June 8, 2005 3:55 PM PDT

A fix for a broken patent system?

The U.S. patent system will undergo its most substantial overhaul in decades if a bill introduced on Wednesday becomes law.

Rep. Lamar Smith, who heads the House of Representatives committee responsible for drafting patent law, said his proposal would improve the overall quality of patents and target some of the legal practices that have irked high-tech companies.

"The bill will eliminate legal gamesmanship from the current system that rewards lawsuit abuses over creativity," said Smith, a Texas Republican.

The Business Software Alliance was quick to praise the bill, saying in a statement that it goes a long way toward "improving patent quality, making sure U.S. law is consistent with that of other major countries and addressing disruptions caused by excessive litigation."

Probably the most sweeping change would be the creation of a process to challenge patents after they are granted by the Patent and Trademark Office. "Opposition requests" can be filed up to nine months after a patent is awarded or six months after a legal notice alleging infringement is sent out.

After an opposition request is filed, a panel of three administrative law judges will meet to review the controversy and, eventually, publish a written decision.

Another major change would be to award a patent to the first person to submit their paperwork to the Patent Office. Currently, patents are awarded to the first person who concocted the invention, a timeframe that can be difficult to prove.

Both of these alterations to federal law have been endorsed by Patent Office director Jon Dudas.

Companies such as Microsoft and Oracle have been calling for patent reform recently, saying that the current patent system is seriously flawed and must be repaired by Congress.

Microsoft has been especially critical of a legal framework that has caused it to spend $100 million a year defending itself against 35 to 40 lawsuits at any one time. Microsoft has gone on the legislative offensive after a jury awarded Eolas Technologies $565 million in damages--a decision that has been partially reversed--in a patent dispute over Internet Explorer.

Other changes the bill would make include recalculating the way damages are awarded--in a way that would make large jury awards more difficult to win--and make it more difficult to seek court injunctions.

Dennis Crouch, a patent lawyer at McDonnell Boehnen Hulbert & Berghoff in Chicago, said an earlier version of the legislation would have weakened the right to an injunction much more. "The proposed bill is a somewhat toned-down version of the draft that circulated this spring," Crouch said. "This version still has something to offend almost every interest."

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The good, bad and ugly
Good news is that Patents will be easier to dispute.

Bad news is that if your a small inventor you can no longer wait till you save up the money for a patent application.

Ugly news is that the courts teeth are being removed so if you do win because someone is infringing on your patent.. there is an unrealistic cap on the amount you can be awarded in damages.

Nice.
Posted by Fray9 (547 comments )
Reply Link Flag
Disaster guaranteed.
Seeing the right-wing, corporate lapdog who wrote the bill and
the cast of characters who are raving about it, I can bet that this
bill will be an utter disaster for small inventors.

It's already fairly stacked against individual inventors and small
companies. It's extremely expensive to prosecute infringers
(you'd think the government would investigate and prosecute
thieves of intellectual property just like they do physical
property) and infringing large companies send hordes of
dishonest, greasy patent lawyers to try all kinds of weasly
tactics.

I'm sure this bill will eliminate small inventors' rights to sue big
corporate thieves (what Republicans call "lawsuit abuse" is what
fair-minded people call "justice").

It's just a disgraceful state of affairs and yet another symptom of
America's transformation from an innovative, liberal republic to
an authoritarian, oligarchical, bullying empire.
Posted by macFanDave_09 (8 comments )
Reply Link Flag
Wonderful new Law...
that is going to make sure big businesses stay on top. But that's the American way.

First software shouldn't be patentable. Second, who invented it should own the patent, not who got to the patent office first. That's why we have a legal system. You want to take the load off the legal system then stop idiots who talk on the cell phone driving down the road with a hot cup off coffee that spill it on themselves from suing McDonalds because hot coffee was to hot.

I'm curious why the government hasn't just handed over the reigns to big business yet. (Sadly they would probably do a better job).

I may sound like one of those crackpots that thinks the Government is stupid, but I'm not. I think that our government is the best the world's got, but it still crap. I am sick of watching jobs shipped overseas and hearing about how lazy American are. Americans aren't lazy, we just aren't given much of a chance. We spend more money on killing people than we do on education and health. We pay companies to send work to third world countries then listen to politicions tell us how the unemployement rates went down because they don't count those who don't qualify for it anymore. I want a President who has had to work for a living. Not one who is still spoon fed or one that claims so many different stories he can't keep track of them.

Ok, that had nothing to do with the story at hand, but I feel better.

Patents suck. They do need to be reformed, but I think they need a lot more thought put into it. If the reforms work to save big companies money then they are flawed.
Posted by System Tyrant (1453 comments )
Reply Link Flag
A good quote is...
from Douglas Adams (author of The Hitchhiker's Guide to the Galaxy).

I don't remember if it was in a book or he just said it, but he said, "Anyone who is capable of getting themselves made President should on no account be allowed to do the job."

The sad truth is that somewhere in the country is someone who could probably do the job extremely well, but will never get that opportunity due to the lack of funds.

just my 2 cents...
Posted by vanox (49 comments )
Link Flag
Stop this nonsense
Why would you grant ANYONE exclusive rights to something that you and i can think of in two minutes ?
Why would you enable a system where you can patent IDEAS? Not just one implementation of an idea, but the whole idea.
Why would you grant patents on something already protected by copyright?

Easy solution; the timeframe a patent is valid is determined by the time and money invested, and the 'originality' of the idea.
Better solution; The Groklaw (<a class="jive-link-external" href="http://www.groklaw.net" target="_newWindow">http://www.groklaw.net</a>) solution. You can patent an invention, but never the software that is part of that invention. This would make pure software patents impossible.

Patents are the brakes of innovation. And the lawyers are in the drivers seat.
Posted by (3 comments )
Reply Link Flag
Look for old unpatented bits - and run to the USPTO!
Now you can just look for anything that was not yet patented, and be first to apply for a patent! Since every single line of code is patentable, just look for published source code, find some lines of code you like, and patent the process. Chances are that if you keep quiet no one will notice it in the nine months reserved for chalenging the "patent". Then you can start suing people. Be careful to sue those that cannot afford good defense lawyers!

The "first to apply" doctrine seems to get rid of the "prior art" defense. I cannot see how they can be compatible, except if it means that the existence of prior art means a patent cannot be awarded to anyone if the "first to file" is not the inventor (or can be nullified, as in: someone files for a patent. later it is proved that prior art existed. The patent is null, and the original inventor cannot get patent protection because someone else filed first.) If the latter is true, and assuiming that it is not plausible for everyone to apply for a patent for every single invention, given that an average programmer can produce several "inventions" a day, there would be a need for tools to record "prior art" in an accessible way, to make it easy to nullify patents granted to "first to file" on the basis of prior art. Otherwise there will be a new profession of "patent prospectors" who dig for unpatented ideas and turn them into gold. There are plenty of patentable ideas that are not patented for various reasons, and considering these as "abandonned" and therefore claimable by the "first to find" is a very bad idea.

IMO the main problem of the patent laws is the "not trivial" requirement. If you put existing components together in a new non-trivial way then it is patentable. This is what people called "inventors" did in past centuries and the results were patented. But nowadays putting existing components together in non-trivial ways is the programmers routine job. So the industrial revolution criteria are no longer valid in the information age, yet they are still applied by the law.

The fact that anything that can be described in words can be inplemented using software is known since the first half of the 20th century, beginning with Turing (1936. Or perhaps Goedel 1930).
Posted by hadaso (468 comments )
Reply Link Flag
So They Think Looser is Better?
"...Then the Barnyard Gate is as wide as the pasture.
If you leave it up to fate, all the pigs'll run past 'er,
Then the chickens and the hens will be rootin' in the pens
With the weavils and the hooty-eyed owls.
What your eatin' from yer plate is what the barnyard allows.
What your eatin' from yer plate is what the barnyard allows."

The Barnyard Gate - Len Bullard
Posted by (101 comments )
Reply Link Flag
Still allowing submarine patents?
I'd like to see companies/inventors get awarded for actually designing the details of an invention in a step to bring it to fruition, not the ones that just submit a futuristic idea with no details on how to make it work. There are some patents awarded that aren't necessarily obvious, but they look like readings from a sci-fi book that details what we'll be using tomorrow. Some companies have been sued for developing a technology that was not in existence before, but the patent for the general concept (and not necessarily obvious) was issued long before.
Posted by (3 comments )
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