Patent reform advocates are launching a ‘super-coalition’ to whack patent trolls(washingtonpost.com)
washingtonpost.com
Patent reform advocates are launching a ‘super-coalition’ to whack patent trolls
http://www.washingtonpost.com/blogs/the-switch/wp/2015/01/15/patent-reform-advocates-are-launching-a-super-coalition-to-whack-patent-trolls/
5 comments
The line between patentable and not patentable inventions is very fuzzy, and always seems to drift toward allowing a little more each year.
Fun thought experiment:
What if the patent office was only allowed to issue a certain number of patents per year, and was directed to pick the most worthy ones.
Fun thought experiment:
What if the patent office was only allowed to issue a certain number of patents per year, and was directed to pick the most worthy ones.
The line between patentable and not patentable inventions is very fuzzy, and always seems to drift toward allowing a little more each year.
That hasn't been true for several years, and the PTO has been very tough on software patents since the Supreme Court decided Alice v. CLS. The PTO is currently rejecting applications that fail the "machine or transformation of matter" test, although sometimes they can be argued out of a rejection. The Alice decision is rather unclear, which annoys everybody.
The "patent troll" problem isn't that big. The EFF's data indicate that almost all the bulk infringement claims come from three lawyers in the Eastern District of Texas.
That hasn't been true for several years, and the PTO has been very tough on software patents since the Supreme Court decided Alice v. CLS. The PTO is currently rejecting applications that fail the "machine or transformation of matter" test, although sometimes they can be argued out of a rejection. The Alice decision is rather unclear, which annoys everybody.
The "patent troll" problem isn't that big. The EFF's data indicate that almost all the bulk infringement claims come from three lawyers in the Eastern District of Texas.
Of course, every development also has its counter-development -- specially when a big court gives new guidelines. Everybody (the examiners, people who think about the system and judges) can see, that the system is overstretched. So a reaction was very much necessary.
But there are strong forces, that are pulling the system into the wrong direction. Big corporations, patent lawyers and investors want the overstretched system, because it is good for their profit.
It is good for dinosaur corporations that want to defend their "claim" against smaller and more agile competitors.
But there are strong forces, that are pulling the system into the wrong direction. Big corporations, patent lawyers and investors want the overstretched system, because it is good for their profit.
It is good for dinosaur corporations that want to defend their "claim" against smaller and more agile competitors.
The US patent office is paid by the patents it grants. So this idea will never be realized ...
Also the numbers of patents are presented every year to prove, how grand the nation is. Nobody wants to spoil that.
(BTW: That would be a real patent reform)
Also the numbers of patents are presented every year to prove, how grand the nation is. Nobody wants to spoil that.
(BTW: That would be a real patent reform)
> The US patent office is paid by the patents it grants.
Not exactly, the USPTO is funded by the patents it examines and keeps active (maintenance fees). Issuance fees are actually small compared to the rest of the fees involved in examination. Additionally an issuance happens only once, but rejections are unbounded. If making money was an incentive, they'd do much better by repeatedly rejecting applications and forcing applicants to keep paying for continued examination rather than issuing them.
Not exactly, the USPTO is funded by the patents it examines and keeps active (maintenance fees). Issuance fees are actually small compared to the rest of the fees involved in examination. Additionally an issuance happens only once, but rejections are unbounded. If making money was an incentive, they'd do much better by repeatedly rejecting applications and forcing applicants to keep paying for continued examination rather than issuing them.
Ok, I did not dive to much in the detail.
But I don't think, that repeated rejections would make the patent office happier. First of all, they would create much (political) pressure from the big corporations and second if they reject to much, the number of patent applications would decrease.
Third, they would cash in less maintenance fees.
But I don't think, that repeated rejections would make the patent office happier. First of all, they would create much (political) pressure from the big corporations and second if they reject to much, the number of patent applications would decrease.
Third, they would cash in less maintenance fees.
There actually was an unofficial policy of "reject everything" instituted by the Director of the PTO during the Bush era in a misguided attempt to bolster quality. What happened was not that people stopped applying, but the patent backlog grew huge. Sure, some gave up, but by and large most kept trying.
Maintenance fees are quite a bit higher, but they are bounded (only 3 times over the life of a patent). Also, they are not guaranteed, because often a patentee finds out that the patent is not worth much due to the vagaries of the market and abandons it. However, it would be interesting to model this as a maximization problem given enough statistics about the probabilities of applying, continuing prosecution and abandonment...
In any case, this is all academic because the PTO gets to keep only flat amount of the money it brings in. Everything extra goes back to the Fed. Money is really not an incentive for the PTO.
Maintenance fees are quite a bit higher, but they are bounded (only 3 times over the life of a patent). Also, they are not guaranteed, because often a patentee finds out that the patent is not worth much due to the vagaries of the market and abandons it. However, it would be interesting to model this as a maximization problem given enough statistics about the probabilities of applying, continuing prosecution and abandonment...
In any case, this is all academic because the PTO gets to keep only flat amount of the money it brings in. Everything extra goes back to the Fed. Money is really not an incentive for the PTO.
that's an interesting thought. it could be done monthly or quarterly as well.
Watch, the trial lawyers association and the trolls will bring out the big bucks too. Harry Reid killed the last patent reform bill based on a call from the trial lawyers association. The GOP has no love for the lawyers so we may see some progress now.
So the largely liberal Silicon Valley may actually see some tangible economic benefits from the GOP controlling Congress.
So the largely liberal Silicon Valley may actually see some tangible economic benefits from the GOP controlling Congress.
There is also the possibility that judicial decisions (such as Alice) have created enough change that reform is less necessary. See this interview or Mark Lemley, a scholar who is often seen as a critic of the patent system: http://www.iam-magazine.com/Blog/Detail.aspx?g=28572386-7cf9...
Whether judicial activity as opposed to congress should set the de facto policy is a good idea or not, I cannot say.
Whether judicial activity as opposed to congress should set the de facto policy is a good idea or not, I cannot say.
One of the challenges of patent reform is that there is a huge advocate of strong patent systems in pharma, and they are good at lobbying.
They care because patent protection is how they recoup the costs of FDA trials (which are north of $100 million per drug). Reforming patent law would become easier if they were given what they need in the form of an alternate form of temporary monopoly for having paid for the FDA trials.
They care because patent protection is how they recoup the costs of FDA trials (which are north of $100 million per drug). Reforming patent law would become easier if they were given what they need in the form of an alternate form of temporary monopoly for having paid for the FDA trials.
What if the FDA enforced a rule where only one company can have an active trial? Then the first to file shifts to the FDA and the bearer has a monopoly for a few years, including the lead time before another company can complete a subsequent trial.
I'm perfectly happy with chopping down the patent law mess one large portion at a time if need be.
Trying to do it all at once is almost guaranteed to fail. In the present political environment it's usually better to start by taking legs out from the under the table one at a time.
The obvious solution is to exclude pharma from the patent legislation wars for now. Once a big portion of the economy is unhindered from patent trolls, then pharma can be re-examined.
If all that happened is that we free the radical majority of the economy from patent trolls, but were still left with pharma patents, then so be it, it'd still be a drastic improvement from where we're standing.
Trying to do it all at once is almost guaranteed to fail. In the present political environment it's usually better to start by taking legs out from the under the table one at a time.
The obvious solution is to exclude pharma from the patent legislation wars for now. Once a big portion of the economy is unhindered from patent trolls, then pharma can be re-examined.
If all that happened is that we free the radical majority of the economy from patent trolls, but were still left with pharma patents, then so be it, it'd still be a drastic improvement from where we're standing.
A pragmatic approach would be to simply leave pharma alone, at least initially, as they actually need strong incentive for R&D.
Or to socialize drug discovery using a competitive scheme akin to the XPrize with the reward being a free ticket through clinical trials and safety development (among other things).
It's not just patent trolls (shell firms with no products of their own) that are the plague on this world. There are also the extortionists (IBM, I'm looking at you), and the litigants (Apple - threatening to kill VP8 by using MPEG-LA)!
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For me, patent trolls are only a symptom and not the real problem. Patent trolls are a symptom of an overstretched patent system, where everybody (with enough money) can patent anything (also stupid and trivial stuff).
Where 50 years ago, one patent was made, 10 or 100 patents are made to secure any detail of the "invention". And many, many patents are made, that would have not have the smallest chance of been patented.
Remember: The patent application for the Z3 (one of the first computers) was denied. [1]
The problem is: How to distinguish small inventors (for which the patent system in former days should give security) which do not have the capital to produce their invention from so called "patent trolls". My fear is, that the legislation will fail to make a good enough distinction.
For big corporations it is a good thing to redirect the public agenda from the patent system to the smaller topic of "patent trolls". Big corporations that make many thousands patents a year, are also a part of the problem and not "patent trolls" alone.
[1] http://portal.unesco.org/ci/en/file_download.php/875fd251dc5... See Abstract