Patent Reform Bill May Have Stalled Out

from the and-here-we-are-yet-again dept

Pretty much every year Congress tries to reform patent law, and there's always a big fight. Of course, the entrenched interests who are profiting tremendously off of the patent system have no interest in changing it, so every time patent reform is introduced, it eventually stalls out and goes nowhere. Each time it's reintroduced, the few kernels of good ideas are diminished and more bad ideas are included. And eventually you get to this year, where the patent reform bill basically leaves out most of the good ideas and includes plenty of bad ideas. So, it's at least some bit of good news that it looks like this bill has stalled out as well, as the House isn't happy with the Senate bill, and neither side seems willing to compromise any more. The patent system is in drastic need of reform -- but this bill will almost certainly make the system worse, not better. The likelihood of getting any useful reform seems pretty unlikely at this point. At best, we have to hope that the courts keeping making smart rulings on patents.


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    Bob Vila, May 6th, 2010 @ 9:14pm

    America's greatest asset has always been innovation. Hopefully more people in powerful positions will realize this and get us back on track by reworking the cluster fuck that is the patent system.

     

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    Anonymous Coward, May 7th, 2010 @ 5:13am

    Bilski FTW

     

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    angry dude, May 7th, 2010 @ 5:31am

    mikey knows better..

    Yeah, right

    Without having invented anything, patenting it and attempting to commercialize it, Mikey knows what kind of patent reform America's inventors need

    Eat your daily popcorn and listen to another piece of propaganda gibberish from little mikey, punks

     

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      Mike Masnick (profile), May 7th, 2010 @ 11:20am

      Re: mikey knows better..

      Without having invented anything, patenting it and attempting to commercialize it, Mikey knows what kind of patent reform America's inventors need

      I've invented plenty of things. I just chose not to patent it. I've also commercialized plenty of things as well.

      But, and this is the thing that angry dude still seems confused about: the patent system is not about what "America's inventors need." It's about what's best for innovation as a whole. And, as such, I would think that those not sucking at the teat of the patent system are actually significantly *more* qualified to judge. Suggesting that patent holders determine how the patent system should work is very much a case of letting Wall Street determine how financial regulations should work.

      So, I'm curious, angry dude, if you support letting Goldman Sachs write our financial regulations?

       

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    Andrew D. Todd, May 7th, 2010 @ 6:48am

    Let The Courts Do It.

    Well, I don't know. Patents and Copyrights may be one of those things which are best handled by the courts. A life-tenured judge can be logical in ways that an elected congresscritter cannot be. Over the long term, the courts respond to the state of educated opinion, meaning things like the editorials in the New York Times, insofar as they do not appear to be an expression of the paper's business interests. The problem with congresscritters is that they cannot come to Washington with definite instructions from their average constituent about something so esoteric as software patents. The man in the street can only give instructions about things which affect him directly, such as National Health Insurance, or his urgent desire to get his GI son out of the Middle East. That means, inevitably that the congresscritter's decision about software patents will be swayed by whoever offers the largest bribe.

    Assuming the Supreme Court decides Bilski the way I think they will, a lot of patent issues will simply go away, become moot. If software patents are invalid per se, you don't have to worry about whether they are obvious or not. I'm pretty sure that the courts have the means, by judiciously striking particular clauses out of the various copyright laws, to reduce the term of copyright back to 14/28 years, which would practically make most copyright issues go away.

     

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      angry dude, May 7th, 2010 @ 7:05am

      Bilski

      SOFTWARE = HARDWARE

      Write it on your forehead, little punk

      No "software" patents means that patent protection for silicon hardware is effectively abolished

      BTW, Bilski is not about "software patents" - it's about so-called "business method patents", whatever that means

      Back to school, little lemming

       

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        nasch (profile), May 7th, 2010 @ 1:02pm

        Re: Bilski

        Anything that can be done in software can be done in hardware, but the reverse is not true. And it's really obviously not true, which makes you either stupid or a troll. Or both.

         

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    Andrew D. Todd, May 7th, 2010 @ 10:22am

    Re: Bilski

    Angry Dude, just for the record, you really don't want to know how large and generally ursine I am. When I was a kid, I played center in amateur American football, if that locates me. As the saying goes [American] football isn't a contact sport, it's a _collision_ sport, and the center does more than his share of the colliding. But don't worry, I haven't bitten anyone for years. Tell you what, you can call me a "blindly charging buffalo" if you like.

    The grounds upon which the Patent Office rejected Bilski's patent application made it into a case about software patents. Possibly they could have found other grounds, but they did not, and at least one of the Supreme Court justices has expressed the view that a discussion of business method patents has to involve software patents because business methods are practically implemented as software.

    You take a much too narrow view of silicon hardware. If you mean gate logic, yes, that would become unpatentable under an expansive reading of Bilski. But there are all kinds of other things. For example, can you make a better photosensor for cameras? The conventional variety involves putting different colored filters over adjoining cells in a grid, but that effectively throws away three-quarters of the available light. Can you come up with an arrangement whereby photons of different colors, and consequently, different energies penetrate different depths into the photosensor, and push electrons into capacitors in different layers? This isn't something you could express in Verilog, of course (I don't think?).

     

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    Software Attorney, May 8th, 2010 @ 6:49am

    Patent Reform

    It is not surprising that patent reform may not happen this year. I predict that the outcome in Bilski may give enough political clout and media visibility to make some type of patent reform a chance.

     

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    Fred McTaker (profile), May 11th, 2010 @ 6:20pm

    What smart rulings?

    What smart rulings?!? In re Bilski isn't done yet, the dumb-as-rocks decision of State Street still stands as precedent, and Amazon got their one-click patent! Immersive won against Sony for reinventing the speed-select vibrator, there are endless IP battles over slap-head-obvious incremental details of cell phones, and Namco still has a patent on playing little games while loading big games in the background. What evidence is there that the Judicial branch doesn't have the same vacuum in its collective skull for Intellectual Monopoly law as the Legislative and Executive branches? When will there be a sign of intelligent life on Earth?

     

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    Andrew D. Todd, May 12th, 2010 @ 2:34pm

    Re: Re: What smart rulings?-- The Larger Implications.

    One might add another case: AT&T v. Microsoft, issued on the same day as KSR v. Teleflex, which asserted that patents do not extend to software on a DVD-disk, tape, or similar medium of transmission, and especially not to source code in that form. I would point out that in each patent case, the Supreme Court has ruled about as widely as possible, given the facts before them, and the basic grounds of analysis appropriate to those facts. It is in the nature of the Court's position that it does have to wait for cases to come to it, though it may stretch a point with wide rulings.

    The Supreme Court intends, at minimum, to diminish the scope of patents, as it has done in a series of cases over the last couple of years. The only question is how much, and how fast. The Solicitor General of the United States, speaking more on behalf of the Patent Office than of the President, merely asked the Supreme Court to go slow in Bilski, that is, not to try to decide everything about software patents in one decision, but to wait until something like the MPEG patent portfolio (*) worked its way up the courts, presenting a real case with substantial stakeholders. The patent lobby, that is the patent lawyers, the patent trolls, and perhaps certain sections of the Patent Office, is seriously unhappy about the Supreme Court's ongoing diminution of patents. Some few big companies, eg. Microsoft, Apple, IBM, are more or less conflicted. The pharmaceutical industry is afraid that patent-curtailment might spread to their business. All of these together represent a tiny portion of the country. They could not get even one state to secede from the Union and to fire on U. S. Army posts within that state's territory, as the slaveholders did in 1861.

    (*) Parenthetically, the JPEG2000 file format for still images has been a dismal failure. It only achieves a twofold reduction in file size over standard JPEG, and the twofold savings has not in practice proved great enough for a sufficient number of people to want to take the risks of file incompatibility and patent problems. The same logic may apply to large sections of the MPEG standard, notably MP3, in which case relevant patents will probably expire before a Supreme Court case can arise. Of course, this does not address the real issue, that of gross corruption and incompetence in the patent system.

    If the Supreme Court decides to abolish software patents, and related patents, such as those applying to electronic boxes, there will not be many politicians willing to end their political careers, the way Rep. Bart Stupak did over ObamaCare. I think the dominant attitude in Congress will simply be to do nothing about patents until such time as the Supreme Court may demand that they write a new law. The Supreme Court could simply invalidate the patent law in its entirety, and invite Congress to write a new one, conforming to certain requirements. That happens very occasionally, for example, in the death-penalty controversy of the late 1960's and early 1970's, and the immediate effect was an incidental clemency for some hundreds of convicted murderers, who had their death sentences reduced to life-imprisonment (with parole), and were often free within a few years. If the Supreme Court went to this length in the matter of patents, all existing patents or pending patent applications, regardless of subject matter, would presumably become null and void, because there would be no law under which they could be upheld. I cannot see why the Supreme Court would need to go to this length.

    Certain of the more hysterical proponents of software patents claim that Congress will do something to reverse the Court's actions. However, over-riding the Supreme Court is an enterprise fraught with peril, seriously attempted only in the most extraordinary circumstances. I can think of two cases. The first case was in 1861, during the Civil War, involving President Abraham Lincoln, Chief Justice Roger B. Taney, and Habeas Corpus. It involved a Maryland officer who had undertaken armed action tending to bring Maryland into the war on the side of the Confederacy, or at least to maintain an armed neutrality, and effectively prevent the retaking of the South. The government essentially ignored the Chief Justice's action, instituting martial law in the doubtful areas of the Mid-South, and Taney died in 1864. The second case was during the Great Depression, and involved President Franklin Delano Roosevelt and the National Recovery Act. After threats of packing the court, Roosevelt came up with less extreme legislation having the same effect as the National Recovery Act, and the Supreme court accepted this. In both cases, the President was dealing with a revolutionary situation. Lincoln was facing actual armed rebellion. Roosevelt was facing a depression so severe that it brought Hitler to power in Germany, and produced would-be-Hitlers in this country, such as Huey P. Long, and Father Coughlin. The President of the United States is the only person authorized to even claim the justification of national emergency to over-ride the Supreme Court (and he may very well be impeached for making such a claim). There is no regular legal procedure to over-ride the Supreme Court, short of a constitutional amendment. The attempts, as I have noted, involved messy improvisation. If you do not have the President of the United States on your side, forget about it.

    I think the larger point is that the Supreme Court is becoming educated in matters pertaining to Intellectual Property. The Court is learning what a patent troll looks like, how one talks, etc., and when the Justices come to deal with copyrights again, they will be prepared to recognize copyright trolls when they see them.

     

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