cybermage's Journal: Patent Reform Moves Backwards

The house judiciary committee has approved legislation to reform the U.S. patent system. Much of what is being proposed is unlikely to make the system any better, however.

PC World has the story of the committee's efforts to reform the patent system. Highlights include:

• The bill gives more latitude given to judges to consider the value of an entire invention in determining damages rather than just the infringed component.
• The bill moves patents from a first-to-invent to a first-to-file system, but gives inventors who publish their invention a grace period to claim their patent.
• The bill allows the patent office to review a patent it has already granted for legitimacy
• The bill extends the review period for patent applications and allows for outside input on the patentability of an invention
• The bill makes noises about changes to the litigation process to make patent infringement lawsuits harder to bring

More latitude in determining damages is clearly a nod to patent attorneys and makes it more likely for lawsuits to be brought as the damages can be bigger.

Moving from first-to-invent to first-to-file will either be ruled unconstitutional, as the constitution actually says patents go to the "inventor". If it is not ruled unconstitutional, we'll see even more bad patents as people can no longer feel protected by the fact that they invented something. Were first-to-file the law in Alexander Graham Bell's time, we would likely have no idea who he was. He'd have surely lost the patent for the telephone if he could not prove he was first to invent.

Allowing the patent office to review a patent is not the same thing as compelling the patent office to review a patent. Undoubtedly, they will continue to view patent legitimacy an issue for the courts and continue rubber-stamping the applications.

Extending the review period and allowing outside input is nice if it actually occurs. But here's the problem: Ask any patent attorney if you should read someone else's patent if you are working in the field and they'll tell you know because knowingly infringing a patent goes far worse for you in court than doing so inadvertently. So, who's going to do the outside reviewing? Probably, no one. As a bonus, the longer review process will grant an even greater air of legitimacy to the patents granted because of the opportunity for public review.

The bill talks about limiting litigation through a variety of easily circumvented means like limiting so-called "venue shopping." However, the bill allows any entity to file the suit, so it's easy enough to establish an entity in the venue of your choosing for the purpose of venue shopping.

The patent system needs real reform. This is a step backwards, not forwards, which has been bought and paid for by trial lawyers and big pharma. The net effects of these changes favor big pockets over the little guy and are likely to increase damages, which increases the likelihood of lawsuits and increases the legal costs all around. The little guy inventing something in his garage is in a world of pain under these changes.

Further Reading:
      Why Software Patents Are A Bad Idea
      Software Patents Invade Online Classroom
      Chinese Bring Patent Suits In U.S. Courts

Reprinted with permission from apathy.net.