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FTC Issues Report Critical Of Patent Policy

simoniker posted more than 10 years ago | from the patent-leathered dept.

Patents 206

hayek writes "The Federal Trade Commission issued a report yesterday regarding failings in current U.S. patent policy. Among other things, the FTC recommends that the burden of proof on parties challenging patents in court be lowered from the current 'clear and convincing' standard, to the easier 'preponderance of the evidence' standard. Even if you don't think the FTC recommendations go far enough, implementing them would be a good start to solving some of the problems caused by the current system." nolife points out a report at Law.com indicating that, under the current system, "Patent examiners have from 8 to 25 hours to read and understand each application, search for prior art, evaluate patentability, communicate with the applicant, work out necessary revisions, and reach and write up conclusions."

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206 comments

I GOT A GREASED UP YODA DOLL SHOVED UP MY ASS! (0, Funny)

Anonymous Coward | more than 10 years ago | (#7343320)

GO LINUX!

FP? (-1, Offtopic)

Anonymous Coward | more than 10 years ago | (#7343323)

Yeah biatch!

I AM SIMONIKER AND I AM GAY (-1, Troll)

Anonymous Coward | more than 10 years ago | (#7343326)

OMG!!!!!! (-1, Troll)

Anonymous Coward | more than 10 years ago | (#7343938)

What happened to your butthole?????!?!?!?!??!!

It's true (5, Insightful)

r_glen (679664) | more than 10 years ago | (#7343328)

When Amazon can patent simple online sales methods [slashdot.org] , you know there's a problem with the process.

Re:It's true (0)

Anonymous Coward | more than 10 years ago | (#7343615)

Not only is the patent application by Amazon for the marketplace obvious and trivial, there is well documented prior art that would invalidate the claim. https://www.gpcatalogue.com/html/newsarc/GEIS%20Pr ess%20Release%201999-05-05%2010-05/GEIS%20Press%20 Release%201999-05-05%2010-05.txt http://www.gxs.com/downloads/ue_tp_suppliers.pdf

25 hours? (0)

Anonymous Coward | more than 10 years ago | (#7343331)

That's insane. You know what, I wrote more, but really, "That's insane" is enough.

Why Exactly? (-1, Offtopic)

Frizzle Fry (149026) | more than 10 years ago | (#7343338)

Who should not use this emblem?
If you either promote somebody's product for money or break into other peoples' computers, those of us the emblem was invented for do not want you displaying it.

What's the problem with making money, or trying to do? I dig that he doesn't want to be affiliated with those who "break into other peoples' computers", but what's why does hacking become less noble if you make a living from it? Why are you no longer worthy of using a symbol of hackerdom just because you want to be able to eat?

Re:Why Exactly? (-1, Offtopic)

Anonymous Coward | more than 10 years ago | (#7343349)

wrong story there, sizzle chest.

Re:Why Exactly? (-1, Offtopic)

Anonymous Coward | more than 10 years ago | (#7343475)

Hey, toughguy, meet me at the Super across the way.

Correction: Patent examiners have.... (5, Funny)

Anonymous Coward | more than 10 years ago | (#7343345)

...oh, I'd say somewhere from ZERO [uspto.gov] to 25 hours to read a patent.

It's an oldie but a goodie.

Re:Correction: Patent examiners have.... (1)

Xeth (614132) | more than 10 years ago | (#7344274)

Hmmmm... seems that they list addresses on those applications. Maybe we can look up "Method for causing stock price manipulation through insane allegations" and find out where Darl and his minions are hiding out...

Re:Correction: Patent examiners have.... (1, Informative)

Anonymous Coward | more than 10 years ago | (#7344304)

The examiner for that patent (Todd Manahan) is also being held up as a model of sorts...

http://www.uspto.gov/web/offices/ac/ahrpa/opa/pu ls e/199906.htm

First Post! (4, Funny)

moquist (233465) | more than 10 years ago | (#7343360)

First Post (TM). Patent pending... damn. I see evidence of prior art.

Re:First Post! (-1, Troll)

Anonymous Coward | more than 10 years ago | (#7343584)

YOU FAIL IT! And unfortunately for you, there's prior art of failing it, too, so you can't patent that, either. :)

Re:First Post! (3, Funny)

Xeth (614132) | more than 10 years ago | (#7344261)

Not necessarily. If Patent Office employees won't spend more than 25 hours reviewing a patent that costs thousands of dollars to apply for, do you really think they'll read at -1?

If you'd like to RTFA . . . (1, Offtopic)

PMuse (320639) | more than 10 years ago | (#7343366)

Executive Summary [ftc.gov]
Official Press Release [ftc.gov]
Full Report: Promote Innovation: The Proper Balance of Competition and Patent Law and Policy [ftc.gov]
A Report by the Federal Trade Commission, October 2003

Of course, it would have been nice if some one had submitted this article yesterday. ;)
2003-10-28 18:40:17 FTC Issues Report on Competition and Patent Policy (articles,patents) (rejected)

Funny coming from this Administration (4, Insightful)

melangeboi (664072) | more than 10 years ago | (#7343371)

Luckily the government is doing something that isnt for corporate interests and Bush campaign donors. I wonder which public servant is going to be asked for a resignation tommorrow? "Only one thing is impossible for God: to find any sense in any copyright law on the planet . . . Whenever a copyright law is to be made or altered, then the idiots assemble." -- Mark Twain

Re:Funny coming from this Administration (-1, Offtopic)

Anonymous Coward | more than 10 years ago | (#7343591)

This is actually good for most "corporate interests," the main exception being software and pharma companies. Since their employees contribute roughly equally to Democrats and Republicans, it's not a huge political issue to Bush. Now, oil...

Here's the Story: In a supermarket, Kurtis the stock boy, was busily working when a new voice came over asking for a carry out at check register 4. Kurtis was almost finished, and wanted to get some fresh air, and decided to answer the call. As he approached the check-out stand a distant smile caught his eye, the new check out girl was beautiful. She was an older woman (maybe 26, and he was only 22) and he fell in love.

Later that day, after his shift was over, he waited by the punch clock to find out her name. She came into the break room, smiled softly at him, took her card and punched out, then left. He looked at her card, BRENDA. He walked out only to see her start walking up the road.

Next day, he waited outside as she left the supermarket, and offered her a ride home. He looked harmless enough, and she accepted. When he dropped her off, he asked if maybe he could see her again, outside of work. She simply said it wasn't possible. He pressed and and she explained she had two children and she couldn't afford a baby-sitter, so he offered to pay for the baby-sitter. Reluctantly she accepted his offer for a date for the following Saturday.

That Saturday night he arrived at her door only to have her tell him that she was unable to go with him. The baby-sitter had called and canceled. To which Kurtis simply said, "Well, lets take the kids with us." She tried to explain that taking the children was not an option, but again not taking no for an answer, he pressed. Finally Brenda, brought him inside to meet her children. She had a older daughter who was just as cute as a bug, Kurtis thought, then Brenda brought out her son, in a wheelchair.

He was born a paraplegic with down syndrome. Kurtis asked Brenda, "I still don't understand why the kids can't come with us?" Brenda was amazed. Most men would run away from a woman with two kids, especially if one had disabilities. Just like her first husband and father of her children did.

That evening Kurtis and Brenda loaded up the kids, went to dinner and the movies. When her son needed anything Kurtis would take care of him. When he needed to use the rest room, he picked him up out of his chair, took him, brought him back. The kids loved Kurtis. At the end of the evening, Brenda knew this was the man she was going to marry and spend the rest of her life with. A year later, they were married and Kurtis adopted both of her children. Since then they have added two more kids.

So what happened to the stock boy and check out girl? Well, Mr. & Mrs. Kurt Warner, now live in St. Louis, where he is employed by the St. Louis Rams and plays quarterback.

Re:Funny coming from this Administration (0)

Anonymous Coward | more than 10 years ago | (#7343777)

WTF was THAT all about.

Maybe, but now he's a loser (0)

Anonymous Coward | more than 10 years ago | (#7343864)

Maybe god smiled at him for dating the chick with the crippled son.

But his luck is gone and now he sucks.

If I didn't know better, I'd say he made a deal with satan to win the superbowl.

Re:Funny coming from this Administration (2, Insightful)

Eccles (932) | more than 10 years ago | (#7343710)

Luckily the government is doing something that isnt for corporate interests and Bush campaign donors.

Actually, this is in general good for corporate interests. It's Ebay who is being forced to shell out millions for a trivial patent. Ditto Microsoft. Ditto Sun. Just as Ford spent decades trying to invalidate the automobile patent, and thousands of other companies forced to pay legal fees and licensing fees to use ideas they would have come up with without any input from the patenter. The patent system as-is is suboptimal. An optimal system would improve the economy, because patents would only be issued for truly innovative, developed ideas, and companies would license those ideas because it would improve their profits over what they would otherwise do.

Improving the patent system is good for the economy. It's only bad for those who patent obvious things and try to license them.

Re:Funny coming from this Administration (3, Interesting)

Brandybuck (704397) | more than 10 years ago | (#7344150)

Bush campaign donors

<rant>
Take your damned blinders off and join the real world. Yes, Bush had a lot of big campaign donors. So did Gore. So does every candidate. Maybe Nader didn't take any from for-profit corporations, but he's far from clean in the "no special interests" department.

Yeah, as you can tell, you just hit my hot button. It's been getting hotter over the last year, and it finally blew. You're the lucky one I get to spew on. This isn't directed at Democrats, because the Republicans do the exact same thing when they don't have a president in office.

I'm sick and tired of this football mentality the US has about politics. You act like it's a damned football game, rooting for the home team and booing the visiting team. If you're a Democrat then your attitude is that a Republican president can do nothing right. If you're a Republican, then off course the Democratic incumbent is Evil Incarnate. Both sides seem to forget that there's very little real difference between the two.

Is [Clinton|Bush] really at fault for every evil in the world? You guys certainly act like it.

Would we still have this patent problem if Gore was in office? Of course we would, you nimwits! Would we still have the MPAA and RIAA? Considering the overwhelming support those two organizations have among Democratic office holders, the answer is again an obvious yes. Would we still be in Iraq? Considering Clinton's military activity, if Gore was anything like him we would be knee deep in conflict somewhere. The only difference would be a higher probability of UN support. BFD!

Now if Buchanan, Nader or Brown had won the election (by some miracle), then things would have been different. But they still wouldn't provide the perfect paradise everyone claims Bush is denying to them.

Sidenote: Someone I know made his opinion known in a very emotional way. "Evil #$*&% stupid $&@# Republicans!", he said. Then ten minutes later in the conversation, "I can't understand why my mom voted for Bush." Did he realize he just called his mother "Evil #$*&% stupid $&@#"? I somehow doubt it.

I don't like Bush. I voted for Brown (while holding my nose). Bush isn't my "home team quarterback". But that's no excuse for me to insert some jab at him with every post I make. All it does for you is to proclaim your home team allegiance. Nothing more.

Re:Funny coming from this Administration (1)

Shakrai (717556) | more than 10 years ago | (#7344233)

Would we still have this patent problem if Gore was in office? Of course we would, you nimwits!

Perhaps we'd still have the campaign finance problems that you refer to, but I doubt the entire world would be hating our guts, and I doubt we would have invaded Iraq (going into Afghanistan was a no brainier after 9/11 -- though perhaps with Gore in office 9/11 doesn't happen), and I doubt our environmental protections would be getting rolled back one by one... bah bah bah.

Sorry, you just hit my hot button.

Re:Funny coming from this Administration (1)

Brandybuck (704397) | more than 10 years ago | (#7344409)

Gore was vice president for eight years. I'm judging him by the adminstration he belonged to. Back then the world still hated our guts. We still had a terrorist attack against the world trade center. We still went into Bosnia, Haiti, Somalia, etc. The first government "hand slap" against Microsoft happened during those years. It was that administration that proposed the clipper chip. It was people associated with that administration that warned against the dangers of rap music and video games.

Re:Funny coming from this Administration (1)

Shakrai (717556) | more than 10 years ago | (#7344570)

We still had a terrorist attack against the world trade center

And Clinton/Gore actually caught and punished those responsible. And somehow they managed to do it without destroying our civil liberties. Can you say the same for Bush? If Gore wins it's quite possible that 9/11 doesn't happen... read the "Operation Ignore" part of Al Franken's new book [barnesandnoble.com] went into Bosnia, Haiti, Somalia, etc

Somalia was handed to Clinton/Gore by Dubya's Dad if you may recall. And at least when Clinton/Gore made interventions they typically had more support (NATO in Kosovo for example) then the "Coalition of the Willing", that (the last time I checked) was the Marshal Islands, Poland, Australia, Tongo, and Israel. Oh, and the Brits (so what if 75% of the population was opposed). It was that administration that proposed the clipper chip

Yeah, and the DCMA passed both houses of Congress with little debate and more or less "bipartisan" support. I think this is more ignorance on the part of politicians (in both parties) then evil intent. "Oh, hey, the Lobbyists think it's a good idea" And the clipper chip never happened anyway did it? At least Clinton/Gore knew when they were beaten. It was people associated with that administration that warned against the dangers of rap music and video games.

I worry about the dangers of rap music and video games. The difference between Clinton/Gore and Bush/Cheney is that Clinton/Gore fought to see a rating system (ESRB) imposed that would let the public decide for themselves. God knows what Bush/Cheney (or Ashcroft?) would do if they got this particular bug up their ass. Probably declare the software publishers and rap artists enemy combatants and lock away the key ;) Now if Buchanan, Nader or Brown had won the election (by some miracle), then things would have been different.

WTF???? You bet things would be different if Buchanan had won. We'd have automated machine gun nests on our southern border killing people as they attempted to cross. Our Forigen Policy would probably be somewhere between 1930s vintage isolationism (look how well that worked out for us at Pearl Harbor) and "Nuke-em-all and let God sort em out". While I personally hate Ralph Nadar (he put Dubya in office as far as I'm concerned -- betraying everything he claimed he believed in), and I don't know much about Brown (time to Google him some), how the HELL can you lump Buchanan into the "things would have been better" category? The first government "hand slap" against Microsoft happened during those years.

This one is more on topic so I figured I'd save it for last. I think at the time the majority of us were happy to see something (ANYTHING) being done to curb MS. I remember my rage when I read the initial report and realized just how far MS had actually gone in crushing my beloved Netscape. And BTW, it was the Bush administration that made the Justice Dept back off and accept this "settlement". I don't know if breaking up the company was the right answer, but I do know that with Gore in office we'd likely have a more effective solution then we do now -- or we would eventually after MS exhausted it's appeals. Sorry Billy, but the Feds have more money then even you do.

Re:Funny coming from this Administration (1)

pipingguy (566974) | more than 10 years ago | (#7344237)

Luckily the government is doing something that isnt for corporate interests and Bush campaign donors

Because, obviously, everything the Bush administration does is inherently evil. Right?

If 9/11 had happened under a democratic administration all the same "attacks on freedom" would be happening, except the vitriol would be directed at Gore.

I may be naive, but the further the net develops, the more freedom is created.

/troll

The President of the United States (0)

Anonymous Coward | more than 10 years ago | (#7343376)

Tricky Dick Nixon invented hacking...

I think 8-24hours is a bit optimistic (3, Funny)

jeeves99 (187755) | more than 10 years ago | (#7343378)

"Patent examiners have from 8 to 25 hours to read and understand each application, search for prior art, evaluate patentability, communicate with the applicant, work out necessary revisions, and reach and write up conclusions."

These are government workers people. You forget that they get coffee every 2 hours, a smoke break every hour, a pastry diversion every 3 hours, and spend 1 out of every 5 minutes keeping the perpetual-motion machine running.

Re:I think 8-24hours is a bit optimistic (1)

killthiskid (197397) | more than 10 years ago | (#7343567)

Shit! I forgot all about keeping my perpetual motion machine going. Oh hell, I'll charge it up right after my smoke bre... OH! Donuts! Sweet!

Simple solution... (4, Interesting)

Anonymous Coward | more than 10 years ago | (#7343391)

Force a rather large deposit. If the patent is found to clearly be invalid, don't return the deposit for wasting the examiner's time. To keep this from hurting small inventors, make it only apply to organizations applying for more than 3 in a year.

Re:Simple solution... (1)

BarfBits (94167) | more than 10 years ago | (#7343611)

If the ROI on a patent is large, then large
conglomerates would not flinch at large deposits.

A not so simple but more robust solution would be
to model software patent approvals like RFCs,
where peer reviewers can point to potential prior
art. The examiners would still need to sift thru
the tons of comments, but it would make their
due deligence more effective.

Re:Simple solution... (2, Insightful)

El Cubano (631386) | more than 10 years ago | (#7343627)

Force a rather large deposit. If the patent is found to clearly be invalid, don't return the deposit for wasting the examiner's time. To keep this from hurting small inventors, make it only apply to organizations applying for more than 3 in a year.

Two problems:

  • Makes it very difficult for someone little startup capital who has a legitimate process/patentat device
  • What's to stop a company like Amazon having their employees file the application as individuals and then signing it over or exclusively licensing it to the company.

At a quick glance, your seems like an OK idea. But I imagine it will make things harder for legitimate inventors and not affect the abusers. Much like the tired old saying, "if you outlaw guns, only outlaws will have guns." It will only just hurt the people who actually follow the rules.

Re:Simple solution... (1)

Qzukk (229616) | more than 10 years ago | (#7344352)

What's to stop a company like Amazon having their employees file the application as individuals and then signing it over or exclusively licensing it to the company.

Well, the easy solution would be to declare it impossible for nonintelligent entities to posses intellectual property. The company can make use of its employee's resources, and can license out its employees services (the patent), but the company cannot own the patent itself. As an added bonus, the inventors who make the company work have guaranteed themself a job, at least for the duration of the patent. You can even throw in a phrase along the lines of giving the company a perpetual (but non-exclusive) license to the patent, so that people can't blackmail a company just about to roll out its flagship company by threatening to leave and taking the patent with them. And say if microsoft fired you, you could take your patent and set up a competitve product elsewhere.

Re:Simple solution... (1)

pavon (30274) | more than 10 years ago | (#7343840)

Interesting idea, but it would have to be quite a large deposit. Consider how many man hours (lawyer man hours at that) go into writing a claim. In order to deter any corporation the deposit would proably have to be 10x that.

Another tweak towards making it easier for good patents, but not bad one, would be if you took an approach simular to EPA inspections, where your first patent requires little or no deposit, but after every rejection, the deposit amount doubles. Have the amount decay at a slow rate, to allow companies to learn from their mistakes but not get a clean slate every year.

Anyhow, granting fewer crap patents or making them easier to overturn is a very important step in getting back to a healthy patent system. So this report is good news (or atleast the summary on the FTC site is, haven't read the whole report yet). Let your senator know that you agree with the FTC report and inform him that shortening patent duration to reflect the business cycle of the respective industries, is the next step.

Re:Simple solution... (1)

silentbozo (542534) | more than 10 years ago | (#7343885)

The USPTO already has an increasing fee scale for requests for reexamination of patents, and it has a lower "small entity" rate. Of course, this only applies to the one patent. If you carry the penalty over for any new patents filed by the same entity, you could have the desired effect by penalizing a suspect patenting agency.

On the other hand, many patents are sent back because the application was missing a drawing, or something was poorly labled. If you carry over penalties, then you'd horribly penalize newbies who are trying to learn the patent application process, essentially making it a requirement to hire an expensive patent attorney...

Re:Simple solution... (2, Insightful)

silentbozo (542534) | more than 10 years ago | (#7343846)

How large is large for the deposit amount? We already charge different rates based on whether the application comes from a "small entity":

(a) Basic fee for filing each application for an original patent, except provisional, design, or plant applications:
By a small entity (Sec. 1.27(a)) ----$385.00
By other than a small entity --------$770.00
This is straight off the USPTO website, and is for the initial filing fee only. There are a host of other charges (such as requests for re-examination which run into the thousands), which I haven't listed because Slashdot's lame-ass junk filter keeps me from doing so.

Of course, if you mean we need to increase the penalty, consider that a lot of the submarine patents that have been wielded by evil companies like PanIP are generated by people who would qualify as "small entities". Discouraging frivolous applications is a good way of cutting down on the work load of USPTO examiners, but what we need is to eliminate bad granting of patents - giving them more time isn't necessarily going do the job if the patent examiner isn't well versed in the field that the patent is being granted in.

I'm thinking mandatory public/peer review is the key (think public probationary period)... If it isn't deemed original by a board of voluntary examiners drawn from the field, then it doesn't pass go. If someone objects with evidence of prior art during the 1 year public review period, the patent automatically goes back for reexamination. The other thing that needs to happen is the re-enacting the requirement that a working model of the invention MUST be demonstrated as part of the patent application. No more pie-in-the-sky speculative patents without any actual work to back them up.

Re:Simple solution... (1)

Qzukk (229616) | more than 10 years ago | (#7344467)

The other thing that needs to happen is the re-enacting the requirement that a working model of the invention MUST be demonstrated as part of the patent application

Sadly, this will never happen as the patent system now stands because how do you prototype a "business process".

The only change in this field that I can think of that would have better than a snowball's chance in Hell would be to establish a software patent class, with fitting restrictions for software:

1 - a software program cannot infringe on any patent other than a software patent. Only a software program can infringe on a software patent. For purpose of "software" we will consider the algorithm controlling a device, whether the algorithm is implemented in shrink-wrapped boxware, firmware, burned into an fpga, or implemented strictly in chip form.

2 - a working prototype with source (insert mumbo jumbo to make sure its in some kind of standard language, and not a "made up" language) This source would be similar to the "claims" section of the patent. If someone patents a certain algorithm for performing X, then if someone can demonstrate they performed X with a different algorithm, they're non-infringing. Bonus points to anyone who convinces the USPTO to require a language supporting mathematical proving of algorithmic correctness.

3 - A patent duration that better recognizes the software development live cycle. Say, 3 years with one three year extension. (This roughly matches the life span of windows 95 technology, if we are to believe Microsoft)

4 - Finally, since everyone with existing business method patents will be left out in the cold due to rule 1, a one-way process for moving an existing patent into the software class, with the above requirements, with a maximum of 6 years of effectiveness from the patent's date (in other words, if the patent is more than 6 years old, don't even bother).

As much as people hate and revile software patents, properly designed and controlled legislation can produce an outcome palatable to both superbigmegacorp and to us. As it stands, we can shout and cry against software patents, while we turn our back on the fact that they're already there and are being incredibly abused.

public review of claims (4, Interesting)

rifftide (679288) | more than 10 years ago | (#7343392)

Is there a reason why patent claims aren't posted on the www for public comment before they're approved? I can't think of any.

Timeliness. (1)

Short Circuit (52384) | more than 10 years ago | (#7343436)

Well, as soon as someone sees it, they'll go out and implement it, fake some timestamps, and say, "See? Prior art!"

Either that, or honest prior art will be accused of having fake timestamps.

Re:Timeliness. (1)

rollingcalf (605357) | more than 10 years ago | (#7343684)

The desired effect could be acheived by immediately publishing the abstract of the patent (or maybe a one-sentence summary of the abstract that does not reveal too much), without the details. Then the public is allowed to build something or describe a detailed design of something that they think would implement the patent, within a specified time frame such as 60 days. If any submission is substantially similar, the patent should be rejected as being obvious -- because if it wasn't obvious no one would be able to produce something so similar so quickly without seeing the details. This way, timestamps and prior art would not matter. This would have prevented "one click shopping" or "buy it now" from being patented, because the mere words "one click shopping" or "buy it now" are enough for any decent web programmer to create a working prototype within 8 hours.

Re:Timeliness. (0)

Anonymous Coward | more than 10 years ago | (#7343768)

Quote 1: "(or maybe a one-sentence summary of the abstract that does not reveal too much)"
Quote 2: "because the mere words "one click shopping" or "buy it now" are enough for any decent web programmer to create a working prototype within 8 hours"

Can you at least stay consistent for an entire paragraph? How would giving the public "one-click shopping" not be "reveal(ing) to much"?

Most ideas will seem obvious when you hear them, but that is not the test that is used to decide whether a patent is granted or not. The test involves searching for some kind of solid proof that the invention has been used/sold/described/published before the effective filing date of the patent application.

Re:Timeliness. (3, Insightful)

rollingcalf (605357) | more than 10 years ago | (#7344215)

"Most ideas will seem obvious when you hear them, but that is not the test that is used to decide whether a patent is granted or not."

There is a difference between sounding obvious after I only hear the the goal the item accomplishes, vs. sounding obvious after seeing all the details of the solution. If a simple phrase that describes the concept of the alleged invention is sufficient for a practitioner in the art to build a working implementation in a short time without seeing any of the details, then yes, it is bloody obvious and not worth of the high standard that patents should be (but aren't) held up to.

Re:Timeliness. (1)

squiggleslash (241428) | more than 10 years ago | (#7344106)

As the AC says, "One click shopping" would, by itself, be a dead giveaway.

Rather than the abstract, perhaps a description of the problem the patented device is supposed to solve would be better. ie "A method to simplify buying an item online".

The thing I like about your solution is it makes it much more possible to recognize that some ideas are only obvious after they've been invented, while simultaneously knocking down things that look complicated to the layman but are actually obvious solutions in practice.

Going by your summary.... (0)

Anonymous Coward | more than 10 years ago | (#7343401)

I would say that the better thing to do is to make patents harder to get so that there won't be as many courtroom challenges to begin with. A pity that might make patents less of a profit center for the government, but that's life.

Yup! (3, Insightful)

twistedcubic (577194) | more than 10 years ago | (#7343445)

Now that Microsoft lost a patent lawsuit it's time to fix the system! Sorry to be so cynical, but it looks to me like the Eolas (sp?) case was a godsend.

Re:Yup! (1)

sheddd (592499) | more than 10 years ago | (#7343620)

You're not seeing the big picture.

Sure, this dork extorted $ from M$...

But it's a dirt dumb patent... a schoolchild could come up with the idea easily and then (if funded) pay some smart patent lawyers to patent it, and make it as brodly reaching as possible.

My conclusion:

(patents/copyright are now detrimental to innovation)

Re:Yup! (1)

the_mad_poster (640772) | more than 10 years ago | (#7343726)

If you want cynical, consider this:

Microsoft doesn't WANT to fight Eolas. Eolas can't even dent their $40B bank account. Internet Explorer is the most outdated browser that's still "actively" developed and it STILL rules the web. Even if Microsoft really did have to yank embedded plugin support out of their browser, they'd make a fuss that everyone else has to as well. End result? They can afford licenses for embedding and groups like Opera, Mozilla, etc. can't. Even more fuel for Microsoft's fire.

Re:Yup! (0)

Anonymous Coward | more than 10 years ago | (#7344298)

That's would be a great conspiracy theory, if it weren't completely moronic. Microsoft wants to fight Eolas, and that's why they are, quite vigorously. Eolas CAN dent their $40B bank account, because Eolas has basically rejected any sort of one time royalty fee, as well as the possibility of being bought. They fully intend to suck Microsoft for as much money as they can, and Microsoft didn't get to be Microsoft by feeding leeches for the hell of it. Microsoft has already released a beta version of Internet Explorer with a '906 patent "workaround", which they intend to use if they lose the Eolas case on all appeals. Not to mention the fact that your theory is fucking stupid because we are, for the most part, talking about FREE FUCKING INTERNET BROWSERS. Why would Microsoft blow money to "put Opera and Mozilla out of business" when, as you cleverly note, they already have 98% market share? DURRR.

that sounds like an important change (4, Insightful)

penguin7of9 (697383) | more than 10 years ago | (#7343453)

Among other things, the FTC recommends that the burden of proof on parties challenging patents in court be lowered from the current 'clear and convincing' standard, to the easier 'preponderance of the evidence' standard.

Given the exceptional nature of patents--extending a government enforced monopoly on ideas and entire markets for decades--one should perhaps even demand that the person defending a patent should provide "clear and convincing evidence" that the patent is valid.

However, just changing the standard to "preponderance of the evidence" sounds like a good change and something that is long overdue.

Graduated-cost re-issuance? (1)

Short Circuit (52384) | more than 10 years ago | (#7343476)

How about a system where there's a fee for the initial issuance of a patent. Every two or three years, the patent has to be reissued, at an exponential cost.

That'll force patents to expire along with their usefulness.

Of course, there's still the big business has big money aspect.

Re:that sounds like an important change (1)

Doctor Faustus (127273) | more than 10 years ago | (#7343688)

How would they present clear and convincing evidence that there is no prior art? They might just not know about it.

Patent-Free Filing with USPTO? (4, Interesting)

u19925 (613350) | more than 10 years ago | (#7343466)

I had a thought that USPTO should also accept proposal for patent-free ideas. In this, people should be allowed to submit idea that USPTO should certify that it is free of patent. If USPTO is competent enough to grant patent by saying, this hasn't been done before; they should be able to certify that this doesn't violate any patent. Once it is granted, people should feel free using this idea. In case someone wants to file a patent lawsuit on this patent-free idea, then the burden of proof should be on plaintiff. By default the idea should be considered patent free.

This would be a tremendous boost to standard organization. We no more will get surprise .gif, .jpg, eolas etc patents.

The cost of such patent-free filing should be at par with patent filing.

Re:Patent-Free Filing with USPTO? (1)

Short Circuit (52384) | more than 10 years ago | (#7343493)

You'd probably be better off asking that something be declared "patented, but non-licensed.", meaning that yes, the idea has a patent, but no, the holder cannot charge or discriminate in licensing.

It's a simpler solution that copes with their traditional level of competence.

There is an easier solution, and it's FREE (5, Informative)

Tau Zero (75868) | more than 10 years ago | (#7343525)

Once some describes an idea in open literature, nobody else can even attempt to patent it unless they can prove priority. The inventor has one year to file, in the United States. Once that year has elapsed, the idea cannot be patented.

So there's your patent-free idea database: publications of any sort. This ought to be obvious, because "obvious" is one of the synonyms of "patent"...

Re:There is an easier solution, and it's FREE (2, Insightful)

Anonymous Coward | more than 10 years ago | (#7344480)

You're confusing patentability with infringement. If you publish something, someone else can't patent later what you've described, but whatever you described could be infringing on 10 prior patents. You could be the inventor of the pencil with an eraser at the end, but your new device will infringe another guy's patent on the pencil.

I think what the original poster was proposing was having the PTO issue freedom to operate opinions. These opinions are much more complex than patents--they can cost on the order of 50k-100k in legal fees, as opposed to 10-20k for getting a patent. So it's not a practical idea, but it's definitely an interesting one.

Of the FTC's proposals, the pregrant opposition is the one that's likely to have the biggest effect in practice, I think.

A similar thing exists... (0)

Anonymous Coward | more than 10 years ago | (#7343751)

I do not remember the specific name, but there is something you can file with the USPTO that is *not* a patent but rather something that merely documents something new. Whatever it's called, it prevents anyone from patenting the thing (although, obviously, they can still patent some improvement on it).

Does anyone remember what it's called. Unfortunately, IANApatentL.

Re:A similar thing exists... (0)

Anonymous Coward | more than 10 years ago | (#7343793)

It is called a provisional application. I believe filing one is free, and it gives you one year from the filing of the provisional application to file a real patent application if you so desire. The main benefit of the provisional application is that it starts the process earlier than you may otherwise be able to do and any patent application that you file will have the filing date of the provisional application as its effective filing date assuming that you claim priority.

Provisional applications are not examined by anyone other than to make sure that they meet very basic requirements such as format and listing of inventors names, etc..

Re:Patent-Free Filing with USPTO? (1)

EmbeddedJanitor (597831) | more than 10 years ago | (#7343853)

Well you could just attempt to patent the idea (using regular methods) and submit it to an open "idea bank" of royalty free patents.

Re:Patent-Free Filing with USPTO? (0)

Anonymous Coward | more than 10 years ago | (#7343944)


> The cost of such patent-free filing should be at par with patent filing.

I totally disagree.

Remember that patent protection is a government-granted monopoly. It should cost a huge amount of money to get that monopoly.

If a drug company spends $5,000,000 to develop a drug, then it shouldn't have too much problem paying an extra $500,000 to the USPTO to get patent protection.

If a software company spends $5,000,000 to develop an idea, then it shouldn't have too much problem paying an extra $500,000 to the USPTO to get patent protection.

But, of course, what "idea" in software ever costs $5,000,000 to develop? Most software ideas can be thought up in about 5 minutes by a smart engineer. ("Hey, how about if we embed a plugin directly into the web page itself?" That one took 3 seconds, at an R&D cost of exactly $0.)

Come to think of it, a fee of $500,000 is outrageouly cheap for a patent. You get an exclusive, government-enforced monopoly for 17 fucking years, for chrissakes. If you can't earn at least a few million bucks from a monopoly in 17 years, then you don't deserve to be in business.

Re:Patent-Free Filing with USPTO? (1)

cpt kangarooski (3773) | more than 10 years ago | (#7344484)

No, it used to be 17 years from issuance. Now it's 20 years from filing.

But that said, your idea would be bad for small inventors.

Public Input Phase...? (1)

Angram (517383) | more than 10 years ago | (#7343605)

Perhaps it would help to have a public input phase - say a week during which freshly approved applications are posted on the web, and the public has a chance to review and weigh in with prior art, etc. If it was nicely indexed and searchable, helpful /.ers and others with free time might be able to make a difference.

Re:Public Input Phase...? (0)

Anonymous Coward | more than 10 years ago | (#7343626)

If the rest of the public is as bad at identifying prior art that most of the people on slashdot this would be absolutely worthless.

Re:Public Input Phase...? (0)

pi eater (714532) | more than 10 years ago | (#7343659)

Imagine how much useless bullshit would be posted on a forum like this if one went up.

I mean, come on, just look at slashdot. ;)

geek gear n stuff [wabshirts.com]

Re:Public Input Phase...? (0)

Anonymous Coward | more than 10 years ago | (#7343971)

Look at the responses to the first posting in this article.

There is a good refutation of the Amazon patent application there.

Problem is lack of incentives & accountability (2, Insightful)

kaltkalt (620110) | more than 10 years ago | (#7343641)

The USPTO is the largest income-generating government office behind the IRS. The problem is that they're in the business of issuing patents (and it's quite profitable) rather than in the business of serving the public by properly issuing patents. Why reject a patent application, and the fees that come along with granting a patent, when you can accept the application, take the money, issue a patent (no matter how frivilous), and let the federal courts sort it out later once the lawsuits start to come in.

The problem is the USPTO has zero accountability, and as long as it's bringing in so much revenue for the federal gov't there is no reason to implement any changes.

My solution... the people at the USPTO in charge of granting patents should be held personally responsible for every patent they approve. If the patent is later declared invalid by a court, that person must refund (out of their own pocket with no reimbursement from the gov't) all the fees the patent applicant paid.

Re:Problem is lack of incentives & accountabil (0)

Anonymous Coward | more than 10 years ago | (#7343715)

And who exactly are you going to get to work under this system?

Re:Problem is lack of incentives & accountabil (1)

kaltkalt (620110) | more than 10 years ago | (#7343842)

you're saying nobody would work in a job with some personal responsibility? Well, some people will.

Re:Problem is lack of incentives & accountabil (2, Insightful)

EmbeddedJanitor (597831) | more than 10 years ago | (#7343877)

Assuming you're a programmer, how would you feel about being personally liable for every bug and its rammifications?

It is the system at fault, not the workers. If the USPTO was to be hit with damages for bad calls, then their profit/loss would not look as healthy and people might start asking some questions.

The voters don't care about patents because so few are impacted (say compared with tax legislation). Imagine if Bush had said:"Read my lips, no more patents." nobody would have cared a shit.

Re:Problem is lack of incentives & accountabil (1)

anarkhos (209172) | more than 10 years ago | (#7344601)

Your "solution" sucks ass.

A better solution is to end all self-funding activity by such agencies. All money ought to be appropriated by the legislature like the constitution says.

Apply this to the local police too.

Whats really needed to fix the patent system (4, Insightful)

Qzukk (229616) | more than 10 years ago | (#7343675)

As helpful as this is, there are better changes that could be made that would further improve the system:

First, when the USPTO screws up in awarding the patent, the USPTO should cover the cost of fixing it. As it stands, if I have prior art for a patent, I have to pay them to fix what they screwed up. It should be modified so that overturning a patent is free. (Really, they should dock the commission of the person who signed the patent). They could request that you post a bond for the fees until they have decided (with it to remain in bond if you appeal). Furthermore, this process should be made as simple as possible, and not require legal assistance.

Second, the hobbyist exemption should be expanded and clarified with respect to Free software. While an outright exemption would lead to much rejoicing, a more realistic exemption would be for cases where 1: no money is accepted for the software and 2: the patent holder does not have a competing product on the market. This protects Free Software from submarine patenters who produce nothing but lawsuits, while still appeasing companies who feel threatened by open source by protecting them from direct competition.

Re:Nevertheless, fixing that problem would fix thi (1)

rollingcalf (605357) | more than 10 years ago | (#7344175)

In addition to the USPTO being given deterrents against granting bad patents, applicants should be given deterrents against filing frivilous patents in the first place, in order to reduce the workload on the patent office and give them time to properly evaluate the genuine candidates.

Patent holders should be fined if a patent is overturned, perhaps with a fine proportional to the license fees they have extracted. To be fair, they should also be given the opportunity to voluntarily withdraw a patent at any time before a challenge without being liable for any penalty.

Re:Whats really needed to fix the patent system (1)

Shakrai (717556) | more than 10 years ago | (#7344279)

First, when the USPTO screws up in awarding the patent, the USPTO should cover the cost of fixing it

Doesn't that mean the taxpayers have to cover the cost of fixing it? Or if UPSTO get's all it's funds from fees and not taxes, wouldn't it mean that the legitimate patent ppl would wind up paying more in fees?

Wouldn't the better solution be to charge the company that applied for the bogus patent the money it cost to research/review and ultimately deny it? This might make it hard for the little guy, but I think it's fairer all around.

Just my two cents...

Re:Whats really needed to fix the patent system (1)

sheldon (2322) | more than 10 years ago | (#7344524)

Making the USPTO cover costs would simply push those costs onto the tax payer.

Docking the pay of a person who accepted the patent would pretty much guarantee you'd have nobody working at the USPTO.

I'm assuming that no money can be accepted for consultation, modification, documentation, assistance, etc. of the Free Software either. Otherwise it's really not a hobby, is it?

Re:Whats really needed to fix the patent system (1)

Qzukk (229616) | more than 10 years ago | (#7344630)

I'm assuming that no money can be accepted for consultation, modification, documentation, assistance, etc. of the Free Software either. Otherwise it's really not a hobby, is it?

So do you want to live in your world of fluffy white clouds and pretty ideals flapping along like butterflies, or do you want to join us here in the real world? I'm sure in your world you have the psychic power to remove the corruption and influence of corporations in the blink of the eye, but back here we have to face the fact that they're not just going to vanish from the face of the Earth to make our lives happier.

Are companies going to just roll over and let us pass legislation to allow us to devalue their patents? They'd never stand for allowing active competition from free-as-in-beer software against their own product. They'd also never stand for someone else profiting off of their unused patent. They would probably claim that they would be making that money if only they had enough capital to get to market blah blah blah.

Ok, clearly in the case of government, we can't punish the people who screwed up in the first place, so how about we just pay the clerks who process the patents a flat rate with no commission? I don't understand your perspective on this, but I guess thats because in my experience in the private sector, when someone fucks up they are either fined or thrown in jail. For instance, if I'm working at a landfill and sign for waste that turns out to be federally listed hazardous waste, I personally am out probably half a million dollars, which I can start paying off after I get out of federal pound-me-in-the-ass prison, and the company has even bigger problems than just losing an employee. I guess government workers just can't be held to that standard of accuracy what with all their vacation time and protection from being arbitrarially fired (in case the firing might be politically motivated).

Re:Whats really needed to fix the patent system (1)

dtfinch (661405) | more than 10 years ago | (#7344671)

Docking the pay of a person who accepted the patent would pretty much guarantee you'd have nobody working at the USPTO.

Or it would mean that people working for the USPTO would take their work seriously. Only the workers that chat, play games, or jack off to porn all day will be hurt enough by this to quit their jobs. I'm sure many have noticed that blindly approving patent applications makes their jobs easier by several orders of magnitude, not caring that it also makes work that much harder for countless others. Even better would be to uninstall Solitaire from all government desktops running Windows.

Hey Bob Malda, You Dumb Son Of A Bitch (-1, Offtopic)

Anonymous Coward | more than 10 years ago | (#7343738)

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"Obvious to an expert in the field" (0)

Anonymous Coward | more than 10 years ago | (#7343755)


My understanding is that patents cannot be issued for an idea that's "obvious to an expert in the field".

Many notorious patents are, in fact, obvious to an expert in the field. (Example: Eolas's patent that a plugin can be embedded directly in the browser window. Even non-experts would tend to say: "well, duh".)

Why can't the USPTO employ experts who can look at the basic idea of a patent solely to flag the ones which they consider obvious?

That wouldn't be a complete solution, but it might help eliminate the most egregous patents.

Re:"Obvious to an expert in the field" (3, Informative)

mavenguy (126559) | more than 10 years ago | (#7343825)

Correction: The Obviousness (35 USC 103) requirement for patentability is to be judged by a hypothetical "person of **ordinary** skill in the art" In practice this means they are typical people working in the art to which the invention pertains.

Furthermore, I am not aware of a situation where someone's testimony in a patent case was challenged because he possesed more than ordinary skill in the art, but (IANAPL) I could be wrong.

Presumption of validity is the main problem (3, Interesting)

rollingcalf (605357) | more than 10 years ago | (#7343795)

Not only are patents presumed valid when they are challenged in court, they are presumed valid even before granting, to the extent that the burden is on the patent officer to establish why it should not be granted. That is utterly ridiculous. When someone applies for a patent, they are making a blatant and sweeping claim against the whole human race; essentially, they are saying that no one else in the history of the earth has built something like it.

Strong statements like that should be backed up with extremely solid evidence. While it is not possible for an applicant to conclusively prove a negative, the burden of proof should still lie on the applicant's shoulders, forcing them to impress the patent examiners and convince them that there is a strong likelihood that they are the first one on earth to put the alleged invention together.

Re:Presumption of validity is the main problem (4, Insightful)

servoled (174239) | more than 10 years ago | (#7343821)

The applicant has way to much interest in failing to prove that it has been done for this system to work, and since they can not conclusively prove that it has never been done I really don't see how this would work at all.

What amount of evidence on the applicants part would convince you that their invention is in fact new, and that they are just ignoring that really good piece of prior art that they conveniently forgot to bring with them?

Re:Presumption of validity is the main problem (1)

rollingcalf (605357) | more than 10 years ago | (#7344069)

"The applicant has way to much interest in failing to prove that it has been done for this system to work, and since they can not conclusively prove that it has never been done I really don't see how this would work at all.

What amount of evidence on the applicants part would convince you that their invention is in fact new, and that they are just ignoring that really good piece of prior art that they conveniently forgot to bring with them?"


I didn't say they have to conclusively prove anything. They just have to convince the examiner of the improbability that anyone else has done it, with the examiner starting from the presumption that it has already been done or is obvious. For example, they could point to the existing widespread multibillion dollar market for chemical pesticides as evidence which indicates that no one has invented a sonar device that efffectively deters all insects and rodents over large land areas.

A solution (3, Interesting)

puppet10 (84610) | more than 10 years ago | (#7343817)

"Patent examiners have from 8 to 25 hours to read and understand each application, search for prior art, evaluate patentability, communicate with the applicant, work out necessary revisions, and reach and write up conclusions."

I suggest that business method patents be eliminated by statute to reduce the workload on the patent examiners to improve the amount of time to devote to each patent application.

Google (1)

Superfreaker (581067) | more than 10 years ago | (#7343831)

""Patent examiners have from 8 to 25 hours to read and understand each application, search for prior art, evaluate patentability, communicate with the applicant, work out necessary revisions, and reach and write up conclusions."

That is 7.5-24.5 hours more than they need when a simple google query returns more prior art than would be needed.

Re:Google (2, Insightful)

Anonymous Coward | more than 10 years ago | (#7343854)

The problem with prior art taken from the web is that it is incredibly hard to prove the publication date of some random web page. And since prior art must be published PRIOR to the applications effective filing date, most of the web is completely useless anyways.

Performance measures. (1)

EmbeddedJanitor (597831) | more than 10 years ago | (#7343835)

I've had some daft patents accepted and have had some rejections for dumb reasons too.

This leads me to believe that patent examiners are measured on their performance. I hunch they're measured on both the number of patent applications they crank per week and the number of prior art cases they find.

Come Friday, I expect the heat is on to make numbers and it comes down to which is the fastest way to complete a case (ie. Is there less paper work to reject or accept an application?).

Please don't mark this funny, I'm being serious.

Hey, you know what? (0, Flamebait)

Anonymous Coward | more than 10 years ago | (#7344105)

Fuck the patent office.

It only serves big money interests anymore. Its a farce. Patenting of software and business processes.

George Bush makes us look like idiots, our patent system is a joke. Hell, we're starting to make canada look like a decent place to live, and that's saying something.

No, fuck the patent office, not because the guys there are personally bad, but just because they're a tool of interests of other than the American people.

Fuck em.

The simplest solution.... (1)

freeze128 (544774) | more than 10 years ago | (#7344309)

Post a sign on the USPTO door right abobe the night deposit slot that reads "After hours, slide patent candidate through slot. Candidate will not be considered valid without proof of prior art."

Slashdot People Against The USPTO (2, Insightful)

BillLumberg (472572) | more than 10 years ago | (#7344612)

The only thing for certain is that people reading and posting to slashdot generally lack the slightest clue on the inner workings of the US Patent System. I believe that Slashdot needs to have some sort of informational session teaching readers how the system works. Until then, posts regarding failure of the US Patent system should be halted. The sort of comments and speculation found on the topic here at Slashdot on serve to misinform others. I come to you as a US Patent Examiner. Please consider this suggestion. Maybe an ask Slashdot or Slashdot interview might be a step in the right direction.
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