back to article You can help fix patent laws … now!

While Barack Obama frets about patent law and trolls attack even helpful government e-health initiatives, IP experts around the world are quietly working on something that might just help: a survey! Not just any survey, mind. This one was created by Tegernsee Experts Group, an entity composed of representatives from patent …

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Yes we can!

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Anonymous Coward

Well...

Surveys, harmonisation and reform are one way we could fix the issue of patent trolling. The other would be to abduct the CEOs of each major tech company and beat them with wrenches until they stop being assholes.

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Windows

Re: Well...

"but see, these improved Laws are really good & honest & fine, coz we asked everyone in a Survey..."

Can I borrow that wrench after you please?

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Facepalm

Re: Well...

The other option would be to stop the US from issuing patents and employ relatively skilled people to review the applications

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Flame

Re: Well...

"Surveys, harmonisation and reform are one way we could fix the issue of patent trolling. The other would be to abduct the CEOs of each major tech company and beat them with wrenches until they stop being assholes."

The other is hunting down trolls and putting them to the sword and flame...

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FAIL

Prior use rights don't help much

They protect the larger existing businesses that have been going a long time but do nothing for startups. The real improvement would be raising the bar for the novel inventive step. If two or three existing implementations exist it is a good signal that it is not novel or beyond someone skilled in the art.

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Re: Prior use rights don't help much

Precisely- prior use implicitly and unavoidably states that the patent itself is not novel. At which point why is it a valid patent?

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Re: Prior use rights don't help much

That's where I'm confused... what situation could occur where someone has a valid claim on a novel patent but somebody else has prior use rights?

Is this just to cover dual-invention situations, where party B came up with the same idea after party A but before the patent was filed?

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Anonymous Coward

Re: Prior use rights don't help much

but if there are 2 examples of the same invention then surely that would imply that the invention is obvious?

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obviousness

Anonymous Coward, do you mean in the same way that calculus must have been obvious to all late 17th century mathematicians, given the two examples of Newton and Leibniz?

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Re: Prior use rights don't help much

Prior user rights arise when the prior use was secret (undisclosed).

If the prior use was disclosed, it is of course novelty (and/or inventive step) - destroying. Always has been (at least in UK, Europe, and pretty much everytwhere else...except maybe in the US, depending on the specific circumstances)

If it was not disclosed, you cannot objectively expect the earlier inventor to be provided with a monopoly (you only get a monopoly -a patent- if you tell the world and it's neighbours what the invention is...which is where the publication (at 18 months from filing or earlier) comes in).

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Vic
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Re: Prior use rights don't help much

> The real improvement would be raising the bar for the novel inventive step

I don't think we need raise any bar.

What we need to do is to apply the rules as they are already written - if someone else has already done this thing, then your "invention"[1] isn't novel, and not eligible for patent protection. And that's an end of it.

Vic.

[1] And I use the term quite wrongly.

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First steps

The first step must be to ensure that patents are original at the time they are granted, too many patents are taken on things that are clearly not original.

The second step is that any patent is ONLY valid when the company holding the patent is actually producing a product that makes use of the patent.

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Re: First steps

"The second step is that any patent is ONLY valid when the company holding the patent is actually producing a product that makes use of the patent."

The problem with that is it most small inventors can't afford to produce their product without backing from investors, and they can't get the backing to put their inventions into production unless they hold the patent.

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Vic
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Re: First steps

any patent is ONLY valid when the company holding the patent is actually producing a product that makes use of the patent.

I disagree with that part.

If you were to invent something - a real invention that is provably functional - that has *monstrous* start-up costs, you'd need to shop that invention around various rich entities to get that start-up capital. Without patent protection, your invention will get ripped off by at least one of the organisations you approach.

What's needed, IMO, is for judges to have the ability to declare shell companies for what they are (and thus cause the parent company to be liable for its losses), and for plaintiffs to have the *expectation* that they will be liable for costs should the court find the case vexatious...

Vic.

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Some things

No more software patents.

All current software patents null-and-void.

No business process patents.

All current business process patents null-and-void.

If a patent is required to implement a standard, (e.g. OOXML) said patent is null-and-void (or transferred to some public defence organisation).

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Re: Some things

If software is to be protectable it needs its own class of protection- I don't think it would necessarily be bad to have something between a patent and souped-up copyright that allows you to protect a novel software concept for a limited time - say 18 months to market, 3 years from reaching the market - so it reflects the much faster turnover of digital invention. All existing software patents could be switched over to that type as soon as it was brought in, which would immediately invalidate most of the older ones and open the door to an explosion of new innovation without the risk of lawyers ruining everything forever.

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@ Big Yin

"If a patent is required to implement a standard, (e.g. OOXML) said patent is null-and-void (or transferred to some public defence organisation)."
Oh, I'm not sure about that. Say someone invents Warp drive, gets a patent on it and starts raking in the money on the back of what they have invented. All I have to do is say that their method of warpdrive is the standard method, and suddenly their patent is invalid? (Notice I didn't say time travel, because the patent rules make it impossible to patent devices for time travel)

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Anonymous Coward

That's not what "standard" means in Big Yin's post.

He's talking about the standards defined by international organisations such as ISO or IEEE which are necessary to make devices and processes interoperate correctly.

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software’s own class of protection

breakfast, you might look into the Austrian Gebrauchsmuster as an already existing example of a utility model (i.e. a “minor patent”) used for software protection.

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I hereby patent making sarcastic article titles

In today's interconnected and industrialised age, patents make as much sense as medical doctors treating sick people for evil spirits.

Problem 1 - Novelty, or rather, the lack of it. Too many ideas are easily imagined by reasonably clever people who are bombarded with information daily on the internet; the days when only a "competent practitioner of the art" could come up with something novel are for the most part gone for good. True novelty is rare.

Problem 2 - Discovery vs. Invention. Many things such as software, business processes and computer architecture are essentially mathematical abstractions and are as such discovery rather than invention. These should not be patentable in the first place.

Problem 3 - Abuse of patents. Company A buys IP for B, not to use B but to prevent it competing with product C, even if B might have been better.

Problem 4 - Prevention of composition. Patents prevent ideas being used as components. For example A=B+C. A is novel in itself, so is B but C is already patented. A never exists or gets compromised. Consider some of the early steam engines that had exactly this problem.

Problem 5 - Absolutist interpretation of IP ownership. A patent owner can charge as much as they want for a licence or even simply refuse to do so. There's no concept of knowledge being used to wider benefit to the world as a whole, at a reasonable cost.

Problem 6 - FUD. So many legal battles are about patents because it's not always clear whether a patent is valid, if it applies to a particular product, and so forth. Worse, we expect non-scientists (i.e., Judges and Juries) to decide such things!

Basically, patents are only sensible now for things that are novel AND require huge investment to make or market or distribute. E.g, drugs. Even there, there is a case that medical technology patents should be regulated, as people shouldn't die just so that others can make profit.

What I would like to see is this:

*Patents abolished for anything that does not need significant investment.

*Patents abolished for anything that is ultimately a mathematical abstraction.

*A legal right to use any idea as a component of another (cost to be arbitrated).

*No right to hold a patent unless the holder actually uses it.

*Specialist patent tribunals to arbitrate disputes over the above.

Probably not comprehensive or perfect, but it would be a starting point.

PS: Also, the concept of Prior Art to be explained to every lawyer in the world. With a 2x4 to the head. Especially those working for the USPTO :P

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Re: I hereby patent making sarcastic article titles

"*No right to hold a patent unless the holder actually uses it."

So I presume in your grand plans if a company were to design processors but not manufacture them, then they shouldn't be able to license others to do the manufacturing (i.e. make money off their design work).

Seems to me that many companies have a valid reason to patent things but not manufacture them. Perhaps the test should be whether they are actively trying to entice others to license the designs.

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Re: I hereby patent making sarcastic article titles

"*Patents abolished for anything that does not need significant investment.

*No right to hold a patent unless the holder actually uses it"

These 2 points would discriminate against the small inventor, who wouldn't be able to get a patent because his own time of working on an idea wouldn't really class as "significant investment", and he wouldn't be able to get external investment to develop & produce the whateveritis without holding the patent.

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Re: I hereby patent making sarcastic article titles

"So I presume in your grand plans if a company were to design processors but not manufacture them, then they shouldn't be able to license others to do the manufacturing (i.e. make money off their design work)."

What you need here is more likely to be copyright protection than patent protection.

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Re: I hereby patent making sarcastic article titles

"What you need here is more likely to be copyright protection than patent protection."

You think that would satisfy ARM?

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Unhappy

Re: I hereby patent making sarcastic article titles

One thought on drug patents is what about all the charities where donations go to fund research of [insert an ailment].. Should a treatment or an eventual cure for that ailment be patented to enrich a particular company?

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Megaphone

How about this for novelty?

All patents are kept secret for one year. If at anytime during that year, somebody else comes up with the same idea/concept, the patent is invalidated as being not novel enough.

When you think about it, the fact that two or more companies would be racing to patent a concept should automatically disqualify the concept from being patented. Patents are meant to reward the inventor who brings something to society. If many inventors come up with the same idea at the same time, then society would have benefited even if any of these guys had decided to go back to bed instead. At the most, the patent should be shared between the multiple inventors, certainly not awarded to the one with the fastest legs.

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Anonymous Coward

Prior user rights

>>Precisely- prior use implicitly and unavoidably states that the patent itself is not novel. At which point why is it a valid patent?

To destroy novelty, there must be *enabling* disclosure *to the public* before the priority date of the patent.

Prior use rights are fairly rare, but they arise when, prior to the priority date of a patent application, the invention has been used but not publicly disclosed. The person who was already using the invention has a fairly limited right to continue to use it, but the patent may still be granted because the invention was new *to the public* on the priority date.

The rationale for the system is that it rewards the inventor who discloses the invention (by filing a patent application). By filing a patent application the inventor teaches the public how to make the invention. In return he gets a monopoly right for up to 20 years. The first inventor who did not disclose or file puts himself at some risk - arguably if he did not want to patent he should have just disclosed, thus making the invention available to all and precluding any future valid patent.

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Vic
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Re: Prior user rights

> To destroy novelty, there must be *enabling* disclosure *to the public* before the priority date of the patent.

Sure - the problem, though, is that there have been so many patents granted when there was a gargantuan quantity of enabling disclosure to the public before the application; the "doing $commonplace_thing on a computer"-style patent.

The issue seems to be that the USPTO (amongst others, but it does seem to be the worst offender) sees a computer (or evevn a phone now) as somehow magical; that really obvious operations are somehow transformed by doing them with a CPU. Using a general-purpose tool for some subset of the purposes for which it was created should not, of itself, constitute patent-eligibility. But it does.

The judiciary are finally gettting to grips with the idea, though - we're soon going to be in the situation where the initial phase of a patent trial will be the testing of the patents. That's a significant improvement - albeit still not as good as the PTO getting a clue...

Vic.

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Go

Sack the entire staff of the US Patents Office

'nuff said.

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You can rap uselessly all day or you can take the survey (if applicable)

Talk gets nothing done. The survey's there and if you've ever had any experience in, or legal knowledge of, filing patents - I haven't - then get stuck in and make a difference.

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Thumb Up

Complain about the weather...

...or do something about it.

Seems like a sensible approach. Or is BlueGreen asking for too much in this place?

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Mushroom

why bother?

all that happens is everyone has to dance to the USA tune anyway....anything that protects their industries/citizens is GOOD.....anything else is bad...Simples!

Cut to the chase ask IBM, Oracle, Apple and Microsoft what they want and give it to them.....

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Anonymous Coward

A solution

Patent free zones.

The concept is simple. Establish a perimeter (say in Nebraska or something) within which patent laws do not apply and are unenforceable.

For that matter, just to make it interesting also make it a copyleft only zone, so anything created can be exchanged for something of equal perceived value i.e. a meritocracy.

Instead of "buying" a film, you simply exchange a piece of your own IP for it, which avoids the whole requirement for money.

Innovation thus becomes a currency in its own right and everyone benefits.

Sound feasible?

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