It's January, Which Means Congress Promises Patent Reform That Will Never Come

from the like-swallows-returning-to-capistrano dept

Tue, Jan 11th 2011 6:58pm — Mike Masnick

Every January, it seems, we hear proclamations from Congress that this year (no, really!) will be the year that patent reform finally gets done. Of course, each year, when this proclamation is made, what comes out is a bill that is even more watered down than before and which will almost certainly make the system worse, not better. I have no doubt that this year will be more of the same. Senator Patrick Leahy, who has never met a form of intellectual property he couldn't make worse, has announced that patent reform is a priority this year. Chances are it will go nowhere again and that's a good thing. As is noted in the article, more and more politicians are actually recognizing that bad, half-baked, patent reform is worse than no reform at all. That's good. Of course, it doesn't mean that the patent system doesn't need reform, but at least we won't be dealing with patent reform that just makes a big mess even bigger.

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: patents, patrick leahy, reform

28 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

Anonymous Coward, 11 Jan 2011 @ 8:12pm

That is bad, is like not trying, there is one that will be good, but if people don't try things will never get fixed because people will never know what works and don't work, even bad legislation have a role to play and that is to show definitively that it doesn't work no matter how some want it.
[ link to this | view in thread ]
Atkray (profile), 11 Jan 2011 @ 8:15pm

Re:
I agree with your sentiment, but if Leahy is involved no good can come from it.
[ link to this | view in thread ]
Dano, 11 Jan 2011 @ 8:30pm

Dear Mike /techdirt.

Please write a gigantic post offering an outline for your workable patent reform.

Beg Beg beg pretty please/
[ link to this | view in thread ]
Jay (profile), 11 Jan 2011 @ 8:50pm

Re:
Yeah, I've been interested in the same thing as well.

How can we use patents and copyrights to progress the arts and sciences rather than the hodge modge of a clusterbunk that it's become through political maneuvering?
[ link to this | view in thread ]
fogbugzd (profile), 11 Jan 2011 @ 10:26pm

Re:
Abolishing the patent system entirely would, at the very least, be better than the existing system. The existing system is doing a lot more to impede the progress than it is to promote it. I am not saying that this is the best reform, just pointing out that the patent system is currently doing very bad things, and cutting it out entirely would be better than leaving it in place.

Short of abolishing the patent system, here are some reforms that could would improve the current system

1)Eliminate software and business practice patents entirely. There are many reasons for this, but in my mind the fundamental problem is that software development and business practices progress at a speed that is much too fast for the patent process. Patents are designed for things that take years to develop and which will remain in demand for decades. Software and business practices are often developed in days or weeks and will probably be outdated by the time the patent period ends. Another reason for eliminating these types of patents is that they are choking the system, and examiners simply do not have the time or expertise to evaluate them.

2)Put the burden of proof on the patent holder when patents go to court. There is currently a presumption that the Patent Office has carefully examined the patent and found that its claims are valid. We have seen time and time again that this is not true. Examiners don't have time to adequately examine patents, often do not have expertise in the area, and they are subject to unending appeals and revisions from the applicant. So in effect we need to assume that a patent is not valid until it is vetted in court. This isn't how it should be if the patent system was working properly, but it isn't so the burden has to be shifted to the courts.

3)Invalidate patents automatically if the applicant fails to reveal prior art. This would have to be worked into regulations carefully, otherwise patent applications would start listing tons of irrelevant data to bury their revelation of prior art.

4)Allow the defendant move the case to a district where they have a legal presence. This would prevent venue shopping. The downside is that it could seriously damage the 4-H program in the eastern Texas.

5)Revise the patent approval process to take pressure off of examiners. Allow only written communication with examiners and prohibit phone calls or personal visits from applicants and their attorneys. The ability to significantly change the application after filing should also be restricted to a single resubmission to fix technical problems or answer questions raised by the examiner. When questioning the validity of a patent, the defendant should be able to question the approval process for the patent with revisions considered damaging to the quality of the patent.

6)Severely limit damage awards. It looks like we may be finally getting rid of the 25% rule; let's hope that it is replaced by something more rational.

7)Broaden the operational definitions of "obviousness."
[ link to this | view in thread ]
Pixelation, 11 Jan 2011 @ 10:31pm

"Senator Patrick Leahy, who has never met a form of intellectual property he couldn't make worse"

What I want to know is, what do you really think of Leahy?

Let me guess, the man could fuck up a wet dream.
[ link to this | view in thread ]
Mike Masnick (profile), 11 Jan 2011 @ 10:34pm

Re:
Please write a gigantic post offering an outline for your workable patent reform.

Last year I wrote a "gigantic" article for a magazine on how I would do patent reform, and the publisher spiked it, saying it was too long. I guess I can post that here. I'll dig it out and see what sort of shape it's in, as it may be a bit out of date.
[ link to this | view in thread ]
Anonymous Coward, 11 Jan 2011 @ 11:21pm

Re:
Abolition FTW!
[ link to this | view in thread ]
Ronald J Riley (profile), 12 Jan 2011 @ 2:57am

Piracy Coalition
I and many other inventors have been fighting Patent Deform since the early 1990 time frame. Big business has an entitlement mentality, they love capitalism when it serves their interests but become intellectual property socialists when someone produces an invention.

For more than a decade, year after year and defeat after defeat members of the Piracy Coalition have been painting rosy predictions of passage of Patent Deform legislation in the near future.

On one side we have the Coalition for Patent Piracy & Fairness and the Coalition for 21st Century Patent Deform & HARMonization, collectively a very small number of very large companies who either never were serious inventors or who have lost their ability to produce significant inventions.

On the other side there are tens of thousands for companies who use patents to create new wealth, jobs and prosperity. We grow stronger and better organized every year. While the Piracy Cross Coalition will continue to invent propaganda and otherwise not invent much else, we will continue to deliver defeat after defeat.

Ronald J. Riley,

President - www.PIAUSA.org - RJR at PIAUSA.org

Other Affiliations:
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 (202) 318-1595 - 9 am to 9 pm EST.
[ link to this | view in thread ]
Ronald J Riley (profile), 12 Jan 2011 @ 3:01am

Spiked for Incompetence
They no doubt spiked the article because they recognized Mike Masnick did not know what he was talking about.

Ronald J. Riley,

President - www.PIAUSA.org - RJR at PIAUSA.org

Other Affiliations:
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 (202) 318-1595 - 9 am to 9 pm EST.
[ link to this | view in thread ]
The eejit (profile), 12 Jan 2011 @ 3:13am

Re:
Okay. here goes:

1) Limit patents to a 7-year period, with a one-off 3-year extension. However, grant them all automatically for a 90-day Grace period, pending investigations into obviousness and prior art.

2) If obviousness is found, the patent is rejected at the end of the period outright, with no appeal. If there is prior art, then it is rejected, with the right to appeal.

3) No patent trolling/patent tourism permitted. In the case of patent trolling, you forfeit all your current patents. For patentr tourism, just the patent in question.

4) Damages limited to provable losses. Note that this is NOT one infrimgement=one lost sale.
[ link to this | view in thread ]
Griff (profile), 12 Jan 2011 @ 4:30am

Re: Piracy Coalition
On the other side there are tens of thousands for companies who use patents to create new wealth, jobs and prosperity.

Use patents to create new wealth ? I thought they used new inventions for that.
[ link to this | view in thread ]
abc gum, 12 Jan 2011 @ 5:04am

Re: Spiked for Incompetence
Possibly you have a gigantic paper on patent reform worthy of sharing?
[ link to this | view in thread ]
abc gum, 12 Jan 2011 @ 5:06am

Re: Piracy Coalition
Ronald J Riley does not know what he is talking about.
[ link to this | view in thread ]
Jay (profile), 12 Jan 2011 @ 5:14am

Re: Piracy Coalition
I can't believe the story of someone who can't tell where he supposedly got his Engineering degree...

Who runs out of debates when he's losing...

Who ridicules people for no other reason than he has no leg to stand on...

Who ignores the information in front of him...

And who wants constantly promotes a website and agenda that truly does more harm to an inventor than good.
[ link to this | view in thread ]
techflaws.org (profile), 12 Jan 2011 @ 5:45am

Re: Spiked for Incompetence
Says the dumbtard who tries to fool people into thinking he actually has a clue by using an overlarge footer.

Guess what, it doesn't work.
[ link to this | view in thread ]
techflaws.org (profile), 12 Jan 2011 @ 5:46am

Re: Re: Spiked for Incompetence
How could he. He can't even present one factual mistake Mike is supposed to have made in his articles when it comes to this topic.
[ link to this | view in thread ]
Chronno S. Trigger (profile), 12 Jan 2011 @ 5:47am

Re: Re: Piracy Coalition
No, they use patents to create new wealth... for lawyers. Ronald J Riley must have his head so far up his ass, sunlight is a myth. That's the only way he wouldn't be able to see what's going on around him.
[ link to this | view in thread ]
techflaws.org (profile), 12 Jan 2011 @ 5:53am

Re: Piracy Coalition
Well, that's a start. Your ugly mug is missing from your ugly footer.
[ link to this | view in thread ]
Anonymous Coward, 12 Jan 2011 @ 7:02am

Patent Law and it's enforcement has turned into a massive Ambulance Chase. Lawyers filing right and left on supposed pain and suffering for patents that should never have been awarded. I personally the the Patent Office is bought and paid for by someone with way more money than me. I also believe it only serves the Corporations of the world.
You can now be proud to say that you live in a country where everything has been protected and there is now no room for innovation or creativity. You are now protected. You are now covered.
It feeels ssooooo goooood.
[ link to this | view in thread ]
Anonymous Coward, 12 Jan 2011 @ 7:15am

Re: Spiked for Incompetence
No no no, they spiked it because he didn't finish the article with a signature longer than the article.
[ link to this | view in thread ]
Anonymous Coward, 12 Jan 2011 @ 7:17am

Re: Piracy Coalition
So, do you actually have anything useful to say or are your websites just so sad that you have to spam links to them everywhere?
[ link to this | view in thread ]
Anonymous Coward, 12 Jan 2011 @ 7:54am

It's January. That means it's time for TD to whine that few people with any power agree with their ideas to pretty much abolish all IP rights. As the US becomes more and more about producing IP, TD wants to make it also entirely unprotected, so that it is easier for everyone to just copy everyones elses ideas instead of actually working on something new themselves.

The end result? 20 years from now, the US will likely be begging countries like China and Russia to provide them IP, because the US companies stopped being able to afford to do it.

Congrats to TD. A new year, the same old whine.
[ link to this | view in thread ]
Atkray (profile), 12 Jan 2011 @ 8:02am

Re: Re: Piracy Coalition
You must have not read his signature/footer, it is very clear that he knows much more about patents and inventions than the rabble on TD.
[ link to this | view in thread ]
teka (profile), 12 Jan 2011 @ 9:18am

Re:
The end result? 20 years from now, the US will likely be begging countries like China and Russia to provide them IP, because the US companies stopped being able to afford to do it.

Where is this particular attitude always coming from?

"IP" is not corn, or precious metals or vats of chemicals.
Its a kludge of different government monopoly systems and lawyer-feeding restriction engines.

How will "US companies stop being able to afford" a system that would hopefully become less restrictive and costly?

Is your problem that "Those Dang Red Chinee an' Ruskies is gonna steal all the really good ideas"?

pssst.. little secret. They are pretending to follow our lead on the patent road to self destruction because we are showing them what a wonderful blunt instrument it is.

Strip away the magical candy shell of "Intellectual Property" (which is only rarely intellectual and usually has nothing at all to do with actual property) and address the issues that are crippling us, or else we Will be licensing everything from china. Not because they invented it, but because our own broken system is an invitation to eventual ruin.

Congrats to anonymous coward. A new year, the same old lies.
[ link to this | view in thread ]
Almost Anonymous (profile), 12 Jan 2011 @ 10:21am

Re: Spiked for Incompetence
With apologies to Shakespeare:

Methinks you doth protest too much.

Oh, and you must be joking with that signature. Do you really believe that any of us here believe that you are all that important when you spend half of your day trolling TechDirt's forums?
[ link to this | view in thread ]
Anonymous Coward, 12 Jan 2011 @ 1:42pm

Re: Re: Piracy Coalition
Seriously, whats up with rel=nofollow on techdirt? That drunk bozo has been spamming this site for about a decade now.
[ link to this | view in thread ]
Margolin, 12 Jan 2011 @ 4:26pm

FIRST TIME HOPEFULLY NOT LAST -- HOORAY!!!
Mike -- congratulations -- perhaps for the FIRST TIME from my perspective as an Independent inventor -- your column on Jan 12th 2011 was Spot On! Your evaluation of Leahy was correct and well written. And in MY TERMS your statement that BAD REFORM was WORSE than leaving America's underfunded, overwhelmed, beleaguered and even with a "Professional" IBM Lobbyist like Kappos -- is better than BAD PATENT REFORM. You wrote; "It's January, Which Means Congress Promises Patent Reform That Will Never Come from the like-swallows-returning-to-capistrano dept Every January, it seems, we hear proclamations from Congress that this year (no, really!) will be the year that patent reform finally gets done. Of course, each year, when this proclamation is made, what comes out is a bill that is even more watered down than before and which will almost certainly make the system worse, not better. I have no doubt that this year will be more of the same. Senator Patrick Leahy, who has never met a form of intellectual property he couldn't make worse, has announced that patent reform is a priority this year. Chances are it will go nowhere again and that's a good thing. As is noted in the article, more and more politicians are actually recognizing that bad, half-baked, patent reform is worse than no reform at all. That's good. Of course, it doesn't mean that the patent system doesn't need reform, but at least we won't be dealing with patent reform that just makes a big mess even bigger"
[ link to this | view in thread ]