tl;dr Congress is apparently trying to pass a law that makes it impossible to challenge patents, and opens the door for an ever escalating abuse of invalid patents sneaking into the system.
It's an example where Hanlon's Razor doesn't apply. So if you ever need one to point out the rare cases where this is so, this case would be a really good one to use.
Sadly, the primaries are over, but you can make your displeasure known to: Rep. Thomas Massie (R-Ky.), Reps. Marcy Kaptur (D-Ohio) and Dana Rohrabacher (R-Calif.).
This is a bad bill. The PTO is notorious for issuing bad patents; examiners don't have the time or the information necessary to do a good job. Giving the PTO a chance to re-evaluate bad patents saves literally billions of dollars; the courts are far more expensive.
The examiners don't get bonused on allowing patents. But if too many of their decisions are challenged, their career prospects dim.
At least that's the way it was in the 70's when my dad was a patent examiner.
The way the game worked then was for the examiner to negotiate with the filer to reduce the number and size of the patent's claims until the patent could be allowed, but was so weak as to not be worth challenging by the filer's competitors.
> "Our data finds that as examiners are given less time to review applications, the less prior art they cite, the less likely they are to make time-consuming prior art rejections, and the more likely they are to grant patents," the researchers report.
...
> Patent examiners have an incentive to approve or reject a patent as quickly as they can. That's because every time they do, they get two "credits" that go toward a progression system that determines when they get promoted (and how much they make). One interesting feature of the progression system, though, is that as you rise in rank (from, say, a GS-7 to a GS-14) the amount of time you're expected to spend on each patent decreases.
Most comments discuss the usefulness of the PTO but it seems like a major section of it is that one:
>> PATENTABILITY OF SCIENTIFIC DISCOVERIES AND SOFTWARE INVENTIONS.
>> ...
>> this amendment effectively abrogates Alice Corp. v. CLS Bank International, 134 S. Ct. 2347
(2014) and its predecessors to ensure that life sciences discoveries, computer software, and similar inventions and discoveries are patentable, and that those patents are enforceable.
Calling this "bipartisan" because they got Kaptur on board is in that "extreme technicality makes this correct" correct category. Kaptur is perhaps one of the most pro-intellectual-property-is-the-province-of-corporations folks in the House and in general is tightly aligned with Republican fiscal policy.
This would be a disaster that would fundamentally unbalance the patent system -- in favor of trolls -- which would be a disaster for innovation in the US.
The problem is, large numbers of patent applications come in and the patent office can't possibly review all of them upfront in extreme detail. Of course the great majority of them are not especially high-stakes so don't warrant extremely detailed, considered review.
The administrative review process lets them focus their limited resources on high-stakes, contested patents.
Anyway, it would be bizarre to give the patent office the responsibility to grant patents but not give them the ability to fix mistakes in this extremely complex domain.
Bringing a judge into it makes matters worse since courts are more expensive and much less able to evaluate the validity of patents than the patent office itself.
An obvious land-grab by patent trolls that would strangle tech .
Unfortunately, I think you're right. From my perspective, this is exactly the sort of government-sanctioned monopoly / rent-seeking that's causing so much income inequality and economic pathology. The government should be encouraging competition, not destroying it.
I think the idea of intellectual property per se is fundamentally flawed, but I can see patents as incentives. This just shifts too much power to trolls and undeserving patents.
I think the government should be there to provide a general interface to general policy, perhaps create, check, enforce it, and ensure some sort of level playing field so people that miss the genetic lottery aren't screwed by default.
(basically, just making sure people can work together if they want to, but without having the will of the strongest/most powerful be the law)
If you undermine any of that by making bad rules or doing bad governance, you are screwing the whole country and all the people in it.
Unfortunately, the US keeps attempting to include adoption of it's IP policies in the various free trade style agreements proposed with other countries.
Not a good way to generate goodwill from the IT industry in the rest of the world. ;)
One biotech person's perspective is that these are changes in the right direction. Things were certainly not perfect in the pre-AIA era, but post-AIA and recent court decisions have had many negative impacts on our industry, particularly diagnostics and particularly new ventures. The uncertainty associated with an “issued” patent has decimated their value, to the loss of innovation in our industry.
I hope you get down voted not for taking a contrarian position but just because your comment does barely support the argument. Maybe anecdotes would help to illustrate your point?
I wasn’t intending to advance an argument, merely present that as a biotech entrepreneur in the process of forming a new company I for one like many of the changes in this proposal. I completely get why software people take umbrage with patents, but wanted to politely put forward that it isn’t a universal feeling.
1. Switches the US back from first-to-file (which is the norm in literally the entire rest of the world) to first-to-invent. This is something that sounds like a good idea, but in practice ends up being more bureaucratic hassle than any sort of actual improvement.
2. Repeals inter-partes review, i.e., a means to assert "this is a bad patent." Note that SCOTUS decided in April that inter partes review is in fact constitutional, so I assume this is basically a change of tactics of litigators from "try to get SCOTUS to rule it unconstitutional" to "try to repeal the law."
3. Eliminates fee diversion. I don't know the law well enough to understand what exactly it's trying to do here.
4. Overturn most of the recent SCOTUS §101 decisions of the past decade (e.g., Bilski, Alice). It's debatable if this is actually possible, though--these decisions didn't rest on "well, they're not actually authorized by law" as much as "it's been well-agreed by common sense that these things can't be patented."
5. Explicitly declares patents as "private property rights." This calls into mind the argument in Oil States, that the government can't revoke these kinds of rights without means of a court (which, if they had been private rights, would have made inter partes review unconstitutional). But I again wonder if it's actually within Congressional power to make this kind of declaration.
6. Stops patent applications from being published automatically. Because publishing patent applications creates prior art, and that would retard innovation. No, seriously, that's the literal argument in the text of the bill itself.
7. In legal cases, the defendant would now have to argue that the patent is invalid, that each individual claim is invalid (even if the claim depends on an invalid claim), and that a permanent injunction is not appropriate, even if the patent owner doesn't make its own patent.
In other words, this bill attempts to undo every aspect of patent reform in the past decade, both from SCOTUS and from Congress. I can't think of anyone who'd be happy about any of this, save for patent trolls.
> these decisions didn't rest on "well, they're not actually authorized by law" as much as "it's been well-agreed by common sense that these things can't be patented."
By their own terms, these decisions purport to be based on the statute section 101. The Supreme Court rarely if ever bases a decision only on what it considers common sense.
If the text of 101 changes, there’s no reason to think the caselaw that’s grown up around it would stay valid.
I haven't read the opinion of Alice directly, and it's been a long time since I read Bilski, but my recollection is that both of them turn on "it's long held that some things can't be patented as a matter of nature, and this patent is an example of something that falls into that category." There are things that Congress can't do, and given that SCOTUS is very likely to have an originalist rather than a legislative intent majority, the framework for analysis is very likely to be "what would an 18th century lawyer say about this?" rather than any amount of exhortation about how this is necessary to promote the progress of science and useful arts.
I'm not sure about the exact interplay of different kinds of law here, and I'm certainly not an expert in any variant of law. That's why I pointed out that the legislation might not have any actual effect as opposed to saying that the legislation will not have an effect.
Well regardless of the statutory interpretation tools employed, they purport to be interpreting section 101, not the constitution. If 101 changes, those cases should be out the window.
The USPTO is one of the few agencies of the US federal govt that are profitable. Congress diverts the funds away from the USPTO funding its own improvements (more examiners, better technology, etc) to unrelated programs.
Your analysis of the other points doesn't match your conclusion.
I didn't comment on the fee diversion because the text in the bill is a series of line edits to the appropriate section of the US Code, which means I'd have to go dig around the whole law to figure out what it was actually doing.
As for the rest of it, I summarized the actual content of the bill itself. (It's only 26 pages, it's not that long). The bill explicitly refers to repealing the 2011 patent reform. It also explicitly refers to displeasure with the Alice and Lexmark rulings, and the entire bit about private property rights is clearly an attempt to overturn the recent Oil States ruling, even if not mentioned by name. There can be no doubt that the bill is trying to roll back patent reform.
36 comments
[ 9.1 ms ] story [ 900 ms ] threadYes, they do. They are paid based on how many patents they process, and it takes less hours to approve a patent than to reject one.
https://www.washingtonpost.com/news/the-switch/wp/2014/07/31...
> "Our data finds that as examiners are given less time to review applications, the less prior art they cite, the less likely they are to make time-consuming prior art rejections, and the more likely they are to grant patents," the researchers report.
...
> Patent examiners have an incentive to approve or reject a patent as quickly as they can. That's because every time they do, they get two "credits" that go toward a progression system that determines when they get promoted (and how much they make). One interesting feature of the progression system, though, is that as you rise in rank (from, say, a GS-7 to a GS-14) the amount of time you're expected to spend on each patent decreases.
>> PATENTABILITY OF SCIENTIFIC DISCOVERIES AND SOFTWARE INVENTIONS.
>> ...
>> this amendment effectively abrogates Alice Corp. v. CLS Bank International, 134 S. Ct. 2347 (2014) and its predecessors to ensure that life sciences discoveries, computer software, and similar inventions and discoveries are patentable, and that those patents are enforceable.
See the bill text linked: http://src.bna.com/z0P
The linked article links to a draft: http://src.bna.com/z0P
It's H.R. 6264: https://www.congress.gov/bill/115th-congress/house-bill/6264
I'm not a patent lawyer but it looks like a bad idea to me. I'm especially nervous given how excited certain orgs who I usually DIS-agree with are hyping it as a solution: https://cpip.gmu.edu/2018/06/29/rep-massie-introduces-new-le...
The problem is, large numbers of patent applications come in and the patent office can't possibly review all of them upfront in extreme detail. Of course the great majority of them are not especially high-stakes so don't warrant extremely detailed, considered review.
The administrative review process lets them focus their limited resources on high-stakes, contested patents.
Anyway, it would be bizarre to give the patent office the responsibility to grant patents but not give them the ability to fix mistakes in this extremely complex domain.
Bringing a judge into it makes matters worse since courts are more expensive and much less able to evaluate the validity of patents than the patent office itself.
An obvious land-grab by patent trolls that would strangle tech .
I think the idea of intellectual property per se is fundamentally flawed, but I can see patents as incentives. This just shifts too much power to trolls and undeserving patents.
(basically, just making sure people can work together if they want to, but without having the will of the strongest/most powerful be the law)
If you undermine any of that by making bad rules or doing bad governance, you are screwing the whole country and all the people in it.
Unfortunately, the US keeps attempting to include adoption of it's IP policies in the various free trade style agreements proposed with other countries.
Not a good way to generate goodwill from the IT industry in the rest of the world. ;)
The obvious solution would be to not have software patents, but this bill seems to be proposing the exact opposite of that.
1. Switches the US back from first-to-file (which is the norm in literally the entire rest of the world) to first-to-invent. This is something that sounds like a good idea, but in practice ends up being more bureaucratic hassle than any sort of actual improvement.
2. Repeals inter-partes review, i.e., a means to assert "this is a bad patent." Note that SCOTUS decided in April that inter partes review is in fact constitutional, so I assume this is basically a change of tactics of litigators from "try to get SCOTUS to rule it unconstitutional" to "try to repeal the law."
3. Eliminates fee diversion. I don't know the law well enough to understand what exactly it's trying to do here.
4. Overturn most of the recent SCOTUS §101 decisions of the past decade (e.g., Bilski, Alice). It's debatable if this is actually possible, though--these decisions didn't rest on "well, they're not actually authorized by law" as much as "it's been well-agreed by common sense that these things can't be patented."
5. Explicitly declares patents as "private property rights." This calls into mind the argument in Oil States, that the government can't revoke these kinds of rights without means of a court (which, if they had been private rights, would have made inter partes review unconstitutional). But I again wonder if it's actually within Congressional power to make this kind of declaration.
6. Stops patent applications from being published automatically. Because publishing patent applications creates prior art, and that would retard innovation. No, seriously, that's the literal argument in the text of the bill itself.
7. In legal cases, the defendant would now have to argue that the patent is invalid, that each individual claim is invalid (even if the claim depends on an invalid claim), and that a permanent injunction is not appropriate, even if the patent owner doesn't make its own patent.
In other words, this bill attempts to undo every aspect of patent reform in the past decade, both from SCOTUS and from Congress. I can't think of anyone who'd be happy about any of this, save for patent trolls.
By their own terms, these decisions purport to be based on the statute section 101. The Supreme Court rarely if ever bases a decision only on what it considers common sense.
If the text of 101 changes, there’s no reason to think the caselaw that’s grown up around it would stay valid.
I'm not sure about the exact interplay of different kinds of law here, and I'm certainly not an expert in any variant of law. That's why I pointed out that the legislation might not have any actual effect as opposed to saying that the legislation will not have an effect.
The USPTO is one of the few agencies of the US federal govt that are profitable. Congress diverts the funds away from the USPTO funding its own improvements (more examiners, better technology, etc) to unrelated programs.
Your analysis of the other points doesn't match your conclusion.
As for the rest of it, I summarized the actual content of the bill itself. (It's only 26 pages, it's not that long). The bill explicitly refers to repealing the 2011 patent reform. It also explicitly refers to displeasure with the Alice and Lexmark rulings, and the entire bit about private property rights is clearly an attempt to overturn the recent Oil States ruling, even if not mentioned by name. There can be no doubt that the bill is trying to roll back patent reform.