Patent Reform Bill Reintroduced; More Of The Same
from the the-debate-is-misleading... dept
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
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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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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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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.
That doesn't help things at all.
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Re: Re:
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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Re: Re:
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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Mike is clueless as usual
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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This is NOT Reform
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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Re: This is NOT Reform
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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Re: Re: This is NOT Reform
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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Re: Re: Re: This is NOT Reform
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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Re: Re: Re: Re: This is NOT Reform
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Re: Re: Re: Re: Re: This is NOT Reform
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Re: Re: Re: Re: Re: Re: This is NOT Reform
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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Re: This is NOT Reform
angry dude said:
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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Re: Re: This is NOT Reform
Hardware IS copyrightable
E.g. chip layout is copyrightable etc. etc. etc.
I guess you didn't know it punk ?:
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Re: Re: Re: This is NOT Reform
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Patent the Device not the software
I don't think software in isolation needs patent protection however.
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Re: Patent the Device not the software
You need at least a processor to run it on and then it becomes a specialized machine -a patentable item
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Re: Re: Patent the Device not the software
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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Re:
angry dude has 2 MS and 1 phd, and yes, one patent also
What do you have punk ?
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Re: Re:
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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Re: Re:
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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.
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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.
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Re: Re: civic minded
Mostly thoughtless (and patentless) punks like you
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Re: Re: civic minded
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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Patent Reform
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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Re: Patent Reform
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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Re: Re: Patent Reform
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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Undermining Creative Rights
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