back to article Scores of profs give hated US patent law an F minus, demand massive rewrite

A group of 60 or so US law professors have publicly backed an effort to overhaul the US patent system. The brainy gang, who signed a letter published by the Electronic Frontier Foundation, asks lawmakers to step up efforts to reform patent law and the system for which patent holders can file suit for allegations of infringement …

COMMENTS

This topic is closed for new posts.
Silver badge

It won't change

Tenured professors with incomes for life don't mind speaking their minds because they are unaffected by what they have to say.

But the current cock-up that is US patentt law is a healthy money spinner for for the actual lawyers practicing patent law. Forget expecting them to change any more than asking turkeys to ask for thanksgiving twice a year.

The lawyers make a lot of money filing patents. If it was harder to get patents, less people would file and the lawyers' business would be cut by many %.

But the real jackpot does not come from filing patents but from patent litigation. Crap patents are more likely to end up in disputes. Therefore it is highly desirable for the patents to not only be many, but more importantly, they must be crap.

So if USPTO was to ever undergo significant review, the experts being called upon to give legal wisdom to the proceedings will be the actual patent lawyers themselves. Foxes and hen-houses; they will just say it is all functioning fine as it is right now.

Furthermore, the USPTO is one of very few govt departments that is self-funding and actually makes a little profit for Uncle Sam. Nobody really wants to mess with that.

Thus.... status quo.

4
1
Silver badge

Re: It won't change

"Furthermore, the USPTO is one of very few govt departments that is self-funding and actually makes a little profit for Uncle Sam. Nobody really wants to mess with that."

I suspect that one of the reasons the USPTO is self-funding is that it appears that they do precious little work for the fees they charge. I can't remember the source but I was recently reading something about two closely overlapping patents that were found to be issues by the same patent officer.

8
0
Silver badge

Re: It won't change

No doubt that is correct.

Quite likely patent examiners work to a quota where they have to complete n patents per week. Come Friday afternoon a whole lot of patents will get a free pass.

There is no pressure to change this. USPTO/.gov get paid regardless of the quality of the patent. It is less work to OK a patent than to reject it. Therefore the pressures are on the system to allow through really poor patents,

If, however, the USPTO was to be held accountable for the quality of their patents, things might change. If a business could sue the USPTO for lost revenue, that would make things interesting....

But, as I said before, any change would be decided by those who have a vested interest in the status quo. Therefore no change.

6
0
Silver badge

Re: a healthy money spinner for for the actual lawyers

Lawyers do not make the law - they argue (endlessly) about it in Court and a Judge decides what to apply.

That said, given how many lawyers are in Congress (where laws are made), I'm sure your argument still has some amount of clout.

0
0
Silver badge

Re: USPTO was to be held accountable for the quality of their patents

Ok, I'll bite: by what legal mechanism do you propose to test for the quality of a patent?

While I generally concur with the sentiment, the problem is that the sentiment usually rests on unfounded assumptions.

I know someone who submitted a patent that was turned down. He never questioned it. Years later he looked at it again and realized he should have. His method eliminated a machining operation which would have dramatically reduced costs. Same guy with a different patent got run over again. The patent was for a device that depended on compressible capacity in a chamber to damp the pulse of a pumped fluid. Patent was granted. A foreign patent changed the shape of the patent from a cylinder to a V, then claimed better damping. There was no substantive difference, but the company didn't have the money to fight in court. When the company he worked for started selling in the foreign country, they were held to be infringing and had to pay patent fees. And yes, my former boss is a Merkin and the foreign country is currently an EU member in good standing.

1
1
Anonymous Coward

Re: Patent

One cannot patent a method or process.

0
1
Silver badge

Next, try copyright law

Copyright as a concept was intended to incentivise the creator to create more works by granting a temporary monopoly on their exploitation. I haven't seen John Steinbeck or Agatha Christie being particularly incentivised at the moment. The term gets extended every time the mouse gets close to public domain. It's all about unrelated commercial interests.

12
0
Gold badge
Joke

Re: Next, try copyright law

"The term gets extended every time the mouse gets close to public domain. It's all about unrelated commercial interests."

Careful, I think the relevant corp has copyrighted "The Mouse" as well.

1
0
Bronze badge
Joke

Re: Next, try copyright law

You're taking the Mickey!

0
0
Silver badge

Re: Next, try copyright law

@Cliff

One could argue that the ability of publishers to make money from copyrighted works incentivises them to engage and pay writers (etc...) and thus provides incentive for those writers to, well, write.

Many (including myself) would argue that the system is unequal and in dire need of fixing, but then I occupy that (probably large) middle-ground that believes copyright law is necessary, but the current system is not optimal.

On 'the mouse', specifically, I do see a distinction between a written work and a character. A creation like Mickey Mouse is as much a trademark as intellectual property so, in some ways, wondering when Mickey Mouse will become 'public domain' is a little like wondering when I will be able to build and sell cars with the Ford badge on them, or PCs with the HP logo.

Really, Mickey is a trademark - the character, and indeed other similar cartoon characters, are used as identifiers for their brand. The cartoons themselves are protected via regular copyright (which may or may not be extended) but the characters themselves would seem to be valid for protection potentially in perpetuity. (Apologies for the alliteration.)

Seeing an item or work with Mickey Mouse instantly signifies that that product/work is the property of or licensed by Disney. If the protections on the character and 'likeness' of Mickey Mouse were to suddenly expire, think of all the knock-off goods that would appear. It would most definitely cause 'brand dilution', which is precisely the thing that trademarks are designed to protect against.

To be clear, a cartoon with Mickey Mouse should not receive any special or extended protection (which is what you were likely talking about), any more than a song or a piece of writing should. After X years, that work should be considered in the public domain; the music can be used in a movie or a YouTube video, the book re-printed by another publisher, or a cartoon/movie shown by a broadcaster - all without having to pay anyone. BUT, that is not the same thing as someone making a new movie with the Mickey Mouse character.

Like the bunny, the mouse fulfils the criteria for a trademark and should be protected as such.

THAT SAID, the copyright laws of works do seem to get extended and I don't agree with that at all. There is no reason why the specific work of 'Steamboat Willie' should not be part of the public domain. While it might not be quite the same, modern symphony orchestras and opera companies simply could not exist without the timely expiration of copyrighted music - it is very much in the public interest that the Brandenburg Concertos or Mahler's ninth are in the public domain.

An interesting thing there, is that up until relatively recently, the US did not recognise foreign copyright laws so Disney was able to use Stravinsky's 'Rite of Spring' in Fantasia without paying the then still-living Stravinsky any royalties for the film's US release. They did have to license for international release but were later taken to court for breach of contract when the film was released on video and largely lost, having to pay up.

0
0
Bronze badge

Re: Next, try copyright law

"Jane Austen: She's back, and she wants her film royalties!"

That's a zombie film I'd pay to see.

0
0

Reform? Joke...

Patents are "the man" incarnate. The US is never going to give up a shred of perceived control no matter how dysfunctional. Trolls are nothing compared to the menace of foreigners (read non-taxpayers) stealing their goods (read anything they might want to sell now or ever). So we can expect twiddling at best. Nathan Myhrvolds and friends have nothing to fear IMO.

1
1

socially wasteful litigation

Is this the new Euphemism for lawyers? It sounds about right.

1
0
Silver badge

"Because PAEs do not make or sell any products of their own, they cannot be countersued for infringement. As a result, PAEs can use the high cost of patent litigation to their advantage,"

This is one of the biggest arguments for changing the system. Both sides should be at risk.

1
0
Silver badge

PAE is just another fancy name for a law firm

As such, they have never been at real risk of litigation and even if outlawed in their current incarnation will simply sprout in another one.

0
0
Bronze badge

Just plastering over the cracks

The patent system is no longer fit for its intended purpose, currently doing more harm than good.

It needs to be scrapped and started over.

0
0

Citizen: "Excuse me, lawyer (I mean Senator/Representative) would you mind changing the law so that one potential and lucrative income stream is not available when you give up politics?"

Senator/Representative: "Mmm, let me think about that for a moment..."

0
0

Patents are constitutionally defined as protection for the inventor

Note that 60 opinionated lawyers participated but no Inventors were given an opportunity to speak.

The same overabundance of lawyers and lobbyists were to be found in the joke that was committee hearings for Goodlatte in the House and Money-Mouth Leahy the IBM lapdog in the Senate.

No one asked how the inventors would be encouraged or the people's welfare secured.

DIscussions revolved around the needs of large corporations and how they could keep their monopolies via patents even if those useful monopolies were stolen from small start-ups or inventors. And these latter goals were made into a bill and Apple-Google-Cisco saw it, and it was good (for them).

The people pushing the Anti-Troll bill constantly claim small start-ups are attacked and destroyed by Trolls. Yet no one has produced a list by name and a count of the number of such cases.

It's time to see some real data.

1
1
Silver badge

Re: It's time to see some real data.

I don't need to see real data. As stated above I've known people at small companies who've been trampled by patent law. I see stories about its abuse on a daily basis. And I know someone who will probably benefit from it mostly because he is a lawyer and not so much because of his inventiveness.

Ages ago I was tested and determined to be of above average intelligence. But I know I'm not the smartest person in the world. In a room full of lawyers I'd probably even fall in the lower third.

What I want to see is a proposal that withstands more than 20 minutes of my scrutiny before I find a way that the big companies (whether trolls or not) won't benefit more than the small companies the politicians claim they will be protecting.

0
0
Bronze badge

the numbers game

A welcome opinion, but the American Association of Law Schools lists 162 member schools. It seems to me a safe bet that the average number of faculty is at least 25 (I checked two: 51 and 42 respectively). So, there might be 4000 persons who make their livings teaching law in the US. There are probably more "adjunct faculty", members of the local bar who teach a class now and then. So without reading the actual piece (IANAL) and vetting the names, it's hard to say what this means.

0
0
Silver badge

Re: the numbers game

The most important number you need to know: $400/hr

That's the lower limit on an attorney's fee for IP related cases. A case will invariably involve at least 3 of them on your side, and that's before you actually go before a judge. It is unlikely more than one of them (assuming you are lucky enough to have any of them) will be at that rate.

0
0

Just words

It doesn't matter what bozos sign what petition. There is only one rule: follow the money.

If you want to do battle, get a bigger wallet.

Everything else is just window dressing.

0
0

USPTO and Patents are only Part 1 of the picture

The patent office and patent system is just one part of the story. There's a larger game afoot to add the same "socially wasteful litigation" to every other country. See a review of the so called extension to the Free Trade Agreement the US is pushing in Australa http://works.bepress.com/kimweatherall/27/

0
0
This topic is closed for new posts.

Forums