- Congressional Action on Patent Reform:
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Senator Leahy has posted a note on his website (link) criticizing Bilski because it “needlessly left the door open for business method patents to issue in the future, and I am concerned that it will lead to more unnecessary litigation.”
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Leahy is looking at Bilski as a mechanism for driving legislative reforms: “The courts, however, are constrained by the text of our outdated statutes, and it is time for Congress to act.”
- Anti-tax-patent activists (i.e., most tax lawyers and accountants) are now thinking about pushing for a legislative exception.
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EPO Count System: At a recent meeting in Edinburgh, the EPO Vice-President for legal and international affairs mentioned that EPO patent examiners receive twice as much credit for rejecting an application than for allowing the application “because, as everyone knows, a rejection takes much more work than an allowance.” (Is this correct?)
- Patent law jobs posted in the past week:
- Baker Botts in Palo Alto
- In house at POET (Ethonol Producer) in Soux Falls, SD
- In house at Medicis in Scotsdale
- In house at Maquet Cardiovascular in Mahwah, NJ
- In House IP Management for the Energy & Environmental Research Center (EERC)
- In house at Medtronic in Memphis
- In house at Roche in Pleasanton, CA
- In house Licensing at Promega in Madison
- Marjama Muldoon in Syracuse
Interesting post.
Amazing. I’m convinced that the two teams has decided cases separately. Then if they would agree, they find something to split over just so they won’t have to join the same opinion with one another.
I think that Senator Leahy and others see the business methods patent issue incorrectly. They see it as whether business methods are or should be patentable subject matter-full stop. But that misses the point. The issue is, is there patentability in machines in the way they execute a business method. Of course, the machine is primarily a computer, but it can also refer to communication devices and to many other devices that might be used for a business method. I think, if the method itself is known or obvious, that may lead to the machine operations that execute the method being obvious. But the opposite might be true, even if the method is known, the way it is executed could be patentable; after all we patent many new ways of accomplishing something that has been accomplished in the past; using machines or transforming something in an unobvious manner to get the same result as the old way. Of course the business method itself might be new, and that is where the disagreement is joined. Suppose that a new business method is executed in a very ordinary way in a machine. Does the novelty of the business method itself have patentable merit? I say, why not, we give patentability to many similar or comparable notions. For example, methods of treating disease (I know, that too is under examination). The method is the execution of a thought process resulting in some activity. If the activity is executed with an instrument or with the help of a computer, we have no trouble with it being patentable subject matter. So, why define business methods as a denied category, after all business methods have value, like medical methods. Anyway, this argument has many sides
“we need patent reform”
Another one has gotten a hold of the Kool-Aid…
How sad.
Gena, exactly what is broken?
Leahy’s right that we need for patent reform. As we saw in Bilski, the Supreme Court will continue to defer to Congress. And we can’t rely solely on the (albeit competent and impressive) efforts of USPTO Director David Kappos. Congress needs to step up to the plate and enact patent reform legislation that will actually have some impact on reality. However, Leahy clearly has an animus toward business method patents, and for that reason (and other reasons) I don’t think his version of reform is the one we necessarily need.
Love the jobs graphs Dennis. Looks like all of the jobs are in-house or coastal. Interesting.
“Yes I believe in paragraphs my budget is tight”
Damm the expense of paragraphs.
What we really need is for someone to invent cheap paragraphs. Ida have to say that you rgreat great grandfather f’d up inventing them to be so costly.
To James Yes I believe in paragraphs my budget is tight so other more important things get done first.How did you like the magnitude of the text.To ping No I dident invent paragraphs but my great great grandfather did you need to click on my website in top left under, worlds four inventors of significance. to Pong I should say I understand its method of hedging that is 100 years old and hedging is very unpopular now since the mortgage meltdown.
Very very few law firms are hiring. Sad state of affairs.
ping, we agree on Thomas. See, that wasn’t so hard.
I like the final “I stillam not sure what it was though that was invented or its usages”, though.
Observation: Michael R. Thomas hasn’t invented paragraphs yet.
Michael R. Thomas,
I clicked on your link provided with your post and clicked on the two links at the top left-hand corner of your homepage.
Question: Don’t you believe in the use of paragraphs?
businessa method patents should have been issued long ago. They represent some of the most valuable patentable subject matter concievable. If patents are not granted the big businessmen who can dominate the field with money are allowed to steal the subject without compensation. Also the public is denied the usage in many instances through nonconception.Also if the public doesent want to pay for the new item they dont have to buy.Bilsky decision was correct because those werent not likley the inventors I stillam not sure what it was though that was invented or its usages.
Yeah, 6, that Scalia opinion in McDonald is a real hoot. More than once I fell off my chair laughing. Ditto others in my office.
I agree, with the savaging Scalia gives Stevens, the two camps are divided.
But Stevens is gone and his replacement might be given a honeymoon by the intellectuals on the court who seem to have little tolerance for shallow thinking.
certainly not an intended blessing of the legality of such patents.
It’s hardly a condemnation of such patents to enact prior user rights. Seems only fair that if you’ve been using an invention in a secret, non-prior-art way before someone else patented it, you should be able to go on using it.
The 273 amendment does nothing at all to protect later infringers of business method patents. It suggests that there’s nothing fundamentally wrong with the patents, they just shouldn’t be allowed to interrupt someone’s earlier-established business activities. It reflects a sentiment less along the lines of “these patents are bad” and more along the lines of “hey, I was using that!”
If they wanted to eliminate business method patents, they sure have a funny way of showing it.
Leahy’s party controls all the Fed agencies, house and senate. So of course its the SC’s problem to fix.
I hope any new patetent legislation will consider strange unintended judicial consequences. I find it particularly bizarre that the anti-business-method-patents banks, lobbyists, and other legislatively-influential patent-people who got the 11/29/99 §273 “prior use” defense legislation passed by limiting it at §273(a)(3) to being against business method patents have de facto “shot themselves in the foot,” as §273 was effectively, if illogically, used against eliminating business methods here in the Bilski decision. The Congressional record is perfectly clear that this legislation was a reaction against the CAFC State Street decisions consequent PTO issuance of such patents, certainly not an intended blessing of the legality of such patents.
Don’t you have more pressing issues like stopping the BP oil gusher from ruining southern parts of our country?
Have they not gotten around to passing a law against oil continuing to leak into the gulf yet?
I blame Lieberman. Always with the filibusters, that one.
“Don’t you have more pressing issues like stopping the BP oil gusher from ruining southern parts of our country?”
No kidding. Leahy should be down in the gulf trying to help Obama stop that oil leak with his *bare hands*!
Seriously, though, someguy is right.
EPO patent examiners receive twice as much credit for rejecting an application than for allowing the application “because, as everyone knows, a rejection takes much more work than an allowance.” (Is this correct?)
It is correct that a rejection takes much more work than an allowance. It is also correct that, since one or two years, the EPO has this new policy, which actually makes quite a lot of sense.
The basic difference between an allowance and a rejection is that a rejection is an appealable decision, whereas an allowance obviously isn’t (an opposition may eventually be introduced by a third party, but those are altogether separate proceedings). Therefore, the examiner is required to very carefully present all the grounds for rejection, which will take quite a few pages and be open to inspection. On the other hand, the grounds for allowance are kept in a confidential “votum”, strictly for internal EPO use, which usually doesn’t take more than 3-4 lines.
Moreover, as ianjrutherford points out, before the rejection the applicant has the chance of requesting formal oral proceedings, which normally take the best part of a working day not just for the primary examiner himself (who makes most of the work and gets the points), but also for the chairman and secondary examiner of that examining division, whose roles are otherwise extremely limited and who don’t get any points whatsoever for their effort.
I personally don’t think this new policy may result in a reduced allowance rate (other measures are causing that) as much as in reduced pendency of hopeless applications. Under the previous policy (equal points for admissions and rejections), EPO examiners confronted with difficult files and stubborn applicants had a strong incentive to let those files gently rot in their cupboards and concentrate on those which were ready, or nearly ready to grant. This is less the case now (but since a rejection still takes much more than twice the time than an allowance, it isn’t as if examiners are going to start chasing “easy” rejections either).
As a result, examiners are starting to clean up their cupboards from hopeless cases and summoning much more often to Oral Proceedings (which will incidentally be quite a welcome windfall for the hospitality industries in Munich and The Hague in these economically lean times). While the main result (getting rid of those “zombie applications”) is certainly positive for almost everyone involved (even in some cases the applicants themselves), it may have the unintended negative consequence of slowing down those applications which are actually ready to grant and would have been fast-tracked before.
Leahy is just a well-paid puppet who parrots what his Big-Tech masters (for example, IBM) want him to say.
I think that dude that said Scalia might have been pissed about that article comparing him to the intellectual giantism of Stevens may have been right. Just look at Scalia tearing into Stevens this term:
link to supremecourt.gov
I can cite more but I hardly need to after that one.
“Please focus your attention on the numerous more pressing problems which the U.S. faces”
“Don’t you have more pressing issues like stopping the BP oil gusher from ruining southern parts of our country? Fix that, and then let’s talk patent reform. ”
So despite being capable of multi-tasking, why is it that patent reform is the one task that Congress shouldn’t take up?
Senator Leahy:
Don’t you have more pressing issues like stopping the BP oil gusher from ruining southern parts of our country? Fix that, and then let’s talk patent reform.
Senator Leahy:
So let’s see – you’d like to create a legislative exception to patentability for “business methods?” That same term that the BPAI, CAFC, and USSC *together* have failed to find a workable definition for a decade? Good luck with that.
Well, I suppose you can always do what previous legislators have done: dump a totally indefinite term into patent law and then just hope that the courts can, like, work it out. That tactic has worked WONDERS in the past for other terms that now have TOTALLY CRYSTAL-CLEAR meanings… like “obvious”… and “useful”…
Ned,
I’m convinved that the Court is such a polital entity now that the two teams go huddle up and decide cases separately. Then, if they accidentally agree, they find something to split over just so they won’t have to join the same opinion with one another.
Senator Leahy obviously took a clue from how the Supreme Court split with Stevens and the other other liberal wing of the court being united in their opinion that Congress never intended that business methods be patentable.
By the way, when is the last time that a patent case split the Supreme Court along ideological grounds? This is the first I can recall where that happened, although it may have happened in the past — perhaps in the of Douglas and Black who probably viewed patents as burdensome restraints on trade.
But the split in the Supreme Court may be mirrored in Congress with the patent Bill becoming largely an effort of the Democrat left to radically reform patent law in a manner most of us would abhor.
Senator Leahy:
Please focus your attention on the numerous more pressing problems which the U.S. faces.
Let’s let the Bilski decision play itself out for a few years in the courts and the PTO before rushing into any legislation. My guess is that at least 90% of the inventions which you believe are not subject matter patentable are really more correctly rejected on 102 or 103 grounds.
EPO examiners receive 2 points for a refusal. A refusal generally only takes place after a summons to oral proceedings has been sent. All in all, a lot of work.
EPO patent examiners receive twice as much credit for rejecting an application than for allowing the application “because, as everyone knows, a rejection takes much more work than an allowance.” (Is this correct?)
It’s probably correct in Europe. By this point the search is already done, and the examiner has already seen the art. Allowing the claim is easy at that point – the examiner simply has to find something about the claim that distinguishes over the art he already knows. Rejecting the claim requires a lot more writing to articulate the basis for the rejection.
Senator Leahy has posted a note on his website criticizing Bilski because it “needlessly left the door open for business method patents to issue in the future, and I am concerned that it will lead to more unnecessary litigation.”
It’s all well and good that Senator Leahy thinks the Supremes’ approach was “needless” and the future litigation would be “unnecessary”, but until he swings a majority in both houses it’s nothing but one man’s opinion. From what I can tell, he got his JD in 1964 and hasn’t practiced law since 1966, so it’s not even a terribly well-informed opinion.
Anti-tax-patent activists (i.e., most tax lawyers and accountants) are now thinking about pushing for a legislative exception.
Perhaps someone can explain to me how any tax patent manages to be non-obvious over the relevant legislation.
The stars appear to perhaps be entering proper alignment…
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