Patent Reform Town Hall Meeting (Balt/Washington Area IEEE Consultants Network)

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In what have congress changed the law?

The main ones are:

- A move to first to file rather than first to invent (which brings the US into line with most of the rest of the world).

- Allowing the USPTOs to set its own fees in a way that in aggregate covers its own costs.

- A mechanism to allow thirdparty submission of prior art subsequent to publication of the patent.

Unfortunately the bill does almost nothing to combat trolls nor does it get rid of the treble damages on wilful infringement setup.

-p

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Paul Gotch
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(snip on patent rule changes)

As I understand it (not very well), though, it does remove the submarine patent. Isn't it now some number of years from filing, instead of from approval?

-- glen

That one was fixed through a combination of a 1995 WTO treaty which change the term to start from the day of filing not the day of grant combined with a change in 2000(?) to publish most patents after 18 months rather than keeping them secret until they were granted.

Together they mean that there is no benefit in terms of term in pushing the date of issuance into the future and that the patent will almost certainly be published before it is granted.

-p

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Paul Gotch
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I believe he is retired now but John D. Trudell was a knowledgeable and active campaigner against the changes made in 1999, which also favored the corporations at the expense of the individual inventor. His website isn't being maintained, but hopefully he might be willing to participate.

** - A move to first to file rather than first to invent (which brings the ** US into line with most of the rest of the world).

Believe it or not, but we need "first to file": it just makes life simpler for everybody, including small guys

** - A mechanism to allow thirdparty submission of prior art subsequent to ** publication of the patent.

I can predict exactly what happens: PTO will be flooded with junk "third-party" submissions of "prior art" completely irrelevant to patent claims (There was a bounty prize on invalidating Amazon's "one- click patent" some years ago which produced tons of junk "prior art" and not a single invalidating reference) Poor, poor patent examiners...

** Unfortunately the bill does almost nothing to combat trolls nor does it ** get rid of the treble damages on wilful infringement setup.

And who are those evil "trolls" ? Have you seen one ? Are they some PhDs on a loose not employed by corporate monstrosities, just sitting in their basements and filing evil patents on their own ? How can you allow this in America ? Or maybe they are some shrewd investors who buy patents from those PhD and then use those patents to beat the shit out of fat corporate infringers ?

And why treble damages for willful infringement should be removed ? To encourage willful infrigement ??? I say: make willfull infringement a criminal offense (Hint: it's awfully hard to prove willful infringement nowadays)

Simpler isn't always better. This change makes it possible to patent work done by someone else, with no recourse for the actual inventor. What used to be theft is now legal. This certainly will make things easier for the courts but one obvious consequence is that there will be increased secrecy surrounding any research that might lead to patentable developments.

Given the bias toward corporations and globalization displayed by governments lately, I am deeply suspicious of the motives behind any change like those made to the patent law.

Unfortunately the underlying system is still bankrupt. Most of the creative people I know were burned out long ago over the way corporations treat inventions and patents as just another perk to hand out to suits. If anything I see the legislation as strengthening the potential for abuse.

Rick

So is anyone in the Baltimore/Washington area and willing to participate in the panel discussion? This event is being heavily advertised and we are expecting a good turn out. Not only will you get a free lunch, I'll take you kayaking sometime!

Rick

I'm arguing for first to file.

Um rather than the system being flooded with junk patents which are massively costly and time consuming to invalidate afterwards? I've much rather the patents were never awarded in the first place even it it does mean the PTO have to do a lot of sifting of paper.

Yes. However clearly I can't go into details of specific cases. The system at the moment is setup on the basis of mutally assured destruction.

A sues B over infringement B counter sues A over infringment

A and B both produce widgets and their businesses will be adversely affected if they have to stop shipping widgets. Therfore A and B settle out of court and sign a cross licensing agreement.

Now C, a 'Patent Troll' doesn't have anything widgets to counter sue over all they do is litigate until either their patent is invalidated or they win. The amount of time an money spent on this is such that for many companies it is cheaper to settle and pay royalties on an invalid patent than it is to get it overturned.

This is then used as precident to attack other people using the same patent 'look they licensed it it must be valid' pay up or else.

Because the actual effect of this is that you build something and you

*do not* do any kind of search to see if you need to license anything and need to pay royalties. If you do do a search and miss something then it's impossibly hard to prove that you didn't find the patent in question and aren't willfully infringing it.

-p

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Paul Gotch
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"Therfore A and B settle out of court and sign a cross licensing agreement."

Not anymore...

Big corporate monstrosities are now beating the shit out of each other in patent courts and ITC, trying to get *injunctions* against each others products (e.g. Apple vs.Samsung, Apple vs. HTC etc etc etc) Also, many of them collect huge patent royalties on someone else's products - e.g. Microsoft lining its pockets with patent royalties for Android - Google's flagship product. (Is Microsoft a patent troll or what ?)

Don't you love it ? I certainly do :)

That's atypical. Steve Jobs was philosophically opposed to Android and would rather litigate than settle.

For example Apple vs Nokia settled eventually.

The MS situation is annoying because MS are licensing 'unspecified' IP. There are almost certainly valid patents in there but there are also probably lots of invalid ones. The most litigated patent of the lot in there is the VFAT long file names one. MS managed to get FAT32 used as the default file system on many flash devices and then started litiging afterwards. This is morally dubious but trolling per say.

What you don't see is that a normal handset has IP from perhaps 30 companies inside it and the majority of the software cost is license fees for patents. All you see are the ones that actually end up in court due to brinkmanship on one or other side.

-p

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Paul Gotch
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Yes, increasingly MS is a patent troll. They own a selection of dubious patents, and use standard troll racketeering techniques to squeeze protection money out of Android phone and tablet manufacturers. The fact that the patents involved are not revealed is classic patent troll behaviour. These manufacturers don't have many patents of their own to fight back, or for cross-licensing deals. Even if they have patents that MS arguably infringes on in its own phones, why would they care? No one buys them anyway, so they have nothing significant to lose.

Of course, patent trolling is not MS's core business - but it is an increasing part of their business.

Completely barmy. There is definitely something very, very wrong with software patents.

Rupert

Well, that's because Apple invented the smart phone, along with the wheel, and hot water; *how* *dare* these copycats swoop in and steal our preciousss IP! (I can definitely picture the Apple board taking turns playing Gollum.)

Patents and copyright are a net loss for society.

The MPEG-LA, and associated parasites, have no problem requiring payment of royalties for expired or unrelated patents.

Drug dealers should have patented that business model years ago.

This can't be fixed since it is not practical for a small inventor to do an exhaustive search of existing IP prior to filing, and doing so would hopelessly contaminate the inventor, anyway. The idea of "willful" rather than inadvertent infringement has legs, I think, if it can be shown proven that the infringement was willful.

Otherwise the default position is almost necessarily that one does not do a prior art search prior to filing. Removing treble damages for willful infringement just makes it easier for those who really do infringe willfully.

Eric Jacobsen Anchor Hill Communications

By which you mean 'would tell the inventor what works and what doesn't, meaning that he just needs to licence it rather than invent it'. Six months in the lab can save you an afternoon in the library and all that.

Surely it is prior to *inventing* that you should do the prior art search, so that you know which patents you could licence instead of doing the tedious invention. That would be easier if it were compulsory to licence all patents under reasonable non-discriminatory terms, and *that* is the direction in which patent reform should go - mostly people infringe patents because the original inventor isn't willing to licence them on generally-reasonable terms.

Tom

"mostly people infringe patents because the original inventor isn't willing to licence them on generally-reasonable terms. "

Whaaaaaat ??????