Small Inventors Complain About Patent Reform -- Miss The Point

from the it's-about-innovation dept

We've been discussing patent issues quite a bit lately, because we think it's an extremely important issue facing anyone trying to innovate. Unfortunately, too many are positioning the question of patent reform as being about "big companies" vs. "small inventors." That's not the issue at all (and, amusingly, people have accused us of being mouthpieces for both sides). The latest, though, is a group of small inventors who are complaining about the latest attempt at patent reform. We agree with them that the latest proposal for patent reform will make the system worse, but for very different reasons. The small inventors are worried that they won't be able to get injunctions against companies that infringe on patents (something the Supreme Court is also looking into). However, companies that are actually producing products that potentially involve hundreds of patents point out how ridiculous it is if they accidentally infringe (sometimes because the idea is so obvious they never thought anyone would have a patent on it) that they should be completely forced to stop selling the product. However, the question of injunctive relief is perhaps the least of the problems facing the patent system. The real issue, though, isn't "big companies" vs "small inventors" but going back to the core of the patent system: promoting "the progress of science and useful arts." That has nothing to do with big companies or small inventors -- and a good patent policy should focus only on what public policy is most likely to promote innovation -- not whether it hurts "small inventors" or "big companies." Right now, unfortunately, the current proposal doesn't help at all. If anything, it should only burden the patent system more by encouraging more companies to file for patents sooner (switching to a first to file system). The reform plan is trying to cure the symptoms rather than getting at the cause of the problem.


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  1.  
    identicon
    ZOMG CENSORED, Jan 4th, 2006 @ 7:57pm

    Reform

    I honestly believe the only true way to reform the patent system is to completely rebuild it from the ground up. Sure it would take years, possibly even decades, but if we could have something that not only secured the ideas of inventors/ companies and allowed other inventors/ companies to easily research for existing patents, then we'd be set. How it works right now is far beyond unsatisfactory.

    Having tried to trademark a few things before, it is not only not-cost efficient, but time consuming to the greatest extent of the term. That alone is a single problem, but the fact that the whole system is so contrived is beyond my level of dissatisfaction.

     

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  2.  
    identicon
    patentman, Jan 4th, 2006 @ 9:04pm

    Re: Reform

    "but if we could have something that not only secured the ideas of inventors/ companies and allowed other inventors/ companies to easily research for existing patents"

    The entire database of existing patents CAN be easily searched on the net via the search tool available at www.uspto.gov. In addition, I believe that the PTO is currently working on devloping an internet based version of EAST (Examiner Automated Search Tool), which would give anybody who cares the ability to search the U.S. Patent database with the same tools as the Examiners. EAST is no slouch either. It is, by far, the most powerful boolean based search tool I have ever seen, and quite possibly the most powerful in the world.

     

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  3.  
    identicon
    nonuser, Jan 4th, 2006 @ 9:53pm

    Re: Reform

    OK, but patents, like EULAs, seem to be written so as to be as lengthy and incomprehensible as possible, even to practitioners knowledgeable in the state of the art.

    It is further claimed that many technology patents, far from representing nonobvious inventions, are basically territorial grabs for natural ways of applying the current wave of technology using commonly known patterns of adaptation and extension.

    It is further claimed that a typical patent filing contains a fair amount of redundancy, rendering it an even greater chore to read than would otherwise be the case.

    A further claim: see previous paragraph.

    It is further claimed that, many patents are written as a assemblage of independent or loosely dependent claims, so that even if some or all of the claims are eventually rejected by the courts there will be a chance the surviving claims will allow lucrative rents to be collected from firms that continue to evolve engineering practice in a natural way.

     

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  4.  
    icon
    Bubba Nicholson (profile), Jan 5th, 2006 @ 2:22am

    Patent reform: Criminalize intellectual property

    If you file a patent for someone else's idea, you should be suffer criminal punishment. Our patent office is a playground for malicious thieves. Jail, even execution would be fair and just for some egregious perpetrators.

     

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  5.  
    identicon
    patentman, Jan 5th, 2006 @ 4:40am

    Re: Reform

    Nonuser. I understand your point, but if you are going to imitate the structure of patent claims you should at least use proper English and the correct terminology (I'm assuming you were criticizing the U.S. system, in which case no decent patent attorney uses the phrase "it is further claimed."

    I agree patents can be difficult to read, and can be repetitive. However, you have to realize that patents are a) a legal document; and b) covering, in many instances, highly technical subject matter. Even if patents were written in the simplest and most clear English around, in many cases they would still be very difficult to understand for the vast majority of people simply because of their subject matter. One of skill in the art to which the patent pertains, however, may find what the document is trying to convey pretty clear.

    For example, my background is in chemisty and materials science, more specifically analytical chemistry, instrumental analysis, and magnetic alloys. That said, I can say for a fact that I would have a tough time reading a patent drawn towards technology in the mechanical or electrical engineering arts. That said, I can read and understand with ease just about any patent in the chemical arts.

    I guess my point is that readability is relative.

     

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  6.  
    identicon
    patentman, Jan 5th, 2006 @ 4:45am

    Re: Patent reform: Criminalize intellectual prope

    "If you file a patent for someone else's idea, you should be suffer criminal punishment. Our patent office is a playground for malicious thieves. Jail, even execution would be fair and just for some egregious perpetrators."

    Why, exactly, do you think restitution (where the supposed "thief" puts the "victim" in the position where they would have been had the theft not occurred) insufficient in patent cases?

     

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  7.  
    identicon
    Small Inventor, Jan 5th, 2006 @ 6:48am

    Patent Deform Act


    As a small inventor myself, I can tell you that the so-called "Patent Act of 2005" was requested by big tech companies (Intel, MS etc.) wanting to legitimize stealing of inventions from small guys like myself.
    What they initially requested basically amounts to making patents held by small entities completely unenforcable. Injunction is the ONLY effective measure that can deter big corporations from *willfully* taking small inventor's IP. Just monetary damages, even seemingly huge (e.g. Eolas) are not effective to prevent, for example, MS from deliberatly infringing on valid patents: they can make many billions from selling infringing products before paying hundreds of millions in court damages - a good bussiness model after all.
    The current stream of misinforming articles in journals like "Fortune" and "Bussiness Week" seems to be originating from the same source - big corps painting the picture they want ordinary lame people to see (all of this RIM vs. NTP hype etc.)

     

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  8.  
    identicon
    ZOMG CENSORED, Jan 5th, 2006 @ 8:14am

    Re: Reform

    Nonuser. I understand your point, but if you are going to imitate the structure of patent claims you should at least use proper English and the correct terminology (I'm assuming you were criticizing the U.S. system, in which case no decent patent attorney uses the phrase "it is further claimed."

    My, my, the pretentiousness wagon arrived early this year. Have I claimed that I work in law, let alone the specific law concerning patents? I don't see that at all. And criticizing my English when it's not my native language is just as pretentious as the first point in this little post.

    I have had the need to register simple trademarks for corporate identity, and searching through trademarks alone is a difficult task (even with all the tradmark publications at my disposal). I had to look through some patents as well and found it even more difficult, despite my knowledge in the field, simply for the fact that the information was so convolouted it was almost unreadable.

    Although if it's true that they will be updating the search tools, that may be what is needed. I still think there should be a much less complicated method of patent registration. Other legal and governmental matters are a lot less complicated, yet involve much more complex issues, so I know it's possible.

     

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  9.  
    identicon
    Ba Nos, Feb 3rd, 2008 @ 9:56pm

    S.1145 Patent Reform Vote NO

    Very Important: Show your support AGAINST Patent Reform Bill S.1145

    My very good friend and fellow PTSC investor Kiddtrader (from Agoracom) had the foresight to begin an easy 'Senate vote NO on S.1145' Patent Reform campaign. As written this legislation would greatly restrict dollar amounts patent owners may be awarded via litigation and as such quite possibly reduce what patent owners can seek in licensing fees. It is a Bill written by Big Business for Big business, and would allow them to more easily steal what is not rightfully theirs, and will also result in the diminishment of American innovation. Our Senators need to know we will not put up with this. Please participate by adding your sentiments to this blog.. Vote NO on S.1145
    -----
    Posted by: kiddtrader on February 01, 2008 02:33PM

    Patent reform is a concern and as concerned citizens/inventors/entrepreneurs we should be writing our Senators to make them aware that we do NOT support S.1145, as some have already done. I am not a politician, lobbyist, patent lawyer, etc, rather like you, I am simply invested in PTSC, and I want to protect it as best I can. After reading this board, listening to Mr. Leckrone at the last SHM, and staying abreast as best I can on Patent Reform, I decided to try and do something that will help our cause. It doesn’t replace all of the letters/emails we should continue to send our elected officials, rather just another approach I devised that may or may not help, but it is simple.

    Visit the blog I created at:

    http://www.patentreformblog.com/

    Simply scroll down to the bottom and add a comment, “I do not support S.1145”. I recommend that you also include your first name and the state you reside. You don’t have to, matter of fact, the form allows you to post anonymously, so please don’t include your email or anything, it isn’t required and I don’t want it. Once we have a substantial # of comments on this blog, I will send an email to ALL U.S. Senators asking them to take a look at this blog to see how their constituents feel about S1145.

    Like I said, it may or may not make an impact, but it is simple, so if it changes the vote for just one US Senator, than I feel the time spent was well worth it. Please feel free to share this on other boards.

    Good luck to you, me, us, and all longs!

    -----
    From TPL's website:
    http://www.csmonitor.com/2008/0128/p09s02-coop.html

    U.S. Can't Afford to Mar Innovation
    Proposed patent reforms mean less protection for the underdog.
    By Alexander Poltorak

    from the January 28, 2008 edition

    Suffern, N.Y. - Ever wonder why the US now turns the clock back one hour right after Halloween? According to a book by Michael Downing, it's largely due to the candy lobby that spent much time and money giving out candy-filled pumpkins and making election donations to members of Congress.

    Similar forces are at work in another Washington debate that threatens to turn back the clock on innovation as early as February: the so-called Patent Reform Act of 2007. Despite the fact that improvement in some fashion is needed, this sweeping reform, if made law, will undermine the core of the patent system in the United States. It will mean weaker protection for small inventors, university researchers, and entrepreneurs across America.

    The frequent characterization of the issue as a struggle between big pharmaceutical companies (against this reform) and the high-tech computer industry (for this reform) is not quite right. In fact, just a handful of high-tech giants – Microsoft, Intel, Cisco, Oracle, and Dell – support the proposed reforms. Small high-tech companies – the true innovators of this industry – overwhelmingly reject them as do innovators from other industries.

    There are several serious problems with the current bill. First, the proposed changes weaken the protection patents are meant to afford by introducing an "apportionment of damages" provision that chips away at the economic value of patents. By diminishing damages that would occur from infringing a patent, it devalues all issued and future patents.

    Second, the bill creates a mechanism for endless post-grant oppositions. This would throw a cloud of uncertainty over all issued patents, further diminishing the incentive to innovate and invest in the manufacturing of new products. Many inventors, exhausted from defending the validity of their patent repeatedly, will be forced to abandon their patents.

    The bill also proposes changing from the American "first-to-invent" system, which favors true innovators, to a European-style "first-to-file" regime, which favors the winners of a sprint to the patent office. Large corporations, with their legions of patent attorneys on staff, would undoubtedly have the upper hand against small inventors and university researchers in this race.

    Other proposed changes take the teeth out of patents and make rights harder to enforce. For example, they make it more difficult to prove willful infringement; diminishing the threat of treble damages will only encourage infringement and promote litigiousness.

    The proposed changes in US patent law will make it easier for offshore copycats to bring their pirated goods into the US with impunity. More jobs will be lost as a result, with devastating consequences for American competitiveness in the global economy.

    A self-proclaimed goal of the Patent Reform Act is to decrease patent litigation. But lawmakers have forgotten that a patent does not even give an inventor the right to practice the patented invention – only the right to exclude others from practicing it.

    The average cost of defending a patent in court is already about $4 million, an exorbitant cost for independent inventors, small companies, and universities. The proposed legislation would make it even more costly and reduce recoverable damages. Reducing patent litigation by making it more expensive to defend a patent only encourages unscrupulous theft of ideas.

    Sadly, the patent reform legislation is well on its way to becoming reality. The House approved the reform bill on Sept. 7 and the Senate Judiciary Committee released a parallel bill, with Senate leadership pushing for a full vote as well. The Democratic leadership is aligning itself with corporate giants such as Microsoft and Intel, abandoning the little guy and the underdog.

    Do we need patent reform? Yes. A 2006 Supreme Court decision, eBay vs. MercExchange, muddied the fundamental "right to exclude," which is the definition of a patent. Congress should correct this by giving an inventor the ability to stop an infringer from unauthorized use of a patented invention (except in the case of a national emergency or public health concern).

    But to truly improve the quality of patents and strengthen their protection, Congress must not only reform the patent system, but the US Patent Office itself. Congress should once and for all stop diverting funds from the Patent Office, which needs more examiners to shorten the ridiculously long pendency of applications, and improve the quality of the examination of issued patents.

    In 1998, Congress extended the length of a copyright as a result of Disney lobbying to prevent the expiration of Mickey Mouse's copyright.

    If lawmakers strengthened copyrights, one form of intellectual property protection, why are they now moving to weaken patents? We are at the mercy of deep-pocketed lobbyists playing trick-or-treat with legislators in Washington. But can we afford to turn back the clock on innovation?

    Alexander Poltorak is CEO of General Patent Corporation, an intellectual property management and licensing firm, and is the coauthor of two books on intellectual property.
    ------
    "Reform" of Patent Damages and its Possible Consequences Explained:
    http://www.patentlyo.com/patent/files/Patent_Damages_Reform_Rooklidge.pdf
    ------
    Write your Senators!
    scroll down for sample letters:
    http://www.tplgroup.net/legislation/pdf/CPR012808.pdf
    Senate contact info:
    http://www.senate.gov/general/contact_information/senators_cfm.cfm

    Thank you all for participating!
    Every blog entry and letter written is needed and greatly appreciated!

     

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