Unintended Consequences Meet Patent Law Reforms
from the making-the-system-worse dept
For all the talk about patent reform these days, it's unfortunate that every time we see reform proposals, it looks like they'll make the system worse. The latest proposal is winning lots of applause from some in the tech industry, but that doesn't mean it's actually a good proposal. The basic plan is for the government to spend money educating judges to be better informed on patent issues, including hiring "specially appointed clerks with patent expertise." On the face of it, that sounds great -- and the article even suggests this could help with the "patent troll" issue, though never bothers to explain why or how. To understand, though, why this may be a bad proposal, you just need to look at history. About twenty-five years ago, due to various complaints about jurisdiction shopping and other issues, the government created a single federal court to handle patent appeals, the CAFC. At the time, there was some (justified, it turns out) fear that this court would be packed with "patent experts" who came from a world where they benefited from more, not better, patents. Indeed, the court was quickly dominated by former patent attorneys, who quickly changed some fundamental aspects of the patent system: expanding the types of things that could be patented and upholding the validity of many, many more patents than the courts had done previously. This, in turn, resulted in even more of an effort by companies to secure questionable patents, as potential patent holders recognized that there was an even higher chance that those patents could be used to bully others -- as we're seeing in so many cases today. This was exactly the fear that some had raised about a patent-focused court with "undue specialization." That's why it's not clear why increasing the "undue specialization" will help. It's not explained what kind of "education" these judges will get, but it's likely to be one that comes from those who stand to benefit from even more patents, rather than those who are actually focused on bringing the patent system back to it's original purpose: to promote innovation.
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Patent Law Reforms
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Education is always a good Idea
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Educate the real source of this problem
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Still waiting . . .
So . . . why allow the scope of patentable material to grow and the strength of patents to increase?
Oh yeah . . . it makes patent attorneys rich. My bad.
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Re: Still waiting . . .
Against Intellectual Monopoly
result? there is no relationship...still.
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Ignorance is bliss?
I can't see how a little education is going to hurt. Good judges know how to ask questions that get at underlying motivations. Critical thinking is a skill they use all the time in the courtroom and I doubt they would put it aside in the educational process.
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Re: Ignorance is bliss?
That's a rather ridiculous summary of what I wrote. I did not say that ignorance is bliss, but rather that the type of education they're talking about will be so one-sided, it could have the opposite effect. That is, in some ways it could make the system even more ignorant by focusing on certain myths of the patent system, rather than facts. Since there are many myths that are accepted as fact, this is a problem.
I have no problem with a more educated judiciary, but how they're educated is important -- and this bill seems more focused on educating them only from the side of those who benefit from more patents.
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Re: Re: Ignorance is bliss?
As it stands, they often receive their training in patent law from the lawyers in the cases they are trying. I would prefer they receive it from someone who isn't trying a case before them. It may not be ideal, but I think it's better than the current situation.
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Patents and COPYRIGHTS
Think of COPYRIGHTS. THink Mickey Mouse, originally copyright in around 1921, is STILL enforcable as a copyright because of CONGRESS messing around with the intellectual Property laws (IP)
Or for example the DCMA of 2000, which is up for an update this year, and the RECORD INDUSTRY (RIAA) is trying to have a provision that the FBI establish an antipiracy squad for ENFORCEMENT...
Or, how HOLLYWOOD again is screwing up with the lawmakers and lobbying for THEIR own modifications too
Sucks....
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Inaccuracies
Most patent attorneys would love to have more judges on the Federal Circuit with previous patent experience, simply to allow them to make more informed decisions, but there aren't many at all.
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Re: Inaccuracies
It's true that not *all* have former patent experience, but those with patent experience tended to take the lead in many patent cases. This is well established in the research surrounding the history of the CAFC.
Finally, as for "more informed" decisions, you mean more informed about the legal issues, not the technological or economic issues -- and that's where many of the problems come in. Things like making business methods and software patentable seem silly to technologists, but reasonable to lawyers. And, in the bigger picture of what the patent system is supposed to encourage, they seem particularly backwards.
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Re: Inaccuracies
PRECISELY
Most patent attorneys would love it if judges were even more patent-friendly than they are now. That is probably the most damning statement about what is wrong with this proposal yet stated. If the attorneys are for it, I'm against it.
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Re: Re: Inaccuracies
The main reason patent attorneys would want that is simply so that they're not all English or history majors, and don't miss or fail to understand the technical legal rules of patent law.
You argue people with such experience are inherently biased. I argue they are more capable of properly deciding a case, regardless of their biases.
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Re: Re: Re: Inaccuracies
You argue people with such experience are inherently biased. I argue they are more capable of properly deciding a case, regardless of their biases.
The problem is that the education they're talking about is *only* about people versed in patent *law*. They're not looking for education on the economics or the technology -- which is actually what's needed to improve the patent system.
If the focus is just on patent law, then you have a situation where it's a hammer and a lot of nails.
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Evidence to support article's claims?
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It's the type of education that matters.
Most of the time there is (or at least should be) a question as to whether a patent is actually valid as a new idea, or infringes on an existing one. The expansion of patent law, however, has diverted attention from this to seeing how finely some attorny can parse an idea to squeeze some dollars out of even the most minor variations.
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If it ain't broke
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can spell it but I dont know what it means
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Get used to innaccuracies
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Precisely
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Re: Precisely
Of course, anyone who reads this site knows this is false. I don't "hate" patents. I simply feel that the patent system is currently designed more to hold back, than help, innovation. I back up my statements and I stick around to discuss the actual issues.
So, no, I don't think anyone who disagrees with me is bad (that should be clear from what I write). But if people disagree with me, I like to find out why to see if we might both become better educated.
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