Patent Reform: Bloggers Take Sides

Yesterday I posted a note discussing special interest groups in the patent reform debate.  I noted three major coalitions forming:

1) Large high-tech / software companies, including Microsoft and Intel, with the goal of reducing the strength of patents. These companies have major patent portfolios, but fear small companies and individuals that may develop blocking patents.  This group is also garnering support from denouncers of software patents.

2) Other large patent holders, including Big Pharma, with the goal of strengthening and streamlining patents by changing to a first-to-file system and encouraging a post-grant opposition.

3) Start-ups and individual inventors, with the goal of keeping the status quo.

I received a few of great responses from patent bloggers:

  • [Link] Russ Krajec correctly notes the irony in Microsoft taking the same position as the FFII. “FFII and their ilk have tirelessly protested, rallying their troops by proclaiming that the big software companies will exert their patents to harm the small companies. When the truth is uncovered, the big companies are actually intimidated by the small companies, not the other way around.”
  • [Link] Stephen Nipper takes issue with my interest group #3 — Steve notes that “small entities in general support reformations to the patent system in fact, small entities support a number of the current proposals.  HOWEVER, they will not support those ‘reforms’ proposed by large entities for no purpose other than to avoid liability/damages.”
  • [Link] Always able to bring parties together, Matt Buchanan notes that Steve is right and that I am right.  “Based on the record, it is clear that small entities, which includes individual inventors, adamantly oppose changing the injunctive relief provision of the patent law. . . . [However,] small entities have expressed support for many of the reform proposals that are on the table.”

15 thoughts on “Patent Reform: Bloggers Take Sides

  1. Wayne says: “You’ve missed the fourth category – those who say the system is broken, and that substantive penalties need to be imposed on those who misuse the system, including the Patent Office itself.”

    Patents which do not work have no commercial value and therefore do not harm anyone. They are not the subject of epic patent battles. No one is sued over them and they are not licensed.

    Conversely, those patents which are the subject of serious disputes are fought over because there are millions, sometimes hundred of millions of dollars at stake. In this case the scum bag infringer and the inventors may each expend tens of millions to promote their interests. Clearly these cases are important.

    The patent system is not broken. In fact, America’s patent system has fueled the greatest economic success story in the history of mankind. America’s patent system is the best in the world.

    Generally those arguing that the system is broken are those who wish to take others intellectual property without compensation. The software community, who often are selling their services as speakers, authors, and consultants rationalize that they should be able to socialize others inventions for their own profit are just as much crooks as the large companies who steal other’s intellectual property.

    The patent office is broken, mostly due to incompetent management. But it can be and must be fixed. There are two problems in the patent office. One is that the examining core is far too small to handle current patent caseloads and this is causing ever longer pendency which is stifling innovation.

    The answer to this is to increase the examining core by a factor of three fold over 3-4 years. This is doable.

    The second component of fixing the patent office is to do a management housecleaning. We need to oust USPTO managers who are suffering from terminal (for the agency) cases of the Peter Principle.

    Ronald J Riley, President
    Professional Inventors Alliance
    http://www.PIAUSA.org
    RJR”at”PIAUSA.org
    Change “at” to @
    RJR Direct # (202) 318-1595

  2. You’ve missed the fourth category – those who say the system is broken, and that substantive penalties need to be imposed on those who misuse the system, including the Patent Office itself.

    Take US Patent 6,129,774 – this is for a device that does not work – a prime exempler of a bad patent – a patent that shouldn’t have been issued (inventions have to work for a patent to be issued). This patent refers to:

    US Patent 5,580,359
    US Patent 5,249,552
    US Patent 5,048,499
    US Patent 4,930,483
    US Patent 4,715,325
    US Patent 4,611,615
    US Patent 4,429,665
    US Patent 4,050,426

    None of these devices work (and this is only a small sampling of the number of non-working patents that the US Patent Office has issued).

    When someone files a non-working Patent they should face punitive action. When the Patent Office issues a patent on a non-working device they should also face punitive action.

    It’s been claimed that “Intellectual Property”, in this case patents, are a valuable asset, and that the more patents awarded, the more value that companies gain. This is quite true – each of the patents above was licensed to a company, which THEN SOLD THE PATENTED ITEM IN THE MARKET PLACE. The award of a bogus patent is a license to print money. If the patent office awarded a patent the public believes that invention is real and has to work. Because of the Patent Office’s errors people have been ripped off. Never mind the sort of scumbags who file this sort of garbage.

    Cher has a wonderfull song – the chorus goes “Gypsies, tramps and thieves” and both the filers of this type of bogus patent, and the patent office qualify.

    Wayne

  3. This makes perfect sense. The first two categories can really be split between those companies that can effectively block competition through patents and those that can’t. MSFT and Intel are in the first – each large competitor has sufficient patents that they could block their competition, but the competition could in retribution, block them. The result, explicitly or implicitly, is cross-licensing.

    The second category though tend to have one or a very small number of closely related patents that effectively block all competition in their product. They typically can’t block their competition, and visa versa. So, for them, strong patents are a priority.

    But the first category is primarily worried about the third category – companies and inventors who don’t have a product that can be cross-blocked, etc. Since Riley has posted here, I should use his hero, Lemelson, who made hundreds of millions of dollars in licensing, wihtout ever bringing a product to market. So, no surprise. The potential targets of this want weak patents, while the potential beneficiaries want strong patents.

  4. Crustless wrapup

    Cleveland Scene magazine follows up on the reverses suffered by the Smucker company in its efforts to patent the crustless peanut-butter-and-jelly sandwich (Rebecca Meiser, “The Peanut Butter Jam”, Apr. 20)(see Apr. 9, 2005; Jan. 30…

  5. Like most conturies, Korea also have the guideline for Patent examiner of computer related invention since 1998.
    However, Korea doesn’t have a solution for drafting claims like Means plus function method of U.S.
    I think really important part is drafting claim for protection of S/W.
    Meanwhile, hindrance of powerful company for getting patent used to appear BM patent.

    Arnold Y. Chung
    Korean Patent Attorney
    Y.Chung IP & Law firm
    Representative
    Tel:82-2-562-0314
    Fax:82-2-562-1914

  6. Hasn’t anyone else noticed that the so-called “continuation practice” provisions aren’t limited to continuing applications? There is really no way to know what future applications might be dragged in under this provision when you file a patent application. It’s not limited to continuing applications, commonly-owned applications, or even applications with the same general inventive area. If the application has no relatives (i.e., if 123(a)(3) applies), it is not patentable if you (or, arguably, anyone else!) have earlier filed an application with a narrower “broadest claim,” or even if you do so afterwards within the next 12 months.

    I can’t see how anyone who ever wants to file more than one patent application could be in favor of this provision.

  7. Paul:

    Would you please expand on your post? I don’t understand the concern with an insanity in the “issuing and revoking/narrowing of patents themselves.” Are you refering to the USPTO self declared re-examinations?

  8. There seems to be an emphasis on liability and damage. However, many of us want reforms that adds sanity to the issuing and revoking/narrowing of the patents themselves, particularly in the area of prior art that was not considered or purposely ignored.

  9. Bravo Dennis and Matt Buchanan for giving us the resources to follow this fight.

    My question is, where does this sort out politically — as opposed to the where the special interest groups’ interests lie? Many of the big boys obviously fund the GOP, but my impression that small inventors [who would oppose the gutting of the availability of injunctions] would also be Republicans.

    And what about these “New Democrats?” I notice that, although 14 of them signed the letter, my Silicon Valley congressperson, Anna Eshoo [who is a member of the New Democratic coalition and is more a liberal than a centerist, in my view] did not. What, if anything does this mean? Does anyone know if the administration or the GOP leadership hsa taken a position on any of this?

  10. Patent Reform at the PTO

    These three were large high-tech companies, other large patent holders like Big Pharma, and small inventors/start-ups. He had several comments from others, including some bloggers on his post, which Crouch summarized in another blog entry. S…

  11. Patent Reform at the PTO

    These three were large high-tech companies, other large patent holders like Big Pharma, and small inventors/start-ups. He had several comments from others, including some bloggers on his post, which Crouch summarized in another blog entry. S…

  12. The three proposed changes ( “reform” is an insidious misnomer) I find most disturbing are (1) the proposed first-to-file priority system, (2) the proposed anti-claim broadening continuations provision, and (3) the proposed elimination of disclosure of best mode under 35 USC 112. To be as brief as possible:

    Regarding the first-to-file priority system:

    The so-called uncertainties present in our current system arise due to the equities built into our system. We would be (will be?) throwing away common sense equities (the ability of the system (USPTO and courts) to render judgments based on evidence and credibility). And for what? At least under the current system we encourage other countries to become members of the WTO in order to partake in this great system. This equities are available to everyone, large or small entity.

    Our current system does not prevent a US inventor from seeking patent protection overseas. Just keep a disclosure confidential until after filing.

    Under our system, one can rely on priority of invention to ameliorate missed filing dates.

    A change to a first-to-file system will bring back one problem that the English Statute of Monopolies (which gave rise to the relevant clause in the U.S. Constitution) was meant to solve, namely, the ability of one to keep a discovery secret (and exploit it) and then seek a patent many years down the road.
    The specific proposal is a so-called first inventor-to-file priority system. However, this will only substitute one interference system for another. What a mess!

    There are claims that the present interference system is expensive. However, I submit that the expensive interferences involve those matters in which the rights are worth fighting for. All of the interested parties have a chance to obtain those rights. Those interferences involving inventions of less interest settle quickly, at low cost, and usually to the advantage of both parties.

    As the National Association of Patent Parishioners noted, the current debate ignores that vast Rule 131 practice. Thus, I submit that Gerald Mossinghoff’s article that is touted so much in favor of a first-to-file system is misleading used as argument in support. Prof. Mark Lemley undertook a more in-depth study and found the win-lose outcomes of USPTO inteferences to not favor one side of the argument over the other.

    Regarding disallowing broadening continuations:

    What a bad idea!

    The so-called continuation abuses were dealt with by limiting the life of patents, and the disclosures of the file wrappers. The is a fix to a system that is no longer awry, if it ever was.

    This proposal ignores the natural give and take that must take place in connection with any patent system. This change will increase the expense to obtain a patent as no one will want to be accused of not spending enough time or resources up front to get the broadest protection available.

    A better change, if change is needed, would be to get away from 2nd office action finals and let examiners and applicants have several shots at working out claims. But even then, the present system allows one to get a patent soon, while pursuing and considering in a more deliberative way, how the invention might otherwise be practiced. The subsequent patents usually must be subject to the provisions of a terminal disclaimer, and in any event, are of a limited life. This promotes strong patent rights, as I believe we want for our US innovators, no matter how one classifies them.

    Regarding the elemination of Best Mode disclosure:

    The main complaint in this area is that the inquiries involved concern subjective determinations as to whether there has been compliance with the best mode disclosure requirements. The change allegedly would eliminate these inquiries.

    But what would we get in return? I submit that disclosures thereafter will be minimal and not very enlightning. By requiring a best mode disclosure, we ensure that the inventor provides with the benefit of his best efforts at the time of filing. The inquiries are usually generated due to suspicions of non-disclosure, and challenges by defendants, who appear to be the ones complaining about the cost to investigate. I have seen many applications coming into the US from abroad with sparse disclosures requiring some beefing up. I fear that this change will just lower our system to a worse level of disclosure.

  13. “Reform is in the eye of the patent holder,” writes Jonathan Krim in the May 5, 2005 Washington Post. No one ever likes to pay for what they can otherwise get for free. That’s why potential infringers see every patent owner as a terrorist, and every patent as a weapon of mass destruction. On the other hand, when you’re a patent owner, it can seem like every manufacturer is just one more point on the axis of evil, so that every enforcement action will inevitably lead to the Mother of All Lawsuits.

  14. I have yet to see a small entity who supports any of the changes once they understand the real implications of those changes. So-called patent reform was drafted by the big players for their and only their benefit.

    I urge small entities and individual inventors to contact us to play a part in stopping this power and property grab by predatory large companies.

    Ronald J. Riley, President

    The Alliance for American Innovation, LLC., http://www.AAI-USA.org
    Direct (202) 318-1595

    Also President http://www.PIAUSA.org & Executive Director http://www.InventorEd.org

Comments are closed.