Looks Like Patent Trolls Have Won This Round As Even Weakened Patent Reform Likely To Die

from the history-repeats-itself dept

We suggested this was likely last month, but after two months of the Senate Judiciary Committee promising to move forward with its (increasingly weakened) patent reform bill, reports are that the bill is set to die thanks to patent trolls and patent lawyers ramping up their lobbying efforts. There has been some talk that Leahy may still bring forward a manager's amendment that has completely watered down the bill into being totally useless, but even that might not happen:

According to a tech industry source, Leahy has changed his position in part as a result of pressure from the Coalition for 21st Century Patent Reform, a lobbying group whose law firm Akin Gump recently hired Leahy’s long time chief-of-staff. The source added that Leahy is prepared to let the reform bill founder, and then draw political cover by casting blame for the failure on committee members’ inability to produce a suitable compromise. Meanwhile, the bill’s momentum has also been sputtering as a result of the trial lawyer bar pressuring other Senate Democrats to slow the bill.

This account of the Senate patent bill’s slow death is consistent with a source cited by Reuters, who said “It’s somewhere between sinking like a rock and air going out of it, like a balloon,” 

Oh, that revolving door. Helping patent trolls. Also, note that everything fell apart just as... Intellectual Ventures ramped up its political contributions. I'm sure that's just a coincidence, right?

And, of course, even if something does get squeezed out, much of the important stuff has already been wiped out of the bill. Late last year and earlier this year, most of our focus was on making sure that the covered business method provisions stayed in the bill, but we've been told they're long gone. This was the part of the bill that would allow the Patent Office to more quickly review business method and software patents to make sure they were legit. This already exists for certain financial patents, and it's been shown to be effective in tossing out bad patents. There is no reason to oppose this unless you have a bunch of bad patents... so of course, bad patent hoarders like Microsoft, IBM and Apple freaked out about it.

But even more basic ideas for stopping patent trolls are being stripped from the bill as well, according to Jeff Roberts over at GigaOm:
Staff members of the Senate Judiciary Committee, who did not want to be named, said by phone that the hold up is due to disagreements over two new points of contention: a provision that would require patent plaintiffs to provide detailed descriptions of alleged infringement in the pleadings they file, and one that would alter the legal process known as discovery (in which each side has to produce documents and witnesses). The latter reform is important because patent trolls rely on the economic asymmetries of patent litigation — especially the threat of discovery, which is extremely time-consuming and expensive — to force their victims into settlements.

These proposed pleading and discovery reforms have until now been uncontroversial.
If you've been following the patent reform space for more than a decade, you'd recognize this pattern. Back in 2004, Senator Leahy had introduced a semi-decent (not great, but not horrible) patent reform bill... and the trolls (and pharmaceutical companies) went apeshit over it, killing it. Every new session of Congress, a new version would be introduced that would be watered down to appease the pharmaceutical companies. Seven years later, the America Invents Act was finally passed... once it had been stripped of basically all useful provisions. It did absolutely nothing to deal with the problems of the patent system (and actually may have created a few new ones).

Unfortunately, it looks like we may have a few more years of this kind of crap, and no actual end in sight to patent trolling. It's pretty clear that companies that abuse the patent system are now abusing the political process to make sure they can extract more cash from those who are actually innovating. It's profitable to destroy our innovation economy, apparently, so why not spend it on buying politicians who won't stand up for what's right?

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    Ninja (profile), May 19th, 2014 @ 4:04am

    Also, note that everything fell apart just as... Intellectual Ventures ramped up its political contributions.

    The system feeds an useless, unproductive company that uses that money to keep the system broken. Where have we seen that before? Oh, like, goddamn everywhere. The way to end it is to use the system against itself and that's why I think that Superpac against corporate ruling in politics is getting so much attention and support..

     

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    Lurker Keith, May 19th, 2014 @ 4:05am

    independent analysis

    Why does our Government even allow lobbying for regulations like this? The reason regulation is being considered at all is because those lobbying against it are acting against Public Interest (best case scenario) & need reigning in. To allow those who are flouting or manipulating the rules to then have a say in the considered regulations, that it's clear they don't like before they're even thought up, is ludicrous! How does that serve the Public?

    The best way to approach how new rules are likely to impact whatever they're supposed to impact is to set up an independent board of experts who don't have a stake in the game (professors, for something like this, maybe?), & have the process be entirely transparent, so noone can be bought off w/o someone noticing (probably have statements from everyone written up independently before gathering the board together). & who is on that board shouldn't be announced publicly until their position has already been published into the Public Record. Then the board gathers to publicly discuss each one's take & come up w/ some compromise that should at least work in theory.

    That or make sure only competent, knowledgeable & honest Politicians (& extend that to Staff) ever get into office... & make sure Politics are even more transparent than the suggestion above. As well as bricking up that revolving door permanently & otherwise removing money from Lawmaking.

     

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      Anonymous Coward, May 19th, 2014 @ 4:22am

      Re: independent analysis

      That or make sure only competent, knowledgeable & honest Politicians (& extend that to Staff) ever get into office.

      Politics has gained a worse reputation than pimping, therefore about the only that that it will happen quickly is if suitable candidates are forced to stand at gunpoint.

       

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        Anonymous Coward, May 19th, 2014 @ 4:47am

        Re: Re: independent analysis

        There may be certain similarities if you take the word of earlier politicians.

        As is always the case, when the system is the problem, the solution is complex and often relies on other factors than elections. Awareness and specific solutions are the only things that really could create the environment for removing such a problem.

         

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        Pragmatic, May 21st, 2014 @ 3:16am

        Re: Re: independent analysis

        "...suitable candidates are forced to stand at gunpoint."

        There is so much wrong with that sentence...

        Suitable candidates exist *jerks thumb at the Pirate Party* but people won't vote for the unknown, and they're afraid that if they do vote third party, the other guy will get in.

        The trick is to get enough people to vote for the same third party to get that candidate in. That requires working out how many votes are required to get past the Big Two candidates and get people to pledge to vote for our guy well in advance of the elections. When the people see our candidate has a decent chance of getting in, they'll change their minds and vote for our guy.

        Getting suitable candidates to stand for either of the Big Two requires that they toe the party line...

        ...which is what the problem is.

         

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    Whatever, May 19th, 2014 @ 4:23am

    Didn't hear you

    I didn't hear you complaining when companies interested in defeating SOPA ramped up their contributions. Do you expect companies and individuals to support random things just to balance out the universe?

     

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      Anonymous Coward, May 19th, 2014 @ 4:46am

      Re: Didn't hear you

      To which anti-SOPA PAC at you referring?

       

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      Berenerd (profile), May 19th, 2014 @ 4:48am

      Re: Didn't hear you

      Point to me where they ramped up financial contributions for that please?

       

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        Whatever, May 19th, 2014 @ 7:15am

        Re: Re: Didn't hear you

        You can look at Google as an example:

        http://www.google.com/publicpolicy/transparency.html

        You can look at the difference between 2009,2010, and 2011 to see what a ramp up looks like.

         

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          Anonymous Coward, May 19th, 2014 @ 7:29am

          Re: Re: Re: Didn't hear you

          The problem is that you need money to get things done in DC, whether your cause is just or not. So, if you can convince a large corporation that their interests align with the public's, you might make headway (SOPA, for example). But, then again, their interests aren't going to align with the public's exactly. Since there is no way for public interest groups to front the cash required to achieve anything independent of corporate backing, the oligarchs ultimately call the shots and democracy is a farce.

           

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          Anonymous Coward, May 19th, 2014 @ 8:19am

          Re: Re: Re: Didn't hear you

          Which of the many anti-SOPA PACs benefited from this ramp of donations from the anti-SOPA crowd?

           

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      Anonymous Coward, May 19th, 2014 @ 5:36pm

      Re: Didn't hear you

      Butthurt over SOPA, troll boy?

      You realize no one believes your cocksucking, right?

       

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    duarte, May 19th, 2014 @ 4:31am

    I think the US are a corporate run country, the people have no power whatsoever in their politics.

    Since the taxes are so low in the US, the only way for the government to make money is to accept donations from corporations, the lobbying (which in itself is laughable, legal corruption FTW).

    Your "democracy" is no more than a charade, yes you can vote, so can the north koreans.

    You can vote for whoever you want but if either party wins, they will still do what the corporations pay them to do, they can't pass laws for the people if that means the state will not get funded.

    So much for freedom and capitalism, the only difference between capitalism and hardcore socialism is between who's calling the shots. In socialism the state runs all, owns all and makes its own laws. In capitalism the corporations run all, own all and pass laws to benefit themselves.

    Big problem there...

     

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      Anonymous Coward, May 19th, 2014 @ 4:57am

      Re:

      "US are a corporate run country"

      - Duh


      "Since the taxes are so low in the US, the only way for the government to make money is to accept donations from corporations"

      - Government tax revenues are quite sufficient, what causes massive deficits are the off balance sheet spending items.
      - Donations to elected officials do not go into the general fund.


      Comparing the us to NK is stupid.
      Both parties are the same, blah, blah
      So much for the future, time to give up
      Vague references to political systems and stereotypes

      Big Problem ... where?

       

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        Anonymous Coward, May 19th, 2014 @ 5:34am

        Re: Re:

        So this donations go directly to the elected official's pocket?

        I'm not saying to give up, but if you just accept the system how it is and not try to change it... good luck for the future.

        It's more than proven that capitalism is a really bad idea

         

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          Anonymous Coward, May 19th, 2014 @ 6:41am

          Re: Re: Re:

          Capitalism is a good idea. What we have here is the opposite of capitalism. Capitalism came along exactly to criticise government distortions of the free market. This isn't capitalism.

           

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            Pragmatic, May 21st, 2014 @ 3:22am

            Re: Re: Re: Re:

            Capitalism is a good idea. What we have here is the opposite of capitalism. Capitalism came along exactly to criticise government distortions of the free market. This isn't capitalism.

            The "free market" is and always has been an illusion because the most wealthy incumbents tend towards monopoly and protectionism. We see this all the time.

            Intervention is required to break up the monopolies, oligopolies, and cartels when they arise - which is an impediment to the freedom of the companies involved to choose how to run their businesses, but what else can you do?

            It's why the "free market" enthusiasts always go quiet when corporate malfeasance is exposed; in such cases, we've a long way to walk if we vote with our feet.

             

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          John Fenderson (profile), May 19th, 2014 @ 8:13am

          Re: Re: Re:

          "So this donations go directly to the elected official's pocket?"

          No, the donations go to the official's campaign fund.

           

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          Anonymous Coward, May 19th, 2014 @ 8:24am

          Re: Re: Re:

          "So this donations go directly to the elected official's pocket?"

          No, to the campaign fund - better than a pocket because it is tax free.



          "It's more than proven that capitalism is a really bad idea"

          The word "proven" means so many things to so many people.
          Unfettered anything is a bad idea, including capitalism.

           

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            David, May 19th, 2014 @ 8:45am

            Unfettered capitalism?

            One problem is that we are not talking about unfettered capitalism: there are regulations.

            The idea of capitalism is to let money be the arbiter of what is good and successful.

            It's like running a soccer league by buying players depending on your ticket sales, depending on how you can mobilize the masses. And there is enough correlation between success in sports and monetary success to make this work to some degree.

            Now letting money into politics mixes up the metrics with the rule-making. It's like the referees get most of their pay by the players, and the players are free to decide what to pay a referee for each game they play. And the referees are the same over a period of five years.

            The result is not "unfettered" but rather a lot of fettering where it does not make sense.

            The result is not a level playing field where the best wins, but rather a tilted playing field where the most ruthless parties carry the advantage.

             

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              John Fenderson (profile), May 19th, 2014 @ 10:36am

              Re: Unfettered capitalism?

              "One problem is that we are not talking about unfettered capitalism: there are regulations."

              Technically. However, the regulations that remain in place tend to be either really weak or unenforced. So, in large swaths of the economy, capitalism is effectively unfettered.

              "The idea of capitalism is to let money be the arbiter of what is good and successful."

              The inclusion of "good" in there is a decent summary of everything that is wrong with capitalism. Capitalism never has determined, and is incapable of determining, what is "good". It only determines what is most profitable.

              "The result is not a level playing field where the best wins, but rather a tilted playing field where the most ruthless parties carry the advantage."

              Yes, which is exactly what capitalism has given us.

               

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              Anonymous Coward, May 19th, 2014 @ 11:49am

              Re: Unfettered capitalism?

              "One problem is that we are not talking about unfettered capitalism: there are regulations"

              Regulations - like regulating banks? pollution? tax evasion? Oh, here's a good one: regulations regulating regulatory capture.

              "Now letting money into politics mixes up the metrics with the rule-making"
              Just the metrics? I would say it corrupts the foundation of what government is supposed to be doing.

              Referees and soccer players? really? Analogies are generally bad, but this one is horrible.

              "The result is not "unfettered" but rather a lot of fettering"
              I'm sorry, this makes no sense.

              "but rather a tilted playing field"
              Like, completely upside down

               

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              Pragmatic, May 21st, 2014 @ 6:01am

              Re: Unfettered capitalism?

              The idea of capitalism is to let money be the arbiter of what is good and successful.

              And that, dear friends, is why "the market" is not and can not ever be free.

              Whose money is the arbiter? Whoever has the most of it, folks.

              The wealthiest companies can leverage their buying power to force suppliers to lower their prices, which allows them to sell at lower prices, which is HOW they undercut their rivals. When they get a big enough market share, they can then approach local governments with promises of job creation, but pay their workers so little they can't afford to live on what they earn so they end up on food stamps. The workers can't vote with their feet because the alternative employers have been driven out of business. I'm thinking of Walmart here.

              The reason this carries on is that it's cheaper to subsidize workers than have them completely dependent on welfare. Unfortunately, this means you subsidize the business by keeping their employment costs low. You can't withdraw the subsidy without leaving the workers to go hungry or the company to [threaten to] quit.

              And why is this permitted to happen?

              Money is the arbiter of what is good and successful.

              You hit the nail right on the head, David.

              We'd be better off with a system where efficiency and value to society was the arbiter of what is good and successful.

               

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    vegetaman (profile), May 19th, 2014 @ 4:58am

    Blamed on the need to compromise!? On what!? How the hell does that make sense? It needs stopped; period.

    "Hey, this thing you're doing it's pretty shitty and just a waste of money. We're going to make you stop it."

    "But we need to compromise. We need our revenue streams to like, let us keep fleecing people, ya know?"

    "...Okay."

     

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    Anonymous Coward, May 19th, 2014 @ 5:17am

    > Also, note that everything fell apart just as... Intellectual Ventures ramped up its political contributions. I'm sure that's just a coincidence, right?

    Chief Roberts: Why yes, of course it is. What else could it possibly be?

     

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    Michael Donnelly (profile), May 19th, 2014 @ 7:08am

    Oligarchy.

    I believe the results of the research: http://www.washingtontimes.com/news/2014/apr/21/americas-oligarchy-not-democracy-or-republic-unive/

    A nd, of course, what just happened with Senator Leahy.

     

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    Anonymous Coward, May 19th, 2014 @ 7:19am

    For many of us the AIA never had any useful provisions. What it did have were a slew of provisions that not only did nothing to address actual problems, but in many cases it made the situation worse. This is, I guess, what you get when people clueless about how a system actually works somehow, magically, become experts in a field of endeavor.

    This present bill followed that tried and true path of proposing solutions that were precisely the opposite.

    I know it is anathema to many, but there are many of us who do lobby within professional organizations to address problems with the system. Of course, our work does not make the news because it is done behind the scenes with professional organizations such as the ABA, AIPLA, USTLA, ACPC, etc.

     

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    John William Nelson (profile), May 19th, 2014 @ 7:34am

    I'm a trial lawyer and I'm for patent reform, if done correctly

    Looked at the linked article and all it does is state that trial lawyers are pressuring Senate Democrats.

    Really? Which ones?

    Because, you know, there are actual trial lawyer associations which lobby, so I would prefer to know which ones are doing said lobbying (if any) against patent reform.

    For example, what is the American Association for Justice's take on this?

    What I've read so far on its views is that (1) this is rush legislation with problems, (2) the legislation does not fix fee diversion wherein Congress takes USPTO fees away from the USPTO and therefore fails to adequately fund the office (best way to fight a bad patent is to fund the USPTO so it stops bad patents), (3) places burdens on plaintiffs which will impact patent trolls and non-patent trolls alike, and (4) reduces the ability of the federal courts to weigh damages and fees on case-by-case basis by removing a judge's decision making ability.

    In all seriousness, patent reform is important and needs to be undertaken. However, one of the most impactful ways to reform the patent process is to fund the USPTO so that it does not feel pressured to relieve backlogs by granting folks like Amazon ridiculous patents for photographing against a white background.

    The best way to stop abusive patent litigation is to stop having silly or ridiculous patents being granted which are overly vague, too broad, and able to be applied in litigation to inventions so far afield as to not make sense.

     

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      Anonymous Coward, May 19th, 2014 @ 7:48am

      Re: I'm a trial lawyer and I'm for patent reform, if done correctly

      The best way to stop abusive patent litigation is to stop having silly or ridiculous patents being granted which are overly vague, too broad,

      It would help to achieve that if the lawyers advising on the patent application did their best to ensure that the patent idea was actually novel. It would also help if the assistance they give in writing the patent did not try to make it as broad as possible, and so difficult to understand that it requires a trial to decide what it actually means.

       

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        John William Nelson (profile), May 19th, 2014 @ 10:17am

        Re: Re: I'm a trial lawyer and I'm for patent reform, if done correctly

        This would require a shift in the burdens placed on patent attorneys in prosecuting a patent. I do think this could provide some benefit, but at the same time you have to be careful about how far you take it.

        No matter what, someone will want a patent or other bit of IP to cover as broad an area as possible.

        Further, while narrowly tailoring patents sounds great initially, it may open up the need to file dozens, or hundreds, or thousands of patents where now you may only need to file one to cover an invention.

        In addition, having a narrowly tailored focus may allow bonafide infringers to escape while harming legitimate inventors and prevent them from obtaining a proper remedy.

        In short, it is not a simple balance of issues.

        Which is why the simple act of properly funding the USPTO would go so very far without having to tinker with the underlying law.

        Also, get rid of the Court of Appeals for the Federal Circuit (CAFC). They're a bunch of idiots.

         

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          Anonymous Coward, May 19th, 2014 @ 12:27pm

          Re: Re: Re: I'm a trial lawyer and I'm for patent reform, if done correctly

          Comments on the problem with Lawyers trying to push patents through. They are complaining that people are finding prior art for preissuance submissions, and defeating patent applications.

           

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            Anonymous Coward, May 19th, 2014 @ 1:04pm

            Re: Re: Re: Re: I'm a trial lawyer and I'm for patent reform, if done correctly

            Forgot the link, so here it is

             

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              John William Nelson (profile), May 19th, 2014 @ 7:01pm

              Re: Re: Re: Re: Re: I'm a trial lawyer and I'm for patent reform, if done correctly

              I have no problems with patent applications being defeated. Frankly, most good patent lawyers I know probably wouldn't have problems with this either, as they work hourly.

               

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                Pragmatic, May 21st, 2014 @ 6:05am

                Re: Re: Re: Re: Re: Re: I'm a trial lawyer and I'm for patent reform, if done correctly

                No matter what, someone will want a patent or other bit of IP to cover as broad an area as possible.

                And as long as you keep telling them that IP is essential to "protect" their profits, they certainly will. Shouldn't they be concentrating on innovating?

                Silly me... you're a lawyer! The system works perfectly fine... for you.

                 

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      John Fenderson (profile), May 19th, 2014 @ 8:16am

      Re: I'm a trial lawyer and I'm for patent reform, if done correctly

      "The best way to stop abusive patent litigation is to stop having silly or ridiculous patents being granted"

      I agree. The main thing I want to see in patent reform is that.

       

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    Annonimus, May 19th, 2014 @ 8:22am

    Are we sure this is not in fact Senate blackmail?

    Are we sure Senator Leahy is not trumpeting the patent reform bill after every new Senate election as a way to get some of that patent trolling money into his own pockets?

     

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    TroyComment (profile), May 19th, 2014 @ 10:53am

    Senator Grassley

    As the Ranking member on the Senate Judiciary committee, where does Iowa Senator Charles Grassley stand on the bill? He could possibly chair the committee in the next congress.

     

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    slick8086, May 19th, 2014 @ 12:16pm

    Lawyers who defend patent trolls should be called patent goblins."

     

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    gorehound (profile), May 19th, 2014 @ 12:47pm

    Broken useless system of Government ruled by Oligarchs and Corporations with deep pockets along with weak willed sellouts cavin' in to takin' the money.

     

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    Anonymous Coward, May 19th, 2014 @ 4:04pm

    Jeez! why bother to do any of this at all? just give the various companies and industries free rein to do what they want! they are doing so, maybe slightly unofficially, but they are! these friggin politicians must be the most gutless bunch of fucking morons ever! for goodness sake pack the jobs in and give them to people who will at least make an attempt to do something right, rather than just sit there and get pissed on from a great height!!

     

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    staff, May 20th, 2014 @ 7:40am

    more dissembling by Masnick

    'Looks Like Patent Trolls Have Won This Round As Even Weakened Patent Reform Likely To Die'

    The word on the street is Masnick and his monkeys are paid puppets for some of the worlds biggest invention thieves. All they know about patents is...they don't have any.

    Can you say ‘dissemble’? Just because they call it patent "reform" doesn't mean it is.

    Property rights and jobs in America are now hanging from a frayed thread. Congress and the White House continue to follow the lead of their multinational campaign donors like lambs...pulling America along to the slaughter.

    http://sunlightfoundation.com/blog/2014/05/07/patent-cash-flows-to-senate-judiciary-commit tee-members/
    http://www.npr.org/2013/11/06/243022966/secret-persuasion-how-big-campaign-donors-stay-a nonymous

    All this patent troll and ‘reform’ talk is mere dissembling by China, huge multinational thieves and their paid puppets.

    They have already damaged the American 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 American jobs to China and elsewhere 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 or weaken patent rights? Think again.

    Most important for America is what the patent system does for America’s 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 American 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 a robust economy America depends on a strong patent system accessible to all -large and small, not the watered down weak system the large multinationals and China are foisting on America.

    For the truth, please see http://www.truereform.piausa.org/
    http://piausa.wordpress.com/
    http://www.ipwatchdog.com/2014/04/18/for-whom-the-bell-tolls-the-us-patent-system/id=49067/
    http://ww w.hoover.org/publications/defining-ideas/article/142741

     

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


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