Even More Patent Reform Bills Being Floated In Congress

from the it-would-appear-there's-some-appetite dept

Another day, another proposal for patent reform in Congress, once again targeting patent trolls (in part). Already this year, we've seen Rep. DeFazio push for fee shifting to make trolls pay legal expenses for bogus lawsuits, Rep. Deutch introduce a bill to force patent trolls to stop hiding anonymously behind shell companies, Senator Schumer seek to make it easier to quickly dump bad patents and Senator Cornyn put a bunch of these ideas together in a bigger anti-troll bill. Most of these have been introduced in the last month or so. We can now add a new proposal from Rep. Bob Goodlatte, head of the House Judiciary Committee, who has released a patent "discussion draft" that includes a number of issues it's trying to fix.

Goodlatte's proposal, like many of the others, has some good things in it, but is pretty weak overall, trying to skirt around the overall troll problems. The bill would certainly be a step in the right direction, but hardly a decisive one. Like Deutch's bill, this one would make it harder for trolls to hide behind shells, and then would do a bunch of things to try to decrease the costs for those who are sued. This would definitely be helpful, because it's the cost of fighting back, even if a company is sure it doesn't infringe, that leads many companies to just pay up to settle. The general estimate we hear is at least $1 million for just the district court case.

The good news is that it is increasingly clear that massive patent reform is back on the table, even with the last comprehensive patent reform bill, the America Invents Act, passing less than two years ago. At the time, we pointed out that the bill did nothing to deal with the troll problem, and it seems clear that many in Congress recognize patent trolling is a problem that needs to be dealt with quickly. Having five bills introduced -- four within the last few weeks -- and many by prominent members of Congress who have the ability to push a bill through, suggests that there really is an appetite in Congress to take on the trolling issue.

The bad news is that the existing proposals could go much, much further, and don't. There's nothing like an independent invention defense (or independent development as evidence of obviousness), or any effort to seek out peer review of patent proposals -- both of which would cut down on many bad patent trolling shakedowns. Furthermore, having watched the messy debate over the America Invents Act, which went on for about seven years (possibly more, depending on how you count), we saw some good ideas in initial drafts watered down more and more year after year, until the final AIA was effectively useless. If we're already starting with relatively weak proposals, once they go through the ringer and the pharmaceutical companies (mainly) strip out the parts they don't like, we may be in for another toothless bill. Hopefully, this is a sequel with a twist ending, and something real and effective can actually become law.




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  1.  
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    Paraquat (profile), May 30th, 2013 @ 8:16pm

    where lawsuits are filed

    One of the best reforms would be that if a lawsuit is filed, the case must be tried in the nearest court where the DEFENDANT lives. It seems that practically all the cases are tried in Beaumont, Texas - except, of course, when the defendant actually lives in or near Beaumont, Texas, in which case it gets tried in Alaska or Hawaii.

    Working people just don't have the time or money to make the journey to east Texas repeatedly, which is what the trolls count on.

     

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    out_of_the_blue, May 30th, 2013 @ 8:42pm

    So, about 1% "good news" to 99% "bad news".

    I really don't know why you bother about Congress. I bet it's because you were born into the ruling class and just can't free yourself of the myths the 1% put out, not least that they have intentions of doing good for the people. They don't. They're totally parasites, quickly going insane now that the surveillance state is nearly all in place.

    Congress is supposedly our servants, and we need to return them to that status, so yet again, what's needed? Populism! Not your weenie tweaking around the edges, but another New Deal, this time before The Rich wreck everything, cause it's obvious that they're going to.

     

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  3.  
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    Androgynous Cowherd, May 30th, 2013 @ 9:45pm

    Another thing to worry about

    Another thing to worry about is that too many similar patent reform bills wending their way through the system at the same time will "split the vote" and divide attention in congress. If most of the representatives back their own favorite among the proposals and ignore the others, none of them will likely get enough votes to pass.

    Meanwhile, a suggestion: make it really, really expensive to file a patent. If patent examiners need more resources to do truly diligent prior art searches and to do peer review for obviousness, get those resources by dinging the applicant more. Some more up front, but also add in a yearly renewal fee, maybe even an escalating one. Make it somewhat expensive to maintain a big patent portfolio. This will encourage letting patents lapse early when they're no longer generating revenue, and getting fewer, higher quality patents to begin with. It will also destroy the larger trolls' business models, which rely on it being cheap to maintain a huge patent portfolio but use each one only a small fraction of the time, though the trolls with just one or a few patents would be affected less.

    The downside to that is that increasing the money the patent office gets from accepting patents would increase their incentives to grant, rather than deny, patents. Perhaps the decreased incentive to file for patents unless you're sure of large profits from the specific patent would outweigh that, but perhaps not. It also wouldn't disincentivize blockbuster-drug patents, which are each enormously lucrative to the pharma companies that hold them.

    But what could help with some of that is adding a negative reinforcement for trying to get bad patents: if a patent is rejected for obviousness or prior art, and the evidence should have easily been found by (or already known by!) the applicant, levy a hefty fine. Now there's also revenue the patent office gets for rejecting patents, and, particularly, for rejecting the worst patents. If a simple google search or asking a single random expert in the relevant field reveals knowledge of the supposedly "new and non-obvious" invention (e.g., linked lists, or using a scanner over the network), kaboom. Trolls facing hefty fines while the patent office is incentivized to reject the most trollish patents? Much better!

    Still leaves the troublesome pharma patents untouched, though. Maybe just outlaw those and establish a bounty for more-effective drugs against diseases, based on estimated marginal lives saved or sick days reduced per 1,000,000 people, with independent researchers part of the vetting process. Ditto gene patents. You'll get specialized pharma-R&D companies whose business model is simply to discover useful drugs and score bounties, and separate drug manufacturers that actually make the stuff that's been discovered, presumably, with some amount of FDA oversight regulating purity (so an "aspirin" better contain the claimed amount of acetylsalicylic acid and lack harmful contaminants, for instance).

     

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    Anonymous Coward, May 30th, 2013 @ 10:32pm

    The good news is that, change comes in pieces, pass one piece at a time.

    Bundles of laws are probably dead in current times, bits and pieces one after the other could change how things are done.

     

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  5.  
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    Anonymous Coward, May 30th, 2013 @ 10:40pm

    "Even More Patent Reform Bills Being Floated In Congress"

    A few revolving door favors and campaign contributions and any good clauses will soon sink and what will remain will be only the bad.

     

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  6.  
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    Anonymous Coward, May 30th, 2013 @ 10:45pm

    Re: So, about 1% "good news" to 99% "bad news".

    First of all is this the real blue or a parody?

    Secondly, so are you for or against patent trolling here?

     

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  7.  
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    Anonymous Coward, May 30th, 2013 @ 10:47pm

    Re: Another thing to worry about

    Another thing to worry about is that a good patent reform bill comes along and last minute every good clause gets omitted, a bunch of bad clauses get added, and the bill quickly passes before anyone has a chance to say anything. Campaign contributions and revolving door favors for all!!!

     

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  8.  
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    Mike Masnick (profile), May 30th, 2013 @ 11:18pm

    Re: So, about 1% "good news" to 99% "bad news".

    I bet it's because you were born into the ruling class

    Gotta admit, ootb, you finally made me laugh. That's a good one. :)

     

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    Anonymous Coward, May 31st, 2013 @ 12:57am

    Re: Another thing to worry about

    Meanwhile, a suggestion: make it really, really expensive to file a patent.

    That would ensure that only corporations could afford to prosecute patent applications, forcing the individual and small companies to either forgo patents, or sell out to a big corporation who can obtain the patent.

     

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    nospacesorspecialcharacters (profile), May 31st, 2013 @ 1:13am

    Another bucket over here...!

    All this is to me is putting down more buckets rather than dealing with the source of the leak.

    We want to see patent reform, not tiny tweaks that will eventually be worked around.

     

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  11.  
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    Pragmatic, May 31st, 2013 @ 3:20am

    Re: Re: So, about 1% "good news" to 99% "bad news".

    It's Blue 3, the left-wing one. They're all nuts, though.

     

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  12.  
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    Anonymous Coward, May 31st, 2013 @ 4:23am

    'the existing proposals could go much, much further, and don't'

    that being the case, it makes me wonder whether there is really a desire to mend this act at all? if the proposals so far dont do enough, dont go far enough why dont those that are making out they want reform, not doing the sensible thing and ask those that are actually involved in this shit for some advice? if you actually know what's wrong, you then have a better chance of mending it. if you keep groping in the dark, adding a little bit here, a little bit there, you end up with as big a fucking muddle as you already have. stupid way of doing things!!

     

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  13.  
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    RyanNerd (profile), May 31st, 2013 @ 4:37am

    Perhaps address the root cause?

    I still contend that the patent office is staffed by a bunch of chimpanzees with darts as their decision making device.

     

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    Vic, May 31st, 2013 @ 6:13am

    How about a simple "We give you this patent but because it is ridiculous to expect us to see if it is in use, if another party can prove that they were using this before you applied, your patent becomes cancelled, AND the patent actually transfers to the party that proved they used it before you.

    That will kill them off well and good.

     

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    staff, May 31st, 2013 @ 6:55am

    more dissembling by Masnick

    Just because they call it patent "reform" doesn't mean it is.

    These are mere dissemblings by huge multinational thieves and their paid puppets -some in Congress, the White House and elsewhere in the federal government. They have already damaged the US patent system so that property rights are teetering on lawlessness. Simply put, their intent is to legalize theft -to twist and weaken the patent system so it can only be used by them and no one else. Then they can steal at will and destroy their small competitors AND WITH THEM THE JOBS THEY WOULD HAVE CREATED. Meanwhile, the huge multinationals ship more and more US jobs overseas.

    Do you know how to make a Stradivarius violin? Neither does anyone else. Why? There was no protection for creations in his day so he like everyone else protected their creations by keeping them secret. Civilization has lost countless creations and discoveries over the ages for the same reason. Think we should get rid of patents? Think again...or just think.

    Most important for many is what the patent system does for the US economy. 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 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.

    For the truth, please see http://www.truereform.piausa.org/
    https://www.facebook.com/pi.ausa.5
    http://piausa.wordpress.com/
    http://www.hoover.org/publications/defining-ideas/article/142741
    http://cpip.gmu.edu/2013/03/15/t he-shield-act-when-bad-economic-studies-make-bad-laws/

     

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  16.  
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    dave blevins (profile), May 31st, 2013 @ 8:09am

    Time for real reform

    * patents only 20 years long, no extensions
    * living things not patentable
    * software not patentable
    * images not patentable
    * Patent expires if patent holder does not commercialize the patent within 3 years and if no "device" using patent exists, i.e. taken off market
    * patent expires in 10 years if sold

     

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  17.  
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    John Fenderson (profile), May 31st, 2013 @ 10:16am

    Re: more dissembling by Masnick

    I agree that patents can be of great value to society, and have been in the past. The problem is that they have gone too far off the rails in the present. This needs to be fixed: right now, patents hinder progress and innovation, not advance it, at least in some industries (most noticeably, software).

    That patents are good in theory does not mean that the "stronger" patent protection (in the modern sense) makes them even better. Water is good for you, too, but if you drink too much you will die.

     

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  18.  
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    Dave Xanatos, May 31st, 2013 @ 11:16am

    Re: more dissembling by Masnick

    Then they can steal at will and destroy their small competitors AND WITH THEM THE JOBS THEY WOULD HAVE CREATED.

    As opposed to the jobs the successful 'thief' is creating?

    Do you know how to make a Stradivarius violin? Neither does anyone else. Why? There was no protection for creations in his day so he like everyone else protected their creations by keeping them secret.

    And in the end, it doesn't really matter.

    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.

    Jefferson and Madison were very apprehensive about providing monopoly protection to inventors.

    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 and in turn weaken our economy and job creation.

    For 200 years the patent system has been used as a club to beat competitors into the ground. If we eliminate the patent system, innovators from all over the world will be free to build off the works of others without fear of legal ruin forced upon them by established monopolists. The resultant boom in discovery and creation will spur a new golden age in our economy and will result in a huge spike in available jobs.

    Who knows who the next Alexander Graham Bell will be.

    Maybe it could have been Charles Bourseul, Antonio Meucci, Johann Philipp Reis, or Elisha Gray. All of them have been credited with the telephone's invention. Bell got the patent, so he gets the fame. The telephone would have been created without him, and would probably have spread farther, faster if his monopolies hadn't held it up.

    To kill or weaken the patent system is to kill their futures.

    To keep the patent system is to kill people.

     

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  19.  
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    Peter Krnjevic, May 31st, 2013 @ 1:54pm

    Root cause

    As long as lawyers benefit from software patents, and most politicians are lawyers, I wouldn't expect too much reform.

    The cries from (a few hundred thousand?) software developers are no match for corporate America's boundless greed, where legal will always trump R&D.

     

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