Patent Reform Bill Reintroduced; More Of The Same

from the the-debate-is-misleading... dept

Wed, Mar 4th 2009 6:30am — Mike Masnick

This is hardly a surprise, as it's been expected for quite a while, but the same folks who have been pushing a patent reform bill in the past have reintroduced essentially the same legislation that has been unable to advance far enough in previous Congresses. As in past years, supporters of the bill insist this is the year it will get passed. While there are plenty of good things in the bill, there's also an awful lot of bad things as well.

Unfortunately, the stuff that I think is good and necessary in the bill, such as limiting damages to the actual contribution of the patented technology, are what's considered "controversial," whereas many of the things I think are bad, such as switching from a "first to invent" to a "first to file" system aren't being considered that controversial at all. On the whole, this bill would solve some problems, while creating plenty of other problems, so I have a lot of trouble supporting it.

I can see why some big tech companies are supporting it, as it would definitely help some of the problems those companies face, but I don't think it does very much to fix the overall system. That said, it's pretty amusing to see the patent maximalists insisting that this bill will be the downfall of the American economy. There's nothing in the bill that would indicate that's true at all. It might cause some trouble for some firms that don't do anything in the marketplace, but about the only parts of the economy that will be harmed are a few patent attorneys (and some patent hoarders).

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Filed Under: congress, patent reform, patents

31 Comments

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Anonymous Coward, 4 Mar 2009 @ 7:23am

A relatively good summary at this early point in time can be found at:

http://www.patentlyo.com/patent/2009/03/patent-reform-act-of-2009.html#comments

What troubles me the most, and why I referred to the earlier effort as "deform", is that the legislation does not address the fundamental issue of providing the USPTO with the resources necessary for it to do its job properly. Until this happens, everything else is largely window dressing.
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Anonymous Coward, 4 Mar 2009 @ 7:54am

Reading up on the proposed changes to filing, which is actually 'first-inventor-to-file' from what I read, won't the new system help a bit in opening up more things to prior art? Since the new 'deadline' for prior art is when the patent is filed rather than inventor 'invented' the system companies could no longer invent something then patent it after someone else releases a similar (unpatented) technology.

I also enjoy how much the big companies miss the point. They seem to think that the system is there to protect THEM when it's actually there to protect invention and spur innovation.
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Mike (profile), 4 Mar 2009 @ 8:00am

Re:
Reading up on the proposed changes to filing, which is actually 'first-inventor-to-file' from what I read, won't the new system help a bit in opening up more things to prior art? Since the new 'deadline' for prior art is when the patent is filed rather than inventor 'invented' the system companies could no longer invent something then patent it after someone else releases a similar (unpatented) technology.

That may be somewhat helpful... maybe, but the problem with a first to file system is that it simply encourages many more filings as quickly as possible. Rather than waiting to see if you actually have something useful or new, you just file as quickly as possible, increasing the load on the USPTO.

That doesn't help things at all.
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angry dude, 4 Mar 2009 @ 8:10am

Mike is clueless as usual
"Damages: Must look to the invention’s 'specific contribution over the prior art
There is a provision that a reasonable royalty may be calculated as the price of licensing a 'similar noninfringing substitute in the relative market'

Now, if the noninfringing alternative is in the public domain then there are ZERO damages... ???

How do you like this provision, punks ?

As usual, Mikey can't tell his ass from his mouth, as far as patents are concerned (copyrights too BTW)

But more likely he is paid corporate shill
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Steve R. (profile), 4 Mar 2009 @ 8:25am

This is NOT Reform
"Clarifying" damages is not reform. Real reform would involve materially changing what can be patented. This would eliminate any claim of patent infringement from even getting into the court system. As it stands now, things are so vague that everyone is infringing on everyone.

Real patent reform would eliminate vague abstract concepts such as business plans, software, and processes from being patented. No patent no lawsuit, no damages.
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angry dude, 4 Mar 2009 @ 8:36am

Re: This is NOT Reform
abstract concepts ??

Do you have a cell phone, punk ?

It has a shitload of software running on a tiny DSP chip inside, encoding your shitty voice communications to be transmitted and decoded on the other end

If it's too abstract to you to be protected under patents then give your cell phone up, dude

Just throw it in the garbage

Otherwise just shut up
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Anonymous Coward, 4 Mar 2009 @ 8:51am

Re: Re:
First to File is the standard is all but about 3 nations, the US being one of the 3. The call for changing from First to Invent to First to File turns the whole system into a race to the USPTO to get something, anything, on file. Not only do I see this as almost surely to increase filings without having addressed USPTO resources to do as good a job as is reasonably possible, but it seems to me that a likely consequence is applications with even more sketchy disclosure than at times is now the case.

I do believe that enabling disclosures are important, and the proposal to change to a First to File system undercuts this.
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Franssu, 4 Mar 2009 @ 9:49am

Re: Re: This is NOT Reform
If I follow your logic, you're saying that if the patents disappear, the software will disappear...

Software has been developed and sold long before software was patentable. You're so hell bent on your flawed assumptions that you are becoming delusional.

Seriously, you should see someone to get over your anger and delusions.
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angry dude, 4 Mar 2009 @ 10:21am

Re: Re: Re: This is NOT Reform
Mudak

technology for voice and audio encoding was developed and patented long before software even existed - it was all analog back then
Now that we have everything implemented in software on DSP chips do you really think that new developments in this area (or any other area) should be unpatentable ?
Read some textbooks please, not this shitty blog
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Eclecticdave (profile), 4 Mar 2009 @ 10:52am

Patent the Device not the software
I can see the argument for patenting specialised devices (cellphones, abs brakes etc) that happen to have software as an integral component.

I don't think software in isolation needs patent protection however.
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angry dude, 4 Mar 2009 @ 11:03am

Re: Patent the Device not the software
Software does not exist in isolation
You need at least a processor to run it on and then it becomes a specialized machine -a patentable item
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Chuck Norris' Enemy (deceased), 4 Mar 2009 @ 11:26am

Re: Re: Re: Re: This is NOT Reform
So if the tech for voice and audio encoding was already patented then why do we need to patent software?
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Yosi, 4 Mar 2009 @ 11:39am

Re: Re: Re: Re: Re: This is NOT Reform
Because angry dude is retard. That is ultimate reason to troll on internet forums. Why do you feed troll, again?
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Eclecticdave (profile), 4 Mar 2009 @ 1:09pm

Re: Re: Patent the Device not the software
So "Microsoft Word running on a PC", "Microsoft Excel running on a PC", "Internet Explorer running on a PC" are all separate patents in your view? Well they probably are currently - but I thought we were discussing reform here?

I suggest that the terms "specialised" and "integral component" don't apply to these examples in the same way that they do to my earlier examples.

I accept that it may be difficult to figure out where to draw the line and plenty of grey area for the courts to play in, but there is a potential viable approach here IMO.
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Steve R. (profile), 4 Mar 2009 @ 1:33pm

Re: Re: Re: This is NOT Reform
No, the lawsuits disappear. You do not need patents to create, you can create without patents. Many people create without the expectation of ever getting paid. Getting paid helps and is desirable; but also patents were meant as a limited right. The concept of "intellectual property" has degenerated to be a welfare system enforced through endless lawsuits and special interest legislation.
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Igor, 4 Mar 2009 @ 3:24pm

Re: Re: Re: Re: Re: Re: This is NOT Reform
Actually, angry-dude is dead on his game, except for his attitude.

Software per se (aka algorithms) has never been patentable. One could only patent a system (computer hardware + software) that includes that software component and only when that "system" was designed to accomplish a particular task. (They used to also patent a CD or other storage media containing the software code -- a "tangeable thing", but I am pretty sure this will not fly anymore, even without any reforms.)

I'd love to see if someone is willing to reasonably show a difference between "a communication device, for example a cell phone, containing a DSP running this specialized kind of signal-processing software" and "a computing device, for example a desktop workstation, running this specialized kind of P2P communication software". Or "a computing device, for example a rack server, running this specialized kind of shopping cart software".
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Lawrence D'Oliveiro, 4 Mar 2009 @ 3:46pm

Re: This is NOT Reform
angry dude said:

technology for voice and audio encoding was developed and patented long before software even existed - it was all analog back then Now that we have everything implemented in software on DSP chips do you really think that new developments in this area (or any other area) should be unpatentable ?

Does that argument work the other way? Just because software is copyrightable, if the work done by the software was reimplemented as hardware mechanisms, that means hardware should be copyrightable as well?

If not, why not?
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Anonymous Coward, 4 Mar 2009 @ 4:09pm

Wow... Angry Dude... Why do people keep feeding this troll? Half his posts are invective, the other half barely explain anything at all.
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angry dude, 4 Mar 2009 @ 5:18pm

Re: Re: This is NOT Reform
"that means hardware should be copyrightable as well?"

Hardware IS copyrightable

E.g. chip layout is copyrightable etc. etc. etc.

I guess you didn't know it punk ?:
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angry dude, 4 Mar 2009 @ 5:19pm

Re:
For the record,

angry dude has 2 MS and 1 phd, and yes, one patent also

What do you have punk ?
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Mike (profile), 4 Mar 2009 @ 6:28pm

Re: Re:
For the record,

angry dude has 2 MS and 1 phd, and yes, one patent also

For the record, actually, angry dude claimed a couple years ago that he had multiple patents. Then, last year, he claimed he had just received his first patent.

Angry dude is a known liar. Back when he first claimed to have multiple patents, we asked him to point to one, and he refused (now we know why). Once he claimed to have just received a patent, we again asked him to point it out... Guess why he won't?

Yup. Angry dude is a known (and confessed) liar.

What do you have punk ?

Reason, logic and truth. Beats a lying angry dude any day of the year...
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Willton, 4 Mar 2009 @ 10:51pm

Re: Re:
That may be somewhat helpful... maybe, but the problem with a first to file system is that it simply encourages many more filings as quickly as possible. Rather than waiting to see if you actually have something useful or new, you just file as quickly as possible, increasing the load on the USPTO.

I think that this assertion assumes that there are no other areas of U.S. patent law that would deal with this situation, such as the cost of filing a patent application, Section 112's written description and enablement requirements, Section 101's usefulness requirement, and the ban on adding new matter post-filing.

A smart inventor would know to wait until he has found something new and useful because the high cost of filing on something that is not new or useful is a waste of valuable monetary resources. Further, a smart patent attorney would know to wait at least until enough information has been found by the inventor so that the patent application will at least (1) show that the inventor has what he claims he has (Section 112 written description); (2) teach a person having ordinary skill in the art how to make and use the invention (Section 112 enablement); and (3) explain why the invention is useful (Section 101 usefulness). If the lawyer does not have enough concrete data from the inventor on the above three things, then filing an application would be premature and a waste of money, as it will get rejected, if not by the Examiner than certainly by a district court judge.

The idea behind a first-to-file rule is to discourage dilatory filing, which I would think would be a good thing to you: it would get the information out in the public eye sooner and would cause the patent's term to end sooner. A first-to-file system would also put an end to costly priority disputes in interference proceedings at the USPTO -- something that I would think you would champion.
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moelarry, 5 Mar 2009 @ 8:47am

civic minded
"Unfortunately, the stuff that I think is good and necessary in the bill, such as limiting damages to the actual contribution of the patented technology..."

so if someone enters your house while you're away and doesn't want to leave, you would be happy to let a court decide how much they should pay you to stay rather than just be able to kick them out?? that's very civic minded of you cuz.
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Mike (profile), 5 Mar 2009 @ 10:51am

Re: civic minded
so if someone enters your house while you're away and doesn't want to leave, you would be happy to let a court decide how much they should pay you to stay rather than just be able to kick them out?? that's very civic minded of you cuz.

If you can't understand the difference between rivalrous and nonrivalrous goods, I can't take you seriously.

Learn some economics, then come back and admit that what you said above has absolutely nothing to do with what the adults here are talking about.
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angry dude, 5 Mar 2009 @ 11:19am

Re: Re: civic minded
adults ??

Mostly thoughtless (and patentless) punks like you
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Gene Cavanaugh, 5 Mar 2009 @ 11:41am

Patent Reform
We are now the only country in the world that clings to the outmoded "first to invent" concept (basically, it says you can hold on to an idea until someone makes something valuable of it, and then steal it from them - very bad for the economy!).
First to file is the way to go.
Will it decrease my income as a patent attorney? Yes.
Will it be good for the country? Yes.
So, do I support my country at my own expense? Yes. I happen to believe in our way of life, and "first to invent" is not the way to preserve it.
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angry dude, 5 Mar 2009 @ 12:02pm

Re: Patent Reform
"...you can hold on to an idea until someone makes something valuable of it, and then steal it from them"

Dude

If you are a patent attorney then I pity your clients:

you do not know the most elementary concepts of current patent law, like due diligence, constructive reduction to practice, 1 year grace period etc etc etc.

just get lost punk
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Willton, 5 Mar 2009 @ 8:59pm

Re: Re: civic minded
If you can't understand the difference between rivalrous and nonrivalrous goods, I can't take you seriously.

Learn some economics, then come back and admit that what you said above has absolutely nothing to do with what the adults here are talking about.

Comments like these are not well received. It reeks of elitism and arrogance, and it contributes to others' perceptions of you as a blowhard.

In case you didn't know, the law of patent infringement sounds in the tort of trespass. By infringing someone's patent, a patent infringer is trampling upon the rights of the patent holder. The claims of a patent set up the metes and bounds of the invention to which the patent gives protection, and one who decides to use an item that falls within that bounded category is treading upon the patentee's intellectual property as defined in the claims of the patent. Moelarry's analogy was perfectly apt.

Oh, and by the way, land is not a good.
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femtobeam, 5 Mar 2009 @ 9:10pm

Undermining Creative Rights
All of the arguments do not address the issues of upholding the rights of the creator. In a world where information is stolen at the speed of light and those with money, power and low labor costs have the ability to fight a right holder from either obtaining damages or sustaining expensive legal fees, there needs to be discussion with the future in mind. The right way is to base judgments on brain scans of truth or lies concerning the origin of an idea and the contribution of that idea to the economic gain and use of the idea. We are headed toward "autolaw" in order to handle claims of any kind in a cost effective way. There can be nothing more important than the rights of the individual to their own IP. There is nothing more important to the US economy than enforcing those rights. This is a nation based on small business and diversity. It is based on individuality and opportunity, not information and "mind sharing". In the not too distant future we will argue over the right to thoughts and right to be paid for creative thought, otherwise why bother educating our youth? If we are not going to protect their IP rights, they will become slaves and the nation itself will be outsourced.
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Willton, 6 Mar 2009 @ 6:31am

Re: Re: Patent Reform
"...you can hold on to an idea until someone makes something valuable of it, and then steal it from them"

Dude

If you are a patent attorney then I pity your clients:

you do not know the most elementary concepts of current patent law, like due diligence, constructive reduction to practice, 1 year grace period etc etc etc.

just get lost punk

As much as I hate to agree with the angry dude, he is correct (except for the "get lost" bit; you should never feel unwelcome because of douchey comments like that). Section 102(g) does prevent a person from claiming prior invention if the would-be inventor abandoned, suppressed, or concealed his invention. "[H]old[ing] on to an idea until someone makes something valuable of it" would be considered concealment under 102(g).
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Anonymous Coward, 25 Feb 2010 @ 6:44pm

Re: Re:
And yet you're afraid to actually reveal what the patent is. Then again, that's just because you don't actually have one.
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