April 25, 2005 4:48 PM PDT

Patent Office chief endorses legal reform

The head of the U.S. Patent and Trademark Office has endorsed some key reforms that Congress is scheduled to consider this year.

Patent Office chief Jon Dudas said Monday that federal law should be changed to award a patent to the first person to file a claim and to permit review of a patent after it is granted. Currently patents are awarded to the first person who concocted the invention, a timeframe that can be difficult to prove.

"I think we can implement that," Dudas said about the post-grant review suggestion. "It will take resources, and it will be necessary for us to get the resources in place" through a larger budget. The Patent Office already has a backlog of 490,000 applications and is planning to hire 800 more patent examiners, bringing its total to 4,400. It approves more than 500 patents per day.

Monday's hearing before a Senate Judiciary subcommittee kicked off a process that's expected to end in new legislation being drafted by the end of the year.

As a result, technology companies including Microsoft and Oracle recently have stepped up their lobbying efforts. Microsoft has gone on the legislative offensive after a jury awarded Eolas Technologies $565 million in damages--which has been partially reversed--in a patent dispute over Internet Explorer.

A National Research Council study on intellectual property rights also endorsed reforms. In a summary prepared for Monday's hearing, the committee said patents should not be awarded when they're "obvious" to people familiar with the state of the art in a field; that researchers should be immune from patent infringement lawsuits; and the U.S. patent system should be aligned more closely with Europe and Japan.

Dean Kamen, president of the DEKA research firm and inventor of the Segway, asked Congress not to do anything that would detract from the rights of inventors. "I fear that some of the patent reform measures currently under discussion are not only unnecessary to address the issues that exist in our patent system today, but have the very real potential to create substantially worse problems," he said. "Our existing patent system is not broken...A vast majority of the patents issued by the U.S. Patent and Trademark Office are sound."

Other legislative possibilities include lengthening the duration of a patent, currently 20 years. "I've begun to wonder whether the time for the patent is an adequate time," said Sen. Dianne Feinstein, D-Calif.

7 comments

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Watch them make a bigger mess of the patent system.
Before you know it patents will last the life of inventor plus 70 years.
Posted by unknown unknown (1951 comments )
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Likely
It is the way that copyright is going. Look at Disney's refusal to let Mickey Mouse become public. But this is the way that big companies like it.
Posted by Andrew J Glina (1673 comments )
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Something's amiss
The NRC says that "patents should not be awarded when they're 'obvious'" - that can't be right as the law already has a sophisticated non-obviousness requirement. Maybe the summary is wrong?
Posted by sanenazok (3449 comments )
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obviousness...
You're right about the current law; if anything, the problem is that my summary of the summary was pretty brief. Here's the relevant section of their statement:

"Reinvigorate the nonobviousness standard. The requirement that to qualify for a patent an invention cannot be obvious to a person of ordinary skill in the art should be assiduously observed. In an area such as business methods, where the common general knowledge of practitioners is not fully described in published literature likely to be consulted by patent examiners, another method of determining the state of knowledge needs to be employed. Given that patent applications are examined ex parte between the applicant and the examiner, it would be difficult to bring in other expert opinion at that stage. Nevertheless, the open review procedure I will describe next provides a means of obtaining expert participation if a patent is challenged."
Posted by declan00 (848 comments )
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Oh, she did, did she?
"I've begun to wonder whether the time for the patent is an adequate time," said Sen. Dianne Feinstein, D-Calif.

Or, more likely, she's begun to wonder because someone dumped some cash into her re-election fund. And it wasn't me.

Patents should be MUCH easier to knock down. In a democratic (ha) society, patents should get a very healthy dose of public discourse.

And copyrights should expire after creator's death plus 20 years, period. Retroactive. And Disney should be outlawed, in the same way Nazi symbols are outlawed in Germany.

-Remo
Posted by Remo_Williams (488 comments )
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"Award a patent to the first person to file a claim"???
"Award a patent to the first person to file a claim"???

You get it? What he says is simple: if you thought up something, and didn't think you want the benefit of a patent, of if you thought up a 100 things and cannot afford to get them all patented, then someone else might file for a patent, and be awarded a patent as the "first person to file a claim", and then you are not allowed to use whatever you thought up without paying the thief a licensing fee! (Either that or go through a lengthy procedure to prove prior art, that might be very difficult with a law that practically means that by not filing a claim you agree that others would (and you cannot afford this procedure anyway. Remember why you haven't filed a patent claim? You couldn't afford it!)

Can this guy really run the patent office? It seems that his view of the role of patents and the patent office is not as protection to inventors, but rather as servants to corporations...
Posted by hadaso (468 comments )
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Patents Going the way of Copyrights
As a prior post mentioned, it will not be long before patents become as long as copyrights - and a prior poster noted that Sen. Feinstien Disney happens to be in the same state as Disney who lead the charge in copyright changes, and who holds patents on a lot of technology relating to amusement parks, movie techniques, optics, animatronics, would want to lock those down too.

Collarary:
Maybe they should change the tax laws to match depreciation writwdown to length of ownership so that if you own copyright / patent to something you MUST depcreciate it in equal amounts for each year over the life of the owenrship - then you would see the corporations sreaming about it being unfair! They want it both ways.

This is no different than the tax writeoffs of buildings. They should match that to copyright: 105 years to write off a building in the same equal per year method - and the total write down can NEVER exceed the value of the building ever - not matter if new owners. That would stop the writedown of a building of 500 million in 10 years by three owners of a building worth 300 million.

A CHEAP cost to get a patent is $800 - but you need to hire someone to do the prior art thing, husband it through the two to three year process, so in reality it could cost $10,000+ to get a patent. The average inventor would have a hard time coming up with that. Go for 5 or 6 and you have 50,000 sunk into something you may never even "own." Price barriers would allow big pockets to patent out over regular people easily.

The office is for EVERYONE, not just for corporations.

Tom

<a class="jive-link-external" href="http://www.taphilo.com" target="_newWindow">http://www.taphilo.com</a>
Posted by taphilo-2003685639374287843630 (130 comments )
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