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Reform Could Kill EFF "Patent Busting Project"

kdawson posted more than 6 years ago | from the shooting-the-messenger dept.

Patents 110

netbuzz alerts us to a letter the EFF sent today to Senators Leahy and Specter pointing out a deleterious clause in the current draft of the Patent Reform Act of 2007 — which EFF generally supports. As written, the proposal would kill the EFF's Patent Busting Project. Fine print in the bill would limit the time in which a patent could be challenged, by anyone other than those suffering direct financial harm, to one year after the patent's grant. Since the EFF is non-profit it would have a hard time showing financial harm.

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110 comments

What about consumers? (4, Interesting)

Icarus1919 (802533) | more than 6 years ago | (#22313868)

Couldn't ALL consumers demonstrate financial harm? Stupid patents drive up prices, directly affecting ALL of us.

Just wait a year before sueing everyone (0)

Anonymous Coward | more than 6 years ago | (#22314210)

If you just wait a year, then sue everyone, no one will be able to challange the patent. You could even say for the first year it is free, so no one can claim financial damage. After that, no one can challange the patent.

Gaming the system? (2, Informative)

Mr. Underbridge (666784) | more than 6 years ago | (#22314374)

If you just wait a year, then sue everyone, no one will be able to challange the patent. You could even say for the first year it is free, so no one can claim financial damage. After that, no one can challange the patent.

I think you're reading it wrong. For the first year, anyone can claim harm. After that, only those financially harmed (ie, sued, or otherwise prevented from competing) could claim harm. So it's bad, just not quite that bad.

Still, how does one prevent the EFF folks from starting a sister corporation who creates a prototype of a potentially infringing device and claiming 'harm' since they can't sell it? They could make a cheap-o prototype that intentionally infringes on each patent they want to kill, then file suit.

Let's make loopholes work for us!

Re:Gaming the system? (1)

denis-The-menace (471988) | more than 6 years ago | (#22314512)

They would have to create one corp for each bogus-patent in case they loose!
And if they loose, they would then have to prove that that loosing corp is not the EFF itself.

Re:Gaming the system? (1)

Mr. Underbridge (666784) | more than 6 years ago | (#22314838)

They would have to create one corp for each bogus-patent in case they lose!

Don't think so. Until they try to market the thing, nobody could claim damages against them, so I don't see a legal reason the same company couldn't make a bunch of the.

And if they loose, they would then have to prove that that loosing corp is not the EFF itself.

Nothing to prove. It would be a separate company that so happens to have a lot of the same members. Hell, a lot of nonprofits do the same.

Re:Gaming the system? (1, Interesting)

Anonymous Coward | more than 6 years ago | (#22316914)

sorry, but corporations aren't liable in that way. That's one of the big problems with patent trolls. They aren't their own companies you know.

Re:Gaming the system? (3, Insightful)

Jeremi (14640) | more than 6 years ago | (#22315752)

Still, how does one prevent the EFF folks from starting a sister corporation who creates a prototype of a potentially infringing device and claiming 'harm' since they can't sell it?


I think it's easier than that.... the EFF just needs to compile prior-art information and post it on a public web site, and if and when the patent troll tries to sue anybody, the people/companies being sued (and who are thus "being harmed") already have their case researched for them.

Re:What about consumers? (1)

jd (1658) | more than 6 years ago | (#22314442)

Yes, but there's latency in the system, so that the harm may not be visible within the year, and the majority of the harm will be indirect. Actually, since an invention supposedly does something new, it will be extremely hard to prove direct harm of any kind - even from other corporations, as it's unlikely they're going to be harmed by buying a new component. A new system containing the component, yes, but that is indirect and so they have no redress under this. I'm actually quite puzzled as to who would be "directly" harmed. The salesmen? Well, no, they're harmed by customers being put off, which makes it an indirect impact.

Re:What about consumers? (1)

trainman (6872) | more than 6 years ago | (#22316466)

I agree. While getting this clause removed should be the primary goal, in case of failure, the solution is simple: The EFF still continues to find the patents, then passes the knowledge accumulated to a OSS friendly company to pursue the challenge.

What's so hard about that?

Re:What about consumers? (1, Insightful)

Anonymous Coward | more than 6 years ago | (#22316784)

Hmm... As soon as you hire a lawyer, and ask him if you can contest the patent, you have been financially harmed by it (...)

Nah, should be easy (0)

Anonymous Coward | more than 6 years ago | (#22319346)

now that the *AA have gotten it down pat that merely sharing is profiting because you expect to be shared back (and butressed by the idea that a lost opportunity is theft of money), all the EFF have to do is say

We should be able to share our code that the patent says it covers but we can't. Because we wanted to share and expected improvements back, this is denying us the money equvalent of the support work that would be done. As per RIAA arguement in Daffy v Duck, Il 5th Cir.. Additionally, we would be able to increase the ammount of code shared and thereby profited from the opportunity such increase in code value were it not for the claims of this patent. The loss of opportunity being a financial harm is well settled in case law by the various P2P claims made by such illustrious corporations as Warner, Sony, BMG and so forth.

Done and dusted

Who writes this stuff? (5, Insightful)

Bryansix (761547) | more than 6 years ago | (#22313888)

We need line by line, letter by letter editing comments for bills. I want to know which dumbass sneaked this into the Bill.

Re:Who writes this stuff? (0)

Anonymous Coward | more than 6 years ago | (#22313992)

Problem is the guys that pass bills are the assholes sneaking this crap in there.

Personally it needsto be change that No elected official can accept any money from anyone. Anyone found to be will be removed instantly and all legistlation he/she introduced is nullified.

That way scumbags like Strom that have been there cince the civil war will be controlled.

Re:Who writes this stuff? (3, Funny)

bladesjester (774793) | more than 6 years ago | (#22314164)

That way scumbags like Strom that have been there cince the civil war will be controlled.

If he's still in office, he's one dedicated zombie considering the fact that he died in 2003. [wikipedia.org]

Re:Who writes this stuff? (5, Funny)

jd (1658) | more than 6 years ago | (#22314356)

Well, controlling zombies is always a good idea. But we should really be sure about how many zombies we're talking about. I propose that Holy Water be added to the sprinkler system, and that the Senators must sit through a ten minute test run. Those who dissolve, mutate into a hideous form, or have their heads spin a full 360 degrees, should be required to declare themselves undead.

Re:Who writes this stuff? (1)

repapetilto (1219852) | more than 6 years ago | (#22314912)

either way it'd be quite a sight

Re:Who writes this stuff? (2)

arootbeer (808234) | more than 6 years ago | (#22316410)

But then who would introduce legislation?

Re:Who writes this stuff? (0)

Anonymous Coward | more than 6 years ago | (#22316508)

(Posting AC because I moderated)

I'm sorry, I meant to mod that 'funny' but I accidentally clicked 'underrated'. Forgive me?

Re:Who writes this stuff? (-1, Offtopic)

Anonymous Coward | more than 6 years ago | (#22318722)

There you go. Fixed that for ya'.

Re:Who writes this stuff? (1)

bh_doc (930270) | more than 6 years ago | (#22316682)

"Are you now, or have you ever been, a member of the Brain Appreciation Party?"

Re:Who writes this stuff? (5, Funny)

Foobar of Borg (690622) | more than 6 years ago | (#22315518)

If he's still in office, he's one dedicated zombie
Yeah, he's certainly dedicated considering that zombies need to eat brains. How much nourishment do you think a zombie could possibly get on Capitol Hill?

Re:Who writes this stuff? (1)

bladesjester (774793) | more than 6 years ago | (#22316482)

That's because the brain slugs got there before the zombies.

A lot! (1)

phorm (591458) | more than 6 years ago | (#22316638)

Obviously a lot... after all, all those missing brains must have gone *somewhere*

Re:Who writes this stuff? (1)

Deadstick (535032) | more than 6 years ago | (#22314140)

I want to know which dumbass sneaked this into the Bill.

Perhaps that dumbass over there checking his balance on the ATM?

rj

Re:Who writes this stuff? (0)

Anonymous Coward | more than 6 years ago | (#22314236)

Or what we need is a website that exposes these sneaky bill defeating lines, and exposes the special interest controlled congress person who put it in.

Re:Who writes this stuff? (5, Funny)

ClamIAm (926466) | more than 6 years ago | (#22314722)

I think this idea is more insightful than funny, even if the mods appear to be 50/50 on either side at the moment. Anyway...

I like this idea. It's pretty much the equivalent of applying CVS to the legislative process. Then people can run 'diff' on all the idiotic parts of bills, and find out who's responsible.

I suppose revolutionary types could then claim "we're not rebelling, we're just a fork!"...

Re:Who writes this stuff? (4, Interesting)

taniwha (70410) | more than 6 years ago | (#22315036)

I agree - publically accessable source code control with logs on this stuff is a must (same with actual law) - some countries are already going this way

Re:Who writes this stuff? (1)

bronsinbound (669351) | more than 6 years ago | (#22319898)

Which is exactly why it is not going to happen! It is pretty obvious Congress doesn't want responsibility for its proper function, which is why the Executive branch has been given so much unchecked power. It is also why they have 0200 and 0300 voice votes on really important -- and typically unconstitutional -- legislation like the Patriot Act. Now where did I leave that rectal smoke pipe...

Re:Who writes this stuff? (2, Interesting)

ohtani (154270) | more than 6 years ago | (#22314746)

WikiBill?

Re:Who writes this stuff? (4, Funny)

dattaway (3088) | more than 6 years ago | (#22315594)

WikiBill?

That is our legislative branch right there. Its a wikipedia powered by the Ebay engine. Edits require paypal donations and the final version is locked and sealed with the highest bidder.

Re:Who writes this stuff? (4, Interesting)

elsilver (85140) | more than 6 years ago | (#22315096)

Good god, no you don't.

What you want is bills that are accepted or rejected wholesale, as-is, unmodified.

The last thing you want is to make it easier for someone to add unrelated ammendments, or insert language that totally changes the meaning of the bill. Line-by-line, letter-by-letter editing would make doing this much easier, than the already easy "I submit an ammendment to prepend section 12, subsection (viii), item Q with the word 'not'".

Bills should be submitted in a take-it-or-leave it fashion. If you think you've got an improvement, submit a whole bill with that improvement and convince the original submitter to withdraw their bill.

Enough mucking around with pet causes and unassociated pork-barrelling (now, associated pork-barrelling -- that's good and all).

Anyhow, what do I know. I'm Canadian. You just go keep running your country the way you want to.

E.

Re:Who writes this stuff? (5, Insightful)

arb phd slp (1144717) | more than 6 years ago | (#22315632)

Once we add CVS and source control the next thing we need is a compiler that actually turns the bill into a final form so that the "not" and "amended to add..." gets added into the sentences so we can see them in context instead of hundreds of pages away.

The reason no one reads the PATRIOT act is because it's almost all partial-sentence amendments to existing laws that are you can't see in context without access to a law library. Compile the source code of the nation so we can read it!

Re:Who writes this stuff? (1)

StarfishOne (756076) | more than 6 years ago | (#22318380)

That is such a cool idea!

(Could perhaps be great idea for a PhD project to research this idea further)

Re:Who writes this stuff? (1)

ill stew dottied ewe (962486) | more than 6 years ago | (#22315930)

There currently exists editing and ammending to the point where the purpose of the law can be and is subverted. What we NEED is CVS so that we know WHO is responsible for the changes, and comments where they can explain them.

Re:Who writes this stuff? (0)

Anonymous Coward | more than 6 years ago | (#22317918)

They already do this. I recall one bit of legislation that only changed a semicolon. There was zero explaination in the bill as to what it did.

Re:Who writes this stuff? (2, Interesting)

Ronin Developer (67677) | more than 6 years ago | (#22319756)

The ability to perform a line by line veto (vs actually line by line editing) is something the President has been asking for over his administration. While a LBL would solve some problems, I believe it's the riders that get attached to a bill that are the real issue. If the President should line veto anything, the entire bill (riders and all) should be rejected/vetoed. The LBL should simply be an indication to Congress that this is something the President would probaboy sign and send it back to the House or Senate for rework/revote - no one person should have the ability to make law entirely by themself.

It's the fear of giving the President a real LBL veto that scares the heck out of a lot of people - and with good reason.

If the President does veto a bill because of a rider, perhaps it would be nice for the media to actually acknowledge WHY he chose not to boost funding for our troops or fund CHIP and place the blame back on the real culprits - those that attached riders to a bill simply because they figured the bill was likely to pass and ride on its coat tails. Similarly, if CHIP or a troop funding bill comes with no riders, make it law to have the President explain why he vetoed it.

Re:Who writes this stuff? (1)

falconwolf (725481) | more than 6 years ago | (#22315794)

We need line by line, letter by letter editing comments for bills. I want to know which dumbass sneaked this into the Bill.

Corporate lackeys writes them. What we need for bills are for them to be written so most people can read one within a few minutes and understand it. Of course congress critters have to be able to justify spending so much tyme in Washington so they don't have to work for a living. I propose an amendment to the Constitution of the USA that, like Texas, congress can only be in session from 90 to 120 days every other year. In case of emergencies the president can call for a special session that lasts no longer that 2 weeks.

While I'm at it, proposing new amendments, there are two others I'll also propose. The first is that Amendment 12 [usaconstitution.org] , how the President and Vice President are chosen, be repealed. Instead presidential elections would use one of the Condorcet methods [wikipedia.org] . The candidate that scores the highest points becomes president and the candidate with the second highest score becomes the vice president. The other amendment I propose is that there be no laws that that makes it illegal for someone to do anything with their own bodies so long as they aren't harming anyone else, and if they do harm then they can be held liable for that harm.

Falcon

Re:Who writes this stuff? (1)

fluffy99 (870997) | more than 6 years ago | (#22316980)

You need to go even further up the chain and start with the fubar'd methods by which the parties select their nominees. The Democrats at least do proportional delegates, whereas the Republicans use both proportion and winner takes all for their primaries. Some of the states are even more strange with multiple votes eliminating the non-viable candidates. Some states are wising up and doing proportional electoral votes for the real election - mostly because they are annoyed at being ignored as a non-flip-flop state. For example Idaho always goes Rep so no candidates ever campaign there or even consider any of their state specific issues.

presidential elections (1)

falconwolf (725481) | more than 6 years ago | (#22317234)

You need to go even further up the chain and start with the fubar'd methods by which the parties select their nominees.

Well see, my plan fixes that. Instead of having caucasus all the candidates run for president. Before the 12th Amendment was passed that's how presidential elections were held. Of course the political parties didn't want to risk a candidate from one party being elected president and another one from a different party being the VP. John Adams [wikipedia.org] was elected as the USA's second president and was member of the Federalist Party [wikipedia.org] . One of his opponents was Thomas Jefferson [wikipedia.org] , who became the Vice President under Adams. And Jefferson was a member, and the founder, of the Democratic Republican Party [wikipedia.org] . Both of these parties were ideologically opposed to each other, the Federalists wanted a large and powerful federal government whereas TJ's Democratic Republicans wanted a small federal government and the power devolved, focused, locally.

Falcon

Re:Who writes this stuff? (1)

KDR_11k (778916) | more than 6 years ago | (#22319110)

I think what the parties are doing internally is their thing and not the job of the govt to regulate (though maybe applying antitrust legislation to break up the party duopoly might be a good idea...).

Re:Who writes this stuff? (1)

chainLynx (939076) | more than 6 years ago | (#22317440)

I think the command is svn blame

Re:Who writes this stuff? (1)

hey! (33014) | more than 6 years ago | (#22320260)

Actually, most earmarks essentially are "comments" in a budget item that are not voted upon, something like this: Instruction {spend a zillion dollars on advanced weapons systems} Remarks {That includes 25 million for the Aardvark missile system developed in congressman Alice's district, 10 million for the Bovine soldier telemetry project developed in congressman Bob's district ...}

What we really need (and is quite technically feasible) is a revision control system for legislation, in which every single change is tracked and no change can be made without a digital signature. Only people with an authorized certificate can make changes, and certificates have to be signed by a congressman's office.

So if somebody slips a line in for the Bovine project, we know that line originally came from somebody named "Joe Shmoe" authorized by congressman Bob to alter legislation, making that line Bob's responsibility. Likewise the committee chairs would have a separate certificate signing authority so we know that the line item for the Aardvark system was deleted by somebody named "Mary Roe" who was authorized by the Strategic Forces subcommittee of the House Armed Forces committee so the subcommittee chair is in the hot seat.

This is not really very cutting edge stuff; we had the technology to do it with mostly off the shelf stuff as far back as the 1980s.

Re:Who writes this stuff? (1)

Bega (684994) | more than 6 years ago | (#22320816)

Oh if it was as easy as using the SVN 'blame' -command..

a bigger worry... (0)

Anonymous Coward | more than 6 years ago | (#22313928)

would FLOSS projects ever be able to show financial harm??

Can lawyers do it?, they never have financial harm (0)

Anonymous Coward | more than 6 years ago | (#22314008)

I though EFF represents people, I may be wrong.

Financial harm? (2, Insightful)

Anonymous Coward | more than 6 years ago | (#22314080)

Err, what? Of course non-profits can suffer financial harm. Do you think they can't be sued, for example, or stolen from, or anything like that? What can't happen is that their profits are diminished - since they haven't got any -, but they sure can be harmed financially.

Fucking asshat! (0)

Anonymous Coward | more than 6 years ago | (#22314132)

Some fucking asshat sneaked this into the reform.

This means you can patent something, sit on it until the complain period elapses out, then start suing and people cant complain that it is prior art.

How is financial harm defined ? (4, Insightful)

Alain Williams (2972) | more than 6 years ago | (#22314166)

Fine print in the bill would limit the time in which a patent could be challenged, by anyone other than those suffering direct financial harm, to one year after the patent's grant.

Simple: The EFF buy one copy of software from someone who has had to pay patent extortion. The price that the EFF paid was presumably higher than it would have been if the software house did not have to pay patent dues ... thus the EFF has suffered financially.

Play these parasites at their own game!

Surprise, summary was misleading... (4, Informative)

Actually, I do RTFA (1058596) | more than 6 years ago | (#22314264)

Simple: The EFF buy one copy of software from someone who has had to pay patent extortion. The price that the EFF paid was presumably higher than it would have been if the software house did not have to pay patent dues ... thus the EFF has suffered financially.

The problem is that the standard is not, as the summary claims " anyone... suffering direct financial harm." Instead, the law is about third-party challenges. In other words, the only way after one year to challenge a patent would as a defense once sued over said patent.

Re:Surprise, summary was misleading... (1)

snl2587 (1177409) | more than 6 years ago | (#22314588)

...which brings us to the article/debate posted on /. earlier today...

Re:Surprise, summary was misleading... (0)

Anonymous Coward | more than 6 years ago | (#22314750)

I would be comfortable with NON-PROFIT third-party challenges, I doubt they would waste our time as much as those for-profit class action groups could, as it is their source of revenue.

Re:Surprise, summary was misleading... (0)

Anonymous Coward | more than 6 years ago | (#22318486)

It is still non-profit if the employees are making multi-million dollar salaries, it is the company itself that is non-profit. Lots of charities are just a scam to get your hard earned money into the pockets of con men. I should know, I've known a few of those con men.

Re:Surprise, summary was misleading... (1)

arminw (717974) | more than 6 years ago | (#22316468)

..... to challenge a patent would as a defense once sued over said patent.....

So then all the EFF has to do is advertise far and wide that they will defend any victim of a patent troll that tries extortion based on a prior art patent that should never have been granted in the first place. If such a troll sues, the EFF comes with all its researched prior art and skilled lawyers to invalidate the patent.

Re:How is financial harm defined ? (1)

The New Andy (873493) | more than 6 years ago | (#22314344)

Your are making the assumption that there is a product to buy. Heaps of patent trolls don't bother with that, as it only opens them up for counter suits.

Re:How is financial harm defined ? (1)

ClamIAm (926466) | more than 6 years ago | (#22314772)

I don't think that's what the OP is suggesting. Rather I think the idea is to buy a product or service from a company that has been sued or extorted into paying "licensing" fees to said patent trolls.

patent incontestability is so bad (5, Insightful)

waterbear (190559) | more than 6 years ago | (#22314168)

The last thing the world needs is incontestable rights that were wrongly granted in the first place.

I can just hear the bill's defenders saying 'but this limitation would not be incontestability'. But patents are rights that can be asserted against the public generally. So this limitation on who can contest them, would be incontestability by a large section of the persons affected by the rights.

-wb-

Re:patent incontestability is so bad (1)

Free_Meson (706323) | more than 6 years ago | (#22314870)

The last thing the world needs is incontestable rights that were wrongly granted in the first place.

I can just hear the bill's defenders saying 'but this limitation would not be incontestability'. But patents are rights that can be asserted against the public generally. So this limitation on who can contest them, would be incontestability by a large section of the persons affected by the rights.
A patent only grants the holder the presumption of validity. If they ever wish to assert their patent rights, their victim may prove by clear and convincing evidence (IIRC) that the patent is not valid (or more importantly that the specific claims supporting the suit are invalid). This litigation process is a far more involved, effective review than is otherwise practical.

The post-grant review is largely pointless. Only a tiny handful of patents will be overturned by it and those would be so weak as to never support litigation.

The only practical way to solve the patent problem is to adopt changes that prevent bad faith litigation (patent trolling).

Re:patent incontestability is so bad (1)

CodeBuster (516420) | more than 6 years ago | (#22317346)

But patents are rights that can be asserted against the public generally. So this limitation on who can contest them, would be incontestability by a large section of the persons affected by the rights.
That provision of the law could probably be shot down in the courts as well on grounds of equal protection or something similar (IANAL). If the law can be enforced against you in a civil suit then you should have an equal right to contest the cause of action before it becomes a large sword haning over your head just waiting for the patent holder to drop it on your toes at the worst possible moment.

Need a way to Monitor Congressional Bills (1, Insightful)

Anonymous Coward | more than 6 years ago | (#22314268)

Sneaking in wording like that into a bill is a big problem in Congress. Wouldn't it be great, like the Wikipedia tracing project, if we could find a way to find which congressman inserted what weasel words, when and who their donors are?

Dangerous!!!! (0)

Anonymous Coward | more than 6 years ago | (#22314336)

So what's holding a company back from getting a patent granted, sitting on it or flying it under the radar for a year?

This sounds like an extra perk requested by large Corp's to ensure that would be trouble makers can only bitch for so long before they are legally cast to the wind. Have we been bought and sold again fellow netizens?

Re:Dangerous!!!! (3, Insightful)

ScrewMaster (602015) | more than 6 years ago | (#22314554)

Have we been bought and sold again fellow netizens?

Left to themselves Congresspeople generally aren't too bad ... it's the undue influence that's causing most of the problems.

Re:Dangerous!!!! (2, Insightful)

amirulbahr (1216502) | more than 6 years ago | (#22317056)

All Americans suck because they think:

Left to themselves Congresspeople generally aren't too bad ... it's the undue influence that's causing most of the problems.

The real problem is that law makers think it is their job to... well, make laws. They become consumed by the process and can only think in terms of "more laws, more laws, more laws", never "let's sit back and do nothing for a while". I think we all need more Ron Pauls.

p.s. that was a joke about all Americans sucking of course

Re:Dangerous!!!! (0)

Anonymous Coward | more than 6 years ago | (#22319714)

Oh, right -- the power elite who control the US government can't possibly be concerned first and foremost with self-interest. Even though they hold the keys, somehow it's outside influences which are to blame for the exponential growth of the US government over the past 200 years, measured both in revenue and power over the people.

Nope, those poor chaps are on your side, really! They just can't help attacking our freedom year after year, spending more and more, borrowing more and more, forcing the nation into absurd levels of debt, forcing thousands of new, unjust laws on the people each year, or even treating themselves to limos, fine dining, and luxury vacations! No, clearly, they are completely selfless, working for you and me, and never themselves.

Oh, right.

The only thing americans should fear (1)

MeNeXT (200840) | more than 6 years ago | (#22314422)

is themselves. They'll end up enslaving themselves. What are these senators thinking? How can this be good for America?

Re:The only thing americans should fear (1, Funny)

Anonymous Coward | more than 6 years ago | (#22321778)

is themselves.
and bears

Second Patent Office (5, Interesting)

steveha (103154) | more than 6 years ago | (#22314446)

I suggest that what we really need is a second Patent Office. The first one can go on granting patents as usual. The second one's mission will be to invalidate and throw out as many patents as it can. Patent examiners in the second one will be paid bonuses according to how many patents they manage to invalidate.

I'm kidding... but only partly. The more I think about this, the more I like it.

steveha

An oversight unit (5, Interesting)

jd (1658) | more than 6 years ago | (#22314584)

...would definitely be a good idea. Actually, I'd have two new units, plus the original. You'd then have a pro-active team that actively opposes every patent that is submitted, seeking any possible prior art, any possible flaw, and taking in any filed preliminary challenges in the pre-patent cooling-off time. If the patent makes it through that, it then gets the "gentle" treatment from the regular patent folk. The third unit, the overseers, challenge both subordinate units to prove their points and prove their cases. Anything that gets through the system intact should be entitled to be challenged by anyone, but that challenge may be thrown out without hearing if it's a point already answered within the above chain. Existing patents would then be resubmitted but deemed valid until clearly shown otherwise by the first stage. Historic patents, no longer valid but of major public interest, should periodically be thrown through the same test to see if their granting was actually lawful. Less for any purpose of redress and more as an educational experience.

Re:An oversight unit (1)

RLaager (200280) | more than 6 years ago | (#22314728)

AFAIK, this is what the patent office is supposed to be doing right now. If they're not, how would a second office do any better? If you have an answer to that question, why can't that be applied to the existing patent office?

Re:An oversight unit (0)

Anonymous Coward | more than 6 years ago | (#22315134)

There was an article at some point (and referenced in the GP) that the patent workers get paid bonuses on how many patents that they accept.
Having an office that was paid to reject patents would help out by balancing the system.
The third office would receive no incentives, and would look only at the patents that received differing opinions from the first two offices (the accepting and rejecting offices would be unaware of what the decision of the other was, same with this office).
The final office would be the ones putting the rubberstamp on those patents that received two acceptances, and tossing those that received two rejections.

After this last office signs off on the results, the results are made public along with the patent to allow for transparency through the whole system.

It's bureaucratic and might actually work!

Re:An oversight unit (1)

jd (1658) | more than 6 years ago | (#22318436)

It should be what the patent office does, at least in my opinion, but the current patent office is a passive system for the most part, leaving it up to others to challenge, and mosty just handling the beurocracy and paperwork necessary to get things filed. The system I propose keeps the paper-shufflers totally seperate from the scrutinizers - a seperation of powers idea - and have both under the eye of a watchdog organization. I imagine the watchdog body to be primarily either people from the GAO or something similar, with representatives from industry and consumer groups ensuring the process is transparent and not unduly biased.



I am not sure the current system can be fixed, because it would require beaurocrats to oversee themselves (generally a bad idea) and to be vigorously proactive and interrogative, without being unbiased. Forgive my skepticism, but I suspect it'd prove a tough challenge even with three specialist groups.

Re:Second Patent Office (0)

Anonymous Coward | more than 6 years ago | (#22314686)

i guarantee you this will never happen for one simple reason.
it makes way too much sense.

Re:Second Patent Office (4, Insightful)

John Whitley (6067) | more than 6 years ago | (#22314796)

Heh, I've been making a similar quip/thought-experiment for a long time about having a "de-legislature", the only function of which is to remove law from the books.

But the real problem with both of these ideas is that the existing organizations (legislatures, the USPTO, etc.) really just need to operate for the good of individual citizens, without undue influence by the desires of powerful individuals, organizations, or corporations.

Taking my de-legislature case as an example, it'd be just as bad/good as the original depending on the level/lack of influence by external power influences. A corrupt de-legislature removing laws inconvenient to the powerful would be a pretty awful thing. The same problem applies to a corrupt "office of patent revocation"; it'd just make matters even worse than they already are.

Re:Second Patent Office (5, Interesting)

afidel (530433) | more than 6 years ago | (#22315050)

Actually I like the idea of a constitutional amendment making all Congressional Bills have an automatic sunset clause of say 10 years and require that all bills be read into law in a Congressional session. That way the legislature has to decide that a bill is still worth the effort to renew. Not only that but it conveniently also limits the size of the law by limiting it to what can be read in x hours. If the founding fathers had any idea how large the federal government would become I'm fairly sure they would have included some similar clause to naturally limit its growth.

Re:Second Patent Office (1)

arb phd slp (1144717) | more than 6 years ago | (#22315770)

I've always thought that having automatic sunset clauses was a good idea. First, the bloat would automatically fall away and we'd lose all of those silly "It's unlawful for your shoes to be untied after 10pm" that are so much fun to laugh about but can be arbitrarily enforced for maximum unfairness. Second, having to reinstate the "murder is punishable" and similar obvious things will keep congress distracted from being able to meddle too much.

Re:Second Patent Office (1)

maz2331 (1104901) | more than 6 years ago | (#22316006)

Now THAT is a wonderful idea. Make everything sunset after 10 years, and make them read the bill aloud prior to the vote.

One tweak: no vote unless they all stay and sit through the ENTIRE reading. One leaves, even for bathroom break, and it starts over from the beginning.

And any bill with criminal penalties must have a 3/4 supermajority rather than a simple majority. But repeals only require 25% + 1 vote.

Re:Second Patent Office (1)

afidel (530433) | more than 6 years ago | (#22316070)

Requiring all members of Congress to be present for the entire reading would be a bit ungainly, even in the time of the founders other matters of state or travel might have precluded members from being present. However I DO like the idea of requiring members be present during the reading in order to vote on the measure, perhaps give bio-breaks every 4 hours to make it workable.

Re:Second Patent Office (1)

Meski (774546) | more than 6 years ago | (#22317028)

Now THAT is a wonderful idea. Make everything sunset after 10 years, and make them read the bill aloud prior to the vote.
Are we sure they can all read?

Re:Second Patent Office (1)

TheLink (130905) | more than 6 years ago | (#22316736)

I've proposed a similar idea (expiry) some time back, the difference being:

The Constitution should be renewed every 50 years (grace renewal period 25 years) - then you can have a fancy ceremony with fireworks etc on the renewal date (that is if the country is still around and still thinks the laws in the Constitution are a good idea ;) ).

For the other laws- the longer the laws are to last, the more legislators have to be around to make them law or renew them.

The "reading aloud" is an interesting idea and I guess it helps slow down the "rubber stamping", I believe the Jews/Israelites in the old days used to read the law out aloud on special occasions.

If it becomes such a huge burden to renew the laws then maybe there are too many laws and they are a burden to the citizens.

Main problem I see is we might really still need quite a lot of laws, so finding a good balance might be tricky.

Re:Second Patent Office (0)

Anonymous Coward | more than 6 years ago | (#22316370)

Actually, this idea has been around for quite a while. I remember reading about it in a Star Trek novel, of all places. In it I believe Spock was explaining Vulcan's legal system. They had 3 legislative bodies. The proposal group, the rectification group, and the expunging group. The proposal group and rectification group put forward and pass or amend laws. The expunging group exists only to veto or remove laws. Laws would require a large majority to pass (say, 70% +), while removing a bad law would require only 25% of of the legislators to vote for removal.

The idea was that good laws should require a large consensus. That way you don't get as many frivolous or unnecessary laws.. and of course, bad laws should be easy to remove.

I've often wondered how well something like this would work in practice.

Ministry of Sabotage. (1)

Kaenneth (82978) | more than 6 years ago | (#22315344)

I think we could use Frank Herbert's "Ministry of Sabotage".

A goverment agency who's job is to try and keep other agencies, within the same goverment, from gaining power.

So very obligatory... (1)

TheAxeMaster (762000) | more than 6 years ago | (#22317366)

Fine! I'll make my own Patent Office, with blackjack, and hookers!

Re:Second Patent Office (1)

belmolis (702863) | more than 6 years ago | (#22317872)

Instead of having two patent offices, just make the evaluation adversarial. For each patent application, have a proponent, an opponent, and a judge. The Catholic church decides on sainthood in a similar fashion. There is one priest who makes the case for sainthood and another, the Devil's Advocate, who opposes him.

Solution! I got it! (4, Interesting)

MobyDisk (75490) | more than 6 years ago | (#22314452)

We should make the patent office liable for damages done and court costs for the bogus patents they issue. They only started rubber-stamping business methods and software patents when they were required to generate revenue. So stop the revenue stream.

It's not too late to contact your representatives! (1)

garnetlion (786722) | more than 6 years ago | (#22314672)

House [house.gov]
Senate [congress.org]

Non-profit doesn't mean (1)

Eharley (214725) | more than 6 years ago | (#22314906)

what you've said it means. The EFF still makes money. It's just got to do some accounting and spending to make sure that it falls within the IRS' definition of a non-profit.

The problem is EFF isn't in the business of making all the products or offering all the services the patents they're going after cover.

Re:Non-profit doesn't mean (1)

maz2331 (1104901) | more than 6 years ago | (#22316018)

Yeah... here in Pittsburgh we have UPMC (University of Pittsburgh Medical Center) that is officially a non-profit, but operates several big hospitals AND an insurance plan. They had "non-profits" last year of over $1 billion (with a B).

Non-Profit can be harmed (2, Interesting)

Zygamorph (917923) | more than 6 years ago | (#22315122)

Just because you are a non-profit organization doesn't mean you aren't harmed. Say you had a cash flow of $2,000. that means 2,000 came in and 2,000 went out. If a "bad" patent caused harm then the cash flow would have been $1,500, instead you spent 2,000. You were harmed to the tune of $500. Whether you show a profit, break even or loose money on you balance sheet doesn't affect whether or not the "bad" patent caused you harm it just affects the final numbers. I can see how this would limit the EFF efforts since they only have so much money/time/effort to spend on litigation per year, if there's a "statute of limitations" for contesting a patent then many will get a free ride simply because there is only so much that can be looked at per unit of time. Sounds like a bad clause.

That's not the real issue though. (1)

raehl (609729) | more than 6 years ago | (#22315654)

The article summary (surprise) wasn't well written or edited.

The issue that the EFF would have is that since, as a non-profit engaged in advocacy, they're not likely to be directly financially harmed by most patents. It's not like the EFF sells less software or something due to software patents.

Re:Non-Profit can be harmed (2, Insightful)

XaXXon (202882) | more than 6 years ago | (#22315736)

Let's also be clear that "non-profit" does NOT mean "does not make money". It has to do with what your goals are. In a for-profit company, your goal is to make money for yourself or your stock holders or whatever. For a non-profit, your goals relate to the betterment of the community you serve. "Non-profit" actually has very little to do with money. Many non-profits have vast sums of money in trust. In fact, if you spend all your money, you're probably not doing a very good job.

Not so bad (1)

Bipedal Shark (1210600) | more than 6 years ago | (#22315900)

We can just write some software, wave it in the patent holder's face, and wait for the legal threats. "EFF, save me!"

Who will challenge after the year... (1)

nog_lorp (896553) | more than 6 years ago | (#22315942)

If, after one year, noone has 'come to harm' anyways, it is likely there will be noone to challenge the patent. If this is the case, no responsible company would cause itself to come to harm in order to then challenge the patent.

Re:Who will challenge after the year... (1)

josemayor1 (1070508) | more than 6 years ago | (#22319010)

Then people can run 'diff' on all the idiotic parts of bills, and find out who's responsible. http://www.doivol.com/ [doivol.com] I look funny videos, before discuss about this

Not so good (1)

leabre (304234) | more than 6 years ago | (#22316460)

1 year from time of filing to protest? That's not good. Then most companies will wait 1 year before suing anyone since they'll be generally safer from challenges. There should be no limit on challenges. If a patent is bogus, it should be challengable by anyone at anytime.

Thanks,
Leabre

Financial Harm (1)

halcyon1234 (834388) | more than 6 years ago | (#22316986)

Easy. I hereby declare that I will pay the EFF the sum of $0.01 each time the challenge a spurious patent older than one year. If this bill passes, they will suffer financial harm-- and can challenge the patent. (And I save $0.01)

New Patent troll scheme... (2, Interesting)

advocate_one (662832) | more than 6 years ago | (#22318046)

this proposed bill will make it unbelievably difficult to stop patent trolls...

1. Get stupidly obvious patent
2. Wait 1 year and a day
3. Sue everybody in sight
4. ??????
5. Profit...

Couldn't they still... (1)

Max Threshold (540114) | more than 6 years ago | (#22318668)

Couldn't EFF still offer legal services to those who are directly financially harmed by bogus patents? I don't this this would doom the patent busting project, just force it to change gears.

Mod parent up (1)

Lonewolf666 (259450) | more than 6 years ago | (#22318730)

Good idea.
The project could actually keep collecting evidence and list it on a public website. Then everybody who is planning to "infringe" one of the bogus patents on the list could challenge the patent, because his business would be harmed financially.
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