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93 comments

How about (0)

Anonymous Coward | about 2 years ago | (#40386365)

extreme fines and penalties, including loss of some existing patents, as punishment for not mentioning 'prior art'.

Re:How about (4, Insightful)

Jeng (926980) | about 2 years ago | (#40386899)

How about making that a crime punishable with prison time for the person who submitted the patent application IF it can be proven beyond a shadow of a doubt that the person who submitted the patent application knew about the prior art and actively suppressed it?

Re:How about (2)

Dachannien (617929) | about 2 years ago | (#40387889)

That's called inequitable conduct, and the punishment is invalidation of the issued patent. The burden of proof is only "clear and convincing evidence", not "beyond a reasonable doubt" or your pie-in-the-sky "beyond a shadow of a doubt".

Re:How about (2)

Jeng (926980) | about 2 years ago | (#40387945)

My pie in the sky idea is to have actual criminal proceedings against those who attempt to defraud the US government and in actual criminal proceedings you need to prove guilt "beyond a reasonable doubt" .

Re:How about (1)

viperidaenz (2515578) | about 2 years ago | (#40390481)

But isn't it the poor overworked, underpaid engineer who gets his name on the patent as the inventor? The company that forced him to not disclose prior art will get away scott free...

Re:How about (2)

Jeng (926980) | about 2 years ago | (#40390719)

If he went along with it he is an accomplice and will be prosecuted along with those who he rats out for a reduced sentence.

Punishment? (0)

Anonymous Coward | about 2 years ago | (#40389027)

Invalidating the patent? That should have them quaking in their boots. Kind of like if you rob a bank and get caught, you have to give the money back. Does explain why a certain patent application went through even after being notified of prior art.

In other news (4, Funny)

NoNonAlphaCharsHere (2201864) | about 2 years ago | (#40386425)

In other news, the EFF has adopted Don Quixote as their Official Mascot.

Re:In other news (2)

MyLongNickName (822545) | about 2 years ago | (#40386665)

Laugh if you want, but you could have said the same thing about the ACLU a few decades ago. And whether you like the ACLU or not, they have had a tremendous impact on our legal and social landscape.

I don't know if the EFF will have a similar impact, but they will certainlyhave no less than snarky slashdot commenters.

That's cute. I wonder whether anyone will listen. (0)

Anonymous Coward | about 2 years ago | (#40386489)

That's cute. I wonder whether anyone will listen.

Re:That's cute. I wonder whether anyone will liste (3, Funny)

Dexter Herbivore (1322345) | about 2 years ago | (#40386627)

That's cute. I wonder whether anyone will listen.

My cynical side says, "Not unless they have as much money pumped into lobbyists as *IAA does". My realistic side says, "Not unless they have as much money pumped into lobbyists as *IAA does"." Oh... damn.

How about: (5, Interesting)

SuricouRaven (1897204) | about 2 years ago | (#40386515)

No more granting patents for the bloody obvious! Things like Amazon's one-click, or Apple's patent for a slide-to-unlock bar. This includes things which may sound arcane and innovative but are actually obvious to anyone working in the field, which in turn means the examiners will need to be better trained.

Or how about a 'fail fee' to discourage companies from fileing thousands of junk patents in the hope that just a few will be approved by luck and can be used to fill their patent chest?

A ban on patents that provide no obvious benefit to mankind, but rather are intended specifically to prevent interoperability with a specific format? Things like filesystems or file formats. I'm thinking specifically of MSs patent on long file names in fat32.

Re:How about: (1)

Bill Dimm (463823) | about 2 years ago | (#40387413)

No more granting patents for the bloody obvious!

Sorry, but that would require adherence to existing law, not creation of a new law -- you'll never get a politician interested in that.

Re:How about: (0)

Anonymous Coward | about 2 years ago | (#40388221)

That would've been really funny... ...if it weren't true.

Re:How about: (1)

stms (1132653) | about 2 years ago | (#40387473)

I thought of this the other day holders of patents and copyrights should be treated similarly to other government sanctioned monopolies. This needs to be within reason for example many government sanctioned monopolies are only allowed to make a 10% profit per year. As some copyrights and patents are extremely risky to invest in (at least some) would need an exemption from that. Other things really should have been there since the beginning for example I see no reason why right-holders shouldn't be required to make their profit margins public knowledge.

Re:How about: (1)

Talderas (1212466) | about 2 years ago | (#40388213)

So, because I sell one product that is covered by a patent, and 299 that aren't, I should be limited to only ever making 10% profit? That's asinine.

Re:How about: (1)

stms (1132653) | about 2 years ago | (#40390717)

No I was saying the exact opposite of that but some government sanctioned monopolies are limited to only %10 profit per year.

Re:How about: (2)

NeutronCowboy (896098) | about 2 years ago | (#40387743)

You know what would fix about 30% of all the issues surrounding the patent office? Have patent examiners be paid regardless of how many patents they approve. You know what would fix about another 30% of the issues? Your fail fee.

Yes, obnoxiously long patent terms in a world where things are outdated in 5 years are no good. So are patents on processes and mathematical constructs. But the terrible approach of judging an examiner's efficiency by how many patents they approve is guaranteed to result in obvious patents being granted, and the total lack of downside to submitting a patent means that every single idea under the sun gets submitted.

Screw software patents, business process patents and the other topics. Fix the dumb-ass metrics and market incentives in place at the patent office first.

Re:How about: (1)

Jeng (926980) | about 2 years ago | (#40387869)

Have patent examiners be paid regardless of how many patents they approve.

Interesting, I never knew that patent examiners get paid by commission. That would definitely cause issues and explains a lot.

Re:How about: (0)

Anonymous Coward | about 2 years ago | (#40388321)

They're evaluated based on how many patents they *approve*. Note that I didn't say "process", or "examine", I said "approve".

Re:How about: (1)

Un pobre guey (593801) | about 2 years ago | (#40388539)

I'm tempted to say it should be backwards, and have an inducement to reject as many as possible. I think neither should be a criterion. They should be rewarded more for zealously searching out prior art, forcing applicants to write clearly and specifically, and narrowing the scope of patents as much as possible. Probably a few other things as well that escape me at the moment.

Re:How about: (1)

Jeng (926980) | about 2 years ago | (#40389465)

Citation needed.

I'm having problems confirming that statement.

Although I don't doubt what you are saying is true, I do think that there is quite a lot more to it that you aren't saying, either because you don't know, or because it doesn't help your argument. As it is so far I have not found anything stating how patent clerks are evaluated, just the amount they are paid and required qualifications.

Re:How about: (1)

NeutronCowboy (896098) | about 2 years ago | (#40389775)

It's a good point, and I don't remember where I first heard it. Furthermore, some googling hasn't turned up anything reliable around it. That said, based on the metrics that I've seen in place in businesses, something this asinine does not surprise me in the least.

Re:How about: (1)

Theaetetus (590071) | about 2 years ago | (#40390755)

It's a good point, and I don't remember where I first heard it. Furthermore, some googling hasn't turned up anything reliable around it. That said, based on the metrics that I've seen in place in businesses, something this asinine does not surprise me in the least.

It's false. Patent Examiners do get "points" which their pay then reflect, but they earn just as many points for rejecting an application as they do for approving one.

Re:How about: (0)

Anonymous Coward | about 2 years ago | (#40390853)

Now tell me which one requires more work.

Re:How about: (0)

Anonymous Coward | about 2 years ago | (#40388821)

The fail fee is almost correct, but still not right. All fees (not just filing fees) should be 50x or 100x for all patents. When the smallest filing fee is about $100, and a typical patent only costs about between $5k - $10k with legal fees, there is little disincentive to troll. Jack up the filing fees -- and more importantly jack up the renewal fees -- then shorten the statute of limitations for patent litigation. For something truly revolutionary there is still protection, yet evolutionary changes would only be worth protecting if they have a true commercial impact.

Re:How about: (2)

Jesus_666 (702802) | about 2 years ago | (#40389253)

I'd do it like this:

Firstly, rework patent examiner commissions. Examiners get paid a reasonable monthly wage and they get a small bonus if they successfully reject a patent on grounds of prior art or unpatentability. However, every rejection is checked by another examiner who gets the bonus if they can show that the first examiner didn't do their job properly. There are no other repercussions for the first examiner if that's the case; they just don't get the bonus.
Result: Patent examiners are now interested in building a strong case against a patent but the bonuses aren't so large that they become overly reject-happy or want to go through patents as quickly as possible. Of course we'd also need to hire more examiners to make up for their more reasonable pace.

Secondly, introduce a variable filing fee. It's a flat base amount plus a variable amount dependent on how many failed and pending applications the submitter has made in the last twelve months. (Yes, you can game this by using shell companies but at least then you get some organisational overhead.) Let's use random number and say it's 1.000 USD plus 500 USD per failed patent. A first-time submitter pays 1k$. If they come up with another patent a year later they pay 1k$ again. A corporation which tries to achieve patents by bruteforcing the patent office ends up with fees in the five-digit range per application.

Thirdly, reduce the duration of patents on nonphysical things. If you can convince the patent office that the thirty-nine hour week or the concept of middle-clicking a menu bar are novel then you get your patent... for, let's say, three years with the usual renewal fees if you want to extend to six. "$ACTION on a computer" counts as nonphysical unless you can prove that your patent involves a substantial change to the physical design of the computer.

I think that would weed out a lot of the cruft. I also think that you'd need to spend billions in lobbyist wages and bribes in order to acheive even one of those points.

roll back the coverage creep (1)

bzipitidoo (647217) | about 2 years ago | (#40389861)

As I understand it, patents were originally supposed to cover specific implementations, not general ideas. You had to have a working physical model. This has gradually expanded until patents do in effect cover ideas. Patents merely list every possible way it can be implemented, as broadly as possible.

Now algorithms, software, and so called business methods can be patented. Patents can be effectively renewed by tweaking the ideas and applying for a new patent. There are lots of other tricks. They all make life difficult for people who want to concentrate on innovations, not arcane legalisms.

Why did we end up going this direction? We didn't have to turn patents into the oppressive, strangling, chilling monstrosities they are today. They were supposed to help the little guy, but were too readily made into tools that large organizations could wield to help maintain their dominance. True, they have to fight off the occasional troll, but they evidently think the control they gain is worth that.

The entire approach of patent law is all wrong. It's all about control and preventing loss and "theft", and security against our fears no matter how worthless the former and ridiculous the latter, when it should be about sharing and gain. You should ask for permission first? No one does that! Permission can be flat denied, holders don't have to grant permission for some standard price. One way a business can handle this mess is to build up a defensive patent war chest. Fight fire with fire. Cross license. It's a lousy way that perpetuates lawsuits and enriches lawyers. So I think the system ought to be radically reformed, or just plain scrapped. A patent should never be a means of denial, of retarding innovation, and squelching competition. That's the very opposite of their intent. Dump the monopoly part at the least.

Re:How about: (1)

viperidaenz (2515578) | about 2 years ago | (#40390613)

But the terrible approach of judging an examiner's efficiency by how many patents they approve is guaranteed to result in obvious patents being granted,

Really? Give them 1 point for every 1000 patents they approve. Take away 1 point for every patent that is invalidated....

Re:How about: (0)

Anonymous Coward | about 2 years ago | (#40391261)

the problem is that they would get the good points up fromt and then it would be years later - maybe after they leave the patent office - for the negative pints to kick in

Re:How about: (0)

Anonymous Coward | about 2 years ago | (#40388101)

This is the primary problem. The challenge is how to define "obvious" in some objective, measurable manner. The current patent system does have verbiage about "obvious to a practioneer of the art" to disallow trivial patents. The problem is that large companies appear to be able to bypass this prohibition (apparently via the application of non-trivial amounts of money). Having tried to get some patents through from a small company I can tell you that the patent office went out of their way to find ways to disallow our patents (and ours were certainly not of the trivial "one-click" type). It tooks us years and a fairly large amount of money in lawyer fees etc to get our patent approved. Large companies do not appear to encounter the same sort of resistance (witness Apple's latest patent on the *shape* of a laptop - talk about trivial).

Re:How about: (1)

Un pobre guey (593801) | about 2 years ago | (#40388641)

It occurred to me the other day that the patent office should release quarterly lists of things that are deemed "obvious" as of that date. For example, any invention that uses a software interface, a computer, and/or a database and that is not otherwise novel, is obvious. Any use of a graphical element to trigger an action or actions in a graphical computer interface is obvious. Gathering data from users for analysis and decision making is obvious. The first list would be pretty long.

Re:How about: (1)

SuricouRaven (1897204) | about 2 years ago | (#40391349)

The problem with 'obvious to a practitioner of the art' is that the patent examiners are not practitioners of the art. They approve anything that looks remotely passable, and leave it up to the courts to rectify their quick-and-cheap cheating. That's why the plague of 'X.... but ON A COMPUTER' patents.

Gobs of Money (1)

cyocum (793488) | about 2 years ago | (#40386521)

The only way to fix the patent problem is to shove GOBS OF MONEY down the throats of ever hungry politicians and their banks.

Re:Gobs of Money (1)

just_common_sense (2485226) | about 2 years ago | (#40386713)

That's bribery. If you've got money to spend, use it to help candidates who will do the right thing without receiving kickbacks.

Re:Gobs of Money (2)

cornjones (33009) | about 2 years ago | (#40386847)

help candidates who will do the right thing without receiving kickbacks

no problem, just_common_sense, just find some mythical super politician and we will be all set... I think they tend the unicorn fields, lets look there...

Re:Gobs of Money (1)

just_common_sense (2485226) | about 2 years ago | (#40387025)

Yes, but some politicians are better than others. Giving money to the most corrupt politicians is worse than doing nothing.

Re:Gobs of Money (1)

idontgno (624372) | about 2 years ago | (#40387599)

Giving money to the most corrupt politicians is worse than doing nothing.

I think you're right. The real problem with buying a corrupt politician is that they don't stay bought. You never really buy a politician; you "rent" them or "license" them, and if you don't pay the ongoing license fee, someone else will. And even if you do, you may be outbid.

Another swimming example of the genius of the free market.

Re:Gobs of Money (1)

CodeHxr (2471822) | about 2 years ago | (#40387871)

Another swimming example of the genius of the free market.

I don't think this represents a "free market", but that people will sneak around and break the rules for their own benefit if there's a reasonable chance they won't get caught or, if they do get caught, the penalties are sufficiently minor. I do it. They do it. I'd wager that everyone does it from time to time. As far as I can tell, it has to be a part of our instincts, otherwise there's no rationale for it. It's not a survival tactic - politicians are well paid (compared to minimum wage employees as opposed to star athletes). It might even be that at some subconscious level, we (as a species) feel that it is easier to live with regret than desire, but that's only my personal speculation and, even if true, would only apply to those that genuinely feel that they are doing something wrong in the first place.

I can't blame a dog for naturally wanting to bark when the doorbell rings. However, I can train him that if he does then he'll get hit with a rolled up newspaper or some other negative consequence. Eventually the dog will get it. Unfortunately, in the real world, these "dogs" are also the ones that make the rules. Who is going to voluntarily punish themselves, especially if they don't think they're doing anything wrong? I can honestly say that I've only done that once in my life and I knew what I was doing was wrong when I did it - I just didn't comprehend the full consequences of the action before I carried it out.

Re:Gobs of Money (1)

Genda (560240) | about 2 years ago | (#40388285)

The problem is, you can't complain about the whores because we built the whorehouse. You can shut it down. You can regulate the shady ladies, in the hope that they won't spread something awful. You can keep the Johns away (read lobbyists.) In the end, as long as you run your political system like a whorehouse, you can't be surprised that what shows up, are whores.

Re:Gobs of Money (0)

Anonymous Coward | about 2 years ago | (#40386915)

That's bribery.

No, no, no. If it's enough money AND it's to politicians, it's called lobbying. Key difference!

Re:Gobs of Money (1)

Un pobre guey (593801) | about 2 years ago | (#40388699)

Actually, what apparently makes it not-bribery is that the money goes to the politicians' campaign funds. That's perfectly legal. After that, you just expense everything you can to the campaign fund.

Re:Gobs of Money (0)

Anonymous Coward | about 2 years ago | (#40387321)

Use it to help candidates who will do the right thing? Help as in help them get to their speeches? In a new Maserati?

Re:Gobs of Money (0)

Anonymous Coward | about 2 years ago | (#40387603)

That's bribery. If you've got money to spend, use it to help candidates who will do the right thing without receiving kickbacks.

Relevant [kym-cdn.com]

Re:Gobs of Money (1)

Genda (560240) | about 2 years ago | (#40388205)

That's bribery. If you've got money to spend, use it to help candidates who will do the right thing without receiving kickbacks.

You apparently have no concept of how politics work. Businesses create an ever growing cycle of expense for Politicians to buy ever more sound bites to persuade the mouth breathing masses that they are in fact the son of Gawd, and should be their next king. The drooling masses elect their temporary king via Pavlovian stimulus through their social opinion receptacles and the new king spends the next 4 years fellating his/her corporate masters.

To break the cycle you would have to;
1. Separate corporation and state.
2. Provide a fixed election fund, to limit campaign spending and test candidates in their ability to manage finance.
3. Prevent candidates from using their own funds to eliminate unfair advantage from the wealthy.
4. Design a highly visible national priority board with topics of burning societal importance, national infrastructure, education, fair resource allocation and distribution, etc. and pay political representatives according to how well they address the real issues as opposed to the smoke screen issues designed to inflame and divide the nation.
5. Set some minimum standard for representatives in the area of sanity and/or intellectual function. The people steering the boat don't need to know how to grill a tri-tip, they should however have some vague clue on how to pass law and make the nation a nicer place to live.

Other than that, yeah find a candidate who'll do the right thing without receiving kickbacks.

Re:Gobs of Money (1)

viperidaenz (2515578) | about 2 years ago | (#40390901)

That's bribery. If you've got money to spend, use it to bribe candidates who will do the right thing without receiving kickbacks.

FTFY

Re:Gobs of Money (1)

gbjbaanb (229885) | about 2 years ago | (#40387199)

no, its to take away their votes. They can get gobs of money any time they like for all kinds of pork barrel projects and lobbyist favours... but only if they're in power. Threaten to take that away with a huge internet campaign saying they are useless fools and they'll do everything they can for you.... and then go back to their usual practices, but you'll have won a small concession from them first.

Frigging ridiculous (4, Insightful)

Jane Q. Public (1010737) | about 2 years ago | (#40386619)

In a day when even the courts are questioning the validity of the very concept of software patents, EFF should be taking up this issue. Instead, they are lobbying for "shorter durations"???

Boo, hiss. EFF, I expect a lot more from you guys.

Re:Frigging ridiculous (2)

DigitalSorceress (156609) | about 2 years ago | (#40386655)

You make a good point.. that they should be pressing the advantage here, but does it really hurt to also take this approach as a Plan B?

Re:Frigging ridiculous (1)

RobertLTux (260313) | about 2 years ago | (#40386881)

shorter terms is a good waypoint to scrapping them entirely

besides 90 days is a good length of time right??

Re:Frigging ridiculous (1)

aztracker1 (702135) | about 2 years ago | (#40387583)

I had thought that multiple changes would help... software/process/design patents limited to 5 years (not that I think any of them are really valid, but hey)... Increase the file/refile fees to be more in line with the cost of actually researching a patent application. Don't have reduced fees for re-filing... limit to 5 re-filings. Annual license fees for software/process/design patents. Also, a simpler process to call a patent into review by the community... perhaps, again with a review fee towards the cost of said review... would at least limit things like the eolas patents, and similar. Would also discourage war-chest actions.

Re:Frigging ridiculous (0)

Anonymous Coward | about 2 years ago | (#40386675)

In a day when even the courts are questioning the validity of the very concept of software patents, EFF should be taking up this issue. Instead, they are lobbying for "shorter durations"???

Boo, hiss. EFF, I expect a lot more from you guys.

This. Now we have EFF defending the existence of software patents?

Who are the true radicals today?

Re:Frigging ridiculous (0)

Anonymous Coward | about 2 years ago | (#40386705)

Who are the true radicals today?

Evidently you and Jane Q. Public (and me).

Re:Frigging ridiculous (0)

Anonymous Coward | about 2 years ago | (#40386749)

You're completely overstating the Supreme Court's ruling on software patents. They aren't going to overturn them and to thnk otherwise is hilariously cute.

Re:Frigging ridiculous (0)

Anonymous Coward | about 2 years ago | (#40386851)

They won't outright overturn them, but they are dialing it back significantly. You are probably referring to Bilski, which made a lot of news. However, a more recent ruling Prometheus v. Mayo, if it gains traction, could be deadly for software patents. Especially for a lot of current issued patents that use outdated patent claiming techniques.

Re:Frigging ridiculous (1)

Talderas (1212466) | about 2 years ago | (#40388293)

That case name tickles my funny bone....

All I can imagine is the movie Prometheus and a bunch of mayo over all the sets. Gives a whole new context....

Re:Frigging ridiculous (3, Interesting)

KermodeBear (738243) | about 2 years ago | (#40386825)

If you can't get what you want, you have to settle for a compromise... With the hope that you can ultimately make it to your final destination at some later point down the road.

The legal system - hell, ANY big system - doesn't like sudden, drastic change. But lots of little baby steps? People won't even notice if you do it correctly.

Re:Frigging ridiculous (1)

Hatta (162192) | about 2 years ago | (#40388433)

The legal system - hell, ANY big system - doesn't like sudden, drastic change.

Declaring math patentable is a sudden drastic change. The legal system likes sudden drastic change just fine when the change benefits the powerful.

Re:Frigging ridiculous (1)

Jane Q. Public (1010737) | about 2 years ago | (#40392687)

Mod up. This is precisely the point. Until very recently software basically wasn't patentable. And since it became so, it has caused huge, huge problems.

Put it back the way it was before, and cover software by copyright, but not patent, and most of these problems simply go away.

Re:Frigging ridiculous (1)

melikamp (631205) | about 2 years ago | (#40390531)

No-no, EFF really struck out on this one. I want the patent system reformed as much as the next guy, but I can't in good conscience consent to wide classes of algorithms being patentable. I am not signing any part of that and I am letting them know. It is beyond doubt that virtually all the software we have today was developed without patent protection. How much more do we expect to gain by handing out monopolies? For the most expensive type of software, a general purpose OS, we have Windoze, OS X, FreeBSD, and GNU/Linux. That's 4 if you count GNU/Linux as one OS, which is questionable. We have multiple OSes for mobile devices, again, developed in-spite of the patent wars. IMHO, patents today slow down innovation and increase costs in every industry, but they are especially and undeniably bad for software.

Economic reasons aside, consider also that the conceptual gap between inventions like Velcro and mobile app is enormous compared to the gap between a mobile app and a mathematical formula. Did the patent wars over file formats teach us nothing? Any mathematical recipe for computing something, any formula, any statement, and any proof can be formalized nicely in a programming language of your choice. This is not just a slippery slope, it's the steep side of the Half Dome [wikipedia.org]. If we let in software patents, we also let in software implementations of pure math. Next thing we know, applications like gnuplot will have a choice of gimping themselves or being illegal in US, just because Wolfram or some other wanker files a few patent applications.

No thanks. I would be willing to put my name under a similar proposal if it did not explicitly approve software patents. As it is, I see no point.

Re:Frigging ridiculous (1)

TubeSteak (669689) | about 2 years ago | (#40390743)

If you can't get what you want, you have to settle for a compromise... With the hope that you can ultimately make it to your final destination at some later point down the road.

Big Business has been asking for the universe and settling for the galaxy.
Your (and the EFF's) compromise is very short sighted.

Re:Frigging ridiculous (0)

Anonymous Coward | about 2 years ago | (#40387287)

Courts are not considering the concept of software patents. The USA says they're fine, Europe says they're bollox. You now have a pissing contest between them, and the US companies desperately trying to influence the votes via financial incentive and plain ol' corruption.

Re:Frigging ridiculous (2)

Qwertie (797303) | about 2 years ago | (#40387379)

First of all, reducing terms from 20 to 5 years would reduce the effect of software patents by 75% all by itself.

And they *are* lobbying for more than shorter durations. The EFF's 7 suggested points, taken together, would remove most of the remaining effect of software patents. Like most of us software developers, I expect the EFF would support complete elimination of software patents, but given how patent-friendly Washington is, perhaps they thought it would be a more effective strategy to lobby for weaker patents instead.

Re:Frigging ridiculous (2)

Jane Q. Public (1010737) | about 2 years ago | (#40392853)

"First of all, reducing terms from 20 to 5 years would reduce the effect of software patents by 75% all by itself."

I don't look at it quite that way. The harmful effect isn't minimized, it's just shortened. Not -- quite -- the same thing.

"... perhaps they thought it would be a more effective strategy to lobby for weaker patents instead."

But my point was: with the courts already questioning their validity, it seems to me EFF should strike as hard as they can, "while the iron is hot", as they say. Rather than back off and push for a "compromise" that nobody wants.

Re:Frigging ridiculous (1)

lcrocker (144720) | about 2 years ago | (#40395623)

Couldn't agree more. Legitimizing the concept gets in the way of what should be the real goal of complete abolition. Software patents can and should be eliminated entirely, not "reformed"

Re:Frigging ridiculous (0)

Anonymous Coward | about 2 years ago | (#40395857)

0-days does classify as 'a shorter duration' if you ask me

Croudsourced stuffing of obvious idea database (4, Interesting)

WaffleMonster (969671) | about 2 years ago | (#40386797)

I think what might be interesting is to develop a database of prior art/ideas. With thousands of people submitting everything they can think of every conceviable obvious aggregation of technologies any patent application would be required to be checked against the database and rejected if someone else already dreamed of it before the application was filed.

The database would be run by the patent office or it would incorporate cryptographic and distributed features allowing timestamps and content to stand up to any challenge.

Companies not wishing to pay the patent tax might seek to use it in a bid to prevent others from filing first and locking up the same blatently obvious ideas for the next 20 years.

Re:Croudsourced stuffing of obvious idea database (1)

reebmmm (939463) | about 2 years ago | (#40387241)

Tongue mostly implanted in cheek with this response. // I will probably get modded a troll, but I should note that people regularly propose ideas like the parent failing to recognize that it doesn't really move the needle on this issue.

I think what might be interesting is to develop a database of prior art/ideas

It's called the patent office. They have a huge searchable database of this stuff. They're called patents and patent applications.

With thousands of people submitting everything they can think of every conceviable obvious aggregation of technologies any patent application

These are called patents and published patent applications. // Includes the joke that even issued patents are obvious aggregations of technologies.

Also, pretty much any publication can serve this purpose.

The database would be run by the patent office or it would incorporate cryptographic and distributed features allowing timestamps and content to stand up to any challenge.

Almost any publication system would survive a legal challenge. Few people fight over publication date if it's apparent from it's face. The only real issue is determining whether the publication was to be public and readily accessible.

Companies not wishing to pay the patent tax might seek to use it in a bid to prevent others from filing first and locking up the same blatently obvious ideas for the next 20 years.
This doesn't add much. You can already publish and have that happen.

Also, there used to be something called the Statutory Invention Registration that the patent office provided that allowed inventions to publish just for the record of it: http://en.wikipedia.org/wiki/United_States_Statutory_Invention_Registration [wikipedia.org] . Almost no one did it. And since about 1999 when most applications filed published anyway, it served little purpose.

Re:Croudsourced stuffing of obvious idea database (1)

WaffleMonster (969671) | about 2 years ago | (#40389339)

It's called the patent office. They have a huge searchable database of this stuff. They're called patents and patent applications.

The idea is minimizing barrier to entry. Patent applications are not free and require work and a skillsets inaccessable to everyone.

Also, pretty much any publication can serve this purpose.

If scouring the world for prior art is not done properly say by an overworked or lazy patent clerk the patent is issued and damage is done. Barrier and cost to fighting might as well be infinite if your not a large corporation with a dedicated legal team.

Almost any publication system would survive a legal challenge. Few people fight over publication date if it's apparent from it's face. The only real issue is determining whether the publication was to be public and readily accessible.

Except any legal challenge against any patent costs too much time and treasure. If you ever need to go there you've already lost regardless of the outcome of your challenge.

With the database certain interfacing rules to ensure opportunity for review and resolution of conflicts would be awesome.

Also, there used to be something called the Statutory Invention Registration that the patent office provided that allowed inventions to publish just for the record of it:

Paying filing fees and doing all the necessary paperwork consitutes an unacceptable barrier to entry. The point is to make it easy for anyone to jot down an idea and make it public domain and provide some assurance it will not be missed instantly without mailing in government forms or paying dues.

Re:Croudsourced stuffing of obvious idea database (0)

Anonymous Coward | about 2 years ago | (#40389935)

The idea is minimizing barrier to entry. Patent applications are not free and require work and a skillsets inaccessable to everyone.

Google Patents and tools like Espacenet (http://www.epo.org/searching/free/espacenet.html) provide basically the same databases of information that examiners would use (although with less sophisticated abilities to interrogate the database). Both tools allow you to search both granted patents and ungranted patents (i.e. applications) although Google Patents only has US documents.

Re:Croudsourced stuffing of obvious idea database (1)

Dachannien (617929) | about 2 years ago | (#40388009)

Aside from the database of issued patents and patent application publications, the USPTO also has access to searchable abstracts for Japanese and European patents. We also have a database of previously internal publications that IBM published mostly back in the 1970s and 1980s. Plus, we subscribe to a variety of tech journals, most importantly everything IEEE has to offer.

The best way to help is to come up with better ways to index and search these documents. The search engine for patents and pubs is actually pretty good, allowing several different proximity operators. On the other hand, the best search engine for non-patent literature is Google Scholar, which does a good job of automatically handling word variants and synonyms, but is much less flexible when it comes to word proximity.

Another issue ends up being, when a feature in a claim is so painfully commonplace that nobody ever actually writes down that they do things that way (except in source code, which we don't have time to sift through most of the time), where do we go to find legal evidence (and not just us BSing about it) that a certain technique really is how things are done?

What About other Software Abuses?? (1)

martiniturbide (1203660) | about 2 years ago | (#40386821)

I want a law that: - Force that all source code of commercial software products must be allowed for inspection of the customer (source code under the license the manufacturer wants). - Allows abandomware to be use legally. - Force the release of abamdomware (discontinued software) source code under an open source license.

While there are some good ideas (1)

Hentes (2461350) | about 2 years ago | (#40386831)

But ultimately this is still pro-software patent, they just try to modify the existing rules somewhat.

Re:While there are some good ideas (1)

Githaron (2462596) | about 2 years ago | (#40387397)

But ultimately this is still pro-software patent, they just try to modify the existing rules somewhat.

It is better than nothing. One step at a time. You don't get a statue by smashing rocks with a bulldozer. You get it by breaking away rocks chips until the statue is realized.

Re:While there are some good ideas (1)

Man On Pink Corner (1089867) | about 2 years ago | (#40387635)

Smashing the statue is the only right thing to do here. Building another, smaller one doesn't help.

Re:While there are some good ideas (1)

Githaron (2462596) | about 2 years ago | (#40389455)

The statue was supposed to be a representation of the ideal. We currently have rocks. We want a statue. If you smash the statue, you are back to rocks.

7 Proposals (0)

Anonymous Coward | about 2 years ago | (#40386981)

I have seven proposals:

1. Get rid of all patents.
2. Get rid of all patents.
3. Get rid of all patents.
4. Get rid of all patents.
5. Get rid of all patents.
6. Get rid of all patents.
7. Get rid of all patents.

After the first one, the rest are easy. :)

Re:7 Proposals (1)

Bengie (1121981) | about 2 years ago | (#40387117)

And copyright. The only thing we need is trademarks, so we can know from whom we're purchasing/supporting.

"requirement to demonstrate running code" bad idea (1)

Prune (557140) | about 2 years ago | (#40387121)

So a big company with the HR resources to fast-track an implementation of an idea it rips off an individual inventor would have the advantage...

Re:"requirement to demonstrate running code" bad i (0)

Anonymous Coward | about 2 years ago | (#40387327)

If the idea doesn't work and cannot be shown, it's just that, an idea. 10 a penny fodder.. A rip-off artist would have to know about the idea before patenting, duhhh! If an implementation had to exist and work before patent submission, the rip-off artist would be limited to poaching the staff or buying the company out.

Flaw in this argument (1)

slew (2918) | about 2 years ago | (#40387707)

If the idea doesn't work and someone gets a patent on it, no-harm, no-foul, right? Nobody is going to infringe...
If the idea does work and it has yet to be shown to work in a product, a large company might have an advantage, right?

Sometimes smart folks think alike. This is why companies usually want to start patent filings as early as possible, usually well before the idea can demonstrate actual advantages (e.g., usually as soon as partially functioning prototype or even half baked pseudo-code/flowchart suggests it can be refined into potential advantage). Then they stretch out the filing by adding refinements to their patent claims as the implementation gets fleshed out and patent goes through the review process.

For all the negative responses... (2)

noobermin (1950642) | about 2 years ago | (#40387135)

Do you all live in the real world or has the dark of the basement really cut you off from outside too long? If they outright try to lobby for radical change to the system it won't get passed and the naysayers will be emboldened and any hopes of change will be harder to accomplish. At least the last point, research whether they help in the first place, sets groundwork for proving whether they help.

FFS, lasting revolution doesn't happen overnight, sometimes the wiser thing is to change things slowly and smartly.

Not very effective EFF (3, Interesting)

reebmmm (939463) | about 2 years ago | (#40387577)

I've said before, in other threads, that I'm a patent attorney. I have my undergrad degree in CS. I have an ill view of many patents that are litigated. That's not to say there's no innovation happening in the software world, or that there's nothing worthy of protection.

Nevertheless, I generally think that the EFF's proposals here are misguided. Taking them one by one:

1. A patent covering software should be shorter: no more than five years from the application date.

Part of the problem in the first place is that it some times takes longer than 5 years to even get a patent. Most of the term of a patent (under this scheme) would be consumed with prosecution. It doesn't account for the Patent Office.

If the patent is invalid or there's no infringement, the trolls should have to pay the legal fees.

On board with this one, but it doesn't go far enough.

We really should be talking about fee shifting more generally in the case of a patent owner that fails to do their own diligence, but rather is seeking to extract nuisance money or impede lawful commercial activity.

Patent applicants should be required to provide an example of running software code for each claim in the patent.

This doesn't address the real problem. The real problem is when old claims are read to cover future technologies that they didn't not have possession of at the time the application is filed.

In a non-software example, it would be like a patent claim that covers something no larger than "a micrometer" before "nanometer" manipulation was available.

Infringers should avoid liability if they independently arrive at the patented invention.

There is already a prior user defense baked into the most recent patent reform bill.

Patents and licenses should be public right away. Patent owners should be required to keep their public records up-to-date.

Patents are. Most patent applications are public within 18 months of filing too.

I'm not sure why a license must be public. That's just a contract between two people.

I'm also not sure what public records they're referring to. It could be that patent assignment records aren't "up to date." (http://assignments.uspto.gov/assignments/?db=pat). I could get on board with requiring those be up to date.

The law should limit damages so that a patent owner can't collect millions if the patent represented only a tiny fraction of a defendant's product.

That's all relative. Besides, plaintiffs still need to prove damages. Defendants still have an opportunity to rebut those damages.

Congress should commission a study and hold hearings to examine whether software patents actually benefit our economy at all.

I bet you can predict how that'll turn out. In any case, doesn't move the needle much.

Re:Not very effective EFF (0)

Anonymous Coward | about 2 years ago | (#40388123)

#1 - We aren't talking BigPharma development. OK - Fine - the greater of 5-yrs from when it's approved or 7 years from when filed.

#2 - Agreed - Not only the trolls, but the holders of the patent if it was found that didn't do what they needed to do - e.g. Honeywell vs. Nest

#3 -Depends on how you look at it .. is it a worthless requirement much like when McCormick had to file a model of his invention? Those models ended up being able to toss out all the attempts at perpetual motion patents. May not be a bad idea to require an example. That way a patent for, say a database algorithm couldn't be expanded into something else.

#4 - I think this is a good idea, however - how are you going to enforce this in court... I guess that's the courts to determine if it was stolen or independently derived.

#5 - Again, what records? It's the role of the PTO to keep the records straight, not the owner

#6 - pah - what if that tiny fraction is at the core of the product...

#7 - Yea right - get really - like this is going to happen

Personally (not an attorney) I think patents on software (including software stored in ROM, PROM, EPROM, EEPROM, etc.) are invalid as they are mathematical constructs. As a mathematical formula is not patentable, neither should software. I do believe that an equivalent relationship has been able to be made between mathematical formula and software code. An actual electronic circuit is patentable (the ROM, chip is patentable), but not software stored on it.

Software (including it's subsequent conversions to object, assembler and finally machine, and or p-machine) is covered by copyright - end of story.

Finally, someone needs to beat congress with a rather large stick between the differences of Copyright (an instanced work of art), Patent (an object), and Trademark. Mickey Mouse is a trademark and is covered as such. Steamboat Willie should have fallen into the public domain a long, long time ago.

Re:Not very effective EFF (0)

Anonymous Coward | about 2 years ago | (#40388457)

I can offer some suggestions:

1) Monetary incentives
First, if one sues over a patent and loses, they have to pay all costs, plus a penalty, to all the other parties involved.
Second, if a patent is invalidated, they have to pay all costs, plus a penalty, to all parties involved in the invalidation process. Furthermore, any monies received because of the patent in the past must be refunded, plus a penalty representing the time-value of the monies collected. Plus anyone sued with respect to that patent in the past must be refunded all applicable costs, plus a penalty to represent the time-value of the costs incurred.

Doing this will make companies think twice about trying to beat someone over the head with a patent. They would have to be very confident that the patents will hold because the cost to play games with a weak patent would be too large. This would also remove some of the need to engage in "defensive patents" since the legal system itself would be protecting people against nonsense patents.

2) Patents for "Ideas"
Too many patents are awarded for "inventions" that have never been created by the "inventor". Either patents for "ideas" have to be disallowed, or there has to be some relatively short time frame within which the "inventor" has to demonstrate a working example of the "invention". Failure to demonstrate the working invention automatically invalidates the patents.

3) Trivial "Inventions"
This is the biggest problem. The challenge has been to come up with an objective means of declaring something to be "trivial". Clearly, the patent office is not doing a good job of this now (Amazon's "one-click" patent, Apple's recent "wedge-shaped laptop" patent, the patents related to using a computer network to transfer a fax image, etc). There has to be some notion that the "invention" is solving a problem that was not solvable before and is not some trivial combination of existing technologies. The Amazon one-click patent is a good example - placing orders via a website was nothing new, clicking on a button is nothing new, using cookies to track session information and a back-end database to hold persistent information, nothing new. Amazon's patent is nothing but the trivial combination of these existing technologies and should therefore not be patentable. In theory, the current patent process is supposed to do this already, but somehow the large companies seem to be able to get around that filter.

Perhaps one way to discourage companies from filing bogus patents is to combine the above mentioned penalties for prosecuting with junk patents along with an annual quota for patent applications. So Company X only gets to file a certain number of patents. If they use their quota to file junk patents instead of substantive patents, then they will end up with a weak portfolio which cannot be used effectively because of the penalties for failed patent suits. This would effectively push companies to self-regulate their patent applications and limit their applications to just those inventions that they feel are the least likely to be busted later on. This would also take some of the pressure off the patent office by reducing the number of patent applications they have to process, which would also allow them to do a better job on the patents they have to review.

Re:Not very effective EFF (0)

Anonymous Coward | about 2 years ago | (#40388689)

One last comment. In my above point on quotas in "Trivial Inventions" one should consider "buying" a patent to be the same as filing a patent in terms of the quotas. So if you buy 100 patents, that counts as 100 patents filed. One could allow a company to go negative on the quota via buying patents, but that means that they cannot file any patents at all until enough time has gone by to get them back into positive territory in terms of their quotas (so your quota is 100 patents a year, and you buy 300 patents, then you cannot file any patents for 3 years).

This would prevent a variety of loop holes in terms of trying to farm out patent applications to get around quotas and then acquire the patents from the "farmers". One might still need to impose a quota on how many patents a company can purchase each year to stop some patent farming efforts.

It would take some work to define and implement the measures, but I think it is doable.

How about an affirmative defense instead? (2)

AnotherBlackHat (265897) | about 2 years ago | (#40389365)

IMO the problem with software patents is that there is no way to know if your software infringes one.
Only #4 "Infringers should avoid liability if they independently arrive at the patented invention." even comes close to addressing the problem.

My suggestion is this;
    Any computer built more than 1 year prior to the filing date of a patent, does not infringe that patent, regardless of how it is programmed.
    Likewise any software that runs on a computer built more than 1 year prior to the filing date of a patent, does not infringe that patent.

Note that a strong argument can be made this is already true. I think we should lobby for a law that spells it out explicitly.

software patent reform (0)

Anonymous Coward | about 2 years ago | (#40454579)

I have long argued in favor of reducing the term for software patents [aminn.org]. Although a 20-year term makes sense when applied to, for instance, pharmaceutical patents (which need at least a couple of decades in order to recoup R&D expenses), it makes very little sense for software patents. The patent system needs more flexibility so that such a multi-tiered arrangement could be pun in place; the one-size-fits-all approach is no longer the most effective model.

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