | more than 2 years ago | (#36534424)

Now they just need to reform software and business process patents.

Re:"Backed by Obama and business groups..." (0)

Anonymous Coward | more than 2 years ago | (#36534548)

Backed by Obama and business groups...

In other words looking at the problems and consciously making them worse.

AC to avoid the wall of rage from Obama fans; I'll probably end up voting for him but please Jesus make this stop.

Re:"Backed by Obama and business groups..." (-1, Troll)

TheRaven64 (641858) | more than 2 years ago | (#36535404)

AC to avoid the wall of rage from Obama fans

Does he have any? Opinions on Obama these days seem to range from 'antichrist' to 'not as bad as Bush'. It's been quite a while since I saw anyone who I'd class as a fan.

Re:"Backed by Obama and business groups..." (4, Insightful)

Rei (128717) | more than 2 years ago | (#36534800)

As a small business owner myself, the funding changes will. The huge costs and absurd backlogs are easily handled by big businesses with their own legal departments and deep pockets for building up patent thickets and getting their patents expedited, but it's much harder for the small fish to get a piece.

To benefit small business owners versus big business owners, you need:
  * Lower filing/defense costs
  * Shorter backlogs
  * Greater tolerance for filing errors (a big established company is less likely to make them)
  * Stricter standards for review when it comes to originality, prior art, etc (as a general rule, small businesses thrive on radical changes, while big businesses thrive on incremental changes)

However, there are some things in there that they're proposing which will absolutely not help small businesses: switching from "first to invent" to "first to file", for one. Again, the deep pockets and legal departments of large corporations make getting "first to file" much easier for them. They're also getting rid of the one-year grace period after disclosure which, yeah, while it brings us into sync with the rest of the world, but was always a huge boon to small inventors (it really ought to be *longer*). The grace period gives you time to shop your idea around, determine whether there's a good business opportunity, raise investment, etc, and *then* file.

Re:"Backed by Obama and business groups..." (-1)

Anonymous Coward | more than 2 years ago | (#36534958)

I love these kind of value judgements:

"small business" good "big business" bad
"farmers" good "city folk" bad
"consumers" good "producers" bad
"tenants" good "landlords" bad
"voters" good "politicians" bad
"workers" good "managers" bad
etc.

Re:"Backed by Obama and business groups..." (1)

gad_zuki! (70830) | more than 2 years ago | (#36535490)

Its a bi-partisan bill which both parties have quite a bit of input into and the reform process has been going on for six years, you know when the GOP and Bush ruled. I think its hilarious that you think that if it was a GOP only bill, it would be all unicorns and sunshine for small business.

Re:"Backed by Obama and business groups..." (1)

MyFirstNameIsPaul (1552283) | more than 2 years ago | (#36535606)

I'm not really sure where you get the impression of what I would think if this were a GOP only bill. Bipartisan usually means twice as bad.

Yeah, but... (5, Insightful)

Penguinisto (415985) | more than 2 years ago | (#36534418)

...can we *please* kill off software patents while we're at it?

(I know, too much to ask, etc. Knowing Congress, they'll just make it all that much easier for patent trolls and big corps to plow through even the silliest patents now.)

Re:Yeah, but... (4, Informative)

WrongSizeGlass (838941) | more than 2 years ago | (#36534602)

(I know, too much to ask, etc. Knowing Congress, they'll just make it all that much easier for patent trolls and big corps to plow through even the silliest patents now.)

New patent process for large businesses:
Patent Clerk: OK, let's get started. Is your company valued at over $1 billion?
Applicant: No, not yet. We're hoping this patent will help us get there.
Patent Clerk: I'm sorry, please come back when you're large enough to matter. Next!

Patent Clerk: OK, let's get started. Is your company valued at over $1 billion?
Applicant: Yes, of course.
Patent Clerk: Excellent. All right then, have you checked for prior art on this application?
Applicant: Yes, of course.
Patent Clerk: And did you find any prior art?
Applicant: Of course not.
Patent Clerk: Good. Did you really invent this?
Applicant: Yes, of course.
Patent Clerk: OK. Anything else I should know about this application?
Applicant: Of course not.
Patent Clerk: Piny swear?
Applicant: Piny swear.
Patent Clerk: Great - application granted! Anything else I can help you with today?
Applicant: Do you happen to know the name of that guy who was in line ahead of me? I think he's violating my new patent.

Re:Yeah, but... (1)

Rei (128717) | more than 2 years ago | (#36534830)

Software patents have been slowly dying for years; most people at Slashdot seem to not have noticed. Nowadays, it's very hard to get a patent on an algorithm. If you want to get a "software" patent nowadays, you have to be really roundabout and portray your software more as linkages between different human and hardware elements. And the software aspects will be the most vulnerable to being struck down.

Patenting something like the GIF encoding algorithm nowadays would be extremely difficult.

Re:Yeah, but... (1)

SuperSlacker64 (1918650) | more than 2 years ago | (#36535008)

Patenting something like the GIF encoding algorithm nowadays would be extremely difficult.

Seeing as GIF (and the LZW compression which was the patented part of it) could be claimed as prior art, I would certainly hope so. Unfortunately, what I've seen of the current patent system still makes me somewhat skeptic about how that would work out.

Re:Yeah, but... (4, Insightful)

TheRaven64 (641858) | more than 2 years ago | (#36535420)

Patenting something like the GIF encoding algorithm nowadays would be extremely difficult.

I was going to post a long reply to this, but I think I can sum it up with one letter and three numbers: H.264.

Re:Yeah, but... (1)

lytithwyn (1357791) | more than 2 years ago | (#36535518)

Patenting something like the GIF encoding algorithm nowadays would be extremely difficult.

I was going to post a long reply to this, but I think I can sum it up with one letter and three numbers: H.264.

Good summation. Why oh why do I never have mod points when I really need them!? Maybe it's because I don't post much. ;)

Re:Yeah, but... (1)

icebike (68054) | more than 2 years ago | (#36534914)

You are exactly right, I'm afraid.
Its far more extensive than just software patents. And the solution will probably make it worse for everyone.

The problem isn't that patents took too long to get.
The problem is that they are too easy to get when prior art is readily available,
and once granted, you have to pull teeth to get them voided even when art is found.

Used to be that you had to produce a some kind of a model, working or not. Now all you have to do is describe something
in the most vaguest of terms, and years later decide it applies to something in a totally different field, and they owe you tons of
money.

I suspect they will come up with a first to file system, where you don't actually have to prove anything just file paperwork
and file it early and often.

The problem isn't software patents anymore.. (2)

intellitech (1912116) | more than 2 years ago | (#36534936)

Congressmen are afraid to kill off software patents entirely, and I don't blame them. It could wreak havoc on Silicon Valley and fubar the U.S. economy. And, knowing the way U.S. news media outlets react to economic downturns, it would result in a ton of bad PR for the politicians, which would likely hurt their chances at being re-elected, which would mean that these life-long politicians are either out of a job or demoted by more than a few rungs.

The problem isn't software patents anymore. The problem is we, the people, rely on a congressional system of elected officials who have become increasingly corrupt and feeble-minded, resulting in a massive disparity between the wishes of the masses and those of the government. Sure, in an ideal world, people would eventually vote these individuals out of office, but most damage is usually prevented in actuality by bribes, media brainwashing, and just plain counter-intelligence.

Until the problem of the "corrupts officials that don't listen to the people" is fixed, we are still plain old fucked.

Re:The problem isn't software patents anymore.. (1)

s73v3r (963317) | more than 2 years ago | (#36535238)

Congressmen are afraid to kill off software patents entirely, and I don't blame them. It could wreak havoc on Silicon Valley and fubar the U.S. economy

How? By making it harder for trolls to get extortion money they don't deserve in the least?

Re:The problem isn't software patents anymore.. (1)

TheRaven64 (641858) | more than 2 years ago | (#36535436)

It could wreak havoc on Silicon Valley and fubar the U.S. economy

Name one company in the USA that brings a significant amount of money into the country by licensing software patents.

This is not good. (5, Insightful)

gfxguy (98788) | more than 2 years ago | (#36534456)

Being like the rest of the world is a nice mantra that people keep throwing around, but most of the rest of the world simplified the system by having a "first to file" system, meaning someone could steal your invention and file first, and you'd have NO recourse. If that's the way to reduce litigation, then I'm not all for it.

I'm not going to claim the U.S. is the best at everything, but just because the rest of the world does something doesn't make it better.

First to file is NOT BETTER than first to invent.

Re:This is not good. (1)

jd (1658) | more than 2 years ago | (#36534530)

True, but no country does "first to invent", and the US often doesn't bother much with "first to (anything)".

Mod parent up (2, Insightful)

count0 (28810) | more than 2 years ago | (#36534550)

All those conversations about "prior art" that we love to throw around here? Whooosh....all gone. Prior art only matters in "first to invent" instead of first to file.

Re:Mod parent up (0)

Anonymous Coward | more than 2 years ago | (#36534588)

Wrong.

Re:Mod parent up (4, Informative)

AliasMarlowe (1042386) | more than 2 years ago | (#36534758)

All those conversations about "prior art" that we love to throw around here? Whooosh....all gone. Prior art only matters in "first to invent" instead of first to file.

Get a clue. Prior art is relevant to "first to file" as well as "first to invent". You cannot invent something which already exists, so prior art is an absolute obstacle in either case. The difference between first to file and first to invent is that it's much easier to determine who was first to file. For first to invent, it's necessary to examine the evidence of invention (lab notebooks, internal emails, notes of discussions, etc.).

Re:Mod parent up (1)

BuckaBooBob (635108) | more than 2 years ago | (#36535112)

It would be easy to fix it...

If the application contains the Words "A System" send it back and tell them to elaborate in higher detail.

There are two major issues with patents.. They are far too broad and are used to stave off competition... and they allow patents of the baltently obvious.. (One Click Purchase)

Then to top it all off... there is nothing but sheer reward for waiting until infringement is mainstream and you can reap huge bucks from settlements..

Re:Mod parent up (0)

Anonymous Coward | more than 2 years ago | (#36534780)

This just isn't true. Patents still require novelty and prior art will remain relevant to whether or not a patent should be granted in the first place. The first to file issue will only come up if there is a dispute between two inventors over which one of them should get the patent.

In other words:
(1) JimBob invents a new moonshine still and uses it openly for 10 years without patenting it. BillyJoe then files for a patent on the still. It will not be granted because of prior art.
(2) JimBob and BillyJoe both the same still independently. JimBob files for a patent before BillyJoe. JimBob gets the patent because he filed first and there is no complex dissection of who, exactly, reduced the still to practice first.

Re:Mod parent up (1)

DMUTPeregrine (612791) | more than 2 years ago | (#36535162)

Wrong. Prior art still makes the patent invalid. The difference is that if inventor A invents something, and publishes it, and inventor B patents the same thing, then inventor A can sue to try and invalidate B's patent, but can't get the patent for him/herself.

Re:Mod parent up (0)

Anonymous Coward | more than 2 years ago | (#36535466)

Exactly right!
I live in Europe myself, wonderful town, and every Tuesday or so I nip down to the local patent office and file a patent for the wheel.
It's not a bad business; I make quite a nice living on licensing. Sometimes I'll tack on "... on the internet" just for variation's sake.

During weekends I break into other inventors' houses, eat their food, fuck their dog and copy their inventions and their mp3 collection. It may sound strange, but that's completely legal with the first-to-file system.

Re:This is not good. (2)

maroberts (15852) | more than 2 years ago | (#36534584)

Due to the wording of the Constitution, I can definitely see this law being challenged in the Supreme Court Real Soon Now

Re:This is not good. (1)

Rei (128717) | more than 2 years ago | (#36534856)

There's lots of things about the global system which suck, unfortunately. Here's the worst for a small business: You have to file for a patent in every market you want to sell in. There's the PCT patents ("international"), but they don't really protect you; they basically just extend the deadline until you need to file in individual countries. Going international with a patent can easily cost over $100k. That's not much for a company like Microsoft, but for a small business, it can be a killer.

Re:This is not good. (0)

Anonymous Coward | more than 2 years ago | (#36535110)

Even if you file today in the US you don't get protected in other countries, so your point is moot.

Re:This is not good. (1)

Rei (128717) | more than 2 years ago | (#36535356)

Did I ever say otherwise? I said, "There's lots of things about the global system which suck."

Re:This is not good. (0)

Anonymous Coward | more than 2 years ago | (#36534988)

The notion of first to invent is messy. Filing a patent didn't offer any guarantee that someone wouldn't turn up some years later with proof that they had invented the subject of the patent before you ever filed. That creates unnecessary uncertainty.

Under the first to file, assuming that there aren't duplicate patents, the worst that can happen is that the opposing party has established prior art to invalidate the patent. i.e. you no-longer have the monopoly on that invention, but your opponent certainly can't come after you for licensing fees.

Granted someone could steal your idea and patent it, but then the same is true of copyrighted works. It's all good and well you writing a novel, but if you keep it secret until someone photocopies it and publishes then you're boned. Same with the first to file. If you establish prior art then you can invalidate the patent so then everyone can exploit the invention. If however you opt to protect your invention as a trade secret, but then it leaks out - well, you need to work on your security arrangements.

Re:This is not good. (1)

Artagel (114272) | more than 2 years ago | (#36535340)

No, there will still be "derivation" proceedings for when the invention originated from another. So "first inventor to file" means that the first person to independently develop the invention who files for it wins.

Re:This is not good. (1)

gad_zuki! (70830) | more than 2 years ago | (#36535424)

Prior art still is defense and this new bill also includes pre-trial arbitration as part of settling disputes.

All the 'first to file" thing does is end the lawsuits that aren't prior art, but are more about arguing who invented it first, not invalidating the patent via prior use.

I'm sure groklaw will have an article about this tomorrow explaining the pros and cons, but it looks like there are more pros than cons here. The GOP still doesnt want the patent office paying for its operations with its own fees so they're will still be staff shortages as it takes congress years to review the patent budget.

Also, this bill invalidates business process patents. So you can't just patent "ATM banking" or something simple. This might spill over to software patents as well, many of which are business process patents. Oh well, maybe next time we can start addressing software patent abuse. Apple just patented the most basic use of a touch screen today too. With IP abusers like Apple around, we still need real patent reform.

Re:This is not good. (2)

TheRaven64 (641858) | more than 2 years ago | (#36535530)

First to file is NOT BETTER than first to invent.

Do we have to go through this every time? First to invent completely destroys the point of the patent system, which is to encourage disclosure of inventions.

With first to file, if you sit on an invention and don't file the patent, you can't get a patent. If someone else independently invents it and tries to patent it, then you simply show prior art and neither gets the patent. If you actually want the patent, then you must disclose your invention.

With first to invent, the best strategy is to sit on your invention. Then you wait for someone else to reinvent it, let them go to the expense of drafting the patent, doing the search for prior art, and so on, and at the last minute jump in and say 'actually, I invented that first' and get the patent assigned to you. No incentive to disclose, unless you want to immediately license the patent.

First to invent is better, if you're a patent troll. Keep the evidence that you invented first, wait for someone else to start shipping a product, wait for them to apply for the patent, then get it assigned to you and start charging license fees. If you actually create stuff, first to file is better.

tl; dr version (1)

milbournosphere (1273186) | more than 2 years ago | (#36534464)

Moves from 'first-to-invent' to 'first-inventor-to-file', and the US Patent Trade Office FINALLY gets to keep the fees it collects. The bit about fees is a no-brainer in my book (perhaps if they kept the money, they could employ more folks to look over patent applications), but I'm not so sure about a 'first-to-file' system.

Re:tl; dr version (0)

Anonymous Coward | more than 2 years ago | (#36534668)

Since I'm not reading ...
Does this not basically break prior art? Can I patent something that someone else invented first but didn't file?

Re:tl; dr version (1)

Teancum (67324) | more than 2 years ago | (#36534938)

Since I'm not reading ...
Does this not basically break prior art? Can I patent something that someone else invented first but didn't file?

Essentially, Yes. IMHO that is part of the problem with this whole concept. I'm sure there will be some sort of legal protection if you can show that some "prior use" in "common practice" within some industry, but on a practical matter if you invented something, used it for awhile in developing a product but didn't bother to patent the thing when you finally release that product, it does open at least the potential you can be sued for patent infringement on something that you legitimately invented on your own independently and previous to the patent application.

I would like to see how this could possible hold up to the congressional power of being able "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;"

Somehow this round of patent reform is going still another step away from this constitutional mandate, as if it didn't even exist. Then again, I would be wary of the "limited Times" provision in any new law as well as that is where most "intellectual property reform" usually tends towards infinity on that issue.

For myself, I think patents are altogether nonsense anyway and don't do any bit of good to protect inventors at all. Many companies do just fine without patents on even very innovative developments and products, and it tends to be the patent trolls that win in most cases.... people who litigate and clog the judicial system but really don't innovate nor really improve society as a whole. This legislation seems to encourage patent trolls even more and gives them an upper hand.

Re:tl; dr version (1)

s73v3r (963317) | more than 2 years ago | (#36535284)

I would like to see how this could possible hold up to the congressional power of being able "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;"

Somehow this round of patent reform is going still another step away from this constitutional mandate, as if it didn't even exist. Then again, I would be wary of the "limited Times" provision in any new law as well as that is where most "intellectual property reform" usually tends towards infinity on that issue.

You're going to have to clarify how it runs afoul of it.

Re:tl; dr version (1)

s73v3r (963317) | more than 2 years ago | (#36535268)

No, because you didn't invent it. Prior art doesn't go away. Just the messy problem of determining who invented something first when two groups file similar inventions.

Re:tl; dr version (3, Insightful)

Jim Buzbee (517) | more than 2 years ago | (#36534806)

The US Patent Trade Office FINALLY gets to keep the fees it collects..

Sounds like a disaster in-making to me. What if the Sheriff's office got to keep all the funds that it confiscated? No doubt there'd be a lot more arrests and confiscated funds. Same with the patent office. The Patent office will just issue more and more and more patents as it's now in their best interest. "Come one, come all, file your patents, On sale this week only!"

Re:tl; dr version (1)

milbournosphere (1273186) | more than 2 years ago | (#36534908)

My point is that right now, they collect a fee for reviewing a given application, presumably for the time the reviewer takes to do his job. Right now, that fee doesn't really go back into the patent office, it flies off somewhere else in the federal budget. Wouldn't it make sense to bolster their budget so that they can hire some more folks to get rid of the epic backlog that the patent office has? They don't have the budget to keep up.

"Currently those fees go to the general Treasury fund, and Congress appropriates money for the Patent and Trademark Office. But since 1992 the PTO has lost nearly $1 billion because the sums it gets from Congress are less than the fees. This fiscal year the agency had authority to spend $2.1 billion, about $85 million less than it expects to receive in fees.

That's a major reason that the agency can't hire enough examiners, that it takes an average of three years to get a patent approved and that the agency has a backlog of 1.2 million pending patents, including more than 700,000 that haven't reached an examiner's desk." --http://www.npr.org/templates/story/story.php?storyId=137348199

Seems like the PTO might operate better if they had the budget to pay for their operations costs...

Re:tl; dr version (1)

Jim Buzbee (517) | more than 2 years ago | (#36535158)

Seems like the PTO might operate better if they had the budget to pay for their operations costs

Maybe. But the cynical economist in me sees danger. Bureaucracies, just like people, will act in their own best interest. if the Patent office becomes funded by their customers (the patent filers), then the Patent office has every incentive to make those customers happy so they'll come back for more, pay more fees and increase the budget of the Patent office. If the Patent office cracks down on weak or overly-broad patents, then their customers will be discouraged from filing more patents, and the Patent office will see a reduced budget. The incentives are all wrong.

Re:tl; dr version (0)

Anonymous Coward | more than 2 years ago | (#36535586)

Seems like the PTO might operate better if they had the budget to pay for their operations costs

Maybe. But the cynical economist in me sees danger. Bureaucracies, just like people, will act in their own best interest. if the Patent office becomes funded by their customers (the patent filers), then the Patent office has every incentive to make those customers happy so they'll come back for more, pay more fees and increase the budget of the Patent office. If the Patent office cracks down on weak or overly-broad patents, then their customers will be discouraged from filing more patents, and the Patent office will see a reduced budget. The incentives are all wrong.

Mini-max theorem would suggest otherwise. So, in this case, a government monopoly supported by fees for protection might actually work. If the PTO cracks down and businesses "boycott" the PTO, fine...They can watch as others who don't boycott it take their innovations. In this case, you actually can prove all actors will behave rationally, so it works.

Re:tl; dr version (1)

Daetrin (576516) | more than 2 years ago | (#36534932)

Wait, you mean that if you file for a patent and they reject it that they also refund the filing fee? I know very little about the patent process but that sounds unbelievably generous for, well, any government or corporate office anywhere!

Re:tl; dr version (1)

milbournosphere (1273186) | more than 2 years ago | (#36535180)

I don't know about that, but what my point is that I think it's a good thing that the fee collected by the patent office is actually used by the patent office as opposed to supporting some other god-forsaken government program.

Re:tl; dr version (1)

Daetrin (576516) | more than 2 years ago | (#36535478)

I don't disagree with that at all. I'm just confused by the conclusion of the person i responded to, that getting to keep the fees would provide an incentive to the patent office to _issue_ more patents. I can't see how that would work unless the patent office currently has to return the filing fee if the patent isn't approved. Otherwise, if one were to ascribe nefarious purposes to the patent office, it would make more sense for them to encourage everyone to file more patents, but then to reject them all at the first possible step. That would maximize the amount of money coming in compared to the amount of time (and thus money going out) spent processing them.

Re:tl; dr version (1)

s73v3r (963317) | more than 2 years ago | (#36535320)

No, that before they didn't get to keep the fee even if they accepted it. All revenue generated went to the Treasury fund, and they had to make due with whatever Congress gave them, which was usually a pittance.

Re:tl; dr version (1)

s73v3r (963317) | more than 2 years ago | (#36535294)

Well, prior to this, the Patent office was given a pittance in funding, which meant that they couldn't really hire many people, let alone those with industry knowledge, to work and evaluate patents. Hopefully this will change that.

Uh Oh (1)

Javagator (679604) | more than 2 years ago | (#36534468)

Why do I have a bad feeling about this?

Re:Uh Oh (2)

jd (1658) | more than 2 years ago | (#36534542)

Because that's no moon, that's a business group patent system proposal?

Re:Uh Oh (0)

Anonymous Coward | more than 2 years ago | (#36534752)

Knowing Obama, it will require that you join a patent owners union and pay dues to some cronies.

Damned Liberal agenda..??? (-1, Flamebait)

MrLint (519792) | more than 2 years ago | (#36534484)

Isnt this the part where the conservatives should be screaming about changing American traditions, selling us out to the European bureautacracy? And so on? Why shouldn't our antiquated system of patents be defended as viciously as our antiquated system of marriage?

Re:Damned Liberal agenda..??? (1)

WrongSizeGlass (838941) | more than 2 years ago | (#36534726)

Why shouldn't our antiquated system of patents be defended as viciously as our antiquated system of marriage?

If our 'marriage system' was handled the same way as our patent system, the first person to file a marriage license with your name on it would be your husband whether you liked it or not.

Gay marriage doesn't really hurt anyone - at least no more than any traditional marriage with two willing participants hurts those who marry. To paraphrase John Stewart on gay marriage, "I was completely against it, until I found out that it was voluntary." I tend to agree with him about it.

Re:Damned Liberal agenda..??? (1, Insightful)

black soap (2201626) | more than 2 years ago | (#36534816)

I think all those gay marriage opponents ought to uphold the sanctity of marriage by banning divorce, and having to stick with their first wife.

Re:Damned Liberal agenda..??? (0)

Johnny Mnemonic (176043) | more than 2 years ago | (#36535354)

True. The Defense of Marriage Act should really make adultery illegal. That has had a much bigger impact on American Family Values than the so-called "homosexual agenda". Not only is adultery not illegal, I don't think it even helps that much with divorce settlements anymore.

If the plaintiff in a divorce can prove adultery, the defendant should, at the least, lose all of the joint marriage finances and child visitation.

Re:Damned Liberal agenda..??? (1)

Nethemas the Great (909900) | more than 2 years ago | (#36535314)

Simple. They are making it easier for big business to clog the system with trash and ill-gotten patents. In so doing big business will have more leverage to enforce the status quo which aligns with conservative ideology.

Is this from the Onion? (1)

sgt scrub (869860) | more than 2 years ago | (#36534494)

both parties say

This so close to an election year? I don't smell roses.

Re:Is this from the Onion? (1)

Nethemas the Great (909900) | more than 2 years ago | (#36535350)

I think both camps smell like something right about now and it certainly ain't roses. That said, since this is coming from the House *cringe* I'm certain there's an easter egg for the Democrats in there somewhere.

So they are going to approve patents even faster.. (1)

MickyTheIdiot (1032226) | more than 2 years ago | (#36534528)

...I have a very bad feeling about this.

Nope. It's going to get A LOT worse before it gets better. That's change, if change means exactly what everyone else has done.

Re:So they are going to approve patents even faste (1)

Nethemas the Great (909900) | more than 2 years ago | (#36535388)

You know, from time to time I've wondered if it might not be faster to get upstream by propelling the country down.

Re:So they are going to approve patents even faste (1)

Dachannien (617929) | more than 2 years ago | (#36535608)

The backlog is a Bad Thing because it makes every patent a sort of mini-submarine patent. In the time it takes an application to get examined (often over 3 years to first office action, and sometimes 5 or more years until issuance), one of the applicant's competitors can develop a successful business based on what eventually winds up in the patent. That's bad for the patentee, of course, because it establishes a competitor in the public eye selling the same product, but it's also bad for the competitor, because they put a lot of work into that business and then get taken to the cleaners for infringing.

Patent value-based system (4, Interesting)

Kongming (448396) | more than 2 years ago | (#36534556)

I have been thinking about a possible model for handling the awarding of patents that might mitigate certain problems with our current patent system. I'm curious as to if anyone has any feedback on it.

As the last stage of the patent registration process (so when the applicant already knows that the patent will be awarded), the applicant declares how much they will charge to license the patent. There would probably need to be multiple licensing models (flat-rate, per product sold, etc.) that the applicant could opt for - I don't know enough about patent law to go into detail here. The applicant must then pay a fee whose amount is related to the declared licensing cost before the patent is officially awarded. (The clock is already ticking on the patent's expiration, of course.) The applicant is free to charge less to parties to license the patent if they choose, but are obligated to license it to any interested party for no more than the previously declared amount.

Here are the advantages of the system:

1. Under the current system, there are currently parties who file or acquire a large number of cheap, vague patents solely in the hopes that some other party develops a massively profitable technology that happens to make use of them so they can extort a large sum of money from them. This practice is a parasitic load on technological development and should not be unnecessarily enabled by our patent system. The fact that the patent registration fee under the model I describe is related to the size of the licensing fee would discourage this practice. If the applicant didn't pay much to register the patents, then they cannot charge much for licensing. If the applicant did have enough confidence that the patents would actually be used profitably when they registered the patents, then that would indicate that the patents were actually of some value.

2. If the applicant is the proverbial "private inventor" without much in the way of financial resources but develops what they believe to be highly valuable IP, the fact that the fee need not be declared until it is already known that the patent will be awarded will aid in them acquiring investment capital to cover the fees to complete the registration of any relevant patents.

3. Under the current system, there are some industries in which companies acquire patents on potentially competing technology for the sole purpose of sitting on them and preventing what would otherwise be a better alternative to their business from developing. The mandatory licensing system would effectively prevent this practice, and the relation of registration fees to licensing costs would discourage setting unreasonably high prices to potential competitors.

Thoughts? Criticisms?

Re:Patent value-based system (1)

swan5566 (1771176) | more than 2 years ago | (#36534854)

I think this would help with the licensing fee aspect, but not for royalty percentages. I can't see how you could assess those to any appreciable degree without being accused of over-regulating the free market.

Re:Patent value-based system (0)

Anonymous Coward | more than 2 years ago | (#36534862)

Thoughts? Criticisms?

TLDR;

Re:Patent value-based system (2)

Rei (128717) | more than 2 years ago | (#36534878)

If your goal is to reward big businesses and screw over small ones, by all means, increase filing costs.

Re:Patent value-based system (1)

WrongSizeGlass (838941) | more than 2 years ago | (#36534880)

The applicant is free to charge less to parties to license the patent if they choose, but are obligated to license it to any interested party for no more than the previously declared amount.

I guess the application can just ask for <Dr Evil Voice>One billion dollars</Dr Evil Voice> and then charge less depending on their mood on any given day. Also, as the importance of the patent becomes clearer to their industry the value of licensing it could go up by orders of magnitude.

Re:Patent value-based system (1)

Sarten-X (1102295) | more than 2 years ago | (#36535034)

Disadvantages:

  1. An inventor who's exhausted his budget on R&D has an incentive to lower the value of his patent, to lower the cost to register. Big companies with money to burn on registration can artificially inflate their value, giving them justification for high licensing prices. Knowing that the patent will be awarded doesn't help, because it's likely more profitable for an investor to license the technology after the fact than invest in the patent itself.
  2. Mandatory licensing partially defeats the purpose of patents in the first place, because the inventor is no longer able to control their invention. Instead, anyone with money can make a one-time purchase of the technology and be done with it. The idea of founding a company to sell a new product becomes impractical.d
  3. There is no difference between misjudging a patent's practical use, or intentionally trying to troll. Consider Microsoft's Kinect: What started as a video game controller became a robot navigation system, assistance tool for the blind, and many other things. If another invention sees a similar explosion in application, should the inventor really be prohibited from capitalizing on the technology they created?

The only difference between an underdog inventor and a patent troll is intent. No matter how many complications are added to the patent system, somebody's going to abuse the system and screw over somebody else. In my opinion, a better response to patent trolling is a RICO-style legislation that criminalizes using repetitively using patents to stifle innovation. If some entity consistently is slow to act on infringement, acquires many patents they never attempt to produce, or repeatedly sues companies for vague patents, they get in trouble. Penalties could range from fines to losing patents.

Re:Patent value-based system (4, Insightful)

Teancum (67324) | more than 2 years ago | (#36535088)

Here is my thought on a method to handle the awarding of patents:

Don't.

Yup. Simply outlaw the practice altogether and let trade secrets be the law of the land. By the time a product has gone through testing and has made it to the consumer, it is likely nearing the end of its useful life for patent protection anyway.

I consider patent legislation to be a failed social experiment whose time is nearing an end. No, I'm not really an anarchist and I do believe in the rule of law and even think there is a necessity for a legal system, but that patents tend to help those who don't need help and don't protect those that do. I also don't know of any way to reform the system sufficiently to be able to "protect the little guy" without screwing them over even more than they are, where being blunt that legal protection through patents doesn't work at all is likely the best advise you can give to a young aspiring inventor.

Having known many engineers and "inventors" in my lifetime, including some who sought protection through the U.S. Patent and Trademark Office, not a single one of them ever received in royalties any money more than the legal costs they spent trying to get the patent in the first place, assuming they got anything at all in the first place. At best all a patent has been useful for is a resume bullet point that might make the difference to get a job interview. I guess that counts for something, but it wouldn't be something I would necessarily be impressed with other than showing you actually do know how to work with lawyers.

Re:Patent value-based system (2)

Artagel (114272) | more than 2 years ago | (#36535590)

A new small molecule drug costs about $500 million to $600 million to develop these days. You get 5 years to recover that money without a patent. Trade secrets won't work, small molecule drug pills are very easily reverse engineered. A patent should be viewed as insurance on a business cash stream. If you don't have a specific plan for a cash stream, you are buying a lottery ticket where the payoffs are infrequent and low. If you can even get the lottery commission to pay attention to you when you try to claim your winnings. Getting a patent to get a patent is pretty much a vanity thing. It happens often.

Re:Patent value-based system (1)

DMUTPeregrine (612791) | more than 2 years ago | (#36535214)

Mandatory licensing under Reasonable And Non Discriminatory terms would be simpler. RAND is a well-understood legal concept.

Re:Patent value-based system (1)

Artagel (114272) | more than 2 years ago | (#36535544)

The real question is whether this is a solution to the "patent troll" problem. IBM generates a billion a year off of licensing its patents. Is IBM a troll? What about universities that develop technology with no intention of starting a business? There are small inventors who find these patent-acquiring entities useful because it is a way of monetizing the invention and getting it to those who will attempt to get someone to use the technology in a meaningful way. Other problems: venture capitalists don't fund patent applications. At this stage, either your friends and family agree with you, or not. And the facts of life of a patent: it is only worth what you can enforce. If you don't have seven figures lying around to spend on patent litigation, your patent is probably worth very little. Unless you get into a game of chicken with another small player. Then maybe mutual assured destruction works to get the other guy to stop. This basically turns the government into a kind of troll where you have to pay break-the-bank money to participate in the patent system. Tell me, who wins -- the little guy or IBM?

Re:Patent value-based system (1)

Nethemas the Great (909900) | more than 2 years ago | (#36535560)

That would empower those with money. Big business could dance all over a smaller business' patent rights given that they could not afford to pay for the right to a large damage claim. A far more useful tool against trolls would be to have an expiration date on their time to file a defense against a company leveraging an aspect of their patent. This would eliminate the present game of waiting for a company to get big and more so-called damages to accrue before filing suit. It also might not be a bad idea to expire a patent should it's owner fail to produce and market a commercial product leveraging the claims therein after a period of time.

first-to-file? (1)

pak9rabid (1011935) | more than 2 years ago | (#36534582)

Doesn't moving from first-to-invent to first-to-file essentially get rid of the Prior Art argument when attempting to invalidate a patent?

Re:first-to-file? (1)

swan5566 (1771176) | more than 2 years ago | (#36534698)

Yes. The vast reduction in court proceedings is a big selling point to this system.

Re:first-to-file? (1)

swan5566 (1771176) | more than 2 years ago | (#36534944)

Sorry, should have read that closer - for patent invalidation, no, but for fights on who gets a patent, yes.

Re:first-to-file? (1)

ideonexus (1257332) | more than 2 years ago | (#36534858)

It does sound like a bill to ensure job security for professional patent trolls, but I'll reserve judgement until I have a chance to read the--oh nevermind.

Re:first-to-file? (0)

Anonymous Coward | more than 2 years ago | (#36534888)

No. Prior art is relevant to whether or not the patent will be granted. Going first to file does not abrogate the requirement that the invention be novel, it only affects how disputes between multiple inventors will be resolved.

Re:first-to-file? (0)

Anonymous Coward | more than 2 years ago | (#36534974)

No, not at all. Published prior art will still invalidate the patent, same as always.
The difference would be when after a patent was filed, you show up and say "I was just about to file for that very same invention".
Under first-to-file, the patent office would then reply "too bad."
Under first-to-invent, they have to launch a costly investigation into exactly when each of you conceived of the invention. Where's the gain in that?

Re:first-to-file? (2)

slinches (1540051) | more than 2 years ago | (#36535070)

No it doesn't. You still can't patent anything that is public knowledge or where there is clear prior art (at least you're not supposed to be able to). It simply means that when a patent is challenged on priority, the filing date and not the date of invention is used. The good thing about that is that it simplifies the court cases having a hard date to point to. Although, there is potential that if someone gains knowledge of your invention and files a patent before you, it'll be significantly more difficult to challenge it.

Re:first-to-file? (0)

Anonymous Coward | more than 2 years ago | (#36535418)

Nope. There was not much difference to begin with. First to file gets you a year of grace period dating back from the filing date where you can get around some prior art. Outside of the US there's no such benefit.

Not the kind of overhaul you're thinking (4, Insightful)

sl4shd0rk (755837) | more than 2 years ago | (#36534626)

"ease the lengthy backlog in patent applications, clean up some of the procedures that can lead to costly litigation and put the United States under the same filing system as the rest of the industrialized world."

IOW, same absurd shit, only faster, cheaper and standardized.

Please hurry (0)

Anonymous Coward | more than 2 years ago | (#36534706)

We Cartels are losing money due to the increasing move towards legalized pot. We need to get this legislation passed in time to make illegal devices the new source of revenue. Signed, Emilio "the dagger" Cortez.

Eh my money's on disaster (1)

xednieht (1117791) | more than 2 years ago | (#36534788)

Considering that the only thing the government does well is F*ck Things Up, this does bode well for small business.

Patent and IP lawyers, on the other hand, should be most pleased by this.

Incoming shitstorm (1)

Dunbal (464142) | more than 2 years ago | (#36534802)

Because the US government has nothing better to do - watch, I bet they are going to make a bad system even worse.

Obviousness (1)

Johnny Mnemonic (176043) | more than 2 years ago | (#36534964)

Does this bill do anything about being able to patent "obvious" evolutionary changes to a product? That seems to be the issue that underlines most of the patent contentions--one company patents an idea, and another, seemingly independently, comes up with the same idea on it's own.

If they wanted to make anything better (0)

Anonymous Coward | more than 2 years ago | (#36535026)

They could start by doing something to remove the expectation that the government is perfect and did everything right. As it stands, I could patent word-for-word another patent, and as long as I cited the previous patent within my patent as prior art and drew a patent examiner whose rubber stamp needs heat sinks to keep it from melting (and/or is currently enjoying a sudden "windfall"), I end up with a patent that would likely take action by the Supreme Court to overturn, since the current state of justice in this country is that no matter how blatantly bad it is, any prior art "reviewed" by an examiner and found to be OK cannot be re-examined by the judicial system. (That is, assuming the SCOTUS doesn't pull the same "sorry, we don't give a damn about fixing the injustices of the other branches anymore" bullshit they've been pulling recently and tell the complainant that they have to convince Congress to do something about it).

The only way to make patents better. . . (0)

Anonymous Coward | more than 2 years ago | (#36535200)

Is to abolish them.

Wait a second (0)

Anonymous Coward | more than 2 years ago | (#36535216)

Congress is doing something that needs to be done? Something fishy is going on here...

Oh Joy... (1)

Hylandr (813770) | more than 2 years ago | (#36535366)

and put the United States under the same filing system as the rest of the industrialized world.

Here comes ACTA... Call me a Cynic.

- Dan.

First to file = more helpful to inventors? (0)

Anonymous Coward | more than 2 years ago | (#36535600)

I think a lot of people are missing the fact that currently the little guy could submit an invention for a patent only for GE or IBM or some other behemoth to come forward with some dusty drawing from an engineer 15 years ago proving -they- invented it first but never thought worthwhile to file. I wonder how many people get screwed out of an idea they thought worthy enough to take to market only to have it ripped out of their hands by a corporation who didn't have their foresight to market it in a new way or for a new use. It doesn't seem to me like first to file will really be a detriment to individual inventors.

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