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Patent Reform?







Patent Reform?

Patent Reform? 06/05/2005 11:19 PM

I was reading Business Week and they had a little commercial section with ads from law firms. A couple of them were intellectual-property specialists and I snarled internally; whatever you think about patent law, as a longtime businessman I’m pretty convinced that the IP law profession, while it contains many good and intelligent people, is collectively a giant leech sucking money and time out of the community of innovators. Having said that, two of the lawyers’ blurbs jumped out at me; both about proposed US legislation which would institute a new process, within the PTO as opposed to the courts, for a quick challenge to the validity of a patent. This is important, because today, defending yourself against patent-infringement litigation is insanely expensive, $1M and up, way up. This is why most companies, in particular small companies, roll over and settle quickly when they get hit with this kind of lawsuit, no matter how dopey the patent is. Here are the two reports: Defending Against Patent Greenmail (which begins Patent “trolls” are currently the subject of much discussion...; most IP specialists don’t like to admit that patent trolls exist, but they do) and New USPTO Post-Grant Patent Opposition Legislation on Horizon. I think the high-tech business community ought to get behind this legislation, big-time. Everyone except the patent trolls.




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Someone who prefers to remain anonymous writes "This panel seeks to reform patents by issuing the patent to the first person who applies for it instead of the first person to invent it. Isn't this the exact opposite of what we should be doing?" The article is talking about the National Research Council recommendations, and there are a few more details to this story that don't actually make the article. Most of the rest of the world does use the "first to file" method of patent protection, and it's been an ongoing battle between the US and other nations about bringing the two patent systems into line. Since so many more places use "first to file" rather than "first to invent" it's long been assumed that the US would eventually fall into line. It is backwards, of course, and is designed more to make it easier to figure out who should own the patent, rather than to actually encourage innovation. Instead, it will simply encourage people to file more bogus patents earlier in the process, just to make sure. It is a step backwards, and the only justification for it is to avoid having to spend difficult time figuring out who actually deserves the patent. I would much prefer patents go to those who actually deserve it, as that would seem to actually encourage innovation.

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Earlier today we posted an article about how copyr ight law was harming, not helping, innovation. To go with that, how about an article from the Washington Post about how the patent system is harming, not helping, innovation. While the first article looked at DMCA smack-down suits, this one looks at all of the little patent shops that buy up ridiculous patents, don't actually build anything, wait for someone else (completely independently) to build something similar, and then sue them. It also looks at big companies who patent thousands of ideas every year, and then threaten any small company that might compete with them to "license our patents or else." The article mentions that many are hopeful that the resigna tion of the current USPTO directer will encourage real reform (despite all the praise he's receiving for being a "reformer"). From the quotes from the incoming director, though, I wouldn't hold my breath. In response to an FTC report that loudly questions the current patent system, the new USPTO director basically says that his hands are tied by treaty agreements the US has. He is happy, however, that the FTC suggests the patent office gets more money. Big surprise there. The money will go to more patent examiners, which just means that bad patents will get approved that much faster. What's needed is a real rethinking of the process. If the point of patents is to encourage innovation, we need to see if that's really happening or (if as appears in many cases) it's really just legalized extortion.

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The United States National Research Council has issued a call for reforming the patents sector of intellectual property . The Council's recommendations include: expanded research of patented works without fear of legal retribution; awarding patent to first filers, rather than first inventors; increased resources and flexibility for the United States Patent and Trademark Office .

Continued innovation in the development of new technologies and products in this country suggests that the current patent system does not require a major overhaul, said the committee that wrote the report. However, economic and legal transitions have strained the system in recent decades, making clear the need for change.

(via Steven Kaye)


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theodp writes "USPTO Director James Rogan is leaving the Bush administration in January to complete work on his autobiography, "Rough Edges," which will be published next summer, but can be preordered at Amazon.com today (be sure to turn on that patented 1-Click!). According to today's USPTO press release, Rogan changed the culture of the agency by making quality, not the time it takes to get a patent, the hallmark of its work - judge for yourself!" Amazingly, the article about him leaving talks about how much he's done to reform the patent system. Yet, every day we still seem to see ridiculous patents. If that's what we call reform these days, I think we need something different.

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Copyright Law Revision, Committee on the Judiciary, 90th Cong. 1st, Sess., Rep. No. 83 66 (March 8, 1967). Apparently the Registrer believes performers no longer "need unhampered access to musical material on nondiscriminatory terms." What progress.

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