Atlas Puked...
Posted on 09/07/2007 4:36:44 PM PDT by indthkr
The U.S. House of Representatives passed Friday (Sept. 7) a sweeping and controversial patent reform bill. HR1908 aims to raise the quality of patents and reduce patent litigation and abuse. Sharply divided reactions came quickly in the wake of the 219 to 176 vote that was led by Democrats. A companion bill in the Senate has yet to be brought up for a vote. President George W. Bush might exercise a veto on any final legislation that does not meet administration requirements set out in a statement released earlier today.
Similar bills have been proposed in several past legislative sessions but were shot down by debates between various industries and groups. The current bill sponsored by Howard L. Berman (D-Calif.) reflects the directions of many past proposals.
HR1908 calls for the U.S. to shift from its first-to-invent to a first-to-file policy more in line with patent offices around the world.
The bill also aims to set limits on damages by tying them to the value of the patent itself, not including any prior art on which it is based. It also seeks to narrow the definition of willful infringement to cases where it can be demonstrated an infringer knew of the patent and used it anyway. Willful infringement can pay treble damages.
The bill also would limit patent lawsuit venues to courts in jurisdictions where the infringement took place or where the parties do business. Finally, it would define a new and streamlined process for re-examining patents when they are challenged.
The vote quickly drew a mix of reactions for and against the move.
The IEEE-USA came out strongly opposed to the bill, saying it would weaken the patent system and thereby harm an already bad job market for US engineers. In letters to Congressional leaders in August, the group said the government needs to improve the management and operation of the US Patent and Trademark Office, but generally leave the existing patent system alone.
The group also compiled a list of about 200 generally medium-sized companies and universities who opposed the bill. The list included some large concerns such as the AFL-CIO, the American Intellectual Property Lawyers Association, General Electric, Medtronic and Texas Instruments.
"I fundamentally believe this reform bill is wrong," said Keith D. Grzelak, chairman of the IEEE-USA's intellectual property committee. "The patent system has been working fine for 200 years especially for small growing companies, the startup companies where a lot of the new hiring will be for engineers in this country," added Grzelak who is also an IP lawyer with the Spokane firm of Wells St. John P.S.
Grzelak said the first-to-file provision would benefit big companies over startups and individual inventors. "If it's a race to the patent office, the big behemoths will win," he said.
The move to limit damages and create a new, easier method to challenge existing patents will also weaken the system, he added. "The new system brings a lot of debate about the value of patents and that value will be diminished," Grzelak said.
Grzelak called for government to replace the existing political appointees managing the USPTO with IP law specialists. He also the patent office needs to hire more seasoned technologists to assure the quality of patents it grants.
Grzelak lambasted the patent office as inefficient. For example he noted that the patent office does not allow for online searches of patents granted before 1976, but Google has been able to create such a service.
Finally the IEEE-USA representative lashed out at Congress for a patent reform process that he said was too heavily influenced by lobbyists in a handful of large companies.
"This bill has not been well vetted, It's been well paid for," he said. "This legislation was sponsored by a sliver of companies looking for a tactical advantage. There's a lot of gamesmanship going on," he added.
In a speech earlier this year on the House floor Representative Dana Rohrabacher (Rep., Calif.) called the bill the "Steal American Technologies Act" because it would mandate the publication of all patent applications 18 months after the patent is applied for whether or not the patent has been granted.
"This legislation will facilitate China, India, and other countries in their efforts to steal our creative genius" he said.
Perhaps most damning was a statement of opposition from the administration released through the patent office the day the bill went to the floor for a vote. The nearly 900-word statement said the administration supports patent reform but disagreed with at least seven aspects of HR1908.
Specifically, the administration said the bill puts too many limits on a court's discretion assessing damages in patent infringement cases. In addition, a recent federal Court of Appeals decision involving disk-drive maker Seagate Technology set a precedent for narrowing the use of willful infringement to claim treble damages, making that part of the bill unnecessary, the administration argued.
The statement said the administration broadly supports the idea of moving to a first-to-file system and setting up a post-grant review process as low-cost alternative to litigation of existing patents. However on both scores the administration faulted HR1908 for some of the details of how it would enact those moves.
The statement said the administration would work with Congress on addressing its concerns in future legislation. However it did not explain why the administration failed to engage with lawmakers since the bill was introduced in April.
A representative of the 800-member Software and Information Industry Association praised the passage of the bill. "We have been working with Congress through many legislative sessions to get a bill passed which would make the patent system more effective," said a group spokesman.
Both the patent office and the legal system have been under increasing strain due to the number of patent applications and patent lawsuits. The US Patent and Trademark Office is said to have a backlog of as many as 750,000 patent applications.
The number of patent lawsuits settled in or disposed by federal district courts doubled between 1988 and 2001, from 1,200 to nearly 2,400, according to a report from the National Research Council. Meanwhile, the number of patent attorneys in the United States rose 39 percent, more than six times the growth rate overall for attorneys, the report found.
"High patent quality is essential to continued innovation," said Rep. Berman when the bill was introduced in April. "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. This is why we must act quickly -- to maintain the integrity of the patent system," he added.
A companion bill in the Senate (S1145), sponsored by Senator Patrick Leahy (D-Vt.) was referred to the Judiciary Committee in July and has yet to be scheduled for a Senate vote.
"If the House bill passes, that would be a big impetus to set a vote for the Senate bill," said an aide to Rep. Berman.
Never underestimate the ability of our federal government to fix a problem by creating one hundred more.
The Microsoft protection act.
Atlas Puked...
Please explain.
The SIIA supports this, which seems to be made up of a bunch of large software/technology companies (Sun, IBM, Adobe, etc.), but Microsoft is *not* on the list of SIIA members.
All of em’. All the big ones support this, Microsoft is just the biggest. They have more resources and acumen to “file first”, more lawyers, more money, this just makes it easier for them to swat away pesky victims.
It does appear that the BSA supports this, of which Microsoft is a member.
I’m not sure what to think. Software and process patents are a problem which, IMO, retard progress rather than encourage it. I’m not crazy about the “file first” idea. On the other hand, I’ve had to deal in the past with patent trolls, and there does need to be some reform there. And I really like the idea of making post-grant review easy and open to anyone. That is badly needed, due to the tendency of the Patent Office to grant ridiculously obvious and vague patents, as well as patents with loads of prior art.
I’m thinking this bill goes a lot further then protecting Microsoft.I’m thinking it’s going to make it even easier for foreign competition to rip off American innovation,like they haven’t ripped us off enough even before this piece of legislative garbage !!!
Sounds good to me. I wish you were running it!
There is no such thing as a "backlog" ~ there's just work currently on hand and ready to be processed.
I wish they'd quit using this term ~ the implication is that the only way to get up to date efficiently would be to handle 750,000 applications "instantly" with all the patent examiners ready to come in to work next Monday with nothing to do except sit around waiting on the next application.
That's just nonsense. Every seasoned bureaucrat in any sort of regulatory authority (which is all the Patent Office is) knows that applications come in, are dealt with according to consistent internal procedures, and are, at any one time, in some state of completion. Some patents are undoubtedly more complex or difficulty to evaluate, and some are easy, and will take less time. Which should be done first?
Our solution to our case "backlog" problem was to cease using the term or reporting on its status to higher management. This enabled us to spend more time working and less time discussing how much work there was. Eventually our caseloads came down, we became much more efficient, and the customers achieved satori in real time (except for the poor creeps we ruled owed us more money ~ they had to pay).
I strongly disagree with the "first filed" standard in patent applications. The "first to invent" should continue to be the standard if for no other reason than the fact that industrial and research espionage is a very real phenomenon.
The Democrats are tempting the less honest folks out there to engage in even more espionage. Of course, the Dems have always valued dishonesty over honesty, indolence over hard work, and death over life.
Three more reasons to vote those suckers OUT OF OFFICE.
If the Libs are for it, I’m against it.
Not too hard.
HR1908 calls for the U.S. to shift from its first-to-invent to a first-to-file policy more in line with patent offices around the world.
Look at the clutter in patent offices. People scrambling to first disclose half-baked ideas in hopes that someone else will actually do the work and then pay them royalties.
Yes, I have World, EU and US Patents, and have seen the junk that comes up in searches, as it is.
Been there done that, retired in disgust.
Care to idetify the body that issued you a “World patent”?
World Intellectual Property Organization.
The applicant selects countries, and one application is processed in the designated countries. Most people do not bother with China, since patents and Trademarks are treated with contempt, and one does not wish to fly their $300/hour lawyers back and forth in futile pursuits.
WIPO was established by the WIPO Convention in 1967 with a mandate from its Member States to promote the protection of IP throughout the world through cooperation among states and in collaboration with other international organizations. Its headquarters are in Geneva, Switzerland.
This reform is BS.
Our country has always used the First to Invent principle.
First to File is just a lame lazy person’s European contrivance that favors companies with large legal staffs.
I’ve put together a dozen patents of more and work for a 25 person company. It takes me 4 to 6 weeks to get everything done, because I also have to keep up with my regular work.
A company with a permanent IP staff can do in 1 or 2 weeks what I need 4 to 6 for.
This bill needs defeating or everything we invent will become the property of a few big companies.
I know what WIPO is. It does not grant world patents.
The number is preceeded with 'WO". Example: WO 2004087718, a chemical patent with designated countries.
Press release based on a World Application:
"Apple files for world patent on customizable iPhone interface"
" Apple has applied for a patent with the World Intellectual Property Organization covering a touchscreen interface that lets users reshuffle and reposition icons using nothing more than their fingers.
The World Intellectual Property Organization does not and cannot grant patents to anyone. You cannot get a “world patent.” You cannot enforce a “world patent” against anyone. The WIPO only allows you to file PCT applications and never grants patents to anyone. No one has ever been sued for violating a “world patent.”
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