Patent Reform Bill Released: More Of The Same

from the chances-of-passing-look-hazy dept

Fri, Mar 5th 2010 2:26pm — Mike Masnick

As was expected, the Senate has released its latest attempt at patent reform, and it's basically more of the same. It has plenty of holdover ideas from the last few (failed) attempts at patent reform, and a few minor changes that (for the most part) aren't going to make those who oppose the bill any happier. If they couldn't get previous patent reform bills passed, it seems unlikely that this one is going anywhere. Just like last year, there's some good and some bad in the bill, and it's difficult to say on the whole if the good and the bad cancel each other out. But, the "reforms" in the bill won't do much to solve the real problems of the patent system.

It still tries to switch the US to a "first to file" system, rather than "first to invent" -- which just encourages more patents being filed faster, rather than better patents being filed. It has the same (controversial) damages setup as last year, which would be useful in limiting damages from infringement, but which many special interests hate. It does allow for third parties to get involved during the patent review process (good) and also establishes a process for post-grant review (good), but greatly limits how that post-grant review will work (bad). Tragically, it still includes the "pilot program" to let patent lawsuits be handed to "interested judges" to build "judicial expertise in patent litigation." We already know this is a bad idea, because we've already seen what happens when all patent cases at the appeals court level go to a single court, based on the same idea: that the single court would have more judicial expertise. In practice, that's meant that the court and its key rulings have been dominated by former patent attorneys, who tend to like more patents. Why replicate that disaster at the lower courts as well?

Among the new stuff, as mentioned, it limits the plans for post-grant review (bad) and raises the bar to get a willful (treble damages) infringement award (very, very good), such that just having seen the patent no longer counts as willful infringement. Of course, it also would require lower patent filing fees for smaller companies -- again encouraging greater patent filing at a time when it's pretty clear we need fewer patents, not more.

All in all, still a really mixed bag of good and bad, with the likelihood of it actually going anywhere being pretty minimal. Wake us when Congress realizes that we need real patent reform.

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Filed Under: patent, patent reform

59 Comments

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Anonymous Coward, 5 Mar 2010 @ 2:58pm

Should the patent system be abolished?
[ link to this | view in thread ]
Derek Bredensteiner (profile), 5 Mar 2010 @ 3:34pm

Re:
Does the current patent system do more harm than good?
[ link to this | view in thread ]
DJ, 5 Mar 2010 @ 3:38pm

Re:
I don't think it should be abolished altogether, just because recognition for accomplishments is often a force (the degree is irrelevant) which drives innovation.

However, the fewer regulation/laws, the better.
[ link to this | view in thread ]
DJ, 5 Mar 2010 @ 3:42pm

Re: Re:
That's probably one of the better questions that's been raised on this issue.
I don't know enough about the current system to offer an educated answer, however.
[ link to this | view in thread ]
scarr (profile), 5 Mar 2010 @ 3:47pm

Re: Re:
"Recognition" could be handled by a publication and/or website. That doesn't require any law.
[ link to this | view in thread ]
DJ, 5 Mar 2010 @ 4:00pm

Re: Re: Re:
This is true.
[ link to this | view in thread ]
Ronald J Riley (profile), 5 Mar 2010 @ 5:24pm

Re: Re: Re:
Scarr,

I agree that all your compensation going ahead should be through recognition on a website. You should live from handouts, in shelters and eat only in food kitchens. Your computer and internet access can be at public libraries.

Better yet, I am willing to buy you a tent and supply one way transportation costs to Mike Masnick's place. He should allow you to use his bathroom, his computer and broadband access and supply supplemental food when necessary.

I am certain that you will find public recognition so satisfying that you do not need anything else.

While we are at it VC's should start supplying capital for public recognition :)

Ronald J. Riley,

I am speaking only on my own behalf.
Affiliations:
President - www.PIAUSA.org - RJR at PIAUSA.org
Executive Director - www.InventorEd.org - RJR at InvEd.org
Senior Fellow - www.PatentPolicy.org
President - Alliance for American Innovation
Caretaker of Intellectual Property Creators on behalf of deceased founder Paul Heckel
Washington, DC
Direct (810) 597-0194 / (202) 318-1595 - 9 am to 8 pm EST.
[ link to this | view in thread ]
Your Mum, 5 Mar 2010 @ 5:38pm

Re: Re: Re: Re:
What are you going on about ... are you off your medication again?
[ link to this | view in thread ]
Ronald J Riley (profile), 5 Mar 2010 @ 5:47pm

patent Deform Bill
There is nothing good in the bill which was written by and for the Coalition for Patent Piracy & Fairness and then high-jacked by the Coalition for 21st century Patent Deform & HARMonization.

This bill is designed to socialization all independent, academic and small business inventions for the benefit of transnational corporations. It is class warfare meant to disenfranchise all small entity inventors.

It is interesting that Mike Masnick's position on the bill is similar to that of the Coalition for Patent Piracy and Fairness and that may of their members just happen to have ads on TechDIRT.

It seems reasonable that we should implement comparable measures which Mike Masnick calls for with his business. We need an open ended mechanism to challenge ownership of his assets.

All of his work product should be published so that others can examine it and he should then have to fight anyone who decides to take it, endlessly.

Maybe after experiencing this Mike Masnick would finally understand that patents are property and it is unjust to take others tangible or intangible property.

Ronald J. Riley,

I am speaking only on my own behalf.
Affiliations:
President - www.PIAUSA.org - RJR at PIAUSA.org
Executive Director - www.InventorEd.org - RJR at InvEd.org
Senior Fellow - www.PatentPolicy.org
President - Alliance for American Innovation
Caretaker of Intellectual Property Creators on behalf of deceased founder Paul Heckel
Washington, DC
Direct (810) 597-0194 / (202) 318-1595 - 9 am to 8 pm EST.
[ link to this | view in thread ]
Mike Masnick (profile), 5 Mar 2010 @ 6:11pm

Re: patent Deform Bill
There is nothing good in the bill which was written by and for the Coalition for Patent Piracy & Fairness and then high-jacked by the Coalition for 21st century Patent Deform & HARMonization.

Nothing good? Really? That seems a bit extreme.

It is interesting that Mike Masnick's position on the bill is similar to that of the Coalition for Patent Piracy and Fairness and that may of their members just happen to have ads on TechDIRT.

It would be interesting if that were true, but it's not. The Coalition that you've misnamed, and which I've never spoken to and have no relationship whatsoever with, has come out strongly in favor of the bill, whereas I don't think it's particularly useful and think that the bad probably outweighs the good. But facts are not your strong suit.

It seems reasonable that we should implement comparable measures which Mike Masnick calls for with his business. We need an open ended mechanism to challenge ownership of his assets.

Again, we have discussed this, so I'm confused by your insistence on this. This is already the case. All of my content is public domain. Please do with as you would like.

All of his work product should be published so that others can examine it and he should then have to fight anyone who decides to take it, endlessly.

Everything is published here and you are, indeed, free to do with it what you want. No "fighting" necessary. Have at it.

Maybe after experiencing this Mike Masnick would finally understand that patents are property and it is unjust to take others tangible or intangible property.

Patents are a monopoly provided by the gov't for a single purpose: to promote the progress. I'm all for them if you could prove they did that. I have asked you in the past many times over to present your evidence and instead you have come back with insults directed at me (and my parents) but no evidence.

Now why would that be?

As for whether or not it is "unjust," I have already said that my content is public domain. Nothing unjust at all about using it however you want. Again, we have discussed this at length. Your decision to ignore the facts is slightly troubling, Ronald. I mean, you must realize that I will repeat the facts again, and anyone reading your comments will know you are a blatant liar. Why would you do that?
[ link to this | view in thread ]
Anonymous Coward, 5 Mar 2010 @ 6:12pm

Re: patent Deform Bill
Wow, you are a impressive troll. And your trolling is on the subject of patents no less.

Answer this then: If patents are meant as property, then why do they expire?
[ link to this | view in thread ]
Anonymous Coward, 5 Mar 2010 @ 6:53pm

Re: Re: Re: Re:
"You should live from handouts"

IP maximists already do this, they live from the government handing out unowed monopolies on things that IP maximists do nothing to promote the progress of, but instead, they sue those who do promote the progress for no good reason other than to scam the public.
[ link to this | view in thread ]
Sneeje (profile), 5 Mar 2010 @ 7:34pm

Re: Re: patent Deform Bill
Booyah!
[ link to this | view in thread ]
Luci, 5 Mar 2010 @ 10:31pm

Re: Re: Re: Re:
There you go, again, speaking out your ass and adding nothing to the discussion. Nothing you have said invalidates what he has said.

Thank you, and good night.
[ link to this | view in thread ]
step back, 6 Mar 2010 @ 2:07am

Should Tech Dirt be abolished?
Should Tech Dirt be abolished?

Does Tech Dirt do more harm than good?

Shouldn't Dirt fall ... where it may?

How many years has it been since the last "true" Reform of Dirt?

Many complain that we have a Dirt Thicket and Dirt is stifling the pace of true innovation. Dirt should never have been launched in the first place.
[ link to this | view in thread ]
Ronald J Riley (profile), 6 Mar 2010 @ 8:28am

Re: Should Tech Dirt be abolished?
Now this is funny.

But I find it necessary to point out that TechDIRT does have at least one redeeming use in that the comments about patent property rights are so ignorant and outrageous that it does draw inventors attention and has brought a number of inventors to the Professional Inventors Alliance and InventorEd.org. We may not have been able to help those inventors otherwise. Mike is in his own way helping inventors find the help they need to sue nasty patent pirates.

I feed from the royalty trough and real estate investment proceeds. Mike, how about explaining how you pay your bills? Whose tough are you feeding from?

Ronald J. Riley,

I am speaking only on my own behalf.
Affiliations:
President - www.PIAUSA.org - RJR at PIAUSA.org
Executive Director - www.InventorEd.org - RJR at InvEd.org
Senior Fellow - www.PatentPolicy.org
President - Alliance for American Innovation
Caretaker of Intellectual Property Creators on behalf of deceased founder Paul Heckel
Washington, DC
Direct (810) 597-0194 / (202) 318-1595 - 9 am to 8 pm EST.
[ link to this | view in thread ]
Anonymous Coward, 6 Mar 2010 @ 8:35am

Re: Re: Should Tech Dirt be abolished?
"the comments about patent property rights are so ignorant and outrageous"

Funny how you say that and yet offer nothing to counter those comments.
[ link to this | view in thread ]
Ronald J Riley (profile), 6 Mar 2010 @ 9:30am

Re: Re: Re: Should Tech Dirt be abolished?
I have addressed this issue before. There is no point in trying to have a productive discussion here because the substance of replies are generally ignored. My purpose in visiting TechDIRT is to draw the attention journalists, inventors and people of import.

Ronald J. Riley,

I am speaking only on my own behalf.
Affiliations:
President - www.PIAUSA.org - RJR at PIAUSA.org
Executive Director - www.InventorEd.org - RJR at InvEd.org
Senior Fellow - www.PatentPolicy.org
President - Alliance for American Innovation
Caretaker of Intellectual Property Creators on behalf of deceased founder Paul Heckel
Washington, DC
Direct (810) 597-0194 / (202) 318-1595 - 9 am to 8 pm EST.
[ link to this | view in thread ]
Gene Cavanaugh, 6 Mar 2010 @ 1:25pm

Patent reform
"It still tries to switch the US to a "first to file" system, rather than "first to invent" -- which just encourages more patents being filed faster, rather than better patents being filed."
While I think your blogs are generally triple-A in value, with that remark you killed the whole blog. "Those who don't know history are doomed to repeat it", and you do not know the history of the patent system.
Learn more about it and try again; at this point your blog loses credibility with that statement.
[ link to this | view in thread ]
Anonymous non-US patent attorney, 6 Mar 2010 @ 1:33pm

Some statements in the article
Sir,

I read this article with interest and have a few questions:

> It still tries to switch the US to a "first to file" system, rather than "first to invent" -- which just encourages more patents being filed faster, rather than better patents being filed.

Can you substantiate this claim? Much of the world outside USA uses "first to file" and a marked lack of quality is news to me. Moreover some arts have inventions that take a long time to reach the market, pharmaceutics is one case where regulations and approvals can take a long time. Development time can be 15 years. Big pharma has now switched tactics where applications are filed just before entering public trials rather than at the earliest stage.

Secondly one can file a provisional application to claim an early priority and than file a more thought out application later, typically within 12 months.

> In practice, that's meant that the court and its key rulings have been dominated by former patent attorneys, who tend to like more patents.

This is a rather crass allegation against patent attorneys that I really would like to see substantiated. Do you really believe all patent attorneys are without ethics and are on the take? The profession has strict guidelines that emphasise not only to serve the clients but also to uphold a wider ethical standard. Inequitable conduct has dramatic consequences.

I do not offer legal advice here or on the net, I am merely questioning some of the statements made here.

Very truly yours,
an anonymous non-US patent attorney
[ link to this | view in thread ]
Mike Masnick (profile), 6 Mar 2010 @ 1:46pm

Re: Re: Should Tech Dirt be abolished?
We may not have been able to help those inventors otherwise. Mike is in his own way helping inventors find the help they need to sue nasty patent pirates.

By taking their money? You call that helping them? Heh. They should know better.

You prey on suckers Ronald.

I feed from the royalty trough and real estate investment proceeds.

You feed from poor souls with patents who think you are helping them. It's sad.

Mike, how about explaining how you pay your bills? Whose tough are you feeding from?

I've answered that question repeatedly, so I don't know why you keep asking. We make our money from the Insight Community projects that we do and (to a much lesser extent) some ads on the site. But we do not do anything to sell editorial and you know that. Yet you keep claiming otherwise.

In the meantime I will note, once again, that you failed (yet again) to post a SINGLE BIT OF EVIDENCE that shows the evidence against the patent system is wrong. We're still waiting...
[ link to this | view in thread ]
Mike Masnick (profile), 6 Mar 2010 @ 1:48pm

Re: Re: Re: Re: Should Tech Dirt be abolished?
I have addressed this issue before. There is no point in trying to have a productive discussion here because the substance of replies are generally ignored. My purpose in visiting TechDIRT is to draw the attention journalists, inventors and people of import.

Ha!! So you can't post a single study that supports your position?

Ronald, you are proving that you have nothing on your side. All we ask is for you to post a single bit of evidence that supports your position and your answer is "I won't because it'll be ignored."

Look, I'll make you a promise. If you post a single shred of evidence for your position, I promise I will respond and will not ignore it. Perhaps you'll even convince me that I'm wrong. Come on. I'm waiting.
[ link to this | view in thread ]
Mike Masnick (profile), 6 Mar 2010 @ 1:59pm

Re: Some statements in the article
Can you substantiate this claim? Much of the world outside USA uses "first to file" and a marked lack of quality is news to me.

I think it should be rather obvious. If the prize goes to whoever gets there first, the incentive is clear to file faster and earlier. I wasn't saying that it created a *lack* of quality. Just that the incentive structure it sets up encourages less well developed patents.

Secondly one can file a provisional application to claim an early priority and than file a more thought out application later, typically within 12 months.

Indeed. But is that really a good use of the inventor's time?

This is a rather crass allegation against patent attorneys that I really would like to see substantiated. Do you really believe all patent attorneys are without ethics and are on the take?

I said no such thing, sir. I neither said nor implied that those attorneys were "on the take." I said that given where they come from, they tend to have a more favorable view of patents in general, and there is little evidence against that.

But studies of CAFC have shown that for years it was dominated by those who had experience as patent attorneys before being on the bench, and they did tend to expand the subject area that was considered patentable.

It was not a claim that they were unethical in any way. Just that patent attorneys tend to be more favorable towards patents than, say, economists.
[ link to this | view in thread ]
Anonymous Coward, 6 Mar 2010 @ 3:01pm

Re: Re: Re: Re:
Unfortunately the dead guy in your signature has to suffer with recognition in the midst of the rest of your failure of a signature.

(Hint: If you are "speaking only on your own behalf" you do not have to include a giant list of all your shilling organizations).
[ link to this | view in thread ]
Ronald J Riley (profile), 7 Mar 2010 @ 6:07am

Freeloaders - Nothing is free / Re: Re: Re: Re: Re:
"IP maximists already do this, they live from the government handing out unowed monopolies"

The point is that in exchange for teaching an invention with a patent the inventor gets a limited term of exclusive use. That term is owed as part of the deal.

So what we really have are a bunch of free loaders rationalizing that they are owed something when in fact they did noting to earn such rights.

Ronald J. Riley,

I am speaking only on my own behalf.
Affiliations:
President - www.PIAUSA.org - RJR at PIAUSA.org
Executive Director - www.InventorEd.org - RJR at InvEd.org
Senior Fellow - www.PatentPolicy.org
President - Alliance for American Innovation
Caretaker of Intellectual Property Creators on behalf of deceased founder Paul Heckel
Washington, DC
Direct (810) 597-0194 / (202) 318-1595 - 9 am to 8 pm EST.
[ link to this | view in thread ]
Ronald J Riley (profile), 7 Mar 2010 @ 6:09am

Credibility / Re: Re: Re: Re: Re:
Maybe your comments would have more credibility if you did sign them. At this point there is nowhere for your credibility to go but up.

Ronald J. Riley,

I am speaking only on my own behalf.
Affiliations:
President - www.PIAUSA.org - RJR at PIAUSA.org
Executive Director - www.InventorEd.org - RJR at InvEd.org
Senior Fellow - www.PatentPolicy.org
President - Alliance for American Innovation
Caretaker of Intellectual Property Creators on behalf of deceased founder Paul Heckel
Washington, DC
Direct (810) 597-0194 / (202) 318-1595 - 9 am to 8 pm EST.
[ link to this | view in thread ]
Ronald J Riley (profile), 7 Mar 2010 @ 6:13am

Re: Re: patent Deform Bill
They expire in the same way a lease expires. Have you ever heard of 99 year leases where people build a house and have all the property rights of ownership for 99 years? Patents are the same kind of deal, the inventor teaches their invention as opposed to treating as a trade secret and in exchange they get EXCLUSIVE rights for twenty years from date of filing.

Ronald J. Riley,

I am speaking only on my own behalf.
Affiliations:
President - www.PIAUSA.org - RJR at PIAUSA.org
Executive Director - www.InventorEd.org - RJR at InvEd.org
Senior Fellow - www.PatentPolicy.org
President - Alliance for American Innovation
Caretaker of Intellectual Property Creators on behalf of deceased founder Paul Heckel
Washington, DC
Direct (810) 597-0194 / (202) 318-1595 - 9 am to 8 pm EST.
[ link to this | view in thread ]
Ronald J Riley (profile), 7 Mar 2010 @ 6:21am

Re: Re: Re: Re: Re: Should Tech Dirt be abolished?
"Ha!! So you can't post a single study that supports your position?"

I could post plenty of studies but it is clear that doing so would serve no purpose. As it is they are available for anyone who cares to look for them. I am assuming that you know how to look because in order to find the drivel you call studies that you had to wade through at least an order of magnitude of stuff which refutes the crap you post.

Of course, it is possible that you did not look for yourself and that the references were passed to you by someone associated with the patent piracy movement. If that is the case you should take a bit of time to become better informed.

Ronald J. Riley,

I am speaking only on my own behalf.
Affiliations:
President - www.PIAUSA.org - RJR at PIAUSA.org
Executive Director - www.InventorEd.org - RJR at InvEd.org
Senior Fellow - www.PatentPolicy.org
President - Alliance for American Innovation
Caretaker of Intellectual Property Creators on behalf of deceased founder Paul Heckel
Washington, DC
Direct (810) 597-0194 / (202) 318-1595 - 9 am to 8 pm EST.
[ link to this | view in thread ]
Anonymous Coward, 7 Mar 2010 @ 6:23am

Re: Re: Re: patent Deform Bill
Nice try, but a lease is by definition not a property right.
[ link to this | view in thread ]
Ronald J Riley (profile), 7 Mar 2010 @ 6:26am

Re: Re: Re: Should Tech Dirt be abolished?
"We make our money from the Insight Community projects that we do"

And are you insight clients big companies? Are any members of the two Piracy Coalitions?

"and (to a much lesser extent) some ads on the site. But we do not do anything to sell editorial and you know that. Yet you keep claiming otherwise."

You write quite a bit about journalism. You should be aware that the wall between editorial and the business side has been destroyed.

Is there any reason we should believe that you are not influenced by your client's political agenda?

Ronald J. Riley,

I am speaking only on my own behalf.
Affiliations:
President - www.PIAUSA.org - RJR at PIAUSA.org
Executive Director - www.InventorEd.org - RJR at InvEd.org
Senior Fellow - www.PatentPolicy.org
President - Alliance for American Innovation
Caretaker of Intellectual Property Creators on behalf of deceased founder Paul Heckel
Washington, DC
Direct (810) 597-0194 / (202) 318-1595 - 9 am to 8 pm EST.
[ link to this | view in thread ]
Anonymous Coward, 7 Mar 2010 @ 8:32am

Re: Re: patent Deform Bill
Patents expire in order to bring technology forward. That and other aspects are put in place to make sure the patent owners do not rest too heavily on past efforts.
[ link to this | view in thread ]
Anonymous Coward, 7 Mar 2010 @ 8:50am

Re: Re: Re: patent Deform Bill
"Patents expire in order to bring technology forward."

Not to mention that's the entire reason patents exist.
[ link to this | view in thread ]
Mike Masnick (profile), 7 Mar 2010 @ 10:06am

Re: Re: Re: Re: Re: Re: Should Tech Dirt be abolished?
I could post plenty of studies but it is clear that doing so would serve no purpose

What? Wouldn't it prove you right and me wrong? I mean, it's simple. A link. You would win. Wouldn't that serve a really strong purpose?

I am assuming that you know how to look because in order to find the drivel you call studies that you had to wade through at least an order of magnitude of stuff which refutes the crap you post.

No. That's the point. I haven't seen a single study that refutes the studies I've posted -- including two by Nobel Prize winning economists. That's why I keep asking you to provide me with the other studies. I'd really appreciate it.

Of course, it is possible that you did not look for yourself and that the references were passed to you by someone associated with the patent piracy movement. If that is the case you should take a bit of time to become better informed.

Again, I have no idea who you think is the "patent piracy movement," but I can assure you I have no connection with whoever that is. Again, I will ask you, please provide a single shred of evidence for your position. I've been asking you for approximately three years now. And I still haven't seen you give a single response. It's really quite amazing.
[ link to this | view in thread ]
Mike Masnick (profile), 7 Mar 2010 @ 10:14am

Re: Re: Re: Re: Should Tech Dirt be abolished?
And are you insight clients big companies? Are any members of the two Piracy Coalitions?

Again, I don't even know what the "Piracy Coalitions" are. But I can say, with 100% certainty, that we have NEVER done any work related to patents -- and that the big companies you usually name really disagree with me on patents. I don't know why you think otherwise. The stuff we have done with companies has been totally disconnected from patent stuff.

You write quite a bit about journalism. You should be aware that the wall between editorial and the business side has been destroyed.

What? Where the hell did you get that from? No one pays us to write anything. The "wall" has not been destroyed at all. We write stuff that attacks our own Insight Community clients all the time -- and that's because the work we do with IC clients is rarely about "advertising" or promoting, and usually about helping them get insight. And that often includes us telling them why they're wrong.

I mean, this stuff is pretty basic.

Is there any reason we should believe that you are not influenced by your client's political agenda?

Because you, like anyone else, can read. Our position and the position of our clients is incredibly different. The companies you usually cite as paying us for our opinion support this patent reform bill, whereas I do not. Among the companies you usually claim we are shills for is Microsoft -- and yet we have regularly attacked Microsoft's position on patents and the only work we ever did with Microsoft was one small project that had nothing to do with patents. Microsoft's patent people really dislike me a lot.

http://www.techdirt.com/articles/20081020/1938442601.shtml

Ronald, you can believe whatever you want, but our editorial content is what we believe, based on FACTS and EVIDENCE. You have just as great an ability to convince us we're wrong, if you provided a SINGLE SHRED OF EVIDENCE supporting your position. I've asked you for three years, and the best I've gotten back from you is that you insulted my parents.

Most people on this board now find you to be a total joke. You could solve that and make me look like a fool by posting your evidence.

I still can't figure out why you wouldn't take up such an offer... unless it's because you have no such evidence and (as has been charged in court against you) you make money by preying on naive inventors to give you money. Hell, even then it would make more sense for you to present your evidence and prove me wrong. I await the evidence.
[ link to this | view in thread ]
Anonymous Coward, 7 Mar 2010 @ 4:32pm

The fact is that government granted monopolies do not innovate.

Look at our postal service, they have a government granted monopoly on who can put mail in a mail box and they haven't innovated for the last, what, 200 years. Now they're asking Congress for permission to shut down on Saturdays, increase rates, close down some post offices and close down services because the Internet competes with their revenue (blame everything on the Internet of course). What Congress ought to do is demonopolize them instead.

Cableco companies have government granted monopolies on infrastructure and they haven't innovated at all (instead they steal ideas from competitors who innovate, ie: Tivo among other developers that have created new and innovative technology that cableco has then stolen and implemented in their system). The taxi cab industry gets government monopolies and they haven't innovated at all in many years, heck, some of them still use ancient 486 (and older) computers with Novel networking drivers and 5 1/4 floppy disks. Yet a COMPETITOR innovated by offering free ad supported transportation service and the taxi cab companies stole it.

The same thing goes for patents. Patents do NOT cause innovation, they HINDER innovation and government granted monopolies hinder innovation.
[ link to this | view in thread ]
Anonymous Coward, 7 Mar 2010 @ 4:34pm

Re:
err. Novell Netware * which is now obsolete.
[ link to this | view in thread ]
Willton, 7 Mar 2010 @ 7:12pm

Re: Re: Some statements in the article
I think it should be rather obvious. If the prize goes to whoever gets there first, the incentive is clear to file faster and earlier. I wasn't saying that it created a *lack* of quality. Just that the incentive structure it sets up encourages less well developed patents.

And yet, you provide no evidence that this has occurred. As the non-US (likely European) patent attorney said, the EU, Canada, Australia, New Zealand, and much of the rest of the world have had first-to-file systems for quite some time. So, if you're right that a first-to-file system encourages less well developed patents, then why don't the result fall in line with your hypothesis?
[ link to this | view in thread ]
Anonymous Coward, 7 Mar 2010 @ 8:29pm

Re: Re: Re: Some statements in the article
"As the non-US (likely European) patent attorney said, the EU, Canada, Australia, New Zealand, and much of the rest of the world have had first-to-file systems for quite some time."

and how does this negate what he says.

"So, if you're right that a first-to-file system encourages less well developed patents, then why don't the result fall in line with your hypothesis?"

So you're argument is that just because others also have first to file patent systems that automatically constitutes proof that first to file systems are fine? That's a terrible argument.
[ link to this | view in thread ]
Anonymous Coward, 7 Mar 2010 @ 8:34pm

Re: Re: Re: Some statements in the article
"And yet, you provide no evidence that this has occurred."

I think the sorry state of our patent system IS evidence.

In Israel they have fewer patent laws and they are consistently ranked among the most innovative nations.

"Ranking of 8 in 'Innovation and Sophistication';"

http://reut-institute.org/Publication.aspx?PublicationId=1153

also, the fact that there is no evidence that patents help encourage innovation and there is plenty of evidence suggesting otherwise (ie: all the studies and the fact that the U.S. innovated a lot more when they were less strict on intellectual property and, specifically, in areas that were less strict on intellectual property, like tech and computer advancement and medicine back when it wasn't as bogged down with patents) is also evidence.

But here is the thing. Despite the complete lack of evidence that patents help innovation and the plethora of evidence suggesting it harms innovation, patents are a monopoly and monopolies lower aggregate output and increase price. There is no good reason to suggest that patents should help innovation. If you want patents to exist the burden of proof is on YOU to justify their existence. So far you have failed.
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Anonymous Coward, 7 Mar 2010 @ 8:35pm

Re: Re: Re: Re: Some statements in the article
or rather, the intellectual property laws in Israel are much less restrictive and they are more innovative as a result.
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Anonymous Coward, 7 Mar 2010 @ 8:42pm

Re: Re: Re: Some statements in the article
"And yet, you provide no evidence that this has occurred."

what do you mean no evidence? There are many many patents that sit IDLE (both the U.S. and non U.S.), the majority of patents do not make it to a product even. That IS evidence, the fact that people file and own so many patents without even using those patents suggests that they are quick to file for patents and collect them without putting much thought into turning them into a product. Heck, corporations own patent portfolios just for the sake of counter suing someone that sues them for infringement so they have leverage in a settlement. Heck, there are PATENT TROLLS, entities that do not even produce, that file for patents and sue people or they lease/rent their patents out to others to sue. Where was the incentive there not to file faster? No, the incentive was to file faster. We have entities and attorneys that dedicate themselves just to filing patents for patent trolls and people just to sue, people that do not even invent what they own a patent on. Where was the incentive not to file faster and earlier? Where was the incentive to think through creating a product before filing for a patent?
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Anonymous Coward, 7 Mar 2010 @ 8:45pm

Re: Re: Re: Some statements in the article
"And yet, you provide no evidence"

See the evidence is there, the problem is that you merely ignore it. But the fact that you ignore it doesn't make it go away.
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staff, 8 Mar 2010 @ 6:50am

NO!
"...it's difficult to say on the whole if the good and the bad cancel each other out"

In a word...NO!

Patent reform is a fraud on America. It is patently un-American.
Please see http://truereform.piausa.org/ for a different/opposing view on patent reform.
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Willton, 8 Mar 2010 @ 5:45pm

Re: Re: Re: Re: Some statements in the article
So you're argument is that just because others also have first to file patent systems that automatically constitutes proof that first to file systems are fine? That's a terrible argument.

Indeed, that is a terrible argument. But if you knew how to read, you'd know that what you said is not my argument.

My point is that there is a distinct lack of evidence that first-to-file systems produce more poorly developed patent disclosures than first-to-invent systems do. To the contrary, patent quality in the U.S. appears to be on par with patent quality in at least Europe and Canada, if not also the rest of the modern world. In such circumstances, the claim that changing the U.S. system to a first-to-file system would lower patent quality is a claim that lacks foundation. In other words, it's a baseless claim.
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Willton, 8 Mar 2010 @ 5:47pm

Re: Re: Re: Re: Re: Some statements in the article
or rather, the intellectual property laws in Israel are much less restrictive and they are more innovative as a result.

All of which is not relevant to the discussion at hand.

By the way, you should learn that correlation does not equal causation.
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Anonymous Coward, 8 Mar 2010 @ 8:40pm

Re: Re: Re: Re: Re: Re: Some statements in the article
"By the way, you should learn that correlation does not equal causation."

No one said otherwise.
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Anonymous Coward, 8 Mar 2010 @ 8:44pm

Re: Re: Re: Re: Re: Some statements in the article
"To the contrary, patent quality in the U.S. appears to be on par with patent quality in at least Europe and Canada, if not also the rest of the modern world."

Patent quality in the U.S. is absolutely terrible. and, again, you are comparing first to file systems with first to file systems, which means that your point was exactly what I said it was. You just said

"As the non-US (likely European) patent attorney said, the EU, Canada, Australia, New Zealand, and much of the rest of the world have had first-to-file systems for quite some time."

Then you said

"patent quality in the U.S. appears to be on par with patent quality in at least Europe and Canada"

In other words, "So you're argument is that just because others also have first to file patent systems that automatically constitutes proof that first to file systems are fine? That's a terrible argument."

was correct.

"But if you knew how to read"

I am reading what you said correctly, it's not my fault you're making terrible arguments.
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Anonymous Coward, 8 Mar 2010 @ 8:49pm

Re: Re: Re: Re: Re: Re: Some statements in the article
"All of which is not relevant to the discussion at hand."

It is relevant, it's evidence.

"By the way, you should learn that correlation does not equal causation."

No one said that correlation equals causation. That's the thing about science, you can't absolutely prove anything. You can make a study that shows that people who smoke are more likely to get cancer, but you can't prove that smoking contributes to cancer. One can keep on arguing that there is only a correlation, and that there is no causation or contribution. But the point is that the studies provide evidence for the notion that smoking contributes to cancer.

In the same sense here, there is plenty of evidence that patents harm innovation. The U.S. was once not so strict on intellectual property and they were very innovative as a result. Hollywood, for example, was built on piracy. At the very least the Israel example demonstrates that patents aren't necessary for innovation, we can innovate even better without them. Also, lets not forget that the chem industry in Switzerland was much more innovative before Germany et al imposed stricter IP laws on them as well. There is plenty of evidence that patents harm innovation, you merely ignore it.
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Willton, 9 Mar 2010 @ 11:59am

Re: Re: Re: Re: Re: Re: Some statements in the article
In other words, "So you're argument is that just because others also have first to file patent systems that automatically constitutes proof that first to file systems are fine? That's a terrible argument."

was correct.

No, you idiot, that is not correct. You clearly have some reading comprehension problems. What I am saying is that if first-to-file ("FTF") systems really were bad, we would have some evidence by now that supported that belief. No one has put forth any such evidence thus far, and I have serious doubts that any such evidence will be found.

The fact that FTF systems have existed for a long time is not evidence in and of itself that FTF systems are not problematic. It is the fact that FTF systems have been around for a while AND the fact that there is no evidence that FTF systems have produced bad results that leads me to believe that FTF systems are not problematic. If anything, an FTF system would be good in that it would eliminate costly interference proceedings that exist only because we currently have a first-to-invent system.

For a blog that claims to value evidence so highly, it's a bit amazing that the people here are willing to accept completely out-of-hand what Mike says about FTF systems without supporting evidence.
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Ronald J Riley (profile), 9 Mar 2010 @ 4:44pm

Re: Re: Re: Re: Re: Re: Re: Should Tech Dirt be abolished?
Mike Masnick,

In the referenced three years you consistently ignored everyone's substantive responses so why would anyone think this is going to change now?

Clearly your goal is to eviscerate the patent system. Your objections to Patent Deform legislation is that it is not destructive enough. That is the same goal of the Coalition for Patent Piracy & Fairness.

You deny any contact with the group but cannot credibly deny dealing with corporate members of the group.

Based on your writing about other issues I know that you are not a complete moron and yet every time you write about patents you leave that impression.

You argue that inventors contributions have no value and that those who take them without paying are innovators and you babble about free business models whose purpose is to con people into showering money on someone. Free is always a loss leader. Nothing is free, someone always foots the bill. What irritates inventors and causes so much disrespect for Mike is that making our work product free is a loss leader for others' to profit at our expense.

Ronald J. Riley,

I am speaking only on my own behalf.
Affiliations:
President - www.PIAUSA.org - RJR at PIAUSA.org
Executive Director - www.InventorEd.org - RJR at InvEd.org
Senior Fellow - www.PatentPolicy.org
President - Alliance for American Innovation
Caretaker of Intellectual Property Creators on behalf of deceased founder Paul Heckel
Washington, DC
Direct (810) 597-0194 / (202) 318-1595 - 9 am to 8 pm EST.
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Ronald J Riley (profile), 9 Mar 2010 @ 5:39pm

Re: Re: Re: Re: Re: Should Tech Dirt be abolished?
"and that's because the work we do with IC clients is rarely about "advertising" or promoting, and usually about helping them get insight."

Mike, you and from what I can tell the organization are so far in left field, blinded by irrational ideology totally divorced from reality that you cannot possibly deliver insight.

"Ronald, you can believe whatever you want, but our editorial content is what we believe, based on FACTS and EVIDENCE."

There is a huge difference between what you believe and the facts and evidence.

"I still can't figure out why you wouldn't take up such an offer."

I have addressed this more than once. The evidence is overwhelming as to the benefits of patents and regardless of what anyone offers you continue to beat the same drum.

"as has been charged in court against you) you make money by preying on naive inventors to give you money."

I have devoted the last twenty years working pro bono to improve inventor's prospects. There is a very long paper trail about this.

Inventors face two major obstacles to success.

Early on there is the issue of invention promotion fraud. Later the problem is big transnational thieves.

The allegations you make here are based on a lawyer using a SLAPP lawsuit as cover to accuse me of being the kind of crook which preys on early stage inventors. If those allegations were made in any other situation that lawyer would be a pauper today.

We run a major anti fraud operation out of InventorEd. It is more than a decade old and we have played a role in bringing a number of the operators to justice. They attack us in a number of ways.

SLAPP threats are common. Attempts to infiltrate our operation have also been made.

So tell me Mike, do you really want to hitch your wagon to anyone associated with that industry? Somehow I doubt that they are capable or willing to have any "Insight" because they are blinded by over $500 million a year in ill gotten gains.

Ronald J. Riley,

I am speaking only on my own behalf.
Affiliations:
President - www.PIAUSA.org - RJR at PIAUSA.org
Executive Director - www.InventorEd.org - RJR at InvEd.org
Senior Fellow - www.PatentPolicy.org
President - Alliance for American Innovation
Caretaker of Intellectual Property Creators on behalf of deceased founder Paul Heckel
Washington, DC
Direct (810) 597-0194 / (202) 318-1595 - 9 am to 8 pm EST.
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Ronald J Riley (profile), 9 Mar 2010 @ 6:04pm

Re:
Inventors tend to treat inventions as trade secrets if there is not a suitable incentive to get them teach the invention instead of keeping it a secret.

This is what the promise of exclusive use does and it works very well.

For the first twenty years that I was inventing I very effectively hid how they worked. The second twenty years I used the patent system.

Ronald J. Riley,

I am speaking only on my own behalf.
Affiliations:
President - www.PIAUSA.org - RJR at PIAUSA.org
Executive Director - www.InventorEd.org - RJR at InvEd.org
Senior Fellow - www.PatentPolicy.org
President - Alliance for American Innovation
Caretaker of Intellectual Property Creators on behalf of deceased founder Paul Heckel
Washington, DC
Direct (810) 597-0194 / (202) 318-1595 - 9 am to 8 pm EST.
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Ronald J Riley (profile), 9 Mar 2010 @ 6:22pm

Re: Re: Re: Should Tech Dirt be abolished?
"By taking their money? You call that helping them? Heh. They should know better.

You prey on suckers Ronald.

I feed from the royalty trough and real estate investment proceeds.

You feed from poor souls with patents who think you are helping them. It's sad."

Mike, I help inventors with no strings attached if I think their invention is viable. I have spent several million dollars of my own money helping inventors.

You are right that there are many poor souls. They are preyed on by invention promoters in the early stages and then once they do produce something of value big corporate parasites try to feed on them.

You like to call patent enforcement entities trolls. Most certainly they help inventors in order to make big bucks.

But the only reason that they have a business is that other companies try to take all for themselves. It has been in big company's power from day one to stop patent enforcement companies, to eradicate them. All they have to do is acquire rights to inventions before using them.

Until that happens I will continue to help inventors pick the best mercenary for their situation because it is the right thing to do. This is important because not all patent enforcement businesses are created equal but all of them pay inventors more than they would get if they depended on good will and integrity of those companies whose business model is built on stealing from inventors.

Ronald J. Riley,

I am speaking only on my own behalf.
Affiliations:
President - www.PIAUSA.org - RJR at PIAUSA.org
Executive Director - www.InventorEd.org - RJR at InvEd.org
Senior Fellow - www.PatentPolicy.org
President - Alliance for American Innovation
Caretaker of Intellectual Property Creators on behalf of deceased founder Paul Heckel
Washington, DC
Direct (810) 597-0194 / (202) 318-1595 - 9 am to 8 pm EST.
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Anonymous Coward, 16 Mar 2010 @ 3:21pm

Re: Re: Re: Re: Re: Re: Should Tech Dirt be abolished?
"There is a huge difference between what you believe and the facts and evidence."

The problem is that techdirt et al provides facts and evidence and you never do.
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Anonymous Coward, 16 Mar 2010 @ 3:24pm

Re: Re: Re: Re: Re: Re: Re: Some statements in the article
"No, you idiot, that is not correct. You clearly have some reading comprehension problems. What I am saying is that if first-to-file ("FTF") systems really were bad, we would have some evidence by now that supported that belief. No one has put forth any such evidence thus far, and I have serious doubts that any such evidence will be found."

We HAVE put forth such evidence, you simply ignore it. The patent system in place is a disaster.

"It is the fact that FTF systems have been around for a while AND the fact that there is no evidence that FTF systems have produced bad results that leads me to believe that FTF systems are not problematic."

Except I have presented evidence that they produce bad results, again, YOU IGNORE IT.

"If anything, an FTF system would be good in that it would eliminate costly interference proceedings that exist only because we currently have a first-to-invent system."

Evidence?

"For a blog that claims to value evidence so highly, it's a bit amazing that the people here are willing to accept completely out-of-hand what Mike says about FTF systems without supporting evidence."

Except that this isn't true.
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bert, 1 Apr 2010 @ 3:10am

It is my personal experience that patents are granted too easy and are well enough analyzed particularly with respect to the non-obviousness. For instance Philips has a patent on using lenses in front of leds. This is too bloody obvious since lenses have been used on all sorts of light sources in the past and every time a new source came up these got used in combination with lenses. What's new? Nothing really, still, they got the patent and are now bullying small companies who make led lighting to cough up money for a not very new idea.

I think the non-obviousness of an idea should be scrutinized much more intensively. It looks like the patent offices are so overloaded they employ just anybody to get their desks clean. These people who haven't got a clue what they are doing.

I am convinced this example is not unique.
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bert, 1 Apr 2010 @ 3:12am

edit: "are well enough" should be "are not well enough"
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John Janning, 25 Apr 2010 @ 9:00am

First-to-file a MUST!!!!
Please do your best at changing the present unfair first-to-invent system in the USPTO to a more fair first-to-file system. As an inventor with 71 issued U.S. patents and an Enshrinee in the Engineers and Scientists Hall of Fame, I speak for many wanting first-to-file. First-to-invent encourages "cheats" who simply have to "back date" their paperwork when they hear of a promising new invention.

With the PPA available to the small individual inventor, first-to-file gives EVERYONE a fair shake.

John Janning
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zincmaster (profile), 18 May 2010 @ 11:54pm

First to File a terrible mistake
John, you post on a lot of sites about this, and I realize you are a very accomplished inventor. I certainly respect that as a person creating my own products as well.

However, your view point for first-to-file is typical of people who file large amounts of patents, and spend the majority of their time beyond their invention testing in the documentation of their work. The other groups of people who strongly support your view point are, of course, patent attorneys, who are all the more happy for large amounts of patents to be filed.

All patents, to society at large, are 100% useless to the progress of technology unless actually implemented. And in fact, many patents which are filed are detrimental to innovation b/c folks similar to you (but not accusing you of this) sit on dozens of patents but do not have the business expertise to actually implement them. People who actually can implement them are afraid to due to licensing costs and law suits. Basically people who file patents but never implement them, hold ideas (which they believe they were the first to think of, but were almost never truly first) hostage, while they attempt to gather revenue from their paperwork.

I have worked for multiple startups, and have owned a few. The inventions are easy. The hard part is actually making products, selling them, and keeping companies a float. The 10k it costs for a startup to create one patent is very detrimental. Of course its not just one patent, you need dozens. You dont need them to sue people, or to try to license your ideas, but instead to simply protect yourself from the Fortune 500s who file hundreds a day, or the patent squatters waiting to jump on you when you actually are worth something after you have implemented your (their??) idea.

This is not to say your work is not valuable and/or critical to society. Its great that true inventors are out there looking for new ideas. But its just that most folks who actually implement new technology and bring it to market are terribly hurt by the patent system - and even more so by first-to-file, due to the heavy costs involved in any kind of participation.

So if you have to choose between lots of cool ideas on paper, or one idea actually implemented - which is really best for all of society?
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