May 23, 2006 3:25 PM PDT

Politicos ponder patent system changes

WASHINGTON--In the wake of high-profile lawsuits involving BlackBerry and eBay, Congress is once again talking about fixing what the technology industry says is a thoroughly broken patent system.

While much of the U.S. Senate was occupied by floor debate on an immigration bill on Tuesday afternoon, the leaders of an intellectual property panel within the Judiciary Committee convened a hearing to discuss the prospects for new patent legislation. The packed hearing room indicated they're not the only ones with a stake in the issue.

Panelists representing a major tech company, a major pharmaceutical and biotech manufacturer, independent inventors, academia and the finance sector offered their own--and often competing--suggestions for action. Sen. Orrin Hatch, the Utah Republican who chairs that panel, and Sen. Patrick Leahy, the Vermont Democratic co-chairman, admitted they had a daunting task ahead.

"What we're going to do is sift through this and see what we can do to try and be fair and yet honest and decent and hopefully come up with something that will be suitable for most people," Hatch said. The senator has been working since at least last summer on a bill but does not have a timeline for when it will be introduced, spokesman Peter Carr told CNET News.com.

Tuesday's hearing focused on patent litigation reform--more specifically, the idea of creating a new system in which the public could challenge the validity of patents just after they are granted in a venue outside of court.

But opinions on the best way to set up that procedure, sometimes called "post-grant opposition," have fractured largely along industry lines, with the technology and financial services sectors facing off against the biotechnology and pharmaceutical industries, and independent inventors falling somewhere outside any of those realms.

With the exception of the independent inventors' community, everyone seemed to agree on the need for a new system, overseen by an administrative body within the U.S. Patent and Trademark Office, through which the public would have a set period of time--some have suggested nine months or a year--to dispute the issuance of patents for various reasons.

Serving as "an immediate quality control check on newly issued patents," such a system could help stave off expensive litigation in the first place by invalidating patents early on, said Philip Johnson, chief patent counsel for Johnson & Johnson.

Technology and financial services companies argue that there also needs to be a second such "window" to file an opposition request that would start as soon as a patent infringement suit is filed against a company. The first window simply wouldn't provide enough time for companies like theirs to pore over the thousands of patent applications that could apply to their products and file pre-emptive challenges, representatives told the politicians.

"In the case of our products, there are potentially tens of thousands of patents which someone could try to say somehow applies," said Mark Chandler, general counsel for Cisco Systems. "There are numerous pieces of litigation where there's no way, if you look at the patent, (you could predict that) someone would try to apply it to the product we have."

Nathan Myrhvold, an independent inventor and former Microsoft executive, charged that there would be no need for that additional window if technology companies encouraged their employees to read patents regularly, as their counterparts in other industries claim to do. "They figure it'll slow things down, that it's better to get out into market," he said. "There's never been a tradition of doing that."

The focus on changes to the patent litigation system has picked up in recent weeks, with some groups calling on Congress to address unresolved concerns left by the Supreme Court's concise opinion in the eBay case. A new coalition that includes Intel, Cisco and Hewlett-Packard formed earlier this month, pledging to target perceived problems with the patent litigation system and lobby for change.

On the U.S. House of Representatives side, Texas Republican Lamar Smith has held the first of a new round of hearings on the topic. Smith introduced a wide-ranging patent reform bill last year that has stalled since garnering a lukewarm reception from the industries represented at Tuesday's Senate hearing.

Late last week, two other House members introduced a bill designed to increase the number of federal judges equipped with the knowledge to try complex patent cases.

The Patent Office also has pitched its own ideas recently, including a pilot project in which the public would be allowed to assist overworked patent examiners in vetting applications.

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Needed improvements unlikely to happen
I agree that the system desperately needs improved upon. Consider what the concept was intended to do, it was intended to protect small inventors from big companies hijacking their product. Today patents are for the big conglomerates. Patent trolls take simple and obviuos ideas, or trivial adaptions to existing things, and hold genuine innovation hostage. Benefits to humanity are legally prevented from happening, and this is bad.

But another problem stands between us and any possible salvation. I don't quite trust the politicians to make things truely better. As the system has left politicians in charge of this stuff, I believe this will either remain as it is or get worse in order to appease the big-money lobbyists.
Posted by amigabill (93 comments )
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Different Classes of Patents needed
What would really be useful is having different classes of patents with different lengths of protection. While patents may be needed in some fields to recoup cost of R&D (like biotech), patents are killing the tech sector.

Patent holders should also have to produce the item that they are protecting, none of this collecting of patents and sitting on them just to charge money garbage...
Posted by mcclurec (10 comments )
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Translation
>"...and hopefully come up with something that will be suitable for
most people," Hatch said.

Doesn't he mean "suitable for my corporate sponsers"?
Posted by Mystigo (183 comments )
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some changes I would like to see.
First, I didn't see the "common man" listed as a panelist for these talks. Shouldn't the people that get nailed in the pocket book by these patent fights have a say?

My proposal for fixing patents are simple:

As I understand it a patent is only supposed to be issued for inovative and non-obvious inventions. The problem is what is non-obvious and how do you test to ensure it. If multiple companies come up with the same invention independently and without foreknowledge of the previous invention, Then the invention is obvious and the patent should be invalidated. (ie. Company A develops a way to cut LCD screens and patents it. Company B also figures out out to cut LCD screen. Company B may be in violation of Company A's patent. However, Company C comes along and also figures out how to cut LCD screens. If they indepentently find the same solution to the same problem, then the technology is obvious and therefore Company A's patent is invalid.
2. Patent life should be set to correspond with the lifecycle of the tech sector it belongs it. ie. computer technology is advancing significantly faster then vehicle technology (mean time to obsolesence 3 years vs. 10-15) therefore computer tech patents should be proportionally shorter.
3. Patents should be non-renewable. Once they are over, they are over.
4. Only original inventors should be allowed to sit on a patent. If the patent was purchased or transfered the new owner has an obligation to prove that the technology is being actively licenced or developed. Failure to do so invalidates the patent after patent life/3 years.
so a computer patent is good for 10 years (in this system) a company can only sit on the patent for 3 1/3 years before it becomes invalid and public domain.)
Posted by firebate (15 comments )
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Let's file a patent on Common Sense...
All that is really necessary, get rid of the attorneys and use some common sense.

I think I would like to patent a new way to poop. You see, I lift my leg up just like so, then...

I can charge millions for this new pooping technique. After all, nobody has file the book-length documentation claiming it to be unique.

Let's not forget process patents. In ten thousand years of human innovation...do you really think you're the first one to come up with that process?
Posted by jodpur (10 comments )
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first one to come up with that process?
<a class="jive-link-external" href="http://www.analogstereo.com/saturn_ion_owners_manual.htm" target="_newWindow">http://www.analogstereo.com/saturn_ion_owners_manual.htm</a>
Posted by Ipod Apple (152 comments )
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Of foxes and henhouses
So Orrin Hatch, the RIAA's number-one Poster boy - is to be put in charge of overhauling the patents system.

There is a grave disturbance in the Force... is it me, or did it suddenly get chilly in here?
Posted by Wizard Prang (11 comments )
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PTO Whistleblowers Disclose Corrupt Granting Of Patents and Cover-Up (II)
New information from inside the U.S. Patent and Trademark Office (PTO) reveals the existence of what sources have called a rubber stamp mill for granting patents that is fueled by bonuses and offers of career advancement and is backstopped by harassment and intimidation against those
employees who wont go along.

PTO sources asking to remain anonymous told of six means facilitating the corrupt granting of patents:

* The direction by supervisory patent examiners, or by higher-level directors, to lower-level, experienced patent examiners to allow patents of companies receiving favoritism, even when those patent applications ought not receive patents;

* The refusal of supervisory patent examiners to
accept as valid specific references located by experienced examiners (to another patent or to a public disclosure) demonstrating that the invention described in an application is already covered by an existing patent or already has been disclosed publicly in technical literature
or is obvious;

* Retaliation against examiners who have refused to approve patent applications when those applications ought not receive patents;

* Demonstrations of bias said to occur against non-Asian patent examiner personnel who have higheracademic degrees beyond the bachelors-degree level;

* Intimidation against one or more PTO employees who are or may become witnesses in a subsequent federal investigation into patent office wrongdoing or in a federal discrimination and harassment civil action against PTO officials; and

* The equal employment opportunity office at the PTO stiff-arming or bottling up complaints of Asian favoritism, or tampering the complaints.

*** Orders to allow patents

An anonymous PTO source has said that some PTO
supervisory personnel have issued directives to examiners for the examiner to grant particular applicants patents, regardless of the worthiness of the patent application.

A second source at the patent office has confirmed the above information and has stated to this reporter that he or she was offered bonuses and career advancement--bribes--in exchange for giving preferential treatment to the patent applications of a particular applicant, including to grant patents to applications that ought not receive
patents. This particular patent examiner refused the offer. It is said that many other examiners have acquiesced to this type of corruption.

*** Supervisors refusing to accept no as an answer

PTO sources have described the rubber stamping of patent applications through the refusal of supervisory patent examiners to accept the validity of specific references located by examiners (references such as to another patent or to a public disclosure or publication) demonstrating that the invention described in a
particular application is already covered by an existing patent or already has been disclosed publicly in technical literature, or is obvious.

One source described how this means of rubber stamping works. In the instance described, a supervisor said an examiner-located reference -- demonstrating the particular inventions non-patentability -- was not a good reference.

The lower-level, experienced patent examiner then
discussed his or her work with another, more-experienced, primary examiner, of 15 years experience, who agreed that the reference in question demonstrated clearly that no patent ought to be issued.

The lower-level patent examiner then prepared his or her action, rejecting the patent application.

When the patent application -- revised slightly -- was resubmitted, the supervisor took the case away from the original patent examiner, who was most familiar with the case, and reassigned it to another patent examiner.

Presumably, the second patent examiner was better
motivated to comply with the supervisors intent to have the patent granted.

According to the source, the particular supervisor has little knowledge in the technological art.

Another rubber stamping means, according to the source, is based upon the supervisor narrowing the criteria to be used for denying a patent.

Patents can be denied mainly based on a single reference demonstrating non-patentability. Also, there can be combinations of one reference plus the examiners technical knowledge of the inventions obviousness, or combinations of the claims of two or more references (e.g., other patents) to demonstrate non-patentability.

In the second-described means, the supervisor arbitrarily limits the patent examiners search to only single references that, by themselves, demonstrate non-patentability.

Some supervisors have directed examiners not to use obviousness to reject patent applications.

*** Retaliation against patent examiners who dont knuckle under

PTO sources described harassment and retaliation against examiners who have refused to approve applications to receive patents when those applications ought not receive patents.

Descriptions of favoritism or harassment provided to this reporter include well-educated patent examiners with many years of meritorious service being passed over for promotions, while far-less-educated employees, with much
shorter service were advanced to supervisory positions. In the instances described, the promoted employee was Asian.

*** Bias against non-Asian examiners with higher
education

One of the sources has revealed a complaint widely-voiced by PTO examiners: That harassment appears to concentrate also on non-Asian patent examiners who have substantial education. Patent examiners with higher academic degrees beyond the bachelors-degree level have reported being subjected to harassing tactics.

The source attributes this perceived bias against non-Asian examiners with multiple academic degrees as growing out of the previously-identified Asian tilt in the patent office. The source infers that the bias, coupled with the harassment, acts to cripple higher-educated, non-Asian employees and to provide more chances for persons having only bachelors-degree-level educations to rise to
supervisory positions.

The source speculates that part of the problem may arise from the fact that many supervisory-level employees and management-level personnel only have bachelors degrees from 20 to 30 years ago, at which points in time many of the technological fields they supervise did not even exist.

*** Retaliation and intimidation against federal witnesses

Intimidation is reported to have been practiced within the PTO against PTO employees who are or may become witnesses in a subsequent federal investigation into patent office wrongdoing or in a federal discrimination and harassment civil action against PTO officials, according to
PTO sources.

A key means of greasing the skids under disfavored PTO employees, who will not knuckle under to corruption, is for PTO management to charge the disfavored employee with being AWOL (away without leave) even when the employee is at work and at their desk.

After a previous article disclosed that favored PTO employees were being absent from work and were still charging the Government for time worked (which their supervisors approved), the PTO installed an electronic personnel badge control system reported to be able to track employees wherever they are in the PTO buildings.

For disfavored employees, the PTO management charges the disfavored employee with being AWOL even contrary to the electronic log records for the employee's employee badge.

Word has been leaked that the FBI has been notified of tampering and falsification of federal records, forgery of federal records, misrepresentation of material facts in federal records, and cover-up of criminal acts-all done at the PTO by PTO employees, apparently to cover-up earlier favoritism and harassment.

*** An EEO office in PTO that sources charge condones favoritism, bottles up complaints, and tampers records

PTO sources have described problems at the PTOs equal employment opportunity (EEO) office that create the appearance that the PTOs EEO office covers up for favoritism and for harassment.

Pointed allegations against the PTOs EEO office have been described by PTO sources, including:

* Turning away prospective PTO complainants by
telling them that they dont really have a complaint;

* Failing and refusing to give to a complainant a copy of the complaint as filed and as completed with the additions made by the EEO office; and

* Tampering a complaint (and its supporting
documentation) against a member of PTO management
before forwarding the complaint to an outside EEO
contractor for investigation.

The tampering of EEO complaints at the PTO is said by PTO sources to extend to falsifying federal records and forging federal documents, and these allegations reportedly are backed by sworn affidavits and hard-copy examples.

Thus, according to PTO sources, it appears that one or more persons within the very office that should be safeguarding PTO employees rights has participated in cover-up and the EEO office has become part of the corruption that now appears endemic throughout the PTO.

*** A cabal inside the PTO

PTO sources have described the existence of some sort of cabal operating within the patent office. They characterize this group as a secret agency within the [PTO] agency.

The sources say the cabal has been operating to cause the granting of patents to applications where no patent ought be granted and, sources say, this group is growing progressively stronger, fueled by corrupt bonuses, harassment, and retaliation.

*** PTO Cover-Ups

In a previous (August 2005) version of this article, a sidebar discussed the extraordinarily high percentages of Asian employees and supervisors working in sensitive technology art units at the PTO, and published the particular percentage figures as determined by a statistical survey. Since the publication of that information, the PTO first moved supervisors around to lessen the visibility of the Asian supervisory percentage, then renumbered art units so that the previous high-Asian-percentage art units could not be traced in the reorganized PTO structure.
Posted by Ken B (5 comments )
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