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Senate Patent Reform Plan: Some Good, Plenty Of Bad

from the keep-chipping-away- dept

Mon, Aug 7th 2006 3:25am — Mike Masnick

Last summer, Lamar Smith put forth a bill to reform the patent system that included a variety of ideas that were mostly bad and would likely make the system even worse than it already is. The Senate has now followed up with its own plan and it's also a mixed bag. Just like Smith's bill, it changes the patent policy from "first to invent" to "first to file." As we've pointed out repeatedly, this is dangerous because it simply puts the incentives in place for companies to file more patents faster -- and when you're facing a system that doesn't scale, the overall impact can be extremely dangerous. The system gets even more overwhelmed, to the point of breaking down completely. The Senate plan does try to make it easier to contest patents, which is good. However, there are some problems with the way it's been set up. First, the appeals process goes before judges from within the patent office -- who have an obvious bias to see patents remain in place, rather than be overturned. Second, the system requires people to protest a patent within the first year it's been granted. Considering how many patents are suddenly brought up years after they've been granted (only when someone else does something innovative in the market), this seems very dangerous as well. All it means is that many firms may wait an extra 12 months before suing for patent infringement. The bill tries to stop the forum shopping that has made Marshall, Texas so popular among patent litigation lawyers -- but, of course, the last time the government tried to stop forum shopping it created additional problems as well (such as a centralized court that was staffed mainly by strong patent supporters). A final point in the bill is a good idea however -- saying that damages on patent infringement claims should only be limited to the value of the patented part, not the overall product. This is actually a big step forward, as too many patent infringement suits these days are about a minor feature in a larger innovation -- but the patent holder claims that they deserve royalties based on the price of the overall product. It's unlikely this bill will go anywhere, but it's yet another iteration in the patent reform effort. Unfortunately, there's way too much "bad" to go with the few "good" points in the bill.

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10 Comments

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DreadedOne509, 7 Aug 2006 @ 5:42am

Patent Law Makers...
Looks like we are back at square one with the whole patent snafu. Do we even have any legislators that understand the impact bad patent reform would have? Or are they just jerking themselves 'thinking' that a quick fix is better than no fix at all?

Damn, this is an election year isn't it? Nevermind...

Oh yea, think I got first.
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Johnny Mac, 7 Aug 2006 @ 7:26am

Leave it to the government to take a small mess and make a New Jersey sized landfill out of it...
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derrick, 7 Aug 2006 @ 7:40am

patent law f'd
It seems that patent reform is just as "bad" as the rest of the law when it comes to reform. As long as lobbying groups and interests are allowed I don't think anyone will be surprised that any "reformed" law is as bad or even worse than the original.
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Duane Nickull, 7 Aug 2006 @ 8:25am

IPR and Patent Issue are major factors in our worl
I get more and more irate at the lack of understanding from my colleagues about how these two major issues affect us all, yet so few are interested enough to even understand them. I wrote a long winded series of comments on the Chinese Government's official statement to the WTO on IPR issues with respect to software patent and IP issues. http://technoracle.blogspot.com/2006/03/my-comments-to-wto-and-chinese.html Thanks for bringing this to the forefront - keep informing us.
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Lay Person, 7 Aug 2006 @ 9:10am

Damn it!
Damn it!

Everytime I trun around, I realize that there is no one at the helm.

We, as a society and government are simply adrift on a turbulent sea of change. We have no direction and no leadership.

If something doesn't happen soon we are going to scuttle ourselves along some sharp reef.

What we need is to elect a leader from amongst the common man, someone that is the least suspect of harboring selfish/political agendas.

Soemthing must be done quick before we are ruined!
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Junyo, 7 Aug 2006 @ 9:13am

The problem seems to be one of "a guy who only has a hammer sees every problem as a nail..." Asking lawmakers (most of whom are lawyers) to solve the problem will inevitably get you more law; you can hope and pray that it's better than the previous or more streamline or sensible, but at the end of the day you're just adding more to the pile, which is the problem.
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nonuser, 7 Aug 2006 @ 4:54pm

it's a start
Almost everyone agrees that "patent reform" is necessary, but no two people have the same idea of what should be done or even what the objectives should be (well except for all those who think that there should be no patents, but they're in for a long wait). There are some good things in this proposal, including the public review after the grant. Maybe instead of voting the whole thing up or down, like we're Chicago movie critics or something, we should take this as a starting point and work to improve it.

There are lots of retired or retiring engineers with specialized knowledge who probably wouldn't mind working on a part time or occasional basis. Maybe we could recruit a bunch of them to serve on review panels.
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Robert Deeds, 10 Nov 2006 @ 12:38pm

Patents First-to-file
First-to-file reduces an examiners work to searching only other filed patents vs. having to look for obscure prior art. It also reduces the risk and costs to the inventor. The cost of researching prior art and having legal console interpret this information has been the greatest expense and risk as there is no certainty that the legal system is going to interpret prior art the same way. The advantage to big corporations comes from the costly delays in searching for prior art. I would like to see first-to-file but I see this from my experience as a small inventor not from the side your big corporate sponsors support.
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Mike (profile), 10 Nov 2006 @ 5:51pm

Re: Patents First-to-file
First-to-file reduces an examiners work to searching only other filed patents vs. having to look for obscure prior art.

This isn't about reducing the work, it's about getting the right incentives in place.

Besides, it may reduce the initial workload *per patent* but it increases the overall workload by encouraging people to file more patents more quickly so they can be first to file.
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dinnerbell, 1 Sep 2008 @ 2:41pm

a different/opposing view
please see http://www.piausa.org/ for a different/opposing view on patent reform
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