President Obama's Patent Plan May Have More Teeth Than You Realize

from the it's-not-quite-that-weak dept

When we wrote about President Obama's plan to deal with patent trolls, we noted a few areas where it was a bit weak and could be improved. In particular, the lack of an independent invention defense and using independent invention as evidence of obviousness would be quite useful in stopping abuses of the patent system. However, I'm a bit confused by Christopher Mims' complaints about Obama's patent plan being useless against patent trolls. I think Mims is a bit confused. He claims that there are two real problems with the patent system, and this plan addresses neither: (1) the patent office is understaffed and there's a backlog of patents and (2) the fact that we grant software patents at all.

I'd argue that Mims is seeing symptoms of the broken patent system, and suggesting that they are the problems, and I think he underestimates how some of the proposals may fix the "problems" he sees. First, on the question of an understaffed patent office, that's clearly a symptom, not the cause. The real problem is that the patent office has been issuing a ton of ridiculous patents: patents that are broad and covering obvious things. Furthermore, the courts have been awarding huge sums in litigation on those patents. The end result: more people applying for more patents, hoping to get their own lottery ticket. If you take away the broad patents and you make it easier to invalidate bad patents that already exist, combined with potential fees for suing over bad patents, you diminish (greatly) the value of the lottery ticket. End result? Fewer patent applications, less backlog, and no need to focus on hiring. The whole "patent office is understaffed!" claim is a red herring. It's the result of a patent system that has been encouraging a growth in patents, rather than a growth in innovation.

As for the software patent issue, I know that lots of people are sympathetic to this claim, but as we've argued for years, it's not that easy. If you outlaw "software patents," patent lawyers will rewrite those patents to look like they're not "software patents." And that's because there is no real definition of "software patents." Mims dismisses the stuff about rejecting functional claiming by saying that it's just some vague notion of stopping "broad" claims. But that's not true. He should read Mark Lemley's paper on functional claims. If the USPTO was properly recognizing and rejecting functional claims, it would have the impact of basically getting rid of many of the worst kinds of software patents, because they're really about functional claims. That's the real problem with most software patents. Get rid of functional claims and much of the "software patents" problem is dealt with.

Furthermore, it also has the benefit of stopping similar problems in hardware patents. Because while there's been a lot of focus on software patents, there's been a growing problem on the hardware side as well, and it's only going to get worse as we enter a new era of hardware startups and disruption. And, of course, getting rid of functional claims also, means fewer bogus patent applications as the lottery ticket aspect dies down as well... and, once again, that solves the "problem" of not enough patent examiners.

So, no, the proposals from the White House aren't perfect and don't solve everything. But, I wouldn't dismiss the suggestions out of hand either. If the USPTO actually did its job and rejected functional claims, the potential impact could be huge.


Reader Comments (rss)

(Flattened / Threaded)

  •  
    identicon
    Pragmatic, Jun 13th, 2013 @ 3:36am

    Hey Mike, do you see value in software patents? If so, what is it? I note with interest that patents on software in Europe are rare (thank you, Glyn Moody) and that digital rights activists are hoping to keep it that way.

    Are you in favor of limited patents on software or none at all?

     

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      TheLastCzarnian (profile), Jun 13th, 2013 @ 7:40am

      Re:

      I think what Mike is saying is that it's difficult to cut out what exactly "software patents" are. Considering that the first patent was on a process, not a device, we need to find a way to draw a line between the two.
      But after reading Techdirt for many years, I would say that Mike does NOT support software patents in any form. I can't really speak for him, but that's my impression.

       

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        Pragmatic, Jun 14th, 2013 @ 6:11am

        Re: Re:

        That was my impression, too, but I wish he would explicitly say so.

        Of course, it's reasonable to keep your options open so you can't be called out for being inconsistent.

         

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        Pragmatic, Jun 14th, 2013 @ 6:11am

        Re: Re:

        That was my impression, too, but I wish he would explicitly say so.

        Of course, it's reasonable to keep your options open so you can't be called out for being inconsistent.

         

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    Anonymous Coward, Jun 13th, 2013 @ 4:12am

    it's similar to the cases of copyright too. one of the main things to address is to penalize those making false claims. and i dont mean with some piddly little $50 fine, i mean with fines that are substantial, fines that are equally on par with those dished out to people who have infringed. one of the worst things ever to have come out of Congress was the law that allowed whoever to issue take down notices on things they had no right to have taken down, to have items removed that shouldn't be removed, to have web sites closed that shouldn't be closed, etc etc. the worst offenders are the entertainment industries. they have induced extreme hardship on people when they have no right to do so. not everything is theirs, belongs to them or is copyrighted by them, but they think it is. the number of notices that have been posted for take downs to Google per month is absolutely phenomenal! and how many are false? what harm is done when they are false? none at all to those industries! ridiculous operating system!

     

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    identicon
    horse with no name, Jun 13th, 2013 @ 4:13am

    But

    The real problem is that the patent office has been issuing a ton of ridiculous patents: patents that are broad and covering obvious things.

    Don't you think that perhaps with more staff, they can take the time to weed out some of these issues? Don't you think perhaps that a need for speed is a leading cause here?

    After all, there is no simple way to limit the number of patent applications coming in, and they have to be treated. The backlog can only harm their ability to truly consider patents propertly.

    I think perhaps you are seeing a symptom (bad patents) and not paying attention to the cause (lack of manpower). It cuts both ways, really.

     

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      Nic, Jun 13th, 2013 @ 4:30am

      Re: But

      You don't want more staff for the patent office. They're given signs that more patents=more innovation so if you hired more of them, they'd find reasons to grant more and worse patents because they're encouraged to do so.

       

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        horse with no name, Jun 13th, 2013 @ 4:40am

        Re: Re: But

        Ahh, so you want less people, so they have less time to check things, and are more likely to just pass things rather than really consider the implications, and to really check to see if they are good patents or not?

        Sounds like a plan. Let's fire all the staff except one, and give him a big rubber stamp. That will do the job nicely, see you in 20 years.

         

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          Anonymous Coward, Jun 13th, 2013 @ 4:59am

          Re: Re: Re: But

          The thing is horsey.

          The people in the Patent office have no idea what a good or bad patent is. They are not knowledgeable in their fields so they need narrower rules to weed out the bad patents.

          Or you could employ a load of highly skilled engineers for fuck loads of money to do the same job?

           

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          Anonymous Coward, Jun 13th, 2013 @ 6:51am

          Re: Re: Re: But

          AJ aka little pony.

          You don't want more people, the rules of engagement are the problem, until you solve that problem you cannot know how many people you will actually need.

          For the current scheme you don't need more people they already rubber stamp every single BS claim under the Sun why bother at all with people to actually check anything if nothing is ever refused, the only people who can't get a patent are the people who don't have the money to keep filling it again and again and again.

          Which in turns bring out the best kind of people who really want to see things working you know the type of guys that patent patent trolling for example.

          Patent Acquisition and Assertion by a (Non-Inventor) First Party Against a Second Party United States Patent Application 20080270152, Inventors:
          Menezes, Clive D. (Conroe, TX, US)

          ps: It had to be from Texas.

          So you see little pony the problem is not the number of staff, but the rules of the road, or are you the type of guy that decides to hire hands to sow a field at the seeding time?

           

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      Anonymous Coward, Jun 13th, 2013 @ 4:38am

      Re: But

      More staff = more problems, the directives are wrong is not a staff problem.

      The number of applications have been growing, because unscrupulous people have noticed that they can get away with ridiculous claims and they are ridiculous so much so that there are entire websites dedicated to making fun of them, with fresh material every day.

       

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      Anonymous Coward, Jun 13th, 2013 @ 4:51am

      Re: But

      I seem to recall that the patent office announced some time ago that they were expediting the patent approval process (at the expense of accuracy, it seems) and possibly slashing staff.

       

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      Michael, Jun 13th, 2013 @ 5:11am

      Re: But

      Now that there is a huge backlog, you could make this argument, but if you fix the underlying problem, it should be a short-term issue to clean up the backlog and then you have patents coming in at a more reasonable pace.

      You would take a risk by "staffing up" of the patent office encouraging patent applications to keep it's staffing levels high.

      I agree that they need help, but I do not think it is from additional staff. They should be contracting out to experts in individual fields to help them. A patent examiner is often a poor judge of what is obvious to someone in a highly specialized field. Right now, there is a lot of incentive to attempt to patent things broadly. Reduce the incentive, take away the ability to re-try an infinite number of times, and give the patent office the ability to consult the right people.

       

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      John Fenderson (profile), Jun 13th, 2013 @ 9:02am

      Re: But

      The biggest problem isn't a manpower one, but related to a change in the patent rules. Both Bush & Obama instituted rules that require patents to be processed much more rapidly. This trend has increased the number of bogus patents to the point that in certain industries (software, for instance), patents are actively harmful to everyone involved.

      Patent examinations need to be allowed enough time to be able to actually do a good job. Correct that first. Then address the manpower issue.

       

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    RyanNerd (profile), Jun 13th, 2013 @ 6:37am

    We all know

    that the patent office is staffed by untrained monkeys armed with darts.

     

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    benthic (profile), Jun 13th, 2013 @ 6:51am

    Why should I give this plan any heed?

    This is the President that promised to close down Guantanamo.

    This is the President that promised to have the most open government in the history of the US.

    And so on and so on and so on . . . .

    Talk is CHEAP and all politicians are good for is cheap talk.

    ACTIONS speak volumes and the actions of everyone in the government to date indicate that they are for every regressive from of IP protective legislation imaginable.

     

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      Anonymous Coward, Jun 13th, 2013 @ 7:03am

      Re: Why should I give this plan any heed?

      In the last 30 years I never saw, not once a president that hold all of its promises.

      Fool me once shame on you, fool me twice shame on me.

      And I am not talking just about the US, I never saw any politician anywhere do what they promise, the most honest ones cling on to a single promise and try to make it happen and forget about the other ones that they made.

      The public should instead of trying to hold on to promises actually draft some laws and elect people to enact those laws for them instead of letting liars do that for them.

      The Tea Party actually showed the power of crowds and if they were a bit more creative they would have changed how politicians are actually elected, aside from the fact that they seemed ridiculous with so very troublesome positions but that is life.

      People are not united and so the liars prosper.

      It wouldn't matter who was on the White House if people actually drafted their own laws and actually were able to agree on those and work to enact the laws not the people assigned to "make" laws for the people.

       

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    crade (profile), Jun 13th, 2013 @ 7:14am

    The problems with software patents are certainly not exclusive to software patents. They just look worse because of the volume of activity in that area.

     

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    Yankee Infidel, Jun 13th, 2013 @ 11:59am

    underestimating how easy it can be to invalidate software patents

    Mike,

    I propose a very simple rule (one that patent maximalists would cringe at and cry horror over):

    *** If any key part of a patent requires the use of software, then such patents are should be deemed as ineligible for patent protection. ***

    Some may say that this may cause many current patents to become invalid, but I do not see this as a bad thing (and I would assume you would also not necessarily see this as bad either).

    Such a broad and hard rule against including any type of software component within any key component of a patent would prevent such patents from ever existing, and thus protect software developers from ridiculous patent lawsuits that should have never existed in the first place.

     

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      Mike Masnick (profile), Jun 13th, 2013 @ 12:26pm

      Re: underestimating how easy it can be to invalidate software patents

      *** If any key part of a patent requires the use of software, then such patents are should be deemed as ineligible for patent protection. ***

      Define "software."

       

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    6, Jun 13th, 2013 @ 2:00pm

    Mike wtf bro?

    "If the USPTO actually did its job and rejected functional claims, the potential impact could be huge."

    Mike what on earth makes you think that this is the PTO's job? The CAFC, aka the people that call the shots in the PTO unless the supremes step in about any and all substantive matters of lawl, say that this is not what the PTO is supposed to do because it is supposedly not the lawl. If it were the lawl, then of course the PTO would do it, and of course software patents would be practically worthless.

     

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    Anonymous, Jun 13th, 2013 @ 2:23pm

    Then he can just bite me and eat my shorts.

     

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    staff, Jun 14th, 2013 @ 6:47am

    more dissembling by Masnick

    “patent troll”

    infringers and their paid puppets’ definition of ‘patent troll’:

    anyone who has the nerve to sue us for stealing their invention

    The patent system now teeters on the brink of lawlessness. Call it what you will...patent hoarder, patent troll, non-practicing entity, shell company, etc. It all means one thing: “we’re using your invention and we’re not going to stop or pay”. This is just dissembling by large invention thieves and their paid puppets to kill any inventor support system. It is purely about legalizing theft. The fact is, many of the large multinationals and their puppets who defame inventors in this way themselves make no products in the US or create any American jobs and it is their continued blatant theft which makes it impossible for the true creators to do so. To them the only patents that are legitimate are their own -if they have any.

    It’s about property rights. They should not only be for the rich and powerful. Our founders: Jefferson, Franklin, Madison and others felt so strongly about the rights of inventors that they included inventors rights to their creations and discoveries in the Constitution. They understood the trade off. Inventors are given a limited monopoly and in turn society gets the benefits of their inventions (telephone, computer, airplane, automobile, lighting, etc) into perpetuity and the jobs the commercialization of those inventions bring. For 200 years the patent system has not only fueled the US economy, but the world’s. If we weaken the patent system we force inventors underground like Stradivarius (anyone know how to make a Stradivarius violin?) and in turn weaken our economy and job creation. Worse yet, we destroy the American dream -the ability to prosper from our ingenuity for the benefit of our children and communities. Who knows who the next Alexander Graham Bell will be. It could be your son or daughter. It could be you. To kill or weaken the patent system is to kill their futures. Show me a country with weak or ineffective property rights and I’ll show you a weak economy with high unemployment. If we cannot own the product of our minds or labors, what can we be said to truly own. Life and liberty are fundamentally tied to and in fact based on property rights. Our very lives are inseparably tied to our property. Large multinational corporations are on the brink of destroying the American dream -our ability to pull ourselves up by our bootstraps from the working classes by building our own companies while making better futures for our children and our communities.

    Prior to eBay v Mercexchange, small entities had a viable chance at commercializing their inventions. If the defendant was found guilty, an injunction was most always issued. Then the inventor small entity could enjoy the exclusive use of his invention in commercializing it. Unfortunately, injunctions are often no longer available to small entity inventors because of the Supreme Court decision so we have no fair chance to compete with much larger entities who are now free to use our inventions. Essentially, large infringers now have your gun and all the bullets. Worse yet, inability to commercialize means those same small entities will not be hiring new employees to roll out their products and services. And now those same parties who killed injunctions for small entities and thus blocked their chance at commercializing now complain that small entity inventors are not commercializing. They created the problem and now they want to blame small entities for it. What dissembling! If you don’t like this state of affairs (your unemployment is running out), tell your Congress member. Then maybe we can get some sense back into the patent system with injunctions fully enforceable on all infringers by all patentees, large and small.

    Those wishing to help fight big business giveaways should contact us as below and join the fight as we are building a network of inventors and other stakeholders to lobby Congress to restore property rights for all patent owners -large and small.

    For the truth about trolls, please see http://truereform.piausa.org/default.html#pt.
    http://www.hoover.org/publications/defining-ideas/article/142741
    http://ssrn.com/abstract=1792442

     

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