Posted on 09/04/2007 9:04:00 PM PDT by notaliberal
Congressman Rohrabacker was on the floor railing against H.R.1908 due for a vote on the floor Friday. Just caught the last three or four minutes of his speech. He called it the STEAL AMERICAN TECHNOLOGY ACT. Asked all Americans to call their congresscritters and demand that they vote this bill down as we did for the Shamnesty bill. I don't know everything this bill holds, but he was very angry so I thought I should get it out their. He claims that congress is being very quiet about this bill, because they don't want "us" to be aware of it. I think it's time to call. Congressman Rohrabacker has our back and I think we should look into this and respond to our congress member.
Patent Reform Act of 2007 - Modifies conditions under which a patent may be obtained for an invention or discovery, including by: (1) defining "inventor" to include a joint inventor and coinventor; (2) making the effective filing date of a claimed invention the filing date of the patent or the patent application; and (3) revising procedures for patent interference disputes.
Revises requirements for an inventor's oath or declaration to allow substitute statements in specified circumstances (e.g., death or disability) and supplemental and corrected statements.
Allows a third party assignee (other than the inventor) or a person with a proprietary interest to file a patent application.
Modifies provisions relating to damages for patent infringement to: (1) require a court to conduct an analysis of a patent's specific contribution over prior art; (2) allow increased damages for willfull patent infringement; and (3) expand the prior user defense.
Renames the Board of Patent Appeals as the Patent Trial and Appeal Board. Revises provisions relating to the Board's composition, duties, and authorities.
Allows a person who is not the patent owner to file a petition with the Board to cancel a patent as invalid (post-grant review). Sets forth procedures for the consideration of such petitions, including provisions to prevent harassment of patent owners and abuse of process.
Allows third parties to submit documents relevant to the examination of a patent application.
Revises venue requirements for civil patent actions against individuals and corporations to allow actions to be brought in the judicial district where either party resides (currently, where the defendant resides) or where the corporation has its principal place of business or was incorporated.
Well, this looks like it could be trouble. I wonder if one of the new rules we don’t see is that this “Trial Board” could possibly award the patent to whoever they want.
I think that at some point comprehensive patent reform should be undertaken, but frankly, I don't trust this Congress to do it.
I have been calling both of my Senators about this (and other bills) twice a week for a month now.
He was mentioning that this bill will conform to patents laws of other countries.
Yes--they want to "harmonize" our laws, according to Berman's introductory comments in the house. It looks like a severe weakening of patent protection for individual inventors to me.
H.R.1908
Title: To amend title 35, United States Code, to provide for patent reform.
Sponsor: Rep Berman, Howard L. [CA-28] (introduced 4/18/2007)
THE PATENT REFORM ACT OF 2007 — (Extensions of Remarks - April 18, 2007)
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-—SPEECH OF HON. HOWARD L. BERMAN OF CALIFORNIA
IN THE HOUSE OF REPRESENTATIVES
WEDNESDAY, APRIL 18, 2007
Mr. BERMAN. Madam Speaker, today, I introduce ``The Patent Reform Act of 2007’’, a product of both bicameral and bipartisan effort to reform the patent system to meet the challenges of the 21st century. I would especially like to thank Senator LEAHY for his dedication to addressing many of the inadequacies in our current patent system. Furthermore, I appreciate my past and present partners in this area—especially Congressman RICK BOUCHER, with whom I’ve worked closely to increase patent quality for the past several years, and Congressman LAMAR SMITH, who championed this issue last Congress.
Introduction of this legislation follows a number of recent judicial opinions and many hearings conducted over the past several years by the Subcommittee on Intellectual Property which ascertained that the current patent system is flawed. Over the last 5 years, there have been numerous attempts to define the
[Page: E774] GPO’s PDFchallenges facing the patent system today. Among the most notable contributions to this discourse are the Patent and Trademark Office’s Twenty-First Century Strategic Plan, the Federal Trade Commission’s report entitled ``To Promote Innovation: The Proper Balance of Competition and Patent Law and Policy,’’ The National Research Council’s compilation of articles ``A Patent System for the 21st Century’’ and the book titled ``Innovation and Its Discontents,’’ authored by two respected economists. These studies offer a number of recommendations for increasing patent quality and ensuring that patent protection promotes—rather than inhibits—economic growth and scientific progress. Consistent with the goals and recommendations of those reports, and based on past patent bills, the Patent Reform Act contains a number of provisions designed to improve patent quality, deter abusive practices by patent holders, provide meaningful, low-cost alternatives to litigation for challenging the patent validity and harmonize U.S. patent law with the patent law of most other countries.
Past attempts at achieving comprehensive patent reform have met with stiff resistance. However, the time to reform the system is way past due. The New York Times has noted, ``Something has gone very wrong with the United States patent system.’’ The Financial Times has stated, ``It is time to restore the balance of power in U.S. patent law.’’ Therefore, we are introducing this bill as a first step to restoring the necessary balance in our patent system.
I firmly believe that robust patent protection promotes innovation. However, I also believe that the patent system is strongest, and that incentives for innovation are greatest, when patents protect only those inventions that are truly innovative. When functioning properly, the patent system should encourage and enable inventors to push the boundaries of knowledge and possibility. If the patent system allows questionable patents to issue and does not provide adequate safeguards against patent abuses, the system may stifle innovation and interfere with competitive market forces.
This bill represents our latest perspectives in an ongoing discussion about legislative solutions to patent quality concerns, patent litigation abuses, and the need for harmonization. We have considered the multitude of comments received concerning prior patent bills and over the course of numerous negotiations between the parties. We acknowledge that the problems are difficult and, as yet, without agreed-upon solutions. It is clear, however, that introduction and movement of legislation will focus and advance the discussion. It is also clear that the problems with the patent system have been exacerbated by a decrease in patent quality and an increase in litigation abuses. With or without consensus, Congress must act to address these problems. Thus, we introduce this bill with the intent of passage in the 110th Congress.
There are a number of issues which we have chosen not to include in the bill, primarily because we hope they will be addressed without the need for legislation. For instance, the Supreme Court recently resolved questions regarding injunctive relief. In that category, we include amendments to Section 271(f) and the obviousness standard as both issues are currently before the Supreme Court. If either of those issues are left unresolved, Congress may need to reevaluate whether to include them in a patent bill.
The bill does contain a number of initiatives designed to harmonize U.S. law with the law of other countries, improve patent quality and limit litigation abuses, thereby ensuring that patents remain positive forces in the marketplace. I will highlight a number of them below.
Section 3 converts the U.S. patent system from a first-to-invent system to a first-inventor-to file system. The U.S. is alone in granting priority to the first inventor as opposed to the first inventor to file a patent. There is consensus from many global companies and academics that the switch in priority mechanisms provide the U.S. with greater international consistency, and eliminate the costly and complex interference proceedings that are currently necessary to establish the right to obtain a patent. While cognizant of the enormity of the change that a ``first inventor to file’’ system may have on many small inventors and universities, we have maintained a grace period to substantially reduce the negative impact to these inventors. However, we need to maintain an open dialogue to ensure that the patent system will continue to foster innovation from individual inventors.
Section 5 addresses both the topic of apportionment and wilfullness. Patents are provided to promote innovation by allowing owners to realize the value of their inventions. However, many have argued that recent case law has tilted towards overcompensation, which works against the primary goal of promoting innovation. ``Excessive damages awards effectively allow inventors to obtain proprietary interests in products they have not invented, promote patent speculation and litigation and place unreasonable royalty burdens upon producers of high technology products. Such consequences may ultimately slow the process of technological innovation and dissemination the patent system is intended to foster.’’ While preserving the right of patent owners to receive appropriate damages, the bill seeks to provide a formula to ensure that the patent owner be rewarded for the actual value of the patented invention.
Furthermore, this Section seeks to curb the unfair incentives that currently exist for patent holders who indiscriminately issue licensing letters. Patent proprietors frequently assert that another party is using a patented invention and for a fee, offer to grant a license for such use. Current law does little to dissuade patent holders from mailing such licensing letters. Frequently these letters are vague and fail to identify the particular claims of the patent being infringed and the manner of infringement. In fact, the law tacitly promotes this strategy since a recipient, upon notice of the letter, may be liable for treble damages as a willful infringer. Section 5 addresses this situation by ensuring that recipients of licensing letters will not be exposed to liability for willful infringement unless the letter clearly states the acts that allegedly constitute infringement and identifies each particular patent claim to the product or process that the patent owner believes is being infringed.
Section 6 provides a needed change to the inter-partes reexamination procedure. Unfortunately, the inter-partes reexamination procedure is rarely used, but the changes we introduce should encourage third parties to make better use of the opportunity to request that the PTO Director reexamine an issued patent of questionable validity. Primarily though, Section 6 creates a post-grant opposition procedure. In an effort to address the questionable quality of patents issued by the USPTO, the bill establishes a check on the quality of a patent immediately after it is granted, or in circumstances where a party can establish significant economic harm resulting from assertion of the patent. The post-grant procedure is designed to allow parties to challenge a granted patent through a expeditious and less costly alternative to litigation. Many have expressed concerns about the possibility of harassment of patent owners who want to assume quiet title over their invention. In an effort to address those concerns, the bill prohibits multiple bites at the apple by restricting the cancellation petitioner to opt for only one window one time. The bill also requires that the Director prescribe regulations for sanctions for abuse of process or harassment. During the legislative process we will likely provide more statutory guidance for the Director in establishing regulations guiding the post-grant opposition. We appreciate that this is an extremely complicated and new procedure and therefore we look forward to working with various industries to ensure the proceeding is balanced, fair and efficient. Part of the goal of this Section is to also address the quality problem in patents which have already been issued and are at the heart of the patent reform discussion.
Section 9 permits third parties a limited amount of time to submit to the USPTO prior art references relevant to a pending patent application. Allowing such third party submissions will increase the likelihood that examiners have available to them the most relevant ``prior art,’’ thereby constituting a front-end solution for strengthening patent quality.
The bill also addresses changes to venue to address extensive forum shopping, provides for interlocutory appeals to help clarify the claims of the inventions early in the litigation process, establishes regulatory authority for the USPTO to parallel the authority of other agencies, and expands prior user rights to accommodate in part for the switch to first-inventor-to-file.
When considering these provisions together, we believe that this bill provides a balanced package of reforms that successfully accounts for the interests of numerous stakeholders in the patent system, including individual inventors, small enterprises, universities, and the varied industry groups, and that are necessary for the patent system to achieve its primary goal of advancing innovation.
This bill is the latest iteration of a process started many years ago. Deserving of thanks are the many constitutional scholars, policy advocates, private parties, and government agencies that have and continue to contribute their time, thoughts, and drafting talents to this effort, including, of course, the legislative counsel. I am pleased that finally, we have a critical mass of interested parties who understand the need for reform.
Though we developed this bill in a highly deliberative manner, using many past bills as the foundation for the provisions, I do not want to suggest that it is a ``perfect’’ solution. This bill is merely the first step in a process. Thus, I remain open to suggestions for amending the language to improve its efficacy or rectify any unintended consequences. Furthermore, there are a host of issues or varied approaches to
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patent reform which are likely not even covered by the bill but may be considered at a later time. I hope to work with the many cosponsors and the diverse industry, university and inventor groups to reach further consensus as we move this bill towards final passage.
As I have said previously, ``The bottom line in this is there should be no question that the U.S. patent system produces high quality patents. Since questions have been raised about whether this is the case, the responsibility of Congress is to take a close look at the functioning of the patent system.’’ High patent quality is essential to continued innovation. Litigation abuses, especially ones committed by those which thrive on low quality patents, impede the promotion of the progress of science and the useful arts. Thus, we must act quickly during the 110th Congress to maintain the integrity of the patent system.
Correction; their=there. (I know better!)
I don't know about the rest, but I like this part. It could help nip the most egregious patent abuse in the bud.
That’s what I am thinking and could possibly open to all kinds of bad things.
http://www.eagleforum.org/psr/2007/aug07/psraug07.html
American Innovators Beware
— by Rep. Dana Rohrabacher (R-CA), senior Member on the House Science and Technology Committee
The electronics industry does not want to pay royalties. That’s really the bottom line. We’ve seen this from the time RCA’s David Sarnoff ripped off Philo Farnsworth over the patent right to the television picture tube, a fight that went all the way to the Supreme Court. In a tribute to American justice, Philo Farnsworth, the personification of the little guy, won over a corporate Goliath headed by a bully.
There is a statue of Farnsworth in our nation’s Capitol. Congress shouldn’t let the would-be technology thieves of our day change the law so the Philo Farnsworths of our era will be smashed into submission by current and future big guys and bullies. If we change the rules like that, the American spirit of innovation will evaporate, and America, not just nerdy inventors, will lose, big time.
http://www.eagleforum.org/psr/2007/aug07/psraug07.html
Economic Integration of Our Patent System
In extraordinary Senate-House coordination, the two Judiciary committees in the same week in July voted out a bill (S.1145 and H.R.1908) which, if it becomes law, will spell the end of America’s world leadership in innovation. Called the Patent Reform Act, it is a direct attack on the unique, successful American patent system created by the U.S. Constitution.
As we’ve learned with “comprehensive immigration reform,” we should all be on guard any time politicians patronize us with pompous talk about “reform” or “comprehensive.” The so-called Patent Reform Act of 2007 is not reform at all; in one package, it betrays both individual rights and U.S. sovereignty.
It’s no accident that the United States has produced the overwhelming majority of the world’s great inventions. It’s because the Founding Fathers invented the world’s best patent system, which was a brilliant stroke of inspired originality when the Constitution was written in 1787, and still is stunningly unique in the world.
The uniqueness of the American system is that “inventors” are granted “the exclusive right” to their inventions “for limited times” (usually about 17 years) after which the invention goes into the public domain. Exclusivity was assured because our courts would uphold the inventor’s patent against infringers, and the U.S. Patent Office would not disclose any information in a patent application unless and until the legal protection of a patent was granted.
So, prior to 1999, the U.S. Patent Office was required to keep secret the contents of a patent application until a patent was granted, and to return the application in secret to the inventor if a patent was not granted. That protected the legal rights of the inventor, who could then go back to the drawing board to perfect his invention and try again.
A mischievous congressional “reform” in 1999 authorized the U.S. Patent Office to shift to the Japanese and European practice of publishing patent applications 18 months after filing whether or not a decision is yet made on granting a patent. “Publish” means posting online on the internet.
The U.S. Patent Office reports that it is now taking an average of 31 months to grant a patent! So, when the Patent Office publishes (i.e., posts online) a patent application before a patent is granted, this gives patent pirates all over the world an average of 13 months (31 minus 18) to study detailed descriptions of virtually all U.S. patent applications, to steal and adapt these new American ideas to their own purposes, and to go into production.
Foreign governments, foreign corporations, and patent pirates are thus able to systematically “mine” U.S. patent applications and steal American-owned inventions.
By 2006, the U.S. Patent Office had placed 1,271,000 patent applications on the internet, giving access to anyone anywhere in the world. This foolish practice created a gold mine for China, Russia and India to steal U.S. innovations and get to market quickly.
Chinese pirates don’t roam the high seas looking for booty but sit at their computers, scan the internet, and steal the details of U.S. inventions that the U.S. Patent Office loads online. This practice has become China’s R&D program, and it is even more efficient than China’s network of industrial and military spies.
The unconscionable delay in processing patent applications resulted when Congress diverted the fees paid by inventors into pork and other pet projects. That meant the Patent Office could not hire the additional examiners it needed to process the rising number of domestic and foreign patent applications, and so a massive backload built up.
What recourse does the inventor have? The 1999 “reform” law allows a patent application to be exempt from the publication requirement if the inventor agrees not to file a patent application in another country. But the default procedure is to publish.
If the other country infringes on the U.S. inventor’s rights, the U.S. inventor must file his lawsuit in that foreign country. Other countries do not respect inventors’ rights granted by the U.S. Patent Office, and China is a notorious thief of U.S. intellectual property.
The 2007 Patent “Reform” bill would delete this exemption and require publication of all patent applications 18 months after filing even though a decision has not yet been made on granting a patent. The 2007 Patent “Reform” bill is a fraud because it does nothing to require or induce other countries to respect U.S. patents and because it makes U.S. inventors even more vulnerable to theft of their property.
U.S. policy has always been to grant a patent to the first one who actually invents something. But the proposed Patent “Reform” Act, sponsored by Senators Patrick Leahy (D-VT) and Orrin Hatch (R-UT) and Reps. Howard Berman (D-CA) and Lamar Smith (R-TX), would further reduce inventors’ rights by replacing our unique and successful “first to invent” system with the foreign “first to file” system.
The U.S. now gives priority to the first one who actually invents something rather than to the first to file papers. The change to “first to file” would create a race to the Patent Office and would severely disadvantage the small and independent inventors who lack the resources of the big corporations.
First-to-file would be a windfall to the mega-corporations. First-to-file would invite an avalanche of applications from the big companies that have the resources to grind out multiple filings, and the small inventor would be lost in the shuffle.
The new Patent “Reform” bill offers yet another way for patent pirates to steal our technology. It’s called post-grant review: a plan to make it easier to challenge patents during the entire life of the patent.
Still another provision of the new Patent “Reform” bill would shift decision-making about damages for patent infringement in such a way that the patent holders would get virtually no payment from infringers. This provision would increase litigation and limit the ability of independent inventors and small companies to enforce their rights or to win just compensation from those who infringe their rights.
The new Patent “Reform” bill would also transfer unprecedented rule-making authority to the Patent office. That’s an abdication of congressional responsibility. The inevitable result would be the politicizing of the Patent Office.
Add it all up, and it is clear that the new Patent “Reform” bill is a big attack on the constitutional property rights of individual inventors and small enterprises, the very kind of entrepreneurs who give us our most important innovations. About a third of all U.S.-origin patent applications are filed by individual inventors, small companies, universities, and non-profit groups.
The common thread in the changes to be made by the new Patent bill is that they favor big companies like Microsoft and hurt individual and small-entity inventors.
Microsoft has thousands of patents, and recently argued that the free GNU/Linux operating system infringes over 200 of them. Microsoft wants to be able to use its huge patent portfolio to intimidate potential competitors, and at the same time it wants it to be easier to knock out individual patents.
While the real goal of the Patent “Reform” bill is to advantage big corporations over small and small-entity inventors, the “world is flat” globalists hide behind the mantra of the alleged need for “harmonization” and “consistency” to level the U.S. patent system with other countries. In introducing the new bill, Rep. Berman said it will “harmonize U.S. patent law with the patent law of most other countries.” The explanation of the bill issued by Senator Leahy’s office states that the bill’s purpose is to eliminate “a lack of international consistency.”
But since the U.S. system produces more important inventions than the rest of the world combined, there is no reason to legislate “consistency” with inferior foreign policies.
If Congress wants to do something constructive for our patent system, Congress should reinstate the rule that the Patent Office may not publish a patent application until a patent is granted, and if it is denied the application must be returned to the inventor with his secrets intact.
Congress should also give back to the Patent Office the flow of fees paid by inventors, which Congress took away in 1999 to spend on other projects. Then the Patent Office can hire more examiners and reduce its backlog of 800,000 applications.
Congress should put trade penalties on Communist China until it stops its notorious business of stealing our intellectual property.
The U.S. patent system is the vital factor in the technological lead that gives us the edge over competitors and enemies. We must not let the globalists and the lobbyists for multinational corporations destroy it.
Interesting.
Patents are a form of private property and are a fundamental human right correctly enumerated in the Constitution. To weaken that protection is immoral.
I swear one more “Little Guy” reference by Rohrabacker and he would have actually turned into Huey Long, but the factual points of his opposition to the bill are valid.
If there anybody with the political stones that can stop this?
looks like a rich person can undo a little inventor’s patent.
Exactly.
bump
If the line blurs so that a new "architecture" is just an extension of possibilities of a previous one, just new coding, then this should not be patentable.
The whole concept is lame.
Software patents have proven to be almost exclusively defensive, with the exception of the vast number of Greenmailing vultures that carve up the leavings of Venture Capitalists at pennies per patent and go on litigation binges. What value do these suits provide?
Software is too ephemeral to benefit or provide benefit for protection that lasts a period equal to nearly four times its whole useful life.
For every Philo Farnsworth out there who might win against RCA big, there are 10,000 inventors who's ideas never see the light of day because of "patent" thickets that stop all but the "Big Boys" from playing due to million dollar cross-licensing fees that amount to a payoff to avoid being sued for doing obvious things.
The technical world should be able to challenge any Patent before it is issued, think of it as Open Source Patent Examination.
If no one can produce prior art or shoot down the claims then, this means the invention is truly new art and thus patentable. And, as the industry has had its chance to confront the patentability of the invention, the cost and ease of litigating the claims will become much less too.
Has this patent done anything other than prevent further advances for 2 decades in your art because of your claims or have you attempted to enforce this patent, or has this patent become part of some company's patent thicket that is cross-licensed away to the large industry players?
Its nice to have your name on a patent. Its an accomplishment, but past this novelty, what is this doing for development in the industry? Is this worth the cost of having things like clicking on a button on the screen causing a transaction (The one click patent) to occur being exclusive property of one company for 17 years?
I mis-counted my fingers. It’s been revenues in the nine-figure range.
And you are very right about the sadness. As for examples, mmm.. well Linux itself is threatened by IBM's patents, that are just held at bay by promises that can be taken back in a moment.
I have worked 10 years on a software project with all sorts of cool technology. This is a game where getting started earlier is better.
But, sir, imagine a world where AT&T could have patented all of the key aspects of Unix. Then come at me with my swallowing a fool's premise. Would Microsoft exist? Apple? If PARC had been able to hold patent on GUI?
Is that enough examples? Do you need more?
Sounds like you are talking to a teenager.
My point: AT&T could not have patented Unix back then; it just wasn't done. Bad example, then.
You have completely missed my point, because I asked, what if they had been able to. And you are talking as if it was a bad thing that PARC hadn't defended GUI better. If they had, rewind the last 20 years of Computer interface development. And, now you claim responsibility for this horror and for no real personal gain. Mmm. Well done.
Excellent work! We all need to call and push for our Congressmen/women to vote AGAINST this patent destroying law, initiated by, of course, a Dem. Could Mr. Hsu’s Chicom money have been used to purchase some votes in favor of this measure which would open the doors to the Chicoms and others to steal the innovations and patented processes, inventions, etc for their own use in order to defeat us economically and militarily????
Look, I don't go out of my way to insult you or misrepresent what you are saying, or treat you like a child.
I am an Engineer with 25 years of experience at this, and you are just lost in a corner.
Not a trap, just a distortion. The difference between patents of art and patents of concept are at the core of this, and you keep missing it. Which is ok. Software patents do not patent art, they patent broad concepts in their claims so that whole classes of expression are engulfed. You are so concentrated on the micro scale and the near hard that you miss that folks could have patented concepts like icons and the like in that period.
Its like someone being able to patent "Boy Meets Girl" in literature.
The real outcome of the patenting of software has been the open source movement. Which to me is as much a blight as it is a blessing.
If patent protection had been available to AT&T for Unix , Linux wouldn't exist, nor would OS X and the Internet would have been delayed for years. If PARC had been able to patent the GUI interface, Microsoft and Apple wouldn't have been here in any form like we see them.
Apple was unable to restrain Windows with their "look and feel" suit because of the PARC origins and their inability to patent these elements. It didn't stop Apple from developing their software, but Apple would have insisted that others not cross this line if they had been able to control this, but the speed of innovation in software has been slowed to a crawl and the number of dynamic new software firms has dwindled with the exception of open source houses.
My point all along has been that 17 years is an eternity for software. For hard technologies, it often takes a whole generation, 20 years, to get fully to market, but a software concept just like other written expression can sweep across the world in the space of a few short years. And then, a few years later, it becomes completely obsolete.
There is a reason that Unix/Linux has become the basis for almost all computing. And, its not because it was the very best possible OS.
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