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(OT) Inventing a Better Patent System
Off topic though this certainly is, I'm posting this because I know that
several people who frequently post in rraa have one or more patents, and there have over the years been a number of comments here about the sorry state these days of patents and the patenting process in the USA. Moreover, with some notable exceptions, postings in this newsgroup often show intelligence and thoughtfulness on the part of the people making the postings, more often than in many of the other newsgroups I read. With that said, I'd enjoy reading comments on the NY Times article "Inventing a Better Patent System", which you can see at http://www.nytimes.com/2009/11/17/opinion/17pozen.html?hp. The author makes five specific recommendations for amendments to patent law which he believes would improve the situation. I'm a (retired) pure mathematician with no patents whatsoever, and my knowledge of law is nil. But what he says seems to make sense to me. If you can illustrate why you agree, or disagree, with points made in the article by referring to antenna patents (or other patents on related matters) with which you are familiar, that would be good, and it would make the issue a little less off-topic. Thanks in advance for reading the article and making your comments. David, ex-W8EZE -- David Ryeburn To send e-mail, use "ca" instead of "caz". |
(OT) Inventing a Better Patent System
On Mon, 16 Nov 2009 22:01:41 -0800, David Ryeburn
wrote: With that said, I'd enjoy reading comments on the NY Times article "Inventing a Better Patent System", which you can see at http://www.nytimes.com/2009/11/17/opinion/17pozen.html?hp. Hi David, I have patents, and yes the system is broken - but not in the ways this author describes (but, oddly, is separate from his fixes). The author comes up with some rather odd objections which are like moving deck chairs on the Titanic. Some of it is quite naive: "Yes, it makes renting movies a snap, but was it really a breakthrough deserving patent protection?" The patent examiner is specifically prohibited from denials based on hindsight. The patent must disclose prior art, and if that art anticipates the use (as something within the art of the practioner) then there is a basis of denial, but the examiner cannot make that leap without this paper trail. One legal tenet a patent lawyer told me last week was that "Only God can create, man assembles all invention from other existing ideas." The following quote is an outright wet-dream: "One root of the problem is that patent examiners, many of whom are young or lack practical experience, are not qualified to evaluate whether complex claims in biotech or physics meet the most critical tests." This is patently absurd from an historical basis. Examiners have always been young and lacking experience - the office is the first rung in a ladder of their career as patent lawyers. How any NYT scribbler would expect the economic model to suddenly invert (practiced lawyers becoming examiners for far less pay) is misty eyed in the extreme. This also brings us to the second glaring error in that quote which I repeat in part he " to evaluate whether complex claims in biotech or physics meet the most critical tests." This speaks to the validation of science which is NOT part of the examiner's job. This is confusing the specification (the description written in what should be clear English) with the claim (the list of relationships and associations). Examiners deny a patent on the basis of the claims made which do not rely on "this proves Einstein was wrong and I have invented of something that Gauss forgot." There are very few criteria to be met: is it novel? Is it marketable? Neither of which demand scientific proof. Someone might demand that novel requires proof, but this is on the basis of claims alone. Does your invention's claims appear somewhere else? The examiner is paid to wade through the 6 million patents to ascertain that. Now, let's move on to those suggestions. "To help fix this, Congress should pass an amendment allowing experts in the field to submit explanatory or critical comments on patent applications." This doesn't go to the matter of claims of prior art. I've spent enough ink on that. Next: "Next, Congress should require that all applications be made public 18 months after they are filed." I would argue 18 months is arbitrary (who is this scribbler working for?). Why not next week? The proposed solution is to combat what is called Submarine Patents. Basically, this was responded to in 1995. I had a patent that was underwater for 4 years. This wasn't out of some business ploy, but simply because the brief was so huge (several hundred pages) that it fell behind one of the filing cabinets and was lost for years. Next: "Congress should eliminate the 'could have raised clause.'" Reasonable. Next: "Fourth, Congress should provide limited new immunity to all inventors who choose to protect their innovations as trade secrets rather than patents." Trade secrets are a risk that should be borne by the one who wishes to protect their IP through their own devices. This goes into estoppel and laches - law that has a long history. If you cannot keep your cat in the bag - so be it. Whatever is being spoken to here in this author's suggestion does not have to be cloaked in the mantle of Patent reform. Last: "Congress should adopt a first to file rule for awarding patents between competing parties. America is the only major country that tries to ascertain who was the first applicant to invent the product or procedure." The second sentence is not true, but when did facts ever matter? Indeed, the first to invent versus the first to file has been contentious since Alexander Graham Bell and the telephone (and many others through the decades). Invention is a populist notion in a populist nation. Europeans see things as law, not popularity. This, too, was a topic that has been answered in 1995 and is now being crow barred to fit globally. We have learned to cope with it over the centuries and Europe doesn't have a dog in this fight, unless a foreigner needs coverage here. Going beyond as there are some interesting things about Patent law to add to this. You can be sued for practicing your patent! This usually stuns non-lawyers so an illustration needs to be illustrated: The LED is patented. As far as the patent examiner can tell, nothing within the patent identifies any anticipated product outside of its claims (the inventors didn't elaborate beyond the general notion that light could be emitted from a semiconductor). You invent the Red LED. The patent examiner reviews prior art, and sure enough the LED inventors never anticipated a single wavelength application. BINGO! Your patent is issued. You go out, build a plant, produce a bajillion Red LEDs and are immediately served a cease and desist order for infringement! The LED patent blocks your patent. The only thing you have gained is a way to keep the original LED patent holders (and everyone else too) from making Red LEDs - if it matters to them. There's a bajillion other oddities, but time has come to close here. 73's Richard Clark, KB7QHC |
(OT) Inventing a Better Patent System
J. Mc Laughlin wrote:
Dear Group: Richard has done a good job on the Times article. I agree. I also think that of all the articles I've seen this one was the best. While it was very limited in its understanding of the problems, at least it was an attempt to fix the problem instead of scrapping the whole system or reducing its scope (e.g. eliminating software patents). I echo that the use of a first-to-invent system fits our Republic's ideals. The efforts involved in "interferences" where determinations are made as to who is first are a very minor part of the process. First to invent has its problems too. Without a system of publication, one can simply describe inventions in dated documentation and wait for other people to patent them. Then you just show up with proof of first invention and collect your patent someone else paid for. Possibly a system where patent applications are published within 30 days of recepit and the amount of time to file claims of prior invention are limited to a year or 18 months. This would also require the publication of provisional patent applications which is currently never done. Left off entirely is the issue of the bonus system used in the PTO that appears to reward not issuing patents. Issued patents have gone from about 65% of applicants to about 40%, and much more telling is a reported six fold increase in the number of applications waiting for judgment in the appeal process. I now tell potential patent applicants that they must expect to use the appeal process as that may be the only way their application is evaluated by judges who are not influenced by the bonus system. Applications take too many years and have become very expensive. The effect of the bonus system has been to change a patent application from the final step in the process to one near the begining. This has been a windfall for the top patent lawyers who can successfully navigate the appeal process and a disaster for the small inventor or patent agent. Once the US patent system was the least expensive and was fast. I expect that one of the smaller countries with a minimally functioning patent system will take over. They will, for a large fee, issue a patent quickly and quietly. Something like for a $100k fee, they will issue a patent without publication of the application, in 6-8 weeks. Once they issue the patent, as US patent via the Patent Cooperation Treaty is assured. It does not matter if the US application takes years or there are any appeals and so on. You have what is in effect a US patent and just have to wait for the paperwork to catch up. It is unreasonable to expect things like the Times to understand anything that is a bit complicated. Compared to their usual technology articles, which are just re-aranging the paragraphs in press-releases, this one was wonderful. Geoff. -- Geoffrey S. Mendelson, Jerusalem, Israel N3OWJ/4X1GM |
(OT) Inventing a Better Patent System
On Wed, 18 Nov 2009 07:04:03 +0000 (UTC), "Geoffrey S. Mendelson"
wrote: While it was very limited in its understanding of the problems, at least it was an attempt to fix the problem instead of scrapping the whole system or reducing its scope (e.g. eliminating software patents). Hi Geoffrey, I think they should be sent to the bit-bucket. This is a point where claims are specific and a huge amount of published patents have clearly been built from work existing in the Public Domain for decades. Going back to the populist nature of an "Inventor," too many are corporations hiding behind this cultural perception while they crush innovation with offices full of attorneys hammering down individuals who can't afford the cost of litigation. First to invent has its problems too. Without a system of publication, one can simply describe inventions in dated documentation and wait for other people to patent them. Then you just show up with proof of first invention and collect your patent someone else paid for. It doesn't work that way. What you are describing is an IP that has been ceded to the Public Domain, not patented as if it were a grab at the brass ring. Possibly a system where patent applications are published within 30 days of recepit and the amount of time to file claims of prior invention are limited to a year or 18 months. Prior art is not a limited, moving window in time. Otherwise, we would be flooded with re-inventions of the telephone every year and half by your method. This would also require the publication of provisional patent applications which is currently never done. They are always done. For the bulk of invention, provisional patents are often copies of press releases, journal articles, degree work, papers for presentation and so on. And it hardly matters unless the party files an actual application. Again, this was put to bed in 1995 and is supported by the international field. In fact, you need only attach one claim to a provisional patent and you have international protection. The claim can even be changed later! The effect of the bonus system has been to change a patent application from the final step in the process to one near the begining. This has been a windfall for the top patent lawyers who can successfully navigate the appeal process and a disaster for the small inventor or patent agent. Sound like the Patent system I was very much a part of in the 80s and 90s. Being a small inventor, it was actually quite to my advantage (the market practicalities aside). I expect that one of the smaller countries with a minimally functioning patent system will take over. They will, for a large fee, issue a patent quickly and quietly. Something like for a $100k fee, they will issue a patent without publication of the application, in 6-8 weeks. Once they issue the patent, as US patent via the Patent Cooperation Treaty is assured. It does not matter if the US application takes years or there are any appeals and so on. You have what is in effect a US patent and just have to wait for the paperwork to catch up. I would think that 14 years of experience would have revealed this anticipated grief by now. Getting a patent faster does not make the ideas come sooner to submit that fast-track application. 73's Richard Clark, KB7QHC |
(OT) Inventing a Better Patent System
On Nov 18, 11:00*am, Richard Clark wrote:
On Wed, 18 Nov 2009 07:04:03 +0000 (UTC), "Geoffrey S. Mendelson" wrote: While it was very limited in its understanding of the problems, at least it was an attempt to fix the problem instead of scrapping the whole system or reducing its scope (e.g. eliminating software patents). Hi Geoffrey, I think they should be sent to the bit-bucket. *This is a point where claims are specific and a huge amount of published patents have clearly been built from work existing in the Public Domain for decades. Going back to the populist nature of an "Inventor," too many are corporations hiding behind this cultural perception while they crush innovation with offices full of attorneys hammering down individuals who can't afford the cost of litigation. First to invent has its problems too. Without a system of publication, one can simply describe inventions in dated documentation and wait for other people to patent them. Then you just show up with proof of first invention and collect your patent someone else paid for. It doesn't work that way. *What you are describing is an IP that has been ceded to the Public Domain, not patented as if it were a grab at the brass ring. Possibly a system where patent applications are published within 30 days of recepit and the amount of time to file claims of prior invention are limited to a year or 18 months. Prior art is not a limited, moving window in time. *Otherwise, we would be flooded with re-inventions of the telephone every year and half by your method. This would also require the publication of provisional patent applications which is currently never done. They are always done. *For the bulk of invention, provisional patents are often copies of press releases, journal articles, degree work, papers for presentation and so on. *And it hardly matters unless the party files an actual application. *Again, this was put to bed in 1995 and is supported by the international field. *In fact, you need only attach one claim to a provisional patent and you have international protection. *The claim can even be changed later! The effect of the bonus system has been to change a patent application from the final step in the process to one near the begining. This has been a windfall for the top patent lawyers who can successfully navigate the appeal process and a disaster for the small inventor or patent agent. Sound like the Patent system I was very much a part of in the 80s and 90s. *Being a small inventor, it was actually quite to my advantage (the market practicalities aside). I expect that one of the smaller countries with a minimally functioning patent system will take over. They will, for a large fee, issue a patent quickly and quietly. Something like for a $100k fee, they will issue a patent without publication of the application, in 6-8 weeks. Once they issue the patent, as US patent via the Patent Cooperation Treaty is assured. It does not matter if the US application takes years or there are any appeals and so on. You have what is in effect a US patent and just have to wait for the paperwork to catch up. I would think that 14 years of experience would have revealed this anticipated grief by now. *Getting a patent faster does not make the ideas come sooner to submit that fast-track application. 73's Richard Clark, KB7QHC What is lost in this review of the frailty of our patent system is the destructive interference of what we refer to as justice. Not only does law change with the current meaning of the word in this country other countries ensure that the intent of the written word is determined at the point that the law is made. It is for this reason that the U.S. has more lawyers than any other country as all laws as with the written word changes with the passing of time. At least in the eyes of experienced debaters. Another deterent to fairness of patent protection is that other countries has that the "loser pays ALL costs generated by the suit" ! In the U.S. for some reason each pays their own costs regardless if the charge was malicious or not. Thus we have a continuance of suits and countersuits depending on the finances of both or the amount of money that can be made during the generated passing of time. Many examples of this can be seen in the many pharmacutical cases. Worst of all, with respect to fairness in the protection of patents, is when the true owner of a patent has not the funds such that he can keep pace with the challenger such that the time comes when he has not the funds to appear in court and thus the challenger unjustly wins his case. Not on the merits of justice but on the amount of funds he is willing to spend compared to the losses incurred by violating patent law. Present patent law attempts to combat these problems by giving prime responsabiulity to the PTO but we are finding that justices resent this action and are more than willing to accept cases where they gain back their original powers.which is not always dependent on justice. From the congressional side of any so called change in justice, one cannot ignore that the patent system is a "cash cow", revenue that any congress is not willing to give up as part of his rescources for spending. |
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