Who Should Be In Charge Of Patent Reform?

from the everyone-wants-their-cut dept

Mon, Dec 15th 2008 4:15am — Mike Masnick

Every year for the past few years, Congress has put forth a patent reform bill. Every year that bill has had serious problems in that it might fix some of the problems of the patent system, but would exacerbate others. And then, of course, there's a big lobbying fight, and the pharmaceutical companies (who don't want any sort of patent reform whatsoever) win -- and the bill gets killed. It's an annual tradition. However, plenty of people still realize that patent reform is necessary, and now they're debating just how it's going to happen.

Apparently, everyone seems to think they should be the ones to determine how it works. At an FTC hearing on the matter last week, FTC Chairman William Kovacic suggested that the FTC should guide the process of patent reform. Meanwhile, Chief Judge Paul R Michel of CAFC (the appeals court that handles all patent cases) disagreed, suggesting (not surprisingly) that CAFC was perfectly capable of handling modifications to patent law, claiming that CAFC had a much better handle on the situation than Congress. Of course, that ignores the long series of problematic CAFC decisions over the past few decades that only slowed once the Supreme Court got involved and started overturning CAFC time and time again.

Of course, what this probably means is that despite plenty of hand-wringing and tons upon tons of evidence of harm done by the current patent system, nothing is going to change any time soon.

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Filed Under: cafc, ftc, patent reform, patents, paul michel, william kovacic

22 Comments

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Shohat, 15 Dec 2008 @ 5:56am

It has to be..
Someone with real understanding and experience in Engineering. A person that will re-focus the system on invention instead of innovation.

People should be granted patents not for business plans or for gluing together some well known concepts, but for the actual invention. Not for bringing it to the market.
Patents are here to prevent people with good business skills from taking advantage of people with good engineering skills.

And start shooting people for software patents, business method patents and for writing patent application that are too vague or intentionally too broad.
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Lance Winslow, 15 Dec 2008 @ 6:37am

FTC and Much Overdo Patent Reform
Well, personally the FTC couldn't stop SPAM, it went up 3000% since they took on the case. Identity Theft is more than the total of the US illegal drug trade. Their cases against mergers for reasons of Monopolistic or predatory business moves is bogus. They keep asking for more money from Congress every year but never accomplish anything.

The new PTO is over budget 600 million dollar new facility, backlogged three years, issuing junk patents and causing more cases in court, courts backed up, all the while China is stealing the technology faster than we can create it. FTC? Well, they cannot do anything right, so I wouldn't hold my breath.
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Stuart Gray, 15 Dec 2008 @ 6:46am

Who indeed ...
Ok. This is the last time. Give me ultimate patent power over all nations in the world and I guess I'll fix it for you. But this is the LAST time! I mean it.
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angry dude, 15 Dec 2008 @ 6:51am

Mike Masnik should be in charge
Then we can be assured that US Patent system is competely f***** up

Isn't what your corporate masters want, Mikey ?
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Aaron, 15 Dec 2008 @ 7:06am

Who should be in carge?
PJ over at Groklaw.
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Anonymous Coward, 15 Dec 2008 @ 7:24am

I should be in charge. In fact, I have a patent on reform so I am the only person who can be in charge.
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bshock, 15 Dec 2008 @ 7:36am

Asking the wrong question
Asking "Who should be in charge of patent reform?" is like asking "who should be in charge of robbery reform?" or "Who should be in charge of government corruption reform?"

The real question should be, "How the hell do we get rid of the patent system?"
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Anonymous Coward, 15 Dec 2008 @ 7:50am

Who should be in charge of patent reform? Why, the big wealthy companies of course. Who else has everyone's best interests at heart?
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angry dude, 15 Dec 2008 @ 8:10am

Re: Asking the wrong question
Punky

Perhaps you should know that US Patent System is over 200 years old and it has its basis in the US Constitution written by the Founding Fathers

I recommend finishing high school first before you are even allowed to open your mouth
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LostSailor, 15 Dec 2008 @ 8:18am

I Nominate Mike!
Don't be shy, Mike. The obvious answer is that YOU should be in charge of patent reform! :-)
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nasch, 15 Dec 2008 @ 8:54am

Re: It has to be..
Patents are here to prevent people with good business skills from taking advantage of people with good engineering skills.

No, they're not. They're here to promote progress.
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Anonymous Coward, 15 Dec 2008 @ 9:25am

Re: Re: It has to be..
No, they're not. They're here to promote progress."

You are selectively quoting Article 1, Section 8, Clause 8 of the US Constitution to make your point, which is manifestly incorrect. The clause actually states, insofar as it pertains to patents:

To promote the Progress of...useful Arts, by securing for limited Times to...Inventors the exclusive Right to their...Discoveries

While you and others may personally hew to the view that "innovation" as defined on this website is the purpose of our patent laws, those who enacted the Constitution made it only too clear that such rights are to reside in the first instance with inventors.

In this regard Shohat at #1 above is much more accurate in his charaterization of our patent laws than the majority of those who post comments on this website.
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Anonymous Coward, 15 Dec 2008 @ 9:59am

Someone said that the patent system is over 200 years old and has it's basis in the Constitution as written by the Founding Fathers.

Well, under that logic, perhaps it's best to return to the original intent. To do so, reading up on Thomas Jefferson would be helpful.

I just finished becoming re-acclimated to Alexander Hamilton, who not only created the first two national banks, he also developed a manufacturing strategy in 1791 which was used until Reaganomics started becoming the norm.

While some have commented on this blog that Mike and others have been labeled "a spokesperson for a dead guy", I ask what's wrong with that?

Thomas Jefferson was a great President. Perhaps it's ill forgotten that his work inspired a man to carve his face on the side of a mountain. As I read the ideas of these "Founding Fathers" (Not Dead Guys), I become more and more hopeful that the can be solved if we return to 200 year old sound principal.

One observation is that there was an enormous amount of public pride for Presidents who do the right thing. Until you've visited these public monuments, I have doubt others will ever truly appreciate their effect on humanity and America as a whole.
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Anonymous Coward, 15 Dec 2008 @ 11:13am

Re:
Anent you not concerning Alexander Hamilton, without expressing an opinion on his economic views I do have to note that he had an incredibly unusual upbringing for someone later to ascend to being one of the Founding Fathers. I was surprised to learn he was born and lived his formative years in St. Croix, served there in his early teens as a bookkeeper for a small shipping company, and was eventually sent to the states with the financial support of certain islanders who believe he was a young man with great promise. If my recollection is correct, at the time he participated in the drafting of the Constitution he was a quite wealthy banker, and his experience informed him of the important need for a uniform monetary system throughout the several states.

Turning to Jefferson, it is generally believed that he was one of the drafters of the Constitution. Of course, he was not a party to its drafting given that he was then serving as the US Ambassador to France. He did exchange views with some who did participate in its drafting, with the best documented being his discussions with John Adams.

Now, much is said about his letter dated about 1817 or so. Unfortunately the letter, which of course represents solely his views, if oftentimes "cherry picked" by those who view patents and copyrights with distrust and in many cases would like to see them abolished. In point of fact, Jefferson, like most of his colleagues, was quite opposed to monopolies as they were employed back in England. However, he did make an exception in the case of what eventually became our initial set of patent and copyright laws, but with the proviso that "limited times" should mean just that..."limited". As a general rule patent law has remained fairly true to his "limited time proviso".

Copyright, however, is totally off the scale. I do not recall the original term of copyright, but for many years it comprised a 28 year term subject to renewal for one additional 28 year term. It was not until the Copyright Act of 1976, which went into effect on January 1, 1978, that copyright drifted towards what is now in place. Now, many people are quick to heap scorn on Congress for the copyright term expressed in the 1976 Copyright Act. Perhaps their scorn is better directed at primarily those countries in Europe having copyright laws on their books. US copyright terms were extended under international treaties requiring that the US adopt longer terms, not to mention change its very formal rules so that they more closely corresponded with european practice. Hence, out laws that were based upon "date of publication" were significantly changed to reflet "date of creation". Our formal system of registration and renewal was largely displaced, as was out longstanding requirement that the use of a formal copyright notice was necessary for an author to retain copyright and prevent his work for falling into the public domain.

For all of its failings and/or problems, the patent law has retained a much closer nexus to "original intent" than copyright law, the latter of which is largely off the charts.
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Anonymous Coward, 15 Dec 2008 @ 11:17am

Re: Re:
Many unintended typos. Sorry about that, but then again I am not an expert typist.
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Anonymous Coward, 15 Dec 2008 @ 12:24pm

Re: Re:
I rarely respond to retorts by others. While I do not disagree with your viewpoint and ability to conjure up unrelated facts, I do believe that the life experiences of Alexander Hamilton helped to shape his ideals, similar to those of Thomas Jefferson. As such, when I discussed Banking, it should be duly noted that I researched and provided a link to the entire article to Congress, and not a "Cherry Picked" article.

When it comes to issues of Patents, Thomas Jefferson's ideal should be at minimum considered. However, it seems Thomas Jefferson's work has become overly complicated and seems to veer far, far away from his original intent.

Have you considered that Intellectual Property was only valued when the banking community could use it in their warchest against undesirable companies, and hence the support for it? In 1978?

Let's not forget that the Rothschilds, Warburgs, Morgans, or Rockefellers don't have their face on our currency.

Principal will always win.
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Anonymous Coward, 15 Dec 2008 @ 1:26pm

Re: Re: Re:
I believe you misunderstood my comments. Re Hamilton, I recently learned about his formative years via a documentary film that I found quite fascinating. I never knew he grew up in the Carribean on St. Croix, and that it was on the island he got his first exposure to financial matters. I daresay most people, like I did, would have guessed he was born and raised in one of the original 13 colonies.

Re "cherry picking", my comment related to others (not you) who cite Jefferson's letter in an incomplete and inaccurate manner to bolster their arguments that he saw patents and copyrights as a bad thing.

I am not sure what you are trying to say in your third paragraph.

Re the "robber barons" of the world, I guess they were too busy taking money from others to sit down for a picture...not that they would ever have appeared on currency anyway.
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inc, 15 Dec 2008 @ 5:38pm

me
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jarod mccormick, 16 Dec 2008 @ 4:05am

patent reform
So what's the deal? Was there ever any validity to this article?

Court Greatly Limits Software And Business Method Patents

http://techdirt.com/articles/20081030/1117172691.shtml
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dinnerbell, 16 Dec 2008 @ 5:46am

stop the shilling!!!
Every year for the past few years, Congress has put forth a patent reform bill. Every year that bill has had serious problems in that it might fix some of the problems of the patent system, but would exacerbate others. [THE PROBLEM IS THAT MOST ALL OF THE PROPOSED CHANGES WOULD ACTUALLY MAKE THE PATENT SYSTEM WORSE. NEVER FORGET THE PURPOSE OF THE PATENT SYSTEM IS TO ENCOURAGE INNOVATION. IF INVENTORS CANNOT GET PATENTS ON A TIMELY BASIS AND HAVE A REASONABLE LIKELIHOD OF ENFORCING THEM, THEY WILL NOT INVENT. FROM AN INVENTOR’S PERSPECTIVE MOST EVERY PROPOSED CHANGE MADE IT MORE DIFFICULT TO PATENT AND PROTECT. THEREFORE THE CHANGES WOULD HURT RATHER THAN HELP.] And then, of course, there's a big lobbying fight, and the pharmaceutical companies (who don't want any sort of patent reform whatsoever) win -- and the bill gets killed. It's an annual tradition. [YOU MISCHARACTERIZE THIS FIGHT. IT IS NOT PHARMA AGAINST EVERYONE ELSE. IT IS PRIMARILY BIG TECH AND FINANCIAL SERVICES AGAINST EVERYONE ELSE. TO A GREAT DEGREE IT IS ONLY THEY WHO ARE PUSHING THIS DARK SCHEME TO DESTROY THE PATENT SYSTEM. THAT IS ITS TRUE PURPOSE. THEY CAN CONTROL THEIR MARKETS BETTER WITHOUT ANY PATENT SYSTEM.] However, plenty of people still realize that patent reform is necessary [SURE THEY DO -BIG TECH AND ALL THEIR PAID FRIENDS], and now they're debating just how it's going to happen. Apparently, everyone seems to think they should be the ones to determine how it works. At an FTC hearing on the matter last week, FTC Chairman William Kovacic suggested that the FTC should guide the process of patent reform. [LET’S GET THIS STRAIGHT, ARE WE TALKING ABOUT THE SAME FTC WHO ALLOWS RESTRAINT OF TRADE ALL ACROSS TECH? EVER HEAR OF MICROSOFT? OH SURE, THE FTC WILL DO A BANG UP JOB ON THE PATENT SYSTEM. ALL THEY NEED DO IS ONLY ISSUE PATENTS TO LARGE TECH COMPANIES. MICROSOFT AND THEIR BUDDIES WILL LOVE THAT. FROM THE SAME ADMINISTRATION THAT BROUGHT US WEAPONS OF MASS DESTRUCTION EXCEPT THIS NEXT DESTRUCTION WOULD BE OF OUR PATENT SYSTEM.] Meanwhile, Chief Judge Paul R Michel of CAFC (the appeals court that handles all patent cases) disagreed, suggesting (not surprisingly) that CAFC was perfectly capable of handling modifications to patent law, claiming that CAFC had a much better handle on the situation than Congress. Of course, that ignores the long series of problematic CAFC decisions over the past few decades that only slowed once the Supreme Court got involved and started overturning CAFC time and time again. [MANY KNOWLEDGEABLE PATENT ATTORNEYS FEEL THE PROBLEM HAS BEEN THAT SCOTUS DOESN’T UNDERSTAND PATENTS. IF YOU READ KENNEDY’S OPINION ON THE EBAY CASE, IT LOOKS LIKE HE’S BEEN READING YOUR COLUMN TOO MUCH.] Of course, what this probably means is that despite plenty of hand-wringing and tons upon tons of evidence of harm done by the current patent system, nothing is going to change any time soon. [FINALLY -ONE THOUGHT I WILL SECOND.]
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Stuart, 16 Dec 2008 @ 7:13am

Who Should Be In Charge Of Patent Reform?
It is Patently Obvious - the parties between whom the social contract called 'patents' exists i.e. Inventors, and society.

The patent attorney industry could also be invited to comment - but they should state in whose interest any contributions they make would be. Yes, they are not a disinterested party.

I don't mind the patent attorney industry making IP rules for its own creations - but I do not accept that they dictate the rules for my creations. I do not accept those rules.

The patent system kills many inventions, and not a few inventors. America's best inventor was hounded to death by a totally ineffectual patent system. And it's only getting worse.

"Put simply, the patent reform bill would make patents harder to obtain, easier to challenge and more difficult for patent holders to collect damages in infringement lawsuits." San Diego Business Journal. 24 May 2008

Really sounds like we are 'Encouraging the arts and sciences', doesn't it?

Stuart 'Patented by Smith and Wesson' Saunders.
IPROAG
Intellectual Property Rightful Owners Action Group.
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Anonymous Coward, 16 Dec 2008 @ 8:52am

The most important problem with the current system is associated with the administration of the USPTO. Most of the other issues arise precisely because of this.

The principal problem with patent reform proposals to date is that they do not in any meaningful away deal with the root cause.

Believe it or not, most attorneys are committed to the enactment of meaningful reform, but as yet have not seen anything coming out of Congress that even comes close.
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