Surprise Amendment Would Have Gov't Explore Whether Business Model Patents Should Be Ditched

from the didn't-see-that-coming dept

We had noted that Senator Patrick Leahy was doing the Groundhog's Day thing of reintroducing his flawed patent reform proposal that doesn't actually address the problems of the patent system. He does this every year, insisting that this will be the year it's passed, and nothing ever actually happens. But, in a bit of a surprise move, Senator Chuck Schumer (who does not have a good history on curtailing IP-law abuses -- but rather has a history of expanding them), apparently introduced an amendment that at least opens the door to ending business model/business method patents.

It doesn't go there completely, but would "authorize a pilot program for review of business method patents." I'm not quite sure how you have a "pilot program" to study whether or not business method patents should be valid, but I'm surprisingly encouraged by the idea of actually running some sort of test program to get actual data to determine whether or not a particular program makes sense. Of course, given that it sounds like it makes sense, I'm guessing that either it will quickly get rejected or the details will show that it's really not what it appears to be at first glance.

Separate from this, there's apparently another amendment that narrowly focuses on banning patents on tax strategies. We've already noted how there's been an explosion of "tax strategy" patents in the last few years, and Congress has tried to carve them out before as well. As I said last time, while I think tax strategy patents are a really bad idea and shouldn't have been allowed in the first place, I'm troubled by specific types of exemptions, rather than trying to fix the actual patent system that allows tax strategies to be patented in the first place. Cutting out just tax strategy patents is a duct tape solution that ignores the larger problem.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
    identicon
    Blah, Jan 31st, 2011 @ 3:32pm

    Quick, file a patent!

    Someone should file a business method patent for running "pilot programs for review of business method patents"... then sue congress if/when they pass that law.

     

    reply to this | link to this | view in thread ]

  2.  
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    RikuoAmero (profile), Jan 31st, 2011 @ 4:04pm

    Wait a minute

    So let me get this straight. You can patent an actual business model? And a tax strategy? So, not only can you patent Invention X, but you can also patent the business model Y based around Invention X?
    So...let's say I invent the cheeseburger. I patent it, only I'm allowed to make it. Now not only that, but now I patent the...idea of selling a cheeseburger, so not only do other people have to pay for the license of making a cheeseburger, I can also charge them if they sell their own cheeseburgers.

     

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  3.  
    identicon
    Lappy 486, Jan 31st, 2011 @ 4:11pm

    Great business models can transform a commodity into something enthralling. But to be successful, one must fight escalation of quotidian.

     

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  4.  
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    ChurchHatesTucker (profile), Jan 31st, 2011 @ 4:24pm

    Re: Wait a minute

    That's not all. You can refuse to license the ability to make a cheeseburger at all.

    Even better, if you get a patent on 'enhancing a burger by adding condiments' you can refuse to license the ability to make anything other than a plain burger.

    Of course, someone will likely own the patent on combining cooked ground beef and a bun, so you may end up cross-licensing with them.

    This is how progress is encouraged.

     

    reply to this | link to this | view in thread ]

  5.  
    identicon
    Anonymous Coward, Jan 31st, 2011 @ 5:45pm

    Pilot programs are also known as "if you do pass the law, we will make it not work for years". Basically, it is an end around.

    It also makes Leahy's submitted law look even less likely to pass. Now all they need to do is tack healthcare funding onto it, and it's dead.

     

    reply to this | link to this | view in thread ]

  6.  
    identicon
    Pixelation, Jan 31st, 2011 @ 7:22pm

    "Of course, given that it sounds like it makes sense, I'm guessing that either it will quickly get rejected or the details will show that it's really not what it appears to be at first glance."

    It seems to me that most amendments worth the trouble end up completely transmogrified by the time they are signed anyway. The lobbyists won't leave this one alone, the lawyers either.

     

    reply to this | link to this | view in thread ]

  7.  
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    Red Monkey (profile), Feb 1st, 2011 @ 3:03am

    You don't need an amendment about business method patents. For one thing, nobody seems able to define them clearly. Most such patents are obvious anyway. If an examiner can't knock them out on obviousness grounds alone he really shouldn't be an examiner.

    In your strawman, the examiner could just say "burgers are prior art, most people like to sell stuff to make money, therefore it would have been obvious to sell the burgers."

    If you already have a patent on the burger, a claim that adds the extra step of selling your burger makes no difference because by definition, you already have the right to exclude others from making, using, and selling your burger.

     

    reply to this | link to this | view in thread ]

  8.  
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    aikiwolfie (profile), Feb 1st, 2011 @ 3:45am

    Tax strategy patents? I never even knew they existed. Just how can something like that be patented? That's a bit like someone patenting their weekly shopping strategy. America really needs to get to grips with this whole IP and patents thing. It seems like there's nothing that can't be patented in the US.

     

    reply to this | link to this | view in thread ]

  9.  
    identicon
    Joe Skeptical, Feb 1st, 2011 @ 6:24am

    One problem there.

    If an examiner can't knock them out on obviousness grounds alone he really shouldn't be an examiner.

    I hate to say it, but you're assuming that the examiner is actually scrutinizing the patent. Considering that you can go back a couple months on this website alone and see a few stories about the pressure to pass more patents, I'm not sure that the emphasis on examiners is to make sure that the applications are actually valid.

    I don't think it's a stretch to say that one of the current measuring sticks for national innovation is the number of patents approved. You don't want to make the US look bad by not approving your share of patents, do you?

     

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  10.  
    identicon
    Anonymous Coward, Feb 1st, 2011 @ 6:59am

    Re: One problem there.

    You might to take another swig of the TD koolaid, you might be parched from all that hard typing and thinking you just did.

    You fell for it hook like and sinker. There is no "pressure to pass more patents". The number of patents last year is in line with the trends over the last 20 years. If anything, the higher number of patents completed last year may only be an indication of increased scrutiny in the previous year, which lead to many more patents actually getting approved in the next year rather than the previous (which was down over the year before, something TD wouldn't address).

    You fell for the old figures don't lie problem: The data was presented in a way to create FUD. You bought the FUD. now you are repeating the FUD like it's the truth. Congrats, you will likely get your free techdirt hoodie as a result.

     

    reply to this | link to this | view in thread ]

  11.  
    identicon
    staff, Feb 1st, 2011 @ 7:54am

    surprised??

    surprised??

    Really? The bottom line is large companies are pushing for legalizing theft of small firm technologies.

    Just because they call it “reform” doesn’t mean it is. Patent reform is a fraud on America.

    Please see http://truereform.piausa.org/ for a different/opposing view on patent reform.

     

    reply to this | link to this | view in thread ]

  12.  
    identicon
    Joe Skeptical, Feb 1st, 2011 @ 8:14am

    Re: Re: One problem there.

    Hey great the number of patents are in line with trends!

    That only means only last year, and in a few minutes I could find three different places where they complain about a backlog in patent processing, the effort it might take to catch up, and the possible damage to the economy.

    http://bit.ly/dQZEGC
    http://huff.to/9rdMGf
    http://bit.ly/fSCPPP

    And these are folks who seem pretty invested in getting their applications through.Congree has proposed reforms in the past, but they never seem to go anywhere, at least I haven't heard about any related bills from last year getting passed. I'm open to hearing about them.

    I guess you do bring up a bright side in arguing that the Patent Office is doing them as fast as they can, just not fast enough to keep up with applications. Maybe people will figure out how useless patents are, on the balance, and just get down to inventing and innovating.

     

    reply to this | link to this | view in thread ]

  13.  
    identicon
    Colonel Panik, Feb 1st, 2011 @ 9:36am

    Business Models

    The old Colonel here just patented "Sue Their Asses Off"
    as a business model.

    Any business that wants to sue another business now has
    to deal with the Colonel.

    Epic win.

     

    reply to this | link to this | view in thread ]


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