Legislative Patent Reform in the News

• The Bush administration supports patent reform. The Bush administration does not support the apportionment section of HR.1908 [LINK].

 

Comments

[Richard Cauley]

Notably, the Bushies do not support the apportionment clause as written, noting that it is confusing and poorly written (which it is), but do support some rational form of apportionment [which everyone but the patent lobby, the far right wing and the AFL-CIO supports.]

Hopefully we can get this thing passed and signed soon before the rabble-rousers manage to stop reform again.

[Noted]

When one feels the need to use phrases such as "right wing" or "left wing" to support their position, it makes me think they are probably on the wrong track.

[Mark Perdue]

Count me in as a rabble rouser. Classic case of fixing problems that don't exist.

[stepback]

HR 1908 just passed as shown on CSPAN.

Special kudos to Rep. Marcy Kaptur for mounting the "good fight" against this railroaded through legislation. It is not clear what the last minute "manager's" amendments were. As in all democracies, we will find out when management is good and ready to tell us.

(P.S. Roscoe Bartlett of Peak Oil fame also rose to oppose HR 1908.)

[stepback]

HR 1908 just passed as shown on CSPAN.

Special kudos to Rep. Marcy Kaptur for mounting the "good fight" against this railroaded through legislation. It is not clear what the last minute "manager's" amendments were. As in all democracies, we will find out when management is good and ready to tell us.

(P.S. Roscoe Bartlett of Peak Oil fame also rose to oppose HR 1908.)

[stepback]

HR 1908 just passed as shown on CSPAN.

Special kudos to Rep. Marcy Kaptur for mounting the "good fight" against this railroaded through legislation. It is not clear what the last minute "manager's" amendments were. As in all democracies, we will find out when management is good and ready to tell us.

(P.S. Roscoe Bartlett of Peak Oil fame also rose to oppose HR 1908.)

[stepback]

Sorry for the triple post.
The posting software froze up on me as obviously has happened to others here.

[metoo]

vote was 220-175
Democrats: 160-58
Republicans: 60-117

this thing is far from over

[stepback]

What I found most reprehensible was Rep. Howard Berman's speech about the need for global "harmonization" and globalization of the economy.

Why don't we just harmonize the entire US Constitution by adopting the governmental system of Red China? One bullet through the back of the head is enough to silence all disgruntled citizens. Red China is one happy and harmonized country. We can become just as equally happy if we just let the Bermans have their way. Thank goodness for people who are willing to fight back like Congressman Dana Rohrabacher.

[real anonymous]

Well, if we do go to a first-inventor-to-file system, I can't wait to see what the USPTO does with the increased number of filings - since you won't be able to wait the year anymore to see if it'll be commercially viable, and you'll have to file regardless or risk losing everything. And talk about junk applications coming in - most applicants will have to consider foregoing the pre-ex search for the same reason (bet we'll see a lot of applications with exactly 5/25 claims). And no possibility of delayed examination? (That's what saves the JPO.) Yikes, this could be a recipe for disaster for the USPTO... and the country.

[EG]

Well, this awful beast is half-way home to passage. At least the Congressman in my district (and the neighboring districts) voted against this mess (and I do mean mess). All we can hope now is that some sanity will reign in the Senate. Otherwise, this country has just handed it's remaining competitive advantage away to the rest of the world.

[KCB]

I can only state that I am greatful that the USPTO is self-funded. The first thing that should happen are payments of maintenance fees on the so-call weak patents are terminated. Then there will be a catastrophic drop in filings. Next thing you know the examining corp will have the first major RIF in its history.

[ohmy]

Richard Cauley: "...some rational form of apportionment [which everyone but the patent lobby, the far right wing and the AFL-CIO supports.]"

Richard,

Suppose there are individuals who don't support any form of damage apportionment other than "the patent lobby, the far right wing and the AFL-CIO." Because these individuals are not a part of "everyone," you are effectively calling such individuals "nobodies." Don't you think it's sorta arrogant to call those who disagree with you "nobodies"? ;-)

[George]

Getting it through the Senate will be more difficult.

[trying to keep up]

Does anyone have a link to a copy of the bill as passed?

[KCB]

trying to keep up. No fing way is there a link to the bill as passed. The darn thing is still being amended. They were amending it during the vote.

[trying to keep up]

Here's the best I have:

Link to the minutes of the floor debate -- http://clerk.house.gov/floorsummary/floor.html

Link to the text of the five amendments considered on the floor -- http://www.rules.house.gov/SpecialRules_details.aspx?NewsID=2990

Link to what I believe is the most recent amended version of the bill (as of September 4) -- http://thomas.loc.gov/cgi-bin/t2GPO/http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=110_cong_bills&docid=f:h1908rh.txt.pdf

[mr bellie]

It's interesting to me that the bill passed largely by votes
of democrats. Voting for big business to crush medium/small
business is usually the province of republicans. This is especially
surprising because the labor unions apparently opposed the bill.

[trying to keep up]

If I read the minutes correctly, all 5 amendments were passed.

[KCB]

Alright I am chiming in now. The patent reform will do more to hurt corporations than small inventors. Firstly, the corporations are gonna have to jump through a tremendous amount of hoops with respect to their existing patent applications or they will all go abandoned. The individual inventor usually has one or two patent applications and that is it. Now what will cease to exist are those patent families in which the inventor has one idea and the patent attorney files 25 different cases on the one idea. The patent system was never meant to be used like that. Hey for all those who made fun of me over the years when I told you that you should always perform a search before filing . . . I told you so. Look at 35 USC 123. Now you will have to provide a search and an analysis as to why your claims are patentable. I suspect that will end the careers of no less than 20% of the so-called patent practitioners out there.

I mean I have read cases that were filed as if the person who filed it never intended to have to prosecute the same.

Now for you partners in law firms. No longer will you be able to tout that you wrote a patent application in 8 hours only to leave a poor associate with a minimum amount of time to correct the P.O.S. that you called a patent application. In short, these changes are needed and are long over due.

Now back to work. . . that is all!

[small inventor]

"Voting for big business to crush medium/small
business is usually the province of republicans"

Alas...
I used to vote for democrats in all of the presidential elections
because I had a false belief that democrats care more about ordinary citizens and less about huge corporations

I was so wrong...

No more voting for me

[small inventor]

WASHINGTON, Sept. 7 /PRNewswire-USNewswire/ -- Speaker Nancy Pelosi
released the following statement this afternoon after the House passed H.R.
1908, the Patent Reform Act of 2007:

"The bipartisan patent reform bill is a significant step toward our
Innovation Agenda. It will strengthen the patent system and improve patent
quality.

"This legislation is crucial for American inventors and American
ingenuity, for consumers, and for greater innovation and economic growth."

Visit: http://www.speaker.gov

She is just making fun of us, isn't she ???

[mr bellie]

"Firstly, the corporations are gonna have to jump through a tremendous amount of hoops with respect to their existing patent applications or they will all go abandoned. The individual inventor usually has one or two patent applications and that is it. "

The corporations have in-house lawyers and large staffs to handle
this. In addition, they employ outside firms that can pick this up.
The point is that to many individual inventors, a couple of
thousand dollars amounts to life savings. To a corporation
it is dinner for executives that is payed for by shareholders.

One thing I am amazed at is that much of the "patent reform"
is driven by the software industry and that other industries
don't carry more weight. It seems that a lot of the problems in
the software industry are caused by "weak" patents
that end up costing software companies money.
With the KSR decision
I would think that many of the problems will solve themselves.
It seems to me that congress is solving the wrong problem:
treating the symptoms and not the cause. This is like burning
a village in order to save it.

[stepback]

The amazing thing is that almost all the Democrats and Republicans sing in harmony about the "ingenuity" of American inventors and how they will have a tabletop Mr. Fusion up and running in your kitchen by next winter, just in time to ward off the Global Warming and Peak Oil problems.

Roscoe Bartlett (Republican) voted no and spoke out against patent deform today. He also tries to speak out loudly about the coming Peak Oil crisis. But no one wants to listen to a Congressman who knows a thing or two about science. Instead they know deep in their hearts that the "Invisible Hand" will always come through and save us. Thank heaven for the more rational majority that controls our Congress.

Here's to hoping we get Darwin Reform next year. Our school system is "broken" and "fatally flawed" because they teach evolution instead of creationism. What we need next is a Coalition for Creationist Fairness and Devolution Reform.

[real anonymous]

"Look at 35 USC 123"

Whoa - that's unbelievable they put that under "Additional Information" - I missed it completely. So the USPTO issues an unreal number of bad patents for more than a decade, and then Congress creates a stick to hit the applicants. Yup, our bad.

"The corporations have in-house lawyers and large staffs to handle this."

Yes, correct. The real casualty here will be Americans who will pay for the lawyers (in addition to the patent examiners that they're already paying for to do the things the lawyers will be paid to do), just so that the USPTO can dig out of its mess, hopefully before the collapse.

[SF]

"The corporations have in-house lawyers and large staffs to handle this."

I think the mandatory search & analysis will push more corporations to bring work in house. It just doesn't make sense for many corporations to pay outside counsel their high fees to perform the patent searches, prepare the patent and write the patentability analysis. You're looking at twice the cost of what patents cost today. Even a relatively minor docket of 10-20 new patents a year would justify hiring in-house counsel.

[KCB]

Look KSR is retroactive, as are all judicial opinions. The legislation is prospective. The USPTO is simply implementing regulations to execute the will of Congress and the Judicial branch. I have solice in the fact that it is, afterall, a bunch of patent attorneys versus politicians and judges. It's hardly a fair fight, so maybe we should go easy on the pair . . . . NOT!. Do these groups really believe they stand a chance against the intellectual might of the patent attorney as a whole. They have got to be kidding. We are the TECHNOCRATS. If you want to witness the effect of technocrats . . . take a look at China baby. Their entire country top to bottom is run by engineers

[real anonymous]

"I have solice in the fact that it is, afterall, a bunch of patent attorneys versus politicians and judges. It's hardly a fair fight, so maybe we should go easy on the pair . . . . NOT!. Do these groups really believe they stand a chance against the intellectual might of the patent attorney as a whole. They have got to be kidding."

KCB, I guess you don't live "inside the beltway" where your words would echo like pulp fiction. (Or were you sarcastically kidding and I just didn't pick up on it? Sorry.)

Well, if patent applicants will need to prove patentability, then we've effectively arrived at a registration system, haven't we? The USPTO surely won't remain competent in any respect to disprove patentability. Allow a few more years for atrophy to fully set in, and college-graduates with business and psychology degrees will be processing our applications.* (But it should be much easier to hire examiners.)

*oh, wait, that's happening now (see "Bachelor’s Degree in Another Subject"):

http://www.uspto.gov/web/offices/dcom/olia/oed/grb9904.htm

[ironicslip]

"...rabble-rousers manage to stop reform again..." huh?

this reform is the rushed result of the copyright cabal in cahoots with IT and CE business (liberals and alleged libertarians) who have worked very closely since the WIPO 1995 reforms -- until now very adversarially. The audio home recording act only included a few IT companies: ibm compaq apple -- back in the late 1980s -- my how things have changed. They all found a common enemy and the enemy is US -- the patent filers.

We simply reformed something and got nothing in return. As for international harmonization, where is that? All of the larger IT folks have already shifted R&D to other countries? Better patents? Where did that ever get debated?

DMCA didn't work; Napster's demise obviously did nothing to slow access to anything - copyrighted or not; DRM was a file format without consumer benefit; patent reform is a lesson the patent bar should learn from and look to the lawyers who never suffer this type of defeat in congress (the personal injury and class action folks seem to keep the dems and republicans in very close check). The tech biz found this out through patent litigation and worked the past 6 years to find their opening -- they got it.

AFL-CIO -- they need healthcare and pensions ... why patents are mentioned in the same sentence is beyond any observer of the real sponsors and co-sponsors of the bill.

The White House never cared about small business -- rich people create jobs, not entrepreneurs! So, prevent them from normal bankruptcy and normal risk taking and jack interest rates without explaining APRs while you're at it.

This explains why folks like Howard Coble (a shill for the entertainment biz -- what else to do in north carolina with all those studios) could agree with Berman (Mr. Hollywood) and Lofgren ("I don't do e-mail without pols and latte").

this is a bad thing for america. anyone who thinks any party benefited except for the proponents of this bill can expect some pretty hefty increases in pricing for blackberries and other contentious but patented goods and services.

money, if you're out there ... do you owe me mooney dollars -- the congress just put its imprimateur on the debate (the pto rule changes pale beside the true power of politicians -- dont those bureaucrats get the concept of a bully pulpit even hidden behind a war in iraq and a summer recess stealth vote?) which itself will fuel plenty of contentious litigation on any number of mixture in these new fed regs, new reforms, case rulings, et al.

[Michael L. Slonecker]

How each member of the House voted...

http://www.govtrack.us/congress/vote.xpd?vote=h2007-863

[Mark Nowotarski]

Two observations two posts.

I think the thing to remember is that from a populist perspective, this patent “reform” bill is a good thing. I would imagine that all the average voter knows about patents is that the patent office is out of control and issuing patents on peanut butter and jelly sandwiches and some guy with a patent he didn’t deserve almost shut off all of the Blackberries.

I think very inventor out there needs to budget at least as much on PR as they do on getting patents to establish at least in the public’s mind that they are indeed the “rightful” inventor. It’s not enough to simply say “I have a patent”.

[Mark Nowotarski]

Many thanks to the person that posted the voting records.

I was somewhat surprised at how many abstentions there were, including that of my Congressman. It is particularly surprising since I’ve had detailed conversations with his aides on this subject. I would have thought that he had enough information to make a decision.

In retrospect, the geographic splits were explainable. CA and WA went strongly for. They have big software and electronics industries. NJ went strongly against. They have a big pharma industry.

[Just an ordinary inventor(TM)]

Dear Mark,

With all due respect, I disagree. The patent “reform” bill sucks. The PTO had little to do with it the potential RIM Blackberry shutdown. The PTO faithfully did their job.

Cast your blame on Blackberry: As I recall, NTP was more than willing to settle much sooner. Blackberry could and should have according to the patent laws settled then and saved money. They were recalcitrant infringers and, in my opinion, deserved to be held Triple X accountable.

It is the infringers that are out of control; they deserved to be shut down - - period -- by injunction, and they should suffer huge 3x damages plus attorney fees awards; not only North American infringers, but also those in Asia, Europe and elsewhere.

American patents and the American patent system serves to keep the United States of America strong.

Strong is our heritage; like it or not, strong our soul responsibility; live up to it.

Our Constitution, a self-evidently-sacred and purely American human creation, is the closest there is to a bible for democracy. Help protect our democratic freedom.

Stand tall as we approach 9/11.

[XSolo]

The US Patent System is approaching its nil ductility limit... too much change in so short a period of time. KSR, McDermitt, USPTO Rules package, Patent Reform.

[KCB]

Dear Real:
With respect to inside the beltway, yeah I bet the words of the Sunni and Shiite fighters in Iraq echoed like pulp fiction . . . unfortuniately the soldiers of the United States do not enjoy living in the fantasy world of Washington DC. Soon they too will have to live in reality.

[KCB]

Frankly, I do not see how this legislation will advance the progress of science. Perhaps it is because the Soviet Union no longers poses a threat that the ruling elite of this country are no longer interested in having the masses contribute to the advancement of the useful arts. Perhpas Mr. Putin should establish a russian base on the moon. Then, once again, our ruling elite will see the value of an educated populace.

[Rob]

Am I just reading this wrong, or is this monstrosity not going to become effective until God knows when?

*****
(k) Effective Date-

(1) IN GENERAL- The amendments made by this section--

(A) shall take effect 90 days after the date on which the President transmits to the Congress a finding that major patenting authorities have adopted a grace period having substantially the same effect as that contained under the amendments made by this section; and

(B) shall apply to all applications for patent that are filed on or after the effective date under subparagraph (A).

(2) DEFINITIONS- In this subsection:

(A) MAJOR PATENTING AUTHORITIES- The term `major patenting authorities' means at least the patenting authorities in Europe and Japan.

(B) GRACE PERIOD- The term `grace period' means the 1-year period ending on the effective filing date of a claimed invention, during which disclosures of the subject matter by the inventor or a joint inventor, or by others who obtained the subject matter disclosed directly or indirectly from the inventor or a joint inventor, do not qualify as prior art to the claimed invention.

(C) EFFECTIVE FILING DATE- The term `effective filing date of a claimed invention' means, with respect to a patenting authority in another country, a date equivalent to the effective filing date of a claimed invention as defined in section 100(h) of title 35, United States Code, as added by subsection (a) of this section.

*****

So basically, none of this monstrosity goes into effect until Europe and Japan change their laws to include a 1-year grace period. Anybody want to speculate when THAT is going to happen?

[real anonymous]

"Am I just reading this wrong, or is this monstrosity not going to become effective until God knows when?"

Don't miss the "this section" in the text you quoted, apparently referring to "SEC. 3. RIGHT OF THE FIRST INVENTOR TO FILE."

[Michael R. Thomas]

The term first to invent should be retained however the ability to back file claiming previous invention date should change. This could only occur when the master inventor does not claim to be the inventor.A study of proxcimitious locations of inventions of invention should determine this person.Also repetative performances at pto post deadline filing meetings should also be used inventor secutity is a must to eliminate intimidations.This will cause the return of the productive monitary rewatds to the correct person and a return to continued inovation and invention.by the worlds only inventor of signifience.

[Michael R. Thomas]

The railroad passage of this bill in the house sounds illegal if it contains unknown provisions not debated and subject to debate. The bill should be recalled until a debate occurs.

[Michael R. Thomas]

As invention stagnation enters its third year We will continue to see less and less products of signifeince reaching marketable stages.As legislators go in diferent directions from inventors less and less incentives to concieve ideas will dimenish our advancements in outerspace , longevity,prosperity and arts and civility.Thefts of intellectual materials will continue to rise as legislation now passing establishes new ways to steal to replace old ways to steal. Corperations will steadfastly refuse to consider purchase intellectual materials from inventors alleging that there research and development departments are capable of producing it themselves.Or trick them into revealing secrets then steal them.

[MaxDrei]

What a superb talent for parody. Brilliant, Michael Thomas.

The Bill's definition of the Effective Date for going over to First to File (90 days after Europe introduces a grace period) is glorious politics. Since a grace period doesn't sit easily with First to File, and the Europeans are not going to introduce one, this provision will block indefinitely a US flip to F2F, yet allow US politicians to assert that the absence of "progress" to "reform" and "harmonise" is from now on entirely the "fault" of the Europeans. Meanwhile, the US courts continue to clean out the stables. I'm deeply impressed.

And relieved. For as long as USA clings to F2I, and US Applicants continue to take their time to file at the Patent Office, ROW has good chances to get the earlier filing date, world-wide. Sceptical about Indian pharma eagerly anticipating implementation. Seeing Indian press reports ("Implementation will help Indian pharma") reminds me of Brer Rabbit and the thorn bush.

[Rob]

Yes, and "this section", section 3, is the entire substantive portion of the bill. So, as I was saying, as passed, this will never actually be implemented until Europe and Japan decide that it will.

[Mr. T]

You are right Max, the courts were making it tough enough!

[George]

FYI:

The text of the bill referred to above has been significantly amended.

According to IPO, on Friday the bill was mended, as follows: "(1) deletion from the bill of the expansion of prior user rights, (2) dilution of the requirement for publishing all patent applications after 18-months, (3) insertion of new language on the inequitable conduct doctrine, more closely resembling current law, (4) adoption of new language on venues for patent suits, (5) discretion for the USPTO Director on whether to require submission of a search report and analysis in every patent application, and (6) some rewriting of the controversial passage on damages apportionment".

[KCB]

WTF. After Leahy has been letting the USPTO control the language of S 1145, he is now calling a Judiciary Committe hearing to determin whether the Regulatory Agencies are usurping Congressional and State Legislative Authority. Check out the Senate Judiciary website.

[CaveMan]

America was founded by "rabble rousers"... and inventors.

[USed Refurbished Laptops]

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[lucas law center]

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lucas law center