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Patent Reform Bill Introduced in U.S. House

Zonk posted more than 9 years ago | from the do-over dept.

Patents 263

kanad wrote to mention a ZDNet article covering the introduction of the Patent Reform Act of 2005 to the U.S. House of Representatives. From the article: "Probably the most sweeping change would be the creation of a process to challenge patents after they are granted by the Patent and Trademark Office. 'Opposition requests' can be filed up to nine months after a patent is awarded or six months after a legal notice alleging infringement is sent out. The bill is supported by the USPTO and Microsoft who have been recently asking for patent reforms ." More details of the bill are available at the Congressman's website."

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Be suspicious (5, Informative)

Anonymous Coward | more than 9 years ago | (#12768978)

"The bill is supported by...Microsoft who have been recently asking for patent reforms."

Everybody should immediatly be very, very suspicious of this bill if that's the case. What do they stand to gain then, exactly? You can bet it isn't immediatly obvious. Has anyone checked all the sub-cluases on this thing yet?

Re:Be suspicious (1)

ZephyrXero (750822) | more than 9 years ago | (#12769025)

Yeah, it sounds like it could be another trick like the Samba thing yesterday...I don't trust this. What do they have up their sleeve? What do they have to gain?

Microsoft will challenge everything (4, Interesting)

NigelJohnstone (242811) | more than 9 years ago | (#12769166)

1. So they'll have a whole department sitting like hawks watching the patent office and challenging everything remotely connected to their markets, and you and I will not have a department challenging every BS patent Microsoft submits.
When you come to challenge it, they'll say "well he didn't challenge it within the alloted time...."

2. "Another major change would be to award a patent to the first person to submit their paperwork to the Patent Office. Currently, patents are awarded to the first person who concocted the invention, a timeframe that can be difficult to prove."

No need to invent now, just have to have a patent office ready and waiting to patent other peoples invention! And best of all its completely legal!

Re:Microsoft will challenge everything (1)

dpilot (134227) | more than 9 years ago | (#12769588)

1: Go claim-mining in the Samba source tree.
2: File for patents
3: Get Cease & Desist warrants against Samba team.
4: Profit!!

See, now we can fill in the "???" step.

Re:Microsoft will challenge everything (1, Insightful)

Anonymous Coward | more than 9 years ago | (#12769601)

2. "Another major change would be to award a patent to the first person to submit their paperwork to the Patent Office. Currently, patents are awarded to the first person who concocted the invention, a timeframe that can be difficult to prove."

No need to invent now, just have to have a patent office ready and waiting to patent other peoples invention! And best of all its completely legal!


Ah, more zealotry. The entire planet is first-to-file EXCEPT the US, this is a long anticipated change to bring us in line with the world. And you must still be the inventor as per Title 35 USC 102(f).

So in other words, you're totally wrong, as is typical of Slashdot posts.

Re:Be suspicious (1)

AnObfuscator (812343) | more than 9 years ago | (#12769180)

What does microsoft stand to gain...? hmmm. maybe they can challange patents in competeing products, thus allowing them to legally steal technology from competitors...?

Re:Be suspicious (4, Insightful)

Wm_K (761378) | more than 9 years ago | (#12769203)

I don't think Microsoft likes the current patent law very much either. They get sued a gazillion times a year by small companies for patent infringement. Only yesterday they lost a patent case against some guy from Guatemala for a pretty trivial invention, it costed them 9 million dollar. Peanuts for Microsoft probably. But it adds up if you get such a lawsuit every week. Especially like the Eolas where they were ordered to pay 500 million for yet another trivial patent. Microsoft it taking part in this patent game themself of course. But it would be stupid for them not to. They're a company that wants to make as much profit as possible and with the current patent law they're probably losing more money than making it so they would like to see a change in the law.

Re:Be suspicious (4, Informative)

malkavian (9512) | more than 9 years ago | (#12769221)

The problem MS has with this, is that software patents have been so badly screwed, that people have taken out all kinds of obvious and trivial patents, hoping to screw someone out of some money by holding them up in courts.

Having the ability to challenge the patent/get it closely examined is a step in the right direction.
MS, I think, are a little worried now, after having so many patent suits brought against them, that someone may well have a critical submarine patent that could apply to their core business tucked away somewhere.

Having it enshrined that you can actually challenge the patent before having the patent used to drain you dry could perhaps change the whole IP arena, and make the IP only hoarding companies much more expensive to maintain (no more fishing trips if they really have to pay for each patent they want to apply, and stand the chance of losing their cherished patent at the same time).

Yes, MS get to benefit from this. There again, so does the 'little guy'.
It may not cure all ills, but it stands a good deal more in the right direction.

The limit on time is a very good move also, as it prevents a 'big fish' from holding a valid patent holder in court forever and a day challenging their patent, and making it for all intents and purposes irrelevant.

Re:Be suspicious (2, Insightful)

KiltedKnight (171132) | more than 9 years ago | (#12769267)

Everybody should immediatly be very, very suspicious of this bill if that's the case.

That was my first thought too. I've seen some of the stuff Microsoft has been granted patents for, and a lot of it is stuff that's been used by many others for a long time.

The only thing I can think of is that Microsoft, Oracle, and probably several other companies are trying to get software patents in through the back door, then go and sue everyone who uses anything remotely similar in open source, GPL, shareware, or freeware.

But then again, I frequently cast a doubting eye on anything the government calls "reform."

Re:Be suspicious (1)

cthrall (19889) | more than 9 years ago | (#12769300)

What do they stand to gain then, exactly?

It's not what they stand to gain, it's what they stand to lose under the current laws. They are one of the most conspicuous software companies to target if you have a portfolio of patents and some lawyers.

The current patent situation is an arms race...companies build portfolios to protect themselves from litigation from competitors and shell companies that exist only to litigate. I don't think Bill likes the situation any more than you do [ffii.org] .

Re:Be suspicious (1)

ClosedSource (238333) | more than 9 years ago | (#12769306)

Actually MS wasn't that big on patents until a few years back when they noticed how many IBM was filing.

If you are part of the computer or software industry it would be a good idea to examine any patent reform idea in detail regardless who is for or against it.

Don't let your disdain for MS dictate your actions.

Re:Be suspicious (1)

psyon1 (572136) | more than 9 years ago | (#12769632)

Isn't microsoft known for using other peoples ideas? Now they won't have to buy the companies, they can just steal the ideas :)

YAY! (1)

Irashtar (836973) | more than 9 years ago | (#12768979)

Finally, a little bit of sanity in the Gov. what will come next? a fixing of the software patents?

Peer Review - Solution (3, Interesting)

dsginter (104154) | more than 9 years ago | (#12768981)

Why not introduce a peer review process by which a patent in a particular industry is reviewed by patent holders in the same industry? In this manner, a frivolous patent could be easily circumvented with a simple review request. A few hundred peers simply review the patent and then decide if it is legit.

The same method could be used to avoid costly court battles. This seems like a no-brainer. What am I missing?

Re:Peer Review - Solution (1)

rkcth (262028) | more than 9 years ago | (#12769010)

Competition would prevent this from being a fair process I believe.

Re:Peer Review - Solution (4, Insightful)

Chibi Merrow (226057) | more than 9 years ago | (#12769032)

So you let 100 peers decide--with a government sanction--who's allowed to compete with them? And once they've denied the patent, they turn around and implement the now non-patentable idea with a larger budget?

I think you need to look at the history of the Jeep.

Re:Peer Review - Solution (1, Redundant)

masklinn (823351) | more than 9 years ago | (#12769042)

Why not introduce a peer review process by which a patent in a particular industry is reviewed by patent holders in the same industry? In this manner, a frivolous patent could be easily circumvented with a simple review request. A few hundred peers simply review the patent and then decide if it is legit.
Until they decide to cross-license their respective patents, accept their friend's patents propositions (all of them), work together to completely lock the software market and proceed to rape your ripe little virgin ass.

Re:Peer Review - Solution (2, Insightful)

CodeZombie (591563) | more than 9 years ago | (#12769083)

Patents are about protecting ideas from being used by others without a license. If the protections has to be approved by the same people that you are seeking protection from it is going to be abused. What incentive would any of the Peers have to aprove the patent (especially software patents which are terrible anyway).

Re:Peer Review - Solution (1)

kkovach (267551) | more than 9 years ago | (#12769150)

"What incentive would any of the Peers have to aprove the patent"

Maybe that they'll be on the other side of the process at some point?

- Kevin

Re:Peer Review - Solution (1)

Qzukk (229616) | more than 9 years ago | (#12769207)

And? Microsoft doesn't need protection from you, but I'm sure they'd love to "innovate" all the new ideas you send them that unfortunately didn't make the patentability cut.

And what the hell is up with slashdot today?

Slashdot requires you to wait 2 minutes between each successful posting of a comment to allow everyone a fair chance at posting a comment.

It's been 8 minutes since you last successfully posted a comment

Re:Peer Review - Solution (4, Insightful)

RationalRoot (746945) | more than 9 years ago | (#12769089)

Hmmm, peer review.

I come up with a patent. It's gonna make a lot of money, much better way of doing X.

All the people who are doing X already get to decide if I get the Patent.

Am I the only one who sees a conflict of interest here.

And the possiblity of a Patent Cartel. If you're in the big five, we'll let you get a patent. If you're an independent inventor, then you have no chance. We the big five, will use our patents to keep competition out. And we get to decide who gets patents. Gimme some of that.

Re:Peer Review - Solution (2, Insightful)

Dun Malg (230075) | more than 9 years ago | (#12769185)

Why not introduce a peer review process by which a patent in a particular industry is reviewed by patent holders in the same industry

Errr....the purpose of the patent system is to prevent the established, moneyed old boy network of entrenched industry from telling small upstarts "thanks for the idea, now get lost".

Re:Peer Review - Solution (0)

Anonymous Coward | more than 9 years ago | (#12769252)

say that someone comes up with a nifty, new way to do X. they apply for a patent.
since you work in the same field, you are one of the people selected to review this patent application.
you read it, and think to yourself:

1) hey -- this is nifty, and it could work - better than the way that we're doing it now...
2) if this guy gets his patent, we'll either have to keep doing things the old way, or pay him a licensing fee to use this nifty new idea...
3) if this patent is declined, we get to use this nifty new idea for free...
4) ...
5) $PROFIT$

Re:Peer Review - Solution (1)

mOdQuArK! (87332) | more than 9 years ago | (#12769429)

Copied from one my previous submissions:

How's this for an alternative version of patents: there ought to be a fairly small maximum number of patents allowed (1000? 10000?). This small database should make it easier to determine whether or not a particular invention is infringing on an existing patent.

Let whoever (people/companies/non-government entities) bid on ownership of each submitted patent, and the top bidder will get to own the patent (with all the privileges granted thereof - including selling the ownership of the patent to others).

This will cause the bidders to determine the "value" of each patent as they perform their "due diligence" for each patent. (In other words, you don't have to depend on the expertise of patent examiners to set the price of each patent.) Once a bid has been submitted (through escrow?), it can't be retracted & will be returned only if it is not the maximum bid.

The winning bidder pays the money _directly_ to the submitter of the patent idea. This will allow smart people who have a lot of ideas, but who might not be able to take advantage of their own ideas, to receive an amount which has been determined (by a market process) to be the "value" of their idea. With this kind of jackpot payoff, there should be a lot of people submitting good ideas into the patent process (with the hopes of becoming instantly rich).

As patents expire, or are torpedoed due to obviousness or prior art (which will either require either patent examiners or perhaps organized review-boards of industry experts), that will free up patent "slots" in the allowed # of patents, and new submissions can be bidded on to fill those slots.

Patent submissions which did NOT make it into any of the allowed patent slots wil end up being released immediately into the public domain - so submitters have a vested interest in making sure their submission is a high enough quality to have a good chance of winning the bidding.

Re:Peer Review - Solution (1)

nomoreself (762739) | more than 9 years ago | (#12769503)

Why not introduce a peer review process by which a patent in a particular industry is reviewed by patent holders in the same industry? In this manner, a frivolous patent could be easily circumvented with a simple review request. A few hundred peers simply review the patent and then decide if it is legit.

The question then arises of who chooses the peers on the review-board? Also, I can easily envision a giant corporation in a given industry gaining control of this review board by buying out or otherwise influencing a majority of its members. Once that happens, said corporate entity basically rules the patent process for the industry. Bad idea. The moral is that patent reform isn't about avoiding frivolous patents, but rewarding inventors by protecting their creations.

9 months? (4, Insightful)

yotto (590067) | more than 9 years ago | (#12768987)

Why not forever? A bad patent doesn't instantly become a good one after it's been a patent for 9 months.

Re:9 months? (1)

markild (862998) | more than 9 years ago | (#12769062)

It's a kind of bouns if you manage to sneak a patent in under the radar...

Re:9 months? (1)

Datamonstar (845886) | more than 9 years ago | (#12769144)

Yeah, I was thinking the same thing as soone as I read that part. Will a provision be made for "extreme circumstances," or the like? Or will someon just say "well, you had 9 months to file this complaint..." and let it slip through the cracks. Heck, 9 months is barely enough time under some circumstances to even tell if an enfriengement was made, let alone prepare all the legal work to start such a process. But, I guess it's a step in the right direction.

Businesses and business plans (1)

jfengel (409917) | more than 9 years ago | (#12769255)

Because patents are important parts of business plans. Somebody who holds a patent in good faith (as opposed to one of these dimwit patents we've been seeing so much of) wants to get started making money off that patent before it expires. And it'll be harder to get seed money based on your patent ownership if your investors are afraid that you will be challenged over it.

However, there is one important "forever" component to this legislation: if a patent holder uses the patent against you, you can file to have it overturned, no matter when the suit is filed (as long as you do it within six months of the lawsuit filing). So if you add one-click ordering to your web site, and Amazon sues you over it, you can try to have that patent overturned.

That doesn't get in the way of business planning, because it can't be used pre-emptively by a competitor once the nine months have passed.

There are still serious ways to abuse this system if well-funded competitors file challenges intended to force you to spend your money defending your patent rather than exploiting it. And a small company will still have a hard time gathering the money to sue if Microsoft is violating its patent. The wheels of justice still grind slow, but I haven't got a good solution to that problem.

Read 2nd Part (4, Informative)

Ironsides (739422) | more than 9 years ago | (#12769668)

or six months after a legal notice alleging infringement is sent out.

So if I decide to challenge someone in court after the 9 months are up, anyone can choose to try to kill the patent for the next 6 months. Basically, as long as I don't try to sue anyone, the patent would be able to stand after that 6 months. As soon as I try to sue someone (which is what we really care about) there are 6 months for someone to initiate proceedings against the patent every time I try to sue.

Re:9 months? (0)

Anonymous Coward | more than 9 years ago | (#12769670)

Why not forever?

Because that would negate the ultimate purpose of this legislation. The IP overlords would like congress to regulate and put limitations on the process of challenging bad patents, and a time limitation is a usefull and seemingly innocuous start at those limitations.

Re:9 months? (1)

horza (87255) | more than 9 years ago | (#12769783)

Why not forever? A bad patent doesn't instantly become a good one after it's been a patent for 9 months.

Indeed. In fact why bother having the legislation at all if nothing changes but the patent holder waits 9 months before doing exactly what he was going to do anyway? With the avalanche of patents, no-one is going to find out if a patent affects them until the holder hits them with a law suit. If anything it's going to make patents even more 'submarine' than before.

Phillip.

Re:9 months? (1)

typobox43 (677545) | more than 9 years ago | (#12769828)

"But Mr. Dent, the plans have been available in the local planning office for the last nine months."

well... (4, Insightful)

hamburger lady (218108) | more than 9 years ago | (#12768992)

Probably the most sweeping change would be the creation of a process to challenge patents after they are granted by the Patent and Trademark Office. "Opposition requests" can be filed up to nine months after a patent is awarded or six months after a legal notice alleging infringement is sent out.

reexamination works pretty well, but there's a backlog. of course, this new system is gonna get backlogged REAL fast.

Another major change would be to award a patent to the first person to submit their paperwork to the Patent Office. Currently, patents are awarded to the first person who concocted the invention, a timeframe that can be difficult to prove.

i dunno about this. 'first to apply' has major disadvantages.

Re:well... (1)

Albanach (527650) | more than 9 years ago | (#12769169)

i dunno about this. 'first to apply' has major disadvantages.

If that's really their intention it has huge implications. This could place a big burden on Open Source projects. If you develop something that is patentable, you'll have to patent it - otherwise that suggests someone else can take your invention, patent it then charge you to use it.

Picture A large WA based software company looking through the Linux kernel updates for patentable concepts then launching a law suit against the developer for using the thing!

Re:well... (0)

Anonymous Coward | more than 9 years ago | (#12769311)

I would think that the fact that the concept had been published (yes, publishing it on the Open Source website is publishing it) would make the case for prior art very easy in such a case.

first to apply (1)

ProfBooty (172603) | more than 9 years ago | (#12769232)

First to apply is to bring the US system inline with the European and Japanese Patent Offices.

I am a patent examiner.

Re:well... (1, Interesting)

Anonymous Coward | more than 9 years ago | (#12769316)

Doesn't this create the possibility that someone who isn't the actual inventor could get the patent, just by beating the inventor to the patent office? I think that this "first to file" rule would incent massive amounts of corporate espionage and other such shenanigans, with resource-rich large companies feeding off of the innovative efforts of small businesses and independent developers. Just imagine, you're trying to raise money to get started, so you reveal your new technology to a VC. That VC then turns around and tells one of his Fortune 500 limited partners about it. That limited partner then rushes a patent application to the PTO while the VC politely declines to invest in your start-up. You eventually file for a patent. Three years later, you discover that someone else filed before you, so you lose.

Microsoft built their business by seeing the innovations of others and using their resources to act on those innovations more quickly and more decisively than the actual innovators. This proposed new rule just seems like a thinly-veiled attempt by them to be able to steal not only the markets for those innovations, but also the patents from the rightful innovators.

Also, Article I, Section 8, Clause 8, of the Constitution gives Congress the power "to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." Any change to the patent law that allows anybody other than the actual inventor to get a patent would appear to be blatantly unconstitutional.

Re:well... (1)

KillerDeathRobot (818062) | more than 9 years ago | (#12769452)

But if the actual inventor can prove that he invented it first, he can fairly easily challenge the offending patent within the 9 months, or any time the offending patent is used against him.

Re:well... (1)

Anonymous Coward | more than 9 years ago | (#12769564)

NO, he can't. That's the point.

What are the details though? (1)

failure-man (870605) | more than 9 years ago | (#12768999)

If Microsoft's for it they can surely afford to buy it through, athough whether it benefits anyone else remains to be seen.

More twists and turns (0, Flamebait)

Colin Smith (2679) | more than 9 years ago | (#12769012)

Added to the legal process so that patent lawyers can charge a little bit more. Yay! Lets have more lawyers making more legislation.

Re:More twists and turns (3, Insightful)

the eric conspiracy (20178) | more than 9 years ago | (#12769128)

What do expect?

Letting a Congress full of lawyers make the laws is like putting the drug companies in charge of creating diseases.

IMHO a bicameral legislature is ok, except they did it wrong. One branch should be in charge of making laws, and the other repealing laws. AND it should take a 2/3s majority to create a law, but only a 1/3 vote to repeal a law.

Re:More twists and turns (1)

servognome (738846) | more than 9 years ago | (#12769450)

Letting a Congress full of lawyers make the laws is like putting the drug companies in charge of creating diseases

Don't like lawyers don't vote them in.

One branch should be in charge of making laws, and the other repealing laws. AND it should take a 2/3s majority to create a law, but only a 1/3 vote to repeal a law.

Great, so a 1/3 minority of representatives can control the legislature, that's democracy. Rather than trying to reinvent the wheel, people should be more involved in the political system. One of the biggest enemies of democracy is apathy; because it gives the opportunity of the outspoken minority to control the silent majority.

Re:More twists and turns (2, Insightful)

shmlco (594907) | more than 9 years ago | (#12769459)

One branch should be in charge of making laws, and the other repealing laws. AND it should take a 2/3s majority to create a law, but only a 1/3 vote to repeal a law.

Someone has been reading too much Heinlein...

MODERATORS (0)

Anonymous Coward | more than 9 years ago | (#12769259)

This is more like sarcasm than flamebait. Do your jobs properly please.

It sounds great until (0)

Anonymous Coward | more than 9 years ago | (#12769014)

This bill sounded like a great idea until I got to
  • The bill is supported by the USPTO and Microsoft who have been recently asking for patent reforms

Does this mean... (2, Interesting)

markild (862998) | more than 9 years ago | (#12769020)

...that the same people that accepted a stupid patend in the first place would be the one to read a reasonable request to why the patent is to be removed?

It sound like this is a perfect plan carried out in the worst possible manner..

dI'm gonna POOP (-1, Troll)

Anonymous Coward | more than 9 years ago | (#12769022)

On j'our CHEST!

Microsoft's Motivation? (3, Insightful)

gatorflux (759239) | more than 9 years ago | (#12769051)

Should be interesting to see just why MS is stepping into this fight. Do they simply want to challenge their competitor's patents for personal gain or do they genuinely want to encourage innovation? Given that their own patents will also be placed under the same scrutiny, it is hard to imagine how they would stand to gain more than anyone else in this situation.

Re:Microsoft's Motivation? (1)

MustardMan (52102) | more than 9 years ago | (#12769283)

it is hard to imagine how they would stand to gain more than anyone else in this situation.

Is it? I have a feeling these opposition requests won't exactly entail a trip to your local We The People document prep service to fill out the paperwork. Challenging a patent will probably require a good lawyer and a significant bit of money. Defending a patent from these challenges might also prove to be expensive. NOW do you see how this could benefit a company that has a ton of money, when it's trying to trample all over little companies without much money?

Re:Microsoft's Motivation? (1)

Eccles (932) | more than 9 years ago | (#12769554)

From the article:
"Microsoft has been especially critical of a legal framework that has caused it to spend $100 million a year defending itself against 35 to 40 lawsuits at any one time. Microsoft has gone on the legislative offensive after a jury awarded Eolas Technologies $565 million in damages--a decision that has been partially reversed--in a patent dispute over Internet Explorer."

I can see Microsoft hating bogus patents, but believing its R&D department is capable of quality patents. Bad patents typically just make money for lawyers.

How about 9 months after first challenge? (4, Interesting)

jmichaelg (148257) | more than 9 years ago | (#12769054)

My preference is for no software patents at all.

Failing that, how about starting the patent challenge clock when the patent holder issues a claim instead of starting the clock when the patent is issued. It'd deal with submarine patents as well as eliminate the need to look over the patent office's shoulder on each and every patent they issue.

Re:How about 9 months after first challenge? (2, Insightful)

jeffkjo1 (663413) | more than 9 years ago | (#12769139)

Failing that, how about starting the patent challenge clock when the patent holder issues a claim instead of starting the clock when the patent is issued. It'd deal with submarine patents as well as eliminate the need to look over the patent office's shoulder on each and every patent they issue.

What the patent system needs is to take a page from the trademark system, which is the only part of intellectual property law in the US that works well.

Under trademark law, if you find something you think it infringing, you HAVE to defend your trademark... or your lose it. If you aren't using your trademark, you lose it (after 5 years.) This would largely eliminate intellectual property companies (that have no real products), and would also end the process of submarine patents.

Re:How about 9 months after first challenge? (1)

mzwaterski (802371) | more than 9 years ago | (#12769469)

Submarine patent = dead

Re:How about 9 months after first challenge? (1)

Alioth (221270) | more than 9 years ago | (#12769561)

From TFA, or indeed, just the Slashdot summary:

Opposition requests' can be filed up to nine months after a patent is awarded or six months after a legal notice alleging infringement is sent out.

so it indeed allows for that.

No more patents for little guys. (5, Insightful)

SSalvatore (666913) | more than 9 years ago | (#12769080)

Big companies will be scrutinizing patents all the time and routinely file challenges against little guys when they feel that the patent might affect them.

Then the little guys will have to fund their own patent defense. The big guys have a clear edge here because they have more resources.

They already have the ability to do that in a litigation case, but this gives them the ability to do it preemptively. That last word is becoming increasingly popular.

Re:No more patents for little guys. (2, Informative)

blueZhift (652272) | more than 9 years ago | (#12769481)

Unfortunately, the little guy is already out of luck. Doesn't it cost something on the order of $10K or more to file a patent these days? And in the current round of patent abuse, much of the trouble is being caused by scum sucking companies whose business plan is to gather up patents and then sue everyone who is doing anything remotely related to those patents. Often their first targets are, you guessed it, the little guys. So the new law appears to shift the balance from the scum sucking patent aggregators back to the big "evil" corporations. The little guy is still on the ground being trampled!

The little man unites (2, Insightful)

Agarax (864558) | more than 9 years ago | (#12769729)

I don't see it far fetched if small to midsized IT companies formed an organization to keep a eye on the patent office.

Unfair corporate advantage? (1, Insightful)

Anonymous Coward | more than 9 years ago | (#12769082)

Doesn't this give companies with lawyers on retainer a competitive advantage over John Doe because they can afford to challenge any patent they want?

You want sweeping? I got sweeping! (4, Insightful)

FunWithHeadlines (644929) | more than 9 years ago | (#12769085)

""The bill will eliminate legal gamesmanship from the current system that rewards lawsuit abuses over creativity,"

Sounds good. Or is this one of those bills where it does the opposite of what it sounds, the way the Clean Skies initiative leads to dirtier skies?

"said Smith, a Texas Republican.

Never mind, I can guess the answer now.

"The Business Software Alliance was quick to praise the bill,"

Well, there's a strike against it.

"saying in a statement that it goes a long way toward "improving patent quality, making sure U.S. law is consistent with that of other major countries and addressing disruptions caused by excessive litigation."

Uh huh. Whenever they trot out the "Let's make sure our laws are consistent with other countries," you know the fix is in.

You want sweeping? Here's sweeping: No software patents. Period. They are already protected under copyright law.

Re:You want sweeping? I got sweeping! (2, Insightful)

Rufus88 (748752) | more than 9 years ago | (#12769333)

No software patents. Period. They are already protected under copyright law.

No, they're not. Implementations are protected under copyright law. Patents are supposed to protect truly innovative methods of solving some particular problem, and I see no reason why those involving physics or mechanical engineering are more deserving than those involving information processing. The problem isn't software patents. The problem is stupid patents, whether they be one-click shopping (software), or swinging on a swing sideways (hardware).

And in the spirit of big brother, this means (0, Troll)

wschalle (790478) | more than 9 years ago | (#12769090)

Patent Reform= Attempt by Big Software to kill linux once and for all

First to File (5, Insightful)

ndansmith (582590) | more than 9 years ago | (#12769091)

Provides that the right to a patent will be awarded to the first inventor to file for a patent who provides an adequate disclosure for a claimed invention; http://lamarsmith.house.gov/news.asp?FormMode=Deta il&ID=648 [house.gov]

In other words, just because you were the first person to invent a device, it doesn't mean that you can rightfully own a patent for it. So if some young inventor creates something and some other company swipes it, it is a race to the patent office. I am guessing that a big company's lawyers know a shortcut or two.

And...? (2, Insightful)

goldspider (445116) | more than 9 years ago | (#12769260)

"So if some young inventor creates something and some other company swipes it, it is a race to the patent office. "

Then said "young inventor" needs to keep his/her invention (and other supporting materials) away from prying eyes. Oh wait, that's how it is now too!

Re:And...? (1)

imthesponge (621107) | more than 9 years ago | (#12769317)

But if it does get swiped, currently the young inventor could challenge it based on his prior art, right?

Re:And...? (1)

imthesponge (621107) | more than 9 years ago | (#12769340)

*his/her. I'm sleepy.

Re:And...? (1)

goldspider (445116) | more than 9 years ago | (#12769370)

IANAPL, but I don't believe these changes would eliminate the "prior art" concept.

If the inventor could prove that he/she was in fact the original inventor, and that the idea was stolen, these changes would allow the inventor to challenge the patent obtained by the company.

Not What We're Looking For (2, Insightful)

stinerman (812158) | more than 9 years ago | (#12769108)

Bill info on Thomas [loc.gov]

It has no provision regarding eliminating "business method" (read: software) patents. This bill won't do anything but clog up the patent office more with so-called opposition requests.

It would be interesting if the Judiciary committee could be swayed to eliminate software patents. If your congressman is on the committee [house.gov] , let them know how you feel.

Microsoft and patent reform? (1)

MirrororriM (801308) | more than 9 years ago | (#12769113)

I didn't think I'd ever see that in the same sentence.

Anyways, anything that has to do with "patent reform" that Microsoft backs really makes me leary of what this is actually all about. Are they mad because they missed the boat on a couple of "ideas" they could've scammed from someone else by patenting them first?

Switchover? (1)

RoadkillBunny (662203) | more than 9 years ago | (#12769125)

First the Canadian government wants to get a new Copyright Law and now the USA is going to change it's dumb patent laws.

This bill needs to be opposed (5, Insightful)

cpt kangarooski (3773) | more than 9 years ago | (#12769167)

The central problem is that it's unconstitutional in that it no longer would award patents to the first person to actually invent something, but rather to the first person to file for a patent. The Constitution permits Congress to grant patents to inventors, not mere filers.

Additionally, this is probably more likely to harm the rare, but important small inventors, since it can take them a bit longer to muster the resources to file.

It also harms the public, since it ignores the decision of an inventor to not get a patent, and thus allow the invention to lapse into the public domain right away. If this passes, not only would the inventor have to decide not to seek protection, but so would any other johnny-come-lately.

First-to-file, as opposed to first-to-invent, is a stupid idea. As usual, it was pioneered abroad (much like a lot of the stupid copyright laws we've been seeing for the last few decades) and is being pushed on the US for no good reason other than to standardize on whatever everyone else is doing. That all the other kids are jumping off cliffs is no reason for us to do it too. Our laws should be based on good policy, without regard for what other countries do.

Re:This bill needs to be opposed (3, Insightful)

Kirth (183) | more than 9 years ago | (#12769334)

> As usual, it was pioneered abroad (much like a
> lot of the stupid copyright laws we've been
> seeing for the last few decades) and is being
> pushed on the US for no good reason other than
> to standardize on whatever everyone else is
> doing.

Very wrong. You've just been had by your governement. YOUR governement brings this in somewhere at the WIPO or UN; makes them write harsh regulations so YOUR governement can go back to the US and tell everyone "its international standard, we have to do this".

We see this with the EU as well. Local governments effectively drive through regulations by lobbying for them in the EU and using "it's official, the EU says it, we have to" in front of their own people.

Re:This constitution needs to be opposed (1)

ArsenneLupin (766289) | more than 9 years ago | (#12769705)

We see this with the EU as well.

Very well said. EU constitution just says "intellectual property shall be protected", without all that pesky "to promote progress of Science and the useful arts" and "limited times" crap. That way, nobody is going to run to Supreme Court and whine that software patents actually don't promote progress, and thus are unconstitutional. And European Comission will not need to come back every 20 years to prolong copyright terms by another 20 years: they'll be able to make it perpetual once and for all!

No is the answer!

Re:This bill needs to be opposed (1)

AndersOSU (873247) | more than 9 years ago | (#12769428)

While I agree that first to invent is superior to first to file I have a question about your constitutionality argument. Is the right to grant patents really in the constitution? If so could you point it out for me?

IANACS (constitutional scholar) and since your sig indicates you are a lawyer I suspect you know what you are talking about.

However, I did bring up a copy of the constitution and did a ctrl+f patent and didn't find anything.

Re:This bill needs to be opposed (1)

AndersOSU (873247) | more than 9 years ago | (#12769504)

Nevermind looked a little harder and its there
To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;
-Article 1 Section 8

Re:This bill needs to be opposed (1)

dpilot (134227) | more than 9 years ago | (#12769525)

I'm not a lawyer, or the one you're asking for, but I have looked this up in the Constitution. Try searching for "artist" or "inventor" instead of "patent". Or check in Article I, Section 8, about halfway down.

Re:This bill needs to be opposed (1)

Thornkin (93548) | more than 9 years ago | (#12769735)

Let's say I'm a small inventor and I come up with a widget but don't file. Now BigCompany comes along and files for the same invention some time later. Do you think perhaps there might be some *prior art*? Like, say, my invention? Thought so.

Re:This bill needs to be opposed (0)

Anonymous Coward | more than 9 years ago | (#12769840)

Only if you published something describing your invention prior to the other person filing the application. Since you would be most likely still refining your work, you probably wouldn't have published *anything* about it, especially since the current bill would encourage you to try to keep it secret before you file your own application.

FUBAR (4, Interesting)

Kirth (183) | more than 9 years ago | (#12769192)

That's what patents are in the first place. And not just software-patents.

We're being swamped by genetically modified whatever, just because some company managed to get a patent on it and thus has no incentive to keep its bacteria in the tank. So what if the whatever just produces some disaster like polluting fields of non genetically modified crops? Its patented, you can sue the victim of the pollution.

And even better, some companies managed to patent parts of viruses (which they didn't invent, of course) -- now, whoever wants to identify them in something like a HIV-test has to pay royalties. The international red cross who wants donated blood checked for instance..

Now talk about "growing costs in health-care". The whole affair is just stacking up costs everywhere, in the judical system, taxes, health-care, ecology, you name it. Patents are a frigging financial catastrophe.

That's fucked up beyond any repair, the whole thing has to be ditched.

Re:FUBAR (1)

jeepnut (887336) | more than 9 years ago | (#12769801)

Okay.... Thanks for stating that patents are f'd. Now I would like you to follow that with a solution to doing away with them. Or is not being able to protect anything you created fine? I know, let's make EVERYTHING public domain. You want to talk about financial catastrophe, your comment and the associated fix you are indirectly suggesting begs it.

How about encouraging challenges (1)

91degrees (207121) | more than 9 years ago | (#12769218)

While a trivial parent can be struck down, it's expensive to do, and will usually be cheaper to pay for it.

What would solve this would be that if a patent holder demanded damages, and the patent was struck down on the basis of obviousness, then the patent holder would haveto pay the same amount that he was demanding in the first place.

We'd probably want to be careful not to penalise patent holders whose patents failed on minor technicalities, but that's something that can be dealt with by legal experts.

Good News (1)

bmomjian (195858) | more than 9 years ago | (#12769293)

When Microsoft and other big companies started getting hit with patents, I knew we would get some fixes to the patent system.

I was at the CCIA caucus in May when we talked about patents and their problems for open source, so I knew this legislation was coming. One new addition is the six months after infringement clause, which will help open source so we can fight only the patents that attack us, rather than all of them within the first nine months of issue.

This is not the way to fix the patent system (5, Insightful)

Anonymous Coward | more than 9 years ago | (#12769298)

Read this very carefully. It appears to be an attempt to shift the power in the system from independent inventors to large corporations.

I understand that Microsoft wants to eliminate patent shops, but many provisions in the proposed legislation do more than that. The simplest way to eliminate EOLAS-type lawsuits would be to demand that the invention be implemented within five years of being filed and raise the bar so that only very or highly non-obvious applications are accepted.

Clearly, Microsoft doesn't want to raise the bar because that would invalidate many of their own patents. What Microsoft wants to do is make patents the exclusive domain of well established corporations and eliminate any threats that startups might pose to them.

Again, read it carefully. There are many ways to solve these problems, but these provisions are specifically aimed at decreasing the power of independent inventors.

Proposal: Lowering the penalties for willful infringement.

Result: Encourages willful copying without paying inventor.

Proposal: First to file rather than first to invent

Result: With this provision, Microsoft and/or IBM could make regular passes of SourceForge and file patents on all innovative work there. On hearing of any new product from a startup, they could patent the techniques used in that product immediately. Note that even if they didn't receive the patent, there would be no penalties. In fact, they would benefit because by filing first they eliminated the possibility that the original inventor could receive a patent.

Proposal: Allowing judges rather than the patent office to review challenges,

Result: I'm not sure what this means because the details aren't spelled out. In the best case, it is a needed fix because it catches mistakes made by the patent office when a bad patent slips through. What worries me is the choice of forum. In the worst case, it is shifting challenges from the patent office to a courtroom. The same thing could be accomplished without moving it to the courtroom by simply funding the patent office. The purpose of moving it to the courtroom - which is more expensive for the government - could be to allow large corporations to crush independent inventors or self-funded startups who cannot afford the legal costs. Or it could be to make it prohibitively expensive for the open source community to challenge bogus patents by Microsoft. Either way, the specification of forum is of some concern. The patent office may not be effective, but its best aspect is that small inventors can afford it.

There is a need for patent reform, but the brief description of this legislation sends up warning flags. Raise the bar on what can be patented and fund the patent office so it can spend more time reviewing. Allow patents to be challenged if the inventors haven't creating a prototype within five years of filing. These and several other approaches would be far simpler and more effective at solving the current problems than Microsoft's proposals.

-- N

why big corporations like this (3, Informative)

cinnamon colbert (732724) | more than 9 years ago | (#12769309)

altho it may seem strange, patents are very cheap by corp stds - diy for a few Kbucks, and in a well run company, even with the attys, it is 50 Kbuck to file a patent - this is small money for even small companies (think about the cost of hiring 10 programmers, with fringe + office space).

HOwever, if you allow oppositions, then you get into court type appeals, and the cost skyrocktes, so only very large, well heeled companies can afford to do battle. For example, say MS does not like a patent on how to handle wierd fonts. They can afford to fly in experts from all over the world, gets hundreds of hours of video testimony, do studys, etc. How is a small company going to fight that ? not to mention the years of delay, which always work in favor of hte big guy with cashflow.

NOt to say that the patent system isnt full of problems - there are certainly a lot of patents out their that should never have been granted.

HOwever, if you want to do something for the small guy, change the system from date of invention (which requires record keeping to a std to satisfy attorneys) to date of filing, which is obvious. this would really help the small guy

Why issue the patent in the first place? (2, Insightful)

Anonymous Coward | more than 9 years ago | (#12769312)

Why not review the patent application critically BEFORE awarding the patent (much more critically than the current process)? The post-award-review process is nice 'set up' for people with lawyers on the payroll and not for the "inventor."

Just the fact certain big companies support the bill should give the normal people reason to pause and examine this bill critically. It looks like another band aid solution than "Probably the most sweeping change... " hype.

Pattern? (3, Insightful)

exception0 (794787) | more than 9 years ago | (#12769369)

Anybody notice anything strange about this? Look back about 8 /. posts. See it yet? The post titled "Your Rights Online: Microsoft Found Guilty of Patent Infringement" Microsoft gets hit for patent infringement and suddenly is behind a bill to reform patent law? Hey, if they pay enough money and get this bill passed fast enough, they may still be within the 6 months they have to challenge!

Bill Vs Bill (2, Funny)

tezbobobo (879983) | more than 9 years ago | (#12769412)

That's right folks. Round up for the bout to knock the other guy out.

In the left corner weighing in at $60Billion dollars we have William 'Bill' Gates. In the right corner we have Patent Reform 'Bill'....

Bills always have titles opposite of their intent (1)

stankulp (69949) | more than 9 years ago | (#12769482)

"Patent Reform" is code for making it even worse than it already is.

So now... (1)

JustNiz (692889) | more than 9 years ago | (#12769488)

You'll also have to fight Microsoft to get a patent through...

Am I the only one... (1)

peipas (809350) | more than 9 years ago | (#12769518)

...who feels like legislation these days doesn't stand a chance unless a major corporation is behind it?

yu0 Fail It (-1, Troll)

Anonymous Coward | more than 9 years ago | (#12769521)

Prior art challenges (3, Insightful)

RealProgrammer (723725) | more than 9 years ago | (#12769553)

The bill proposes that third parties may submit prior art challenges for up to six months after the date of publication.

Why only six months? Why not forever? After six months of a patent's existence, only the person with prior art could file an objection.

If the interest of the law is justice, then it shouldn't matter when an error is discovered. It also shouldn't matter that some company has made an investment in a particular technology based on the belief that their patent is good.

If you didn't think of it first, you shouldn't get a monopoly on it, ever.

Somebody read my paper (1)

Dragon218 (139996) | more than 9 years ago | (#12769570)

I just wrote a research paper suggesting opposition requests for patent reforms.

Too bad I didn't get a patent on the idea.

The problem is... (1)

40ohms (528261) | more than 9 years ago | (#12769707)

It seems to me the problem is that most patents that have prior art troubles don't surface until many months if not years after the patent is approved. Sure Microsoft and other companies would support this. It gives them a way to write patents and ignore any prior art or it sounds to me like previous patents. This legislation sounds like an exceptionally bad idea to me.

Sweeping? How about no patents period! (2, Insightful)

argoff (142580) | more than 9 years ago | (#12769789)

No, sweeping would be no patents at all, not just no software patents, no patents at all!

I think software patents must go NOW because they simply won't work in the information age, but lets make no mistake about it. All patnet monopolies are evil.

Consider for instance the way that large pharmacutical industries acted when they sued African countries in the world court for attempting to make generic AIDS drugs.

If I said (like them) that I have no incentive to make AIDS drugs without owning patents, and I said like them that I was kind with charitable programs to the Africans - how is that really any different than saying "I have no incentive to grow cotton without slaves on the plantation, and I am kind to my niggers"?

Don't worry. After heavy pressure, the pharmacuticals dropped the lawsuit and got the US govt to buy 13 billion of patented ADIS medications for Africa at the taxpayers expense instead.

Would Prior Art Be Patentable? (1)

CrownFive (20763) | more than 9 years ago | (#12769811)

The article states, "Another major change would be to award a patent to the first person to submit their paperwork to the Patent Office. Currently, patents are awarded to the first person who concocted the invention, a timeframe that can be difficult to prove."

Based on this, would it be possible for someone to take someone else's idea published in the open literature, concoct the software, file for the patent, and have it awarded?

Join the latest fantasy game... (2, Funny)

Odocoileus (802272) | more than 9 years ago | (#12769813)

It's called USPTO, and it is loosely based on Magic the Gathering. I for one got a bad manna shuffle.
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