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Patent Reform Act Proposes Sweeping Changes 336

Posted by ScuttleMonkey
from the patent-wars dept.
Geccie writes "CNet is reporting that Senators Patrick Leahy and Orin Hatch have proposed sweeping changes in the patent system in the form of the Patent Reform Act of 2006. Key features are the ability to challenge (postgrant opposition) with the Senate version being somewhat broader and better than the house version." From the article: "Specifically, it would shift to a 'first to file' method of awarding patents, which is already used in most foreign countries, instead of the existing 'first to invent' standard, which has been criticized as complicated to prove. Such a change has already earned backing from Jon Dudas, chief of the U.S. Patent and Trademark Office."
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Patent Reform Act Proposes Sweeping Changes

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  • by Anonymous Coward
    and guaarantee the freedom to innovate so true competition may exist? That way a small inventor won't lose his house when trying to compete with the large companies who buy up all the intellectual real estate on the monopoly board.
    • by CosmeticLobotamy (155360) on Sunday August 06, 2006 @07:35AM (#15854801)
      How about eliminating patents and guaarantee the freedom to innovate so true competition may exist? That way a small inventor won't lose his house when trying to compete with the large companies who buy up all the intellectual real estate on the monopoly board.

      No, he'll just go broke when trying to compete with the large companies who wait for him to build something cool and then use their huge existing resources to cheaply mass produce his invention before he has a chance to make a dime off it. Not that either the existing or proposed system is "good", but yours would suck pretty bad, too.
      • No, he'll just go broke when trying to compete with the large companies who wait for him to build something cool and then use their huge existing resources to cheaply mass produce his invention before he has a chance to make a dime off it.

        And how is this in any way substantially different from someone who sets up a new kind of shop or service or method of selling product only to have their competitors, yes, compete and emulate their ideas? Capitalism rewards enterprise, not inventiveness. I have no sympathy

        • The patent system doesn't exist to make people rich for sitting around and thinking. That is a means to an end: That John Q. Public will have more useful technology available to him when the patent runs out. It exists only to encourage innovation. As it sits right now, the patent system is buried in bureaucracy, but it still stimulates more innovation than if there were nothing, which leads to better, cheaper products and medicines to the public.

          Patents do work, especially in the medical area. Pharmace

          • Patents do work, especially in the medical area. Pharmaceuticals would be prohibitive to develop (without direct state involvement) without patent protection.

            I hear this a lot. Is this really true? Drug researchers often research native cultures and find what traditional remedies they have used. Then the drug company finds a way to mass produce or synthesize it. And don't forget decommoditizing it so they can guarantee profits. So what they are doing is patenting little known prior art and marketing th
            • by Kaktrot (962696) on Sunday August 06, 2006 @09:04AM (#15854954)
              Where are you getting your information? When some big medical company, MegaFeelgoodCorp or something, wants to create a new AIDS treatment, you're saying they go out to BFE and observe how the ancient Buntuchuku tribe handles people with AIDS? Those billions of dollars supposedly spent by the industry on clinical research groups, doctors, lab work, you know medical-type shit goes somewhere.

              Is it all just a farce, then? Or perhaps they've just been going about it the wrong way, and we should handle diseases the same way we did when people had the lifespan of a fruitfly in a blender? It wasn't all that long ago.

              • Where are you getting your information? When some big medical company, MegaFeelgoodCorp or something, wants to create a new AIDS treatment, you're saying they go out to BFE and observe how the ancient Buntuchuku tribe handles people with AIDS?

                Family works in the drug industry and does a LOT of travel. What better lab can you get for your dollar than setting up shop in a different culture and observing? No clinical trials, no regulations, no red tape. Its like pleasure, but its all business. Bring your c
            • by B'Trey (111263) on Sunday August 06, 2006 @09:16AM (#15854980)
              If you're really interested in the drug companies and patents, here's a reasonably accurate look at how things work:

              Of Pills and Profits [commentarymagazine.com]
            • by nahdude812 (88157) on Sunday August 06, 2006 @09:23AM (#15854989) Homepage
              Yes, it is true. It cost many millions of dollars to take a product from inception (whether it's a compound created in a laboratory, or a plant natives have been using forever) through all the preclinical and clinical trials that are necessary to obtain regulatory approval. Not only that, it often costs nearly the same, or sometimes even more, for products that get near the end of clinical trials, and present a side effect that all the preclinical trials failed to display (whether it's because the preclinical subjects were unable to tell the researchers about the side effect, such as something severe that only represents itself seldomly but with no visible signs, or because the non-human test subjects simply didn't experience the side effect).

              There are litterally hundreds of people who work on a product at any given point in its many testing phases, and all of these people draw salaries. Testing for products can take 10 or more years, and all of this gives no guarantee the product will succeed at the end.

              If all of that work and expense could be done by one company, and any other company could snap it up w/o having to invest in that research, then who in their right mind would invest 10's or 100's of millions of dollars into producing a product when that basically means they're giving it to their competetors for free? Sometimes when the product is sufficiently narrow in scope, even with patents, on a successful drug, drug companies fail to recover their investment during the patent's lifetime.

              There are many areas that the patent system is abused. It may even be abused to some extent in the pharmaceutical industry (there certainly are products that are less expensive than other products to research and produce, depending on the product's origin, intended use, and how smoothly it runs through trials), but it is absolutely necessary in order that companies like these (which are in the end for-profit companies with a legal obligation to their share holders; feel free to start your own not-for-profit pharmaceutical) can research and produce life saving drugs and treatments while remaining financially salient.
              • Does it really NEED to cost millions of dollars or is this our government's way to protect business models? When you have a lot of people in a society, it doesn't take a rocket scientist to create a rocket. People stumble upon novel ideas and often share and improve on others. We don't need a patent system to lock a society down. We are discouraging the natural process of innovation by creating an upper class of IP rights holders.
              • I wonder how well the following would work:

                In order to sell a drug, a company must have proved that their product is effective and safe (as the original researcher has to now) - whether they researched it or not. With just that, every company has to perform all the safety tests for what they want to sell themselves, making it cost them larger amounts straight off. The cost for the safety tests will be less than the total development costs, but with enough others buying the certification they should be able
              • > Yes, it is true. It cost many millions of dollars to take a product from inception (whether it's a compound created in a laboratory, or a plant natives have been using forever) through all the preclinical and clinical trials that are necessary to obtain regulatory approval. Not only that, it often costs nearly the same, or sometimes even more, for products that get near the end of clinical trials, and present a side effect that all the preclinical trials failed to display (whether it's because the prec
            • I hear this a lot. Is this really true?

              Yes absolutely true. The average cost to get a drug approved and onto the market is around $880bn and takes about 7-12 years. That includes costs for attrition rates, but even so gives you some idea. No company in their right mind could justify a 10 year development costing almost $1bn just so someone else can copy it as soon as it's on the market.
            • "I hear this a lot."

              Yes, well, the pharmaceutical industry likes to repeat it a lot.

              "Is this really true?"

              No it isnt. The vast bulk of pharmaceutical spending is on administration, marketing and comparatively inefficient production. Not even a fifth of the average pharmcorp's spending is on R&D (take a look at their public filings some time).

              That isnt to say pharmaceutical research is free, but it does mean this: we'd get _five times_ the current R&D if we paid for it outright. Or we could pay a fif
          • Not even remotely true.

            Pharmaceutical patents are a fairly recent development. Drugs were developed before they could be patented, and they will still be developed after patents are a sad chapter in our history.

            Anyway, much of the research involved is actually paid for with your tax dollars, and by rights should belong to everyone, not be the private holding of a massive pharmaceutical company.

            Patents don't work.
          • Patents do work, especially in the medical area. Pharmaceuticals would be prohibitive to develop (without direct state involvement) without patent protection.

                Unfortionatly, becouse of this protection, it also gives companies insentive to sell as much of a developed product as possible, at whatever cost they so choose, which, quite often, is at an EXTREMELY handsome profit, even taking into consideration R&D efforts.
        • And how is this in any way substantially different from someone who sets up a new kind of shop or service or method of selling product only to have their competitors, yes, compete and emulate their ideas? Capitalism rewards enterprise, not inventiveness. I have no sympathy whatsoever for inventors who sit around all day trying to get rich quick.

          Well, this is why the Founding Fathers didn't make the US a pure capitalist society and provided for things like patents in the Constitution. They *wanted* invent

          • A third reason for patents is that they allow inventions to go into the public domain (patents are public info, y'know!) after the patent expires.

            There's just a problem with that, their trying to get this stuff to last well beyond the lifespan of the person who patented it (just like with copyrights).

            Also look at how many patents are out there, I'm willing to bet there are more patents held by corperations who won't EVER let that patent run out cause they know there is someone out there who can easily

        • Emulation and duplication are two different things.
        • I have no sympathy whatsoever for inventors who sit around all day trying to get rich quick.

          The inventions that transform the world are more likely to come from men like Lee De Forest than idealists like Thomas Jefferson.

      • by Peter La Casse (3992) on Sunday August 06, 2006 @08:19AM (#15854876) Homepage
        How about eliminating patents and guaarantee the freedom to innovate so true competition may exist? That way a small inventor won't lose his house when trying to compete with the large companies who buy up all the intellectual real estate on the monopoly board.

        No, he'll just go broke when trying to compete with the large companies who wait for him to build something cool and then use their huge existing resources to cheaply mass produce his invention before he has a chance to make a dime off it. Not that either the existing or proposed system is "good", but yours would suck pretty bad, too.

        There would still be more small inventors making products than there are now; the current patent system stifles the small inventor, who can't afford a huge patent search and who doesn't have a huge patent portfolio to cross-license with competitors.

        Even if small inventors were worse off, society as a whole would be better off, which is the point of the patent system to begin with. If an invention really is useful, then it won't be lost.

        • the current patent system stifles the small inventor

          Yes. Which is why I said the current system isn't good. But there are a few babies in the bathwater that aren't floating face-down, so fixing the problem would be preferable to just throwing them out.
      • Which is why patents should remain for physical items that has a true manufectuering cost, not for something that does not. Basically, we need to removed the method patents.

        Something odd. I have been thinking about Hatch sponsiring this. This is a guy who protects those that supports patents and copyrights. My guess is that patent reform is being done in the USA to say that we are adopting parts of our system (first to invent vs. first to file) and we now expect others to adopt the other half of what we ha
      • Your underlying assumption here is that patents protect amazing new "Eureka!" ideas that are novel and imaginative but easy to rip off. There are a few examples of this. I believe the guy who invented the weedeater/string trimmer didn't patent his idea and made almost nothing off it. That's the sort of thing that patents were intended to protect. If they were limited to that, they might be workable and effective. Unfortunately, they aren't. Almost anything and everything can be patented. And if I'm r
        • Like everything in life, the way to have good patents that are fair is to have good and fair patent experts who review each case. I agree with the parent, at least with prior art there is some benefit to the small inventor, but ideally you just need somebody who isn't a moron approving or rejecting the patents.
        • by swelke (252267) on Sunday August 06, 2006 @12:26PM (#15855549) Homepage Journal
          People have been saying this a lot in the thread so far. "First to file" doe NOT eliminate prior art. What first to file means is that if two otherwise valid patent applicaitons come in to the patent office, the office gives precedence to the first one filed at the office (instead of the one that claims to have invented it first). Note that these are otherwise valid applications. If there is prior art before you file your patent application, then it isn't valid. Not only that, but the postgrant opposition part of the bill should be good for making sure that prior art doesn't get ignored (as it often does now).
      • No, he'll just go broke when trying to compete with the large companies who wait for him to build something cool and then use their huge existing resources to cheaply mass produce his invention before he has a chance to make a dime off it. Not that either the existing or proposed system is "good", but yours would suck pretty bad, too.

        WTF, if I loose a production monopoly on my $50K idea, but I get access to $100,000,000,000 worth of patentes to research and innovate - then that INCREASES my chance to make

    • I think it would be much more rewarding to eliminate Senators Patrick Leahy and Orin Hatch, and then fix the patent system by explicitely forbidding software patents of all kinds and setting up a wiki-patent project, publishing patents there and having a few months validation period in case prior art shows up. (more things need to be done, but I am sick and can't think of anything good.)
  • $DEITY have mercy on the first to patent the time machine.
  • Does this mean you will no longer be able to cry "prior art"? If so, this is a bad thing IMHO.
    • First to file still allows prior art - why wouldn't it?

      • Re:Prior Art? (Score:3, Insightful)

        by babbling (952366)
        First to file still allows prior art - why wouldn't it?

        Suppose first to file allows prior art. In the case of the person filing the claim not being the inventor, there would be prior art from whomever was the inventor.
    • Re:Prior Art? (Score:4, Informative)

      by Znork (31774) on Sunday August 06, 2006 @08:24AM (#15854883)
      It mainly affects companies or individuals keeping innovations secret; in first to file, it's the first to file a previously _undisclosed_ invention who gets the patent.

      For opensource it's probably slightly better, as it becomes slightly more difficult to submarine patents or futz the invention dates.

      However, it doesnt affect the more real issues of overly broad claims, etc. Or the economic validity and usefullness of IP at all.
    • Re:Prior Art? (Score:4, Insightful)

      by 3seas (184403) on Sunday August 06, 2006 @09:32AM (#15855002) Journal
      yes, it does mean that, much more so then it doesn't.

      There is always a complication that man can inject. To assume that going with first to file is going to fix the problems of the first to invent is pretending that the grass is greener on the other side of the fence.

      Software is a big issue in this, as it is actually fraudelent to allow software patents. But to allow it also means that first to file will cause a land grab of patenting all sorts of things that originate in human thought but evolved little past writting it down.

      There is a great deal that has been created in software which has never had a patent application filled out and sent in because the creator or writter of the work didn't want it patented. And maybe even if only to assure it stay free in use, they couldn't afford the .... what would be in this case, mob money payoff. The US patent office being the criminal organization in this case.

      With software the issue of fraud is in application, otherwise software would be disallowed patentability. The proof that software is not patentable is only being avoided and by both sides of the software development industry, the proprietary and OSS, each having their own individual motives or incentives or vested interest to blind themselves of the provable facts of the nature of software.

      To use an analogy or metaphor, mathmatics was complicated at one time thru the use of the roman numeral system. You could not do advanced math with it. Then came along the hindu arabic decimal system with its zero place holder that after 300 years of resistance and denial by the elite accountants , the general poopulation adopted the easier and more powerful tools of the decimal system, and has since gone on to go way way beyond the limitations of the roman numeral tools, to create whole new industries and economies that the roman numeral system simple was not capable of even conceiving.

      Programming is the act of automating complexity, typically made of complexity automations that someone else did earlier. The human characteristic that set us above all other known creatures, which makes it our natural right to do, to build upon the works of those before us. The purpose of programming to to simplify the use of a complexity, to make it have an easier to use interface. and thru the use of easier to use interfaces more of use can put things together for ourselves.

      But enters the fraud of software patents and the incentive to say "No you cannot use" (which is really all they patents are intended to be).
      Add to this the first to file and what you have is a growing man made constraint as to your ability to apply your natural rights to create and improve you own ability and productivity which in turn contributes to an improved environment for us all. For even if you came up with something to help your dfaily tasks then someone else copuld file it and prevent you from using it via man made laws. Laws where all things are now no longer possible.

      Abstraction Physics proves software is not patentable. But in a corrupt world, who wants to acknowledge that?

      • "For even if you came up with something to help your dfaily tasks then someone else copuld file it and prevent you from using it via man made laws"

        I don't believe so... you can make anything in your house or garden *entirely* from patented information, and use it. What you can't do is make loads or make money from it, but I don't think anything can stop you from using it yourself, unless the parts needed to make it are controlled.

    • Sure you can cry prior art.
      FTA:

      "The Senate version appears to give broader leeway for such challenges, offering up to 12 months--as opposed to the House's nine-month window--after the patent is awarded for challengers to file a 'petition for cancellation.' That time period could then be widened even further, with a second window available if the petitioner 'establishes a substantial reason to believe that the continued existence of the challenged claim causes or is likely to cause the petitioner significant
  • A prediction... (Score:5, Insightful)

    by pen (7191) * on Sunday August 06, 2006 @07:30AM (#15854788)
    I predict that any bill that makes things through Congress will only change the system for the worse.
    • Re:A prediction... (Score:5, Interesting)

      by g2devi (898503) on Sunday August 06, 2006 @08:16AM (#15854867)
      It's dead obvious that they will. This is the attitude that troubles me the most:

      > Specifically, it would shift to a 'first to file' method of awarding patents,
      > which is already used in most foreign countries, instead of the existing 'first
      > to invent' standard, which has been criticized as complicated to prove.

      Basically, they're saying that since the useful solution that is easy to justify (if you believe in patent theory) is too hard to implement (and causes too many problems), then the obvious thing to do is to pick a useless solution that is impossible to justify (through patent theory) because it's easier and will allow the patent office to process new patents quicker (and cause even more problems).

      This reminds me of the old joke. It was midnight at the parking lot and a policeman saw a drunk looking for something near a lamp post. The policeman asked what what the drunk was looking for. The drunk said "I lost my car keys in the dark alley a half a block away, so I'm searching for them here." The police said it didn't make sense. The drunk replied, "It makes perfect sense. It's too hard to find my car keys in the dark, so I'm looking for them where there's some light".

      The key difference between the drunk and Congress is that the drunk didn't make the problem worse through his useless solution.
      • also, in the morning the drunk will make sense again
      • Sure he did. He went beeing drunk in public (illegal) where a cop could see him, while all but admitting he was going to drive home drunk. That has to be worse than just stumbling around in the dark ;)
      • Re:A prediction... (Score:5, Insightful)

        by hey! (33014) on Sunday August 06, 2006 @01:21PM (#15855700) Homepage Journal
        Basically, they're saying that since the useful solution that is easy to justify (if you believe in patent theory) is too hard to implement (and causes too many problems), then the obvious thing to do is to pick a useless solution that is impossible to justify (through patent theory) because it's easier and will allow the patent office to process new patents quicker (and cause even more problems).


        Where it gets interesting when you bring up the theory under which patents are granted is that, at least in my opinion, the situation these different methods are meant to resolve shouldn't exist.

        Patents supposedly reward invention, and a key aspect that distinguishes an invention from a mere design is non-obviousness. But what does it mean to be "non-obvious"? It's a subjective measure: what is obvious to an experienced designer is not at all obvious to a novice, or to a lawyer or to a patent examiner. We are basically granting government sanctioned monopolies on ideas based on the subjective opinions of non-qualified people.

        What we need is an objective standard. Let me propose one:

        If an idea is arrived at independently by two parties working on the same problem, the idea is, ipso facto, an obvious one.

        Under that standard, it doesn't matter who "invented" first or who filed first: if two parties came up with the same thing without knowledge of relevant details of each others' work, then the idea is not worthy of a patent.

        This would (a) invalidate most patents and (b) greatly increase (according to the law of supply and demand) the value of truly orginal ideas, which now compete with merely patentable ideas. In my view that'd amount to an unquestionably superior patent system.
    • you didn't need to wait for an article about patents to post this...
  • So What (Score:4, Insightful)

    by Umbral Blot (737704) on Sunday August 06, 2006 @07:33AM (#15854793) Homepage
    Wow, a bill that solves none of the many real problems with the patent system. Way to go lawmakers! Who votes for these fools?
  • I consider this bad (Score:3, Interesting)

    by rolfwind (528248) on Sunday August 06, 2006 @07:34AM (#15854798)
    "Specifically, it would shift to a 'first to file' method of awarding patents, which is already used in most foreign countries, instead of the existing 'first to invent' standard, which has been criticized as complicated to prove.


    I'm the first to say if another country does something better than the US, but just because other countries do it differently doesn't mean it is better. I consider "first to file" just promoting patent trolls even further, as they just keep an eye out for what everyone else is doing and patent what the other guy didn't really consider worth patenting. This provision is useless - yes, first to invent is hard to prove, but that is why keeping some type of traceable records is a good thing and you can't be locked out of the market just because patent troll X decided to file paperwork before you did.
    • by BobSutan (467781) on Sunday August 06, 2006 @07:58AM (#15854828)
      I agree that this will bring the patent trolls out of the woodwork. However, this could work both ways. Imagine a big company releasing a product or service and not realizing its possible uses. Joe Schmoe patents that function, idea, whatever and turns around and sues the company that released the widget that gave them the idea for the patent in the first place. It happens today all the time, but its usually the big .Inc's that do it to small developers and inventors. They wait for trade shows where people showcase their stuff for VCs, take pics, notes, etc, and then turn over their notes to their developers who rush to beat the original inventor to market. As a matter of fact, that's how PONG was created.
    • Also, currently if you have something worth patenting, but don't have the funds to go through with the process you can hold off for a bit until you have some investment capital behind you, or maybe until you actually make a few sales. With this idea, what's to stop the first investor you approach for capital stealing your idea without paying you for it? (either directly or via another party)

      Whatever happened to the idea that you can't patent something without a working example of the thing you are trying to
      • by TheRaven64 (641858) on Sunday August 06, 2006 @08:49AM (#15854922) Journal
        In the UK, you file a preliminary patent. This protects you for about a year, in which time you submit a full patent application. Some inventions never get beyond the preliminary patent phase, but if something is really good then it is not hard to persuade someone to pay for the exclusive rights to it.
      • Also, currently if you have something worth patenting, but don't have the funds to go through with the process you can hold off for a bit until you have some investment capital behind you, or maybe until you actually make a few sales.

        You have to be very careful with this, though, because often as soon as you disclose your invention, clocks start ticking.

    • by Znork (31774) on Sunday August 06, 2006 @08:40AM (#15854907)
      "as they just keep an eye out for what everyone else is doing"

      Technically, that shouldn't work. Anything they can keep an eye out for would have to have been published, and would therefore be unpatentable under first-to-file.

      "you can't be locked out of the market just because patent troll X decided to file paperwork before you did."

      As long as you're publishing everything you do you cant be out-patented and locked out. Only if you're keeping your work secret and someone else files for a patent on the same thing before you do.
    • but just because other countries do it differently doesn't mean it is better.

      News At Eleven: World Trader Adopts The Legal Standards of Its Major Trading Parters.

      Better or worse is subjective. The game is simply easier to play and to win if everyone agrees on the rules.

  • by geoff lane (93738) on Sunday August 06, 2006 @07:36AM (#15854802)
    Brent O. Hatch is one of SCOs many lawyers. One wonders if any part of the new law would be of any help to SCO grabbing the work on many Linux programmers?

    • Brent O. Hatch is one of SCOs many lawyers. One wonders if any part of the new law would be of any help to SCO grabbing the work on many Linux programmers?

      If Wikipedia is right: http://en.wikipedia.org/wiki/Orrin_Hatch [wikipedia.org]

      Mod parent UP as the post is on to something.

      I guess the SCO group realizes it has no case so it is now influencing a change in law to change its case. Where is the SEC when you need them? Maybe this explains why SCO gets away with so much.

      IBM/Linux should patent 0/1 (binary) since prio

  • by keithmo (453716) on Sunday August 06, 2006 @07:38AM (#15854805) Homepage
    In the current system, a person/company has some fixed amount of time (1 year? 6 months? I don't recall) to file a patent after the invention has been mentioned publicly. Some companies rely on this by shipping the product first, then worrying about filing the patent applications. "First to file" will likely delay many product releases, as the inventor will be required to get the patent application process started before release.
  • by i_want_you_to_throw_ (559379) on Sunday August 06, 2006 @07:44AM (#15854812) Homepage Journal
    Oh dear God, not Orrin Hatch again! Seriously, this idiot was the man who introduced the DMCA and look how wonderful that piece of legislation was.

    As usual, follow the money....
    Orrin Hatch received $126,918 from the entertainment industry [opensecrets.org] in this last cycle. Not to be outdone, Leahy received $251,970 [opensecrets.org]

    By my calculations that means that congressmen can be bought for less than $400K. My, my, my what an insanely great ROI.

    America, the best government money can buy®
    • Orrin Hatch received $126,918 from the entertainment industry in this last cycle.

      The entertainment industry, apart from isolated cases such as Knight & Associates [plotpatents.com], is nearly inactive in filing patents. Mr. Hatch's record on copyright law can only be an attack ad hominem without a link to the bill. I'd give one, but all the bills on thomas.loc.gov containing the phrase "patent reform" are months too old to be the bill that this article discusses.

    • He doesn't want you stealing his wonderful [amazon.com] music.
  • First to file? (Score:5, Insightful)

    by techmuse (160085) on Sunday August 06, 2006 @07:51AM (#15854818)
    Sounds like an easy way to steal other people's ideas and patent them without having to do the work yourself. The people with the best lawyers and most money will win all the patents.
    • The people with the best lawyers and most money will win all the patents.

      I thought this bill was supposed to change the patent system.
    • Re:First to file? (Score:3, Informative)

      by Abcd1234 (188840)
      Oh bullshit. Any company working on potentially patentable ideas will simply be smart enough to keep that work secure and under wraps until the patents are filed. Companies are already used to protecting trade secrets (eg, the recipe for Coke) so this is hardly without precedent. Meanwhile, this change is easier both on the patent office, and the companies who are doing the work (since you no longer need to keep a detailed log book, just in case an idea turns out to be patentable).
  • by Coeurderoy (717228) on Sunday August 06, 2006 @07:53AM (#15854821)
    First to file rather than first to invent means that all pesky open source programmers will have to worry about patenting random parts of what they do or risk that some large corporation or patent troll patents them out of their invention.

    Even people that uterly despise software patents will have no choice in the US.

    On the other hand all countries that heavelly invest in public education under the idea that education should not be only for rich kids and insannely smart, but also for smart creative poor or just not so rich kids, should be happy to see anything happen that makes the US less interesting for creative minds.
    And helps the ROI stay in the country that made the investment.
    • by Znork (31774) on Sunday August 06, 2006 @08:50AM (#15854925)
      "First to file rather than first to invent means that all pesky open source programmers will have to worry"

      It's not a problem for open source; if you've released code as open source that means it's been published, and no patent application filed on a later date could be granted covering any supposed invention in that code.

      It's not first to file for a particular invention, it's first to file for a particular _previously undisclosed_ invention.
      • Not only that, but this bill should help with the other frequent problem associated with this: what if the patent office happens to grant a patent even though there's perfectly good prior art? The postgrant opposition part of the bill would be great for that.
    • First to file rather than first to invent means that all pesky open source programmers will have to worry about patenting random parts of what they do or risk that some large corporation or patent troll patents them out of their invention.

      Really? It seems I missed the part of the bill that would allow you patent already published inventions.

      Actually a first to file system improves the situation for OSS, just put your ideas out there. No longer do you have to worry that some scumbag takes your idea, st

  • First to File (Score:4, Insightful)

    by cpt kangarooski (3773) on Sunday August 06, 2006 @08:01AM (#15854836) Homepage
    Of course, this is unconstitutional. The Constitution requires that patents only be granted to an inventor. An inventor is the first person to develop a discovery or technology. The second guy to do so, even if he does so independently, is ultimately just an also-ran. If someone who had been unaware of them spontaneously invented the wheel, why the hell would he deserve anything? Why would it matter whether he did so thousands of years after it was invented by the actual inventor, or a day?

    If other countries want to do that, then that's up to them. I'm not going to tell them what to do. But not only is it a bad idea here, it is one that would be entirely unlawful. It's only in here due to a combination of laziness on the part of the PTO, since they could avoid having to run interference proceedings, and greed on the part of large, corporate inventors, since they can act more quickly than smaller inventors.

    I haven't had a chance to look at the latest bill, but I doubt there's much good in it, if anything, if this is any indication.
    • It specifically gives legislative authority to congress only, but this didnt stop the formation of the FCC, or the nixon drug laws (which give some yokle at the fda legislative authority against any pharmaceutical agent).
      It also called for limited terms to copyright, but we all know who won in eldred vs ashcroft (so instead of infinity, it's infinity - 1.. which only those educated in calculus or higher know is still infinity)

      I learned through my history classes and especially current events not to count on
  • by plasmacutter (901737) on Sunday August 06, 2006 @08:19AM (#15854875)
    ..as two of congress's biggest sock puppets to moneyed interests, so there is no surprise theyre the ones comming up with this, and it's also a slight relief to know this is what some of the worst of the worst are comming up with, because if not this it would be something much much worse.

    Anyway, this is designed to "reform" the system by clearing the courts of many cases by simply awarding the sneakiest party. This law would result in the legitimizing of those "patent parasite" firms who snag patents, then ambush companies just as theyre going to market. It would reverse the apple v creative case too. This is definitely at the expense of the inventor, and would also make invalidation of obvious patents much harder, since prior art would no longer apply. In that way it is playing to moneyed interests, but even moneyed interests would incur great expense to these parasites mentioned above.

    The hatch/leahy duo are the perfect illustration of how partisan grandstanding only serves as a red herring, and that corruption extends beyond party lines.

    In addition to the horizontal axis of left and right, there is a vertical axis nobody in the media or politics wants the public to pay attentin to, moneyed elitists vs populists.

    voting one party or the other does not guarantee the politician's position along this vertical axis, and that axis in this nation is the one which is more important.

    • Orrin Hatch is a national embarassment, and Ted Stevens is clearly somewhat dumber than dirt, but Pat Leahy is a pretty decent guy. Anyone who can piss Dick Cheney off can't be all bad.

      Leahy's major constituent who has a dog in this fight is IBM. (IBM is the largest employer in Vermont -- by a lot). I'm not sure what IBM's concerns are, but as long as they are taken care of, I doubt Leahy much cares about anything other than doing the right thing. Leahy probably doesn't need large contributions to get

    • This is definitely at the expense of the inventor, and would also make invalidation of obvious patents much harder, since prior art would no longer apply.

      this law sucks, but not for this reason. no, it wouldn't. prior art is only applicable today if it's disclosed and available: otherwise, the PTO can't reliably tell whether the claim of prior art is on the level or not ("i had a one-click system in 1985, i just didn't show it to anyone! honest!"). how disclosed or available is open to interpretation, but t

  • This is great; I will patent the process of sucking air to live.
    Or fire, the wheel, the screw, the inclined plane and the wing.
    Hey, how about a patent on stealing the election through Diebold voting machines?
  • Replay from 2005 (Score:4, Informative)

    by 955301 (209856) on Sunday August 06, 2006 @08:58AM (#15854943) Journal
    An interesting tidbit, this was introduced in 2005 as well by Lamar Smith of Texas:

    http://patentlaw.typepad.com/patent/2005/06/patent _reform_p.html [typepad.com]

    Not sure what the difference is between the two, because I'm still looking for the bill's number. It's almost as if people like to use the fluffy name and never really look at the bill - only reference it from other articles.
  • and screws small inventors in favor of large corporations. Why? Because filing a patent app takes time and money, which may leave small entrepreneurs with no protection while doing the initial marketing of their invention. The only way that I'd go for this is if there were a *simple* way that costs no more than $25 and can be done by most people without an attorne to apply for a provisional patent lasting, say, 6 months. Or, perhaps, send in a description of the invention to "stake a claim" for free.
    • i agree with your concern in general, but it's worth pointing out that one can, in fact, file a provisional patent which lasts up to one year. i'm not sure what the expense involved is, and you have to provide more than just a description (which is a good thing, in my opinion), but the bar is much lower than a full patent app.
      • i agree with your concern in general, but it's worth pointing out that one can, in fact, file a provisional patent which lasts up to one year. i'm not sure what the expense involved is, and you have to provide more than just a description (which is a good thing, in my opinion), but the bar is much lower than a full patent app.

        AFAIK, the fee is $100-300 and you may need an attorney, so it'll cost more if you don't want to do the leg work yourself. I'm saying that you should be able to send in a detailed d

        • you may be right about the fee, i don't know. but especially at $100, that seems entirely reasonable. and you certainly do not need an attorney. your statement that it'll cost more if you don't want to do the leg work yourself is kinda silly: well, yeah! the provisional patent application is exactly what you're saying: a description of the invention which doesn't grant any patent rights but provides a stake in the ground for a future formal filing. the difference seems to be that you want simpler forms and
  • by MobyDisk (75490) on Sunday August 06, 2006 @09:19AM (#15854982) Homepage
    The real problem with our patent system is not the first-to-file or first-to-invent rule. The real issue is the bogus patents. No solution will work until we stop funding the patent office based on the number of patents it grants. We have an big incentive for the office to NOT do their job. It would be like paying lawyers only if they lost a case!
  • it gets worse (Score:3, Interesting)

    by blackest_k (761565) on Sunday August 06, 2006 @09:20AM (#15854984) Homepage Journal
    "The bill would also establish a "postgrant opposition" system that would allow outsiders to dispute the validity of a patent before a board of administrative judges within the Patent Office, rather than in the traditional court system. The idea behind such a proceeding, also endorsed by the Patent Office, is to stave off excessive litigation.

    The Senate version appears to give broader leeway for such challenges, offering up to 12 months--as opposed to the House's nine-month window--after the patent is awarded for challengers to file a "petition for cancellation." That time period could then be widened even further, with a second window available if the petitioner "establishes a substantial reason to believe that the continued existence of the challenged claim causes or is likely to cause the petitioner significant economic harm." Challengers would be limited, however, in the issues they could raise after that first year expires." from the article

    Economic harm, seems to be potentially a way of blocking a large number of interested parties even the original inventor. seems that gpled software could be vunerable to this, it's free therefore no economic harm and no standing to challenge the patent. who can fight back in this situation ?

    I will leave it upto someone else to explore the pitfalls of that little idea
    • Another big problem is that that would tend to consolidate power in the patent office.

      I renember when they decided to create a seperate patent court. The side effect was that the judges in that system were now only patent judges, so they had a biased interest in expanding the scope, influence, and imposition of the patent system to expand their own scope and influence. Putting this kind of power into the patnet off will make this problem even worse.
  • So.. Now, everything anyone see's, they patent.

        First to file gets it, right?

        Let's patent the process of electing government officials in a democratic method utilizing an electorial college, and sue the pants off the government.

        First to file afterall..
  • by jonwil (467024) on Sunday August 06, 2006 @11:13AM (#15855262)
    But, its supported by Orrin Hatch, same guy who is behind a lot of other nasty IP related bills that have appeared on Slashdot. Which automatically makes it bad. (since Hatch has shown time and time again that he is a shill to big corps with lots of investment in IP)

  • by argoff (142580) * on Sunday August 06, 2006 @11:37AM (#15855370)
    People need to understand that patents are a lie, and pure evil. There are several reasons for this ....

    a) Inventions are usefull, they are beneficial that's why there will always be a need for them with or without patents. The choice is not between patents and no innovation, the choice is between wether invention revenue will derive from a service model vs an invention control model.

    b) When you have patnets that forces the market to center around invention controlls, when you don't have patnets that forces the market to center around invnetion services. So the notion that patents help small inventors, and incentivize invention is complete fraud.

    c) Inventors are good at inventing things, big-business and government and lawyers are good at controlling things - patents do not help inventors. Patents help some large businesses, lawyers, governments, and anyone else who likes to control and deny other peoples liberties. They hurt inventors and do not promote innovation.

    d) Patents are not a property right. Property rights exist because of natural scarcity, not because of human made scarsity. Slaves on the plantation were not a property right either. All the argument about incentive, business, commerce, and the wealth of America was crap back then and is now too.

    e) Patents are a pure evil, and even genocidial. Those millions Africans who suffered and died of AIDS while pharmacuticals sued in the world court to forbid African nations from making generics - they suffered and died in the name of patetns. Those millions of people who died in auto accidents while patents held back air-bags and anti-lock breaks for 20 years - they suffered and died in the name of patents.

    In sum, patents are a fraud, they are a lie, they harm inventors, they stiffle innovation, they are not property, they are anti free market, and they are evil to the point of genocide. We shouldn't be trying to reform them, we should be trying to kill them and hammer anyone else who dares try to impose them on us.
    • And to this i say .. 'Inventions are expensive'

      To bring a pharmacutical to market costs millions if not BILLIONS in research, experimentation, lobbying, and even FDA fees.

      A friend of mine has been working on a drug that has an 80% success rate of clearing out childhood lukemia.

      80%

      she has been working on this for over five years.

      and its still not though the FDA.

      So .. really .. to counter your argument, if her company .. who has invested BILLIONS into this drug, was not sure that they would be able to recover
      • Well, you made a very compelling argument that the FDA needs to get the hell out of the way. You also made another argument about patents that I forgot to mention - patents drive R&D costs to the moon.

        f) In a non patent world, people and companies don't mind collaberating and sharing research because if another uses that research to make a killer breakthru, every body gets to produce and profit off of it. However, when patents are in place, then people and companies need to be very secretive and isola

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