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"You can create it. You can sell it. You can license it or you can sit on it," said Rogan, now a partner at Venable, a Washington law firm. "It is not the job of the patent examiner to delve into the psyche of the inventor."
Intellectual Ventures CEO Nathan Myhrvold, a former chief technology officer at Microsoft, is equally blunt: "There isn't compulsory licensing in essentially any other part of American life. The only thing that would be similar to that would be eminent domain, where the government can ultimately condemn your property and force you to sell it to them if they truly need it to develop a new highway or something."
Another reform proposal would allow companies or individuals to file objections to a patent application while the patent office is determining whether to award the patent. As a result, questionable patents could be vetted before any litigation begins.
Europe has a system like this, but only 5 percent to 10 percent of applications are ever challenged, so it's clearly no panacea. Still, reformers are looking to other continental measures that may hold answers for the U.S. patent system, most notably the European Parliament's rejection of the concept of software patents.
International patent standards in general are drawing more attention as the U.S. system falls under increasing scrutiny. In the rest of the world, the inventor is the person who first files the application with the patent office, a so-called first-to-file standard.
In the United States, the inventor is the person who created the product, which makes it a "first-to-invent" standard--a far more ambiguous criterion. "Until 1997, we had company. But that January, the Philippines went to a first-to-file standard," attorney Pooley said.
'Ordinary skill in the art'
Part of the reason that patents are so often disputed can be traced to the definition of what can legally be protected. Patents are supposed to be awarded for inventions that are both new and nonobvious to a person "having ordinary skill in the art."
"The real issue is that we should only grant patents for truly new and nonobvious inventions. Vagueness is another issue," said Adam Jaffe, dean of arts and sciences at Brandeis University.
Unfortunately, terms like "nonobvious" and "vague" are themselves also subject to wide interpretation.
"Have you ever read a patent claim?" Duston asked. "It's one sentence that runs on for a half a page with all of this jargon in it. It is not in English."
In Myhrvold's view, the whole issue of "vagueness" is overblown. "Usually it comes up from people who don't like patents already. It's a rationalization for their position," he said. "The stock market has stocks of companies that are flaky and questionable, right? But does that mean we should just avoid all public security markets?"
Some reformers advocate a standard that would require patent holders to show that infringers knowingly violated their protections. "In copyright, they (the defendants) kind of know where they got it from. In patents, they may have generally invented it, but it was too late," Rambus' Richardson said.
While patents protect an invention, copyrights protect the "matter and form" of something, such as a piece of writing or music.
Reformers have suggested that liability applies only after the defendant receives a letter warning them of the potential infringement. Unfortunately, that could also encourage some to work quickly and kill a product after the letter arrives.
In spite of such seemingly daunting obstacles, recent progress offers reason for hope. In fact, some of the larger problems in the patent system have already been curbed because of reform efforts in recent years.
Patent applicants, for instance, can no longer repeatedly amend an application--a procedural peculiarity that let prolific patent collector Jerome Lemelson amass a fortune in legal settlements and licensing fees for products ranging from Velcro darts and wiper blades to medical equipment and chipmaking technologies.
And as the broader patent policies are debated, at least the chronically overworked and underfunded patent office is finally getting some relief. It has hired 900 new inspectors so far this year alone, bringing its total to 4,000.
The agency will also keep the estimated $1.5 billion in fees it collects from applicants annually. In the past, Congress often siphoned this money off for other projects.
"This office is critical to the health of our economy and to the lives of millions of Americans," Congressman Smith said in a statement. "From the lone individual working in their garage to the small-business person with a breakthrough idea to the large high-tech company that applies for hundreds of patents, all rely on a responsive PTO."
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