September 7, 2007 1:24 PM PDT

House OKs revamp of patent system

(continued from previous page)

Large high-tech companies, whose products often depend on hundreds or even thousands of separate patents, have argued that the current system enables winners of patent infringement suits to obtain disproportionate damage awards--in turn, fueling inflated settlements and royalty agreements out of court. As Google public-policy wonks put it in a blog entry earlier this week, "A windshield wiper found to an infringe a patent should not spur a damage award based on the value of the entire car."

"I'm opposed to this bill because it gives too much power to the big technology transnational companies."
--Rep. Marcy Kaptur, D-Ohio

Berman acknowledged that issue was not fully addressed by any of the amendments adopted Friday. "It is my commitment...to work with people who are concerned about that language to reach an appropriate middle ground that reforms the way damages are calculated between now and conference committee, and when this comes back," he said. (A separate and slightly different bill still has to go before the full Senate, and if it passes, then those two bills must be reconciled by what is known as a conference committee.)

Besides the damages provision, some of the major changes contained in the approved bill include:

• A "first to file" patent system: Critics argue that the existing "first to invent" standard is problematic because the identity of an inventor can be hard to prove. The bill would change the process to a "first to file" system, bringing it in line with all other foreign patent systems, while laying out a process for contesting an applicant's entitlement to that protection.

• A new way to challenge patents out of court: The bill would create a "postgrant opposition" board within the U.S. Patent and Trademark Office, which is designed to replace what can be costly, time-consuming court challenges of newly issued patents. Under the bill, such challenges could occur up to a year after a patent is granted.

• Limits on findings of "willful" infringement: If a jury decides that an accused patent infringer did so willfully, damages can be tripled. This provision would require the patent holder to show that the infringers were aware that they had copied the patent. One way of doing that would be through showing that the patent holder had notified the infringer in writing of the alleged infringement before filing a lawsuit.

• Limits on courts where patent cases could be filed: Certain court districts, such as the Eastern District of Texas, have earned a reputation for being more favorable to patent holders, so a disproportionate number of suits have been brought there in recent years.

In an attempt to prevent such "forum shopping," the bill would require cases to be lodged in court districts where the defendant has a "principal place of business" or has committed most of its infringement. It would also be unlawful to "manufacture" a place of business, just to gain access to a certain court. Nonprofit organizations, universities and independent inventors, however, would be permitted to file their cases in courts where their own operations are located, which is what existing law allows.

• A ban on "tax planning" patents: Since a 1998 court ruling that allowed patents on business methods, the U.S. Patent and Trademark Office has awarded some 50 such patents that relate to tax strategies, including how to minimize or defer one's tax liability. A narrow provision in this bill attempts to prohibit such inventions from gaining protection.

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CNET gets it wrong again: Oracle doe NOT want software patents
Oracle has gone on record as saying they do NOT think software should be patented.

As for the rest of the scumbags, the Frankensteinian monster of software patents is now threatening to eat their creator! Oh no! Better call Congress and gerrymander beyond logic, reason, and any rational except "what's good for M$ is good for America", the laws so that they can continue to supress small competitors through the monstrous expense (millions per patent) and waste of software patents which only serve to exclude developers from the market, and, at the same time, be immune from retribution when they themselves steal from whomever them please (want to find an attorney who will take your case when M$ will wear you out for, what in the end will be a negligible sum?)

Does anyone have any respect for the law anymore? Because quite frankly it just looks like multinationals getting what they want the way they want it just because they want it- no reason needed.

Abolish software patents completely. They retard progress, concentrate wealth, stifle innovation and create an atmosphere of litigation that deters entrance to IT in the first place.

Sure, lawyers make money but is that where we want all the time and money going from tech? Into lawyer's pockets?

Anyone want to start a new country, because the multinationals who brought you global warming, repressive regimes in the Middle East, and the patenting of life are turning this one into a banana republic.
Posted by asdf (241 comments )
Reply Link Flag
Oracle
Oracle is a member of a group called the Coalition for Patent Fairness, which strongly lobbied for passage of this bill. For more info, see:
<a class="jive-link-external" href="http://www.patentfairness.org/" target="_newWindow">http://www.patentfairness.org/</a>
Posted by AnneBroache (17 comments )
Link Flag
What the heck does the law do?
Pet peeve: stories that bury the lede. So I was going to write a
comment complaining that you didn't explain what exactly the bill
would do until paragraph X. But counting down the paragraphs, I
got to the end, and you still hadn't explained it.

Talking about all the surrounding hullabaloo is fine, but do so only
after you give a clear description of the damn bill in question.
Posted by aabcdefghij987654321 (1721 comments )
Reply Link Flag
Linux stalwarts will love this new law if passed
It essentially shifts the burden of making aware specific infringements to patent holders, which will no doubt induce violaters to change the code or build a workaround. As a layman, I think if this law passes (and is retroactive) it blows a mile wide hole in any potential lawsuits Microsoft (and SCO for that matter) might have against Linux and other infringing open source technology, since OS programmers can claim they weren't aware of infringing code. I'm surprise Microsoft is going along with this given its 235 patents identified in open source software, including Linux.

Ignorance is bliss under this new law!
Posted by WJeansonne (480 comments )
Reply Link Flag
As you say
You are a layman. You simply don't understand how easy it is to write code that infringes a patent, even if you spent a year researching patents.

That said, your precious MS supports this bill. You better fall in line before your astroturfing check dries up.

That said, software patents are unnecessary and are the reason the industry rarely outputs any true innovation. Copyrights are enough protection.

Secondly, nearly every software patent is invalid. They are based on prior art and many are obvious. People are trying to patent things like linked lists, a computer science bread and butter data structure that has been around for decades.

This might be a step in the right direction, the rest of the world is moving away from software patents. Since the US is controlled by greedy corporations it will take longer in the US, but eventually software patents will be banned and people will wonder why we tolerated this nonsense that caused so much damage for so long.

Again, software copyright is all that is needed to protect ones work.
Posted by The_Decider (3097 comments )
Link Flag
Name them.
Apparently even Steve Ballmer cannot name these so-called
patent infringements.

You also show your ignorance grossly... SCO sued IBM over
alleged (and long since proven false) copyright violations, not
patent infringements.

Patents are all MSFT has left, long-term. It has consistently
failed to protect its monoply everywhere else, and is losing
market share in nearly every endeavor it works in.

/P
Posted by Penguinisto (5042 comments )
Link Flag
talk about surprised
WJeansonne had this thought to offer to the discussion:

"I'm surprise Microsoft is going along with this given its 235
patents identified in open source software, including Linux."

I'm surprised anyone is gullible enough to believe this garbage
thrown out without any specifics, let alone proof, by an obvious
monopoly.

Identify just one supposedly infringed patent and I'll listen. But
as long as this LIE is thrown out without any facts or even any
way to try to substantiate them, I'll see it for what it really is. M$
paid for *SHILLS* hoping thier LIES produce more M$ profit than
their garbage software can.
Posted by Dalkorian (3000 comments )
Link Flag
Capitalism vs Socialism
There is no 100% Corporate Capitalist nation in the world.

Neither there ever will be. Social Capitalism tends to degenerate into Corporate Feudalism. Not even the Corporations, at least the sane ones, want that. It leads in the end to technological stagnation, roadblocks, and massive market inefficiencies. This is re-creating the USSR command based economy bottom-up, rather than top-down. It is the antithesis of Thomas Friedman's goal of making the world flat for everyone.

Instead of having a single headed Corporate state which steals from the rich to give to the poor, you prefer a multiple headed Corporate state which steals from the poor to give to the rich.

You just unmasked yourself my dear Sheriff of Nothingham.

Do not be surprised to be bitten after feeding the command economy loving Beasts of Corporate Capitalism or Corporate Socialism. Even the Nobles of Capitalism will rise up against you in the end.
Posted by quasarstrider (439 comments )
Reply Link Flag
This is an incredibly BAD development...
...At least, thats my conclusion.

First, simply look at one of the biggest proponents supporting this particular, so-called, "Patent reform". They are one of the largest, best-funded, corporations in America. They also, actually, have one of the worst reputations of being found to have repeatedly, abused the "IP" rights of others... and of effectively, repeatedly, "scamming the Patent System", the most. In short, this is a relatively small, but powerful, group of "big-money" interests, who would most benefit from having some of the worst-aspects of the -current- "Patent System", actually expanded.

And, it is obvious that this new "patent reform", is actually designed primarily, and quite specifically, to help this very group... by "eliminating costly litigation" against such powerful-corporations. I think this new "Patent system" will effectively undermine the ability of almost anyone who attempts to question such otherwise, clearly, "invalid patents", once they are "approved" by the "Patent Office".

Heres a few examples of the abuses I see coming...

XYZ-Corp. files thousands of patents a year. Most, in the industry, know that many of these "ideas" are, often, already commonly used throughout the industry. However, the cost associated with continually "monitoring", and "challenging" these ludicrous "Patent applications" is absolutely prohibitive. However, XYZ-Corp. has billions to spend patenting, virtually, everything under the sun. And, since no attempt has been made to "patent" much of this "prior art", most of these "Patent applications" go through. Then, XYZ-Corp. begins demanding that everybody (especially their smaller competitors) "license" the use of XYZ-Corps. "...patented technologies" (I.E their, alleged, "...valuable Intellectual Property")... or, face debilitating-claims of "patent infringement".

Then... when a small private-company, or individual, realizes that their product (if not their very livelihood) will literally end if their product can no longer do something, incredibly-fundamental, and well-established... such as... say... ...index a "linked-list directory-structure", via a "vector-table", on a "storage-device"... And, if they [the small company] simply cannot afford to "license" (in other words... pay extortion) for such a fundamental technology... Then they will have to go to a "court", to try and invalidate the "patent", using the claim of "prior art". The judge, however, will say, "...prior-art..? simple, just show me a previously-filed patent to show such prior-art. You cant..? Well then, thanks to First-to-File... we can end this -costly litigation- right now. XYZ-Corp clearly, now, owns the concept. Case closed".

Or...

Private-Company-B, a relatively-small business, produces a product that is so simple, they cannot justify spending the many, many, thousands of dollars necessary to "patent the obvious", and relatively "basic engineering", involved in virtually any such product. Suddenly, when their "simple-product" is a run-away success, XYZ-Corp sends them a "Cease and Desist Letter"... for violating XYZ-Corps "patents". After spending thousands, in court costs, just to uncover what, alleged, "patents" their product is supposedly "violating"... They go to a judge and ask him to rule that the "patents" are "invalid" because they are so "obvious". However, the judge says that the "new system" is designed to "stream-line the Patent-litigation process" and, thereby, "eliminate" most such litigation through extensive dependence upon the "First to File" approach. Therefore, says the judge, all Private-Company-B has to do is find an existing, or expired, "patent" that utilizes the "technique", in question. "But your-honor", Private-Company-B protests, "this "method" is so -obvious-, and patenting it is so expensive, that no one, other than XYZ-Corp, would have ever dreamed of Patenting it". "None the less...", says the judge, "...my hands are tied. Thats the law. Find an existing patent, and -license- it, or file a patent for every element, in every product, no matter how trivial... because, whoever has the resources to file such patents, "first", must be given the greatest legal-favor"... under "the law".

Sorry, but that is exactly what I see happening. After all, we are talking about a system that literally has allowed the "patenting" of "...pushing a button twice", to accomplish a task... and where voluminous amounts of, actual, testimony regarding "prior art" has been ruled "inadmissible" (both in the original case, and in any subsequent cases) merely because the "judge" said the trial was proceeding too slowly (apparently, precisely, because of so much evidence, being presented). Then, there were the tens-of-thousands of pages of "court-documents" (which were conclusive evidence of "wrong-doing") which were actually allowed to be intentionally-destroyed, after the trial (by the convicted "defendant", themselves). They did this, merely, by effectively purchasing the company that originally sued them, and then announced that "storing the court documents" (which were clear evidence of their improper-actions, and could potentially be used against them in future-cases) ...was, just, too much of a financial burden. So... poof. No more "records". No more "evidence". No more threat of consequences for their actions.

And, I am particularly troubled by the continual rhetoric that this, -new- Patent approach ("First to File")... simply brings us [the United States] inline with so many other nations. My objection, to this obvious-deception, is the intentional omission of the far simpler fact that... those "other nations", that use "First to File", overwhelmingly, also specifically dis-allow "Software Patents" in the first place.

Realistically... I wasnt, actually, expecting any other outcome in this "Patent reform" charade. Im just sorry my low-expectations in this matter, were proven to be so correct.
Posted by Gayle Edwards (262 comments )
Reply Link Flag
protecting primary business practice...
it has always been my understanding that the new changes would
require patent holders to prove that the infringement is a direct
challenge to it's main business model and market share. this is
loosely mentioned in the article but not listed in the the key
changes. this would seem the central point. where will it leave
patent holders who base their businesses on a '"unique business
practice"?
Posted by billycaeser (1 comment )
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