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Analyzing Congress's Multiple Approaches To Patent Reform 58

Posted by Unknown Lamer
from the none-of-them-very-good dept.
ectoman writes "Patent reform is becoming an unavoidable issue — and the United States Congress is taking note. But the scope and scale of the problem have prompted multiple legislative solutions, and keeping track of them all can be rather difficult. Mark Bohannon, Vice President of Corporate Affairs and Global Public Policy at Red Hat, provides an overview of four important legislative actions currently under consideration, offering clear and concise analysis of their goals and provisions. He also assesses their potential impacts. 'Given the widening attacks by PAEs [Patent Assertion Entities],' Bohannon concludes, 'it is essential that Congress work to produce meaningful legislation on at least the issues identified above in order to begin to stem the tide.'"
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Analyzing Congress's Multiple Approaches To Patent Reform

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  • ...until the paychecks from the Patent Trolls' lobby clears.

    • Such a sad irony that what was supposed to encourage innovation has instead stifled it.
  • I say the idea of granting monopolies over work which has already been performed is counter to the nature of the Universe, and that we have Zero evidence that Patents and Copyrights are actually beneficial for society. Laborers have unlimited monopolies over their works prior to the work being done, and can leverage this monopoly in the same way that home builders and car mechanics do: Payment Agreement Up Front. Copyright and Patent laws ignore the economic fact that ideas and procedures and information are in infinite supply in the Information Age. Economics 101 states that which is in infinite supply has zero price regardless of cost to create or demand. What's scarce is not the solutions and information; What's scarce is the ability to create new solutions and new works. Market the labor, not the infinitely reproducible output, otherwise you're trying to sell ice to Eskimos; You're letting mechanics charge you for each time you start the car.

    Humans and all life are information duplication and refining machines. Laws against human nature should be abolished, especially if they have ZERO evidence to support the assumption that they're beneficial for society -- Especially when the fashion and automotive industries are successful and sell primarily on design, even though these markets are not allowed design patents or copyrights; This is evidence these archaic restrictive systems are unnecessary. No scientist would agree to run the world on unproven hypotheses. What if patents and copyright are harmful? We MUST test the hypothesis and abolish them.

    The important thing to be careful about here is that the patent and copyright regimes do greatly benefit the large rich corporations the most. In fact they do give an advantage to the immortal corporations which can simply wait out a patent before using it, or leverage a copyright for three generations of humans. I hypothesize that in a climate where corporations rule via lobbyists that any change to the patent system that is not abolition will be in the best interest of corporations primarily, and secondarily will be detrimental to society as a whole if possible.

    Here we have a situation where through a loophole a small entity can leverage patents against small business and big corporations alike without retaliation if they merely do nothing but hold one or more patents and sue over them. If my hypothesis is correct, the patent reform will not address the issue of anti-competitive practices against small companies with small patent portfolios who actually create things, but will merely remove the teeth of patents held by smaller companies in general.

    Be Careful. The medicine they're developing is not a cure for the artificial scarcity insanity; It could be much worse than the disease.

    • by icebike (68054) on Monday June 24, 2013 @07:49PM (#44097037)

      Mostly well reasoned, especially as it pertains to the type of patents being issued today, which amount to nothing more than protection for a mash-up of previously used ideas and objects.

      Where your analysis falls down is most easily seen in the world of drug development. Unless a company can make a profit sufficient at least to cover its research costs many simply refuse to do the research at all. Its not petulant behavior of picking up their marbles and going home, its a simple fact of "They can't afford it".

      Unless or until you transfer ALL research into the hands of tax payer funded entities (universities) there appears no other common mechanism to induce people to pay for billions in research with no sure way to pay for it in the end.

      Its not just drugs, but it is easiest to see the direct linkage in that field. In Electronics and computers you have the same situation. Why would anyone develop some totally new technology at the expense of years in the lab and millions of dollars of salary and equipment with no way to assure a payment?

      Comparison to a laborer is just tot simplistic to work, and i suspect you knew that when you wrote it.

      You need to restructure virtually the entire methods of funding research before you can totally remove any protection for inventors. (And there is nothing so dangerous as a man with a plan to restructure society).

      I just can't see any situation where you watch your family starve because you want to spend the next few years trying to invent a new widget or a new drug instead of planting a garden or getting a brick laying job. Sooner or later, you plant the garden, swing the hammer, and forget about new drugs.

      Until you solve that patents aren't going away.

      • by Naish0ze (2961925) on Monday June 24, 2013 @09:00PM (#44097375)

        Health and Wellness should not be patentable - the drive to produce medicines will of course take dedicated researchers and the finances to power them, however this does not NEED to be aprfitable enterprise in order for it to happen. There exist a small group of very wealthy individuals who commit vast sums of money to the saving of lives with no other motive than 'it being the right thing to do' and self organizing groups of like minded donor can fill the shoes of profit motivated Big Pharma.

        The argument made by Big Pharma - if we cannot monetize it, noone will do it - is as facile and pretentious as the MPAA/RIAA assertion that without their involvement music would cease.

        Case in point, Sabin declined to patent his inventions in the search for a cure to polio; "costing" him an unknowable amount of revenue from all of the direct and indirect results from vaccination techniques and science. However, because of his unwillingness to patent, MILLIONS of people were and continue to be spared from debilitating and fatal diseases.

        Yes, if we abolish medical patents, there will be a loss of future revenues for Big Pharma investors and speculators. Investors and speculators should be aware that there is risk of loss of any and all of thier funding through unforseen but inevitable changes to the marketplace. Tuff Shit! thats what happens to investors.

        But how many lives will be saved in the short and long term by the transfer of medical research from patent hungry, financially motivated, greedy investors and replaced by TAX EXEMPT donations to medical research teams dedicated to a cure?!

        I can't wait to see

      • by dgatwood (11270) on Monday June 24, 2013 @09:01PM (#44097385) Journal

        In Electronics and computers you have the same situation. Why would anyone develop some totally new technology at the expense of years in the lab and millions of dollars of salary and equipment with no way to assure a payment?

        They do now. Have you seen how blatantly China and other developing nations ignore patents and produce blatant knock-offs of American goods? And before that, it was Korea, then before that, Japan, and I'd imagine somebody else before that, and at some point, if you look back far enough, it was America making knock-offs of patented continental goods.

        So throughout pretty much the entire history of the industrial world, you had some developing nation ignoring patents and making the products anyway, and before very long, those nations were the ones doing much of the innovation, because they weren't content to just make exact copies for long, unlike the lumbering companies with patents, who basically sat on their butts and tried to milk their inventions for every penny they could while doing as little as they could to improve things. All of modern technology, ultimately, exists in large part because patents were ignored.

        • by drinkypoo (153816)

          So throughout pretty much the entire history of the industrial world, you had some developing nation ignoring patents and making the products anyway, and before very long, those nations were the ones doing much of the innovation, because they weren't content to just make exact copies for long,

          How, then, do you explain China? They remain content to make copies. I hesitate to say exact copies; their best copies are relatively exact, down to flaws, because they don't understand the things they're copying. But instead of branching out into innovation, they simply make perfect copies and inferior copies.

          • by dgatwood (11270)

            How, then, do you explain China? They remain content to make copies.

            They're starting out further behind than those other countries, under a regime that doesn't really encourage free thinking, so for now, they're still trying to catch up in areas like process improvements. Give them another decade.

        • Patent regimes are territorial. If you don't patent in the Chinese jurisdiction they can do whatever they want over there. Same for other industrialised nations where you have not applied for a patent.
      • by Anomalyst (742352)
        The falacy of your argument is that we must rely on Big Pharma companies for appropriate r&d. Given their failure to address non-profitable therapies and cures and their preference for ongoing cash cows of therapies inteas of cures not to mention their manipulation of the patent system to maintain monopolies on drugs that should have passed into generic manufacturing. Big Pharma should be PROHIBITED from performing R&D or in the case of foreign companies selling self researched drugs/therapies in th
        • by icebike (68054)

          That is a valid viewpoint, as long as you some how come up with the Government Funded Institutions that you so blithely assume into existence. And then you would have to prevent this from becoming yet another boondoggle wasting money pushing paper around while people are dying from heart disease. Your faith in government is cute.

          • by Anomalyst (742352)
            I have no faith in the government, but I doubt we could be raped worse by an R&D bureacracy than we are by sociopaathic corporations. Given how beholden the critters are to them, theyd never stifle the cash flow from them to make it happen, regargdless of how much better it would be as a solution for their constituents.
            • About a year ago I started working for a government agency, one that is lauded for it's enforced efficiency compared to other agencies. The waste is absolutely. obscene. We spend ten times as much money and yen times as long to do anything compared to a typical company. For the same cost, corporations will save ten times as many lives. Government in America was designed to be fair, rewritable equitable, and accountable, not effective or efficient. If you wanted to cease any progress in medicine, the b
              • by Anomalyst (742352)
                yet the health needs of the American people is clearly underserved by Big Pharma. Perhaps research prizes for solutions to specific goals, but the Imaginary Prperty rights are retaained by the prize authority for licensing. I dont have any information on how cost efficient NASA Xprizes are administered, but a tunnel vision focus on next quarters profits has not provren to be an optimal path for medical research. Could money lost to waste and inefficiencies be that much worse than puting it into corporate/cr
              • by Teancum (67324)

                Government in America was designed to be fair, rewritable equitable, and accountable, not effective or efficient.

                As a matter of fact, government in America is explicitly designed to be inefficient. It is in the blueprint that is the U.S. Constitution that there will be multiple overlapping authorities having jurisdiction over the planning and operation of the government. If you need to report to multiple supervisors, each of them insisting on different goals and objectives, it is a wonder that anything gets done at all.

                And that is just the overlapping authority you can point to in terms of the tension between Congre

          • by foniksonik (573572) on Monday June 24, 2013 @10:36PM (#44097749) Homepage Journal

            How about a non-profit endowed by public funds but supported by private investment? Let the manufacturers propose some of the research and even fund it but with the caveat that the result will be public domain. Then they can compete on quality and efficiency of production rather than by fiat.

            We do already have something like this. The University system was made for it.

            • by icebike (68054)

              I'm all for this, with or without patent reform.

              It will ruffle a lot of feathers, but there are a hundred things they could work on immediately.

        • by drinkypoo (153816)

          The falacy

          Fallacy has two Ls in. Turn on spell check, and/or don't use words you don't know.

          of your argument is that we must rely on Big Pharma companies for appropriate r&d.

          Bullshit. Basic drug research is already done at universities, most drugs currently on the market are inferior versions of existing drugs which were made to do an end-run around patent lifetimes, and the majority of Big Pharma's outlay is spent on advertising.

          Wait, did you mean "the fallacy in your argument"? Guess I should have read your whole comment before replying, then I would know that you simply don't speak English.

          If E

      • by nbauman (624611) on Monday June 24, 2013 @09:53PM (#44097567) Homepage Journal

        Where your analysis falls down is most easily seen in the world of drug development. Unless a company can make a profit sufficient at least to cover its research costs many simply refuse to do the research at all. Its not petulant behavior of picking up their marbles and going home, its a simple fact of "They can't afford it".

        Unless or until you transfer ALL research into the hands of tax payer funded entities (universities) there appears no other common mechanism to induce people to pay for billions in research with no sure way to pay for it in the end.

        The best argument against that is that some of the most important drugs weren't patented.

        Alexander Flemming didn't patent penicillin. He generously shared it during the war with the Americans, who took process patents on their contributions so they could charge the original inventors royalties.

        Milstein and Kohler invented monoclonal antibodies. Can't get much more innovative and significant than that. They didn't bother to patent them either. In the spirit of scientific collaboration, they generously shared their work with Hilary Koprowski, who -- fool me twice -- took out his own patent. http://www.whatisbiotechnology.org/exhibitions/milstein/patents [whatisbiotechnology.org] Those Americans!

        Most of the original, creative drug research in the US is done first in academic laboratories, funded by the National Institutes of Health. Thanks to the Bayh–Dole Act, these patents are now owned by the inventor, who usually sells his rights to a private company.

        One contribution of the private pharmaceutical companies, scaling up a drug from the research bench to pilot plant and industrial production, is not trivial, and it's often creative, but it's mostly textbook chemical engineering that the Indian pharmaceutical companies have proven themselves to be capable of doing. The New York City health department developed its own vaccines.

        Another contribution of the private pharmaceutical companies is the job of bringing drugs through phase I, II and III clinical trials, which establishes their dose, efficacy and safety. However, there are several government agencies, notably the Veterans Affairs agency, which has run some of the best-designed and most important clinical trials of all. In the UK, the government medical research agencies also ran important trials.

        The pharmaceutical companies, and particularly their lobby PhRMA, claim that it costs $300 million to bring a drug to market. This is not based on actual company data, since the drug companies never gave researchers access to their internal data, but on inferences by clever economists. If you trace that number to its source, it turns out to be what is known in the industry as a scientific wild-ass guess. Marcia Angell, the former editor of the New England Journal of Medicine, has written several articles and books, which you can find with a Google search, arguing for much lower figures.

        I've been to medical conferences. Yes, if you're going to spend $10 million on a product launch party at ASCO, and if you're going to invite doctors to football games and marketing dinners at the Waldorf Astoria, and if you're going to pay your high-prescribing "thought leaders" millions in consulting fees, and run multi-million dollar direct-to-consumer TV and print campaigns to "ask your doctor" about prescription drugs, those marketing costs can add up. But outside the US they don't have marketing costs like that.

        The private pharmaceutical companies do turn out some important drugs, and I don't want to kill a goose that lays even an occasional, high-priced golden egg. I don't think it would be a good idea to nationalize Merck and send its executives to the rice paddies for re-education. (It might be a good idea for URL Pharma.) But if these companies keep selling their new drugs, based on university research, for $20,000 or $100,000 a year, and it starts bankrupting individuals a

    • by drinkypoo (153816)

      I say

      Well if you say so, the matter is settled.

      the idea of granting monopolies over work which has already been performed is counter to the nature of the Universe,

      Forget all that nature of the Universe crap. We have surveyed an infinitesimally small portion of it. The truth is that we have defined that which exists without us as natural, and thus what is natural is irrelevant, since we are here. All that remains is to discuss what is good or bad for us, since we're speaking from our own point of view.

      Also, that's not even what patents do. Patents grant a monopoly over specific work to be performed.

  • by Anonymous Coward on Monday June 24, 2013 @07:29PM (#44096977)

    Patents should be readable and understandable to people with typical proficiency in the industry or science under question. Now, maybe some of the specifics of the invention may require more expertise, but the parts of interest to business managers should be written to be understood.

    As an example, think of 3D systems patenting stereo lithography 25 years ago. They would have no problem stating what their invention was, why it is unique and non-obvious, etc. It's only when you have a trollish type invention that you have to write it in a language so that even an expert in the field would have trouble figuring out what the claims are, or make so many claims that nobody would bother reading it all (comparable to the "terms of use" and "user's agreements" drafted by lawyers for banking and software products).

    • by AK Marc (707885)
      On that, the name should be binding. The ones where the name bears little relation to the patent are misleading, and generally done to scare competitors or garner public support for a bad patent.
    • Re: (Score:2, Informative)

      by Anonymous Coward

      A good (valuable) patent _is_ written to be understood. If you ever intend to take a patent to trial in front of a jury, you had better make it understandable by that jury. If it ain't writ, they will acquit. Any patent trial has an initial phase where lawyers from both sides argue about what the patent claims actually mean (a Markman hearing). The Judge's ruling after the Markman hearing can often be enough to bring the defendant to the bargaining table, as it makes clear how the patent language is going t

      • by Teancum (67324)

        Of course a problem with the patent process is that the role of the patent application is to provide enough information, and a typical application will provide barely enough information, to demonstrate that it is novel thus meriting patent protection.

        Advocates of the patent process claim that the role of the patent application is to document the invention so future generations can have details about the invention. Even if you provide sufficient information in a patent application to document that a particu

  • Method for keeping track of multiple legislative solutions of differing scopes and scales for patent reform on the internet.
    • Your behind the times good sir. Amend that claim to "on a mobile device" or get back on the bus.

  • by icebike (68054) on Monday June 24, 2013 @08:11PM (#44097135)

    Most of the proposals in TFA deal with cost shifting as a way to reign in the Patent Trolls.
    These proposals tend to make it easier to extract money from the trolls that lose their case, but that seems hardly enough.

    If there were no patent trolls, we would STILL have a problem with pointless and obvious things being patented and
    these patents bought and sold with the sole intent to prevent others from using the "invention" and import bans etc.

    If Patents are to benefit society as a whole, perhaps we should be investigating MANDATORY Licensing of patents.

    Then develop a framework of deciding what that should cost. Maybe it would take the form of a Court of Cost Recovery, or a methodology of evaluating the value that each patent contributed to the wholesale price of the item. But such an evaluation would have to start from the position that the invention
    MUST be licensed, for the good of all human kind. And the remuneration must be in line with some realistic value.

    Inventions couldn't be used solely to prevent another party from producing something.

    Bounce-Back patents (reaching the end of a scrolling action), if forcibly licensed would not prevent the inventor from making
    phones, or add a great deal of value to other manufacturer's phones. The harm is very little for one side, the gain is vary little
    for the other side if such a patent is abused.

    So why should import bans be on the table at all?

    If you start from the basis that all inventions MUST be licensed, all that drama goes away, and it becomes
    a simple matter of price determination.

    If you want to deny some item to society, you should find another way to use your invention, because you
    gain your patent protection only if you license it.

    • by Anonymous Coward

      By referring to the Bounce-back patent - we can presume you're referring to the litigation betwen Apple and Samsung - in this case, it's not about the damage awards, though they are of a considerable amount - each is trying to interfere with the other's ability to do business. By stopping the other guy's products, they hope to sell more of their own. This is directly based on the Constitutional purpose of a Patent - to give inventors an "exclusive right to practice" their invention.

      The whole concept of lice

      • by icebike (68054)

        This is directly based on the Constitutional purpose of a Patent - to give inventors an "exclusive right to practice" their invention.

        Actually, the text is this:

        To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

        There is no "right to practice", and no expectation that the inventor must "practice" his invention. They are guaranteed something but that something can take the form of money.

        I don't disagree with your assessment, simply that the form that "exclusivity" must take in the modern world.

        Exclusive RIGHTS might mean that royalty payments would satisfy this right. Judges have already found that if you can be made whole by money [groklaw.net], then you normally don't get an import ban. (see first p

  • by Anonymous Coward on Monday June 24, 2013 @08:17PM (#44097159)

    Speaking as an inventor of more than 50 patents - the current system _is_ broken, but not in the way that these reforms are trying to fix. The real problem is that companies do not and will not negotiate with patent holders until they are taken to court. Before filing a lawsuit, companies won't take any discussion seriously. Licensee's don't negotiate outside of litigation because (1) the record of such negotiation might be used against them in litigation and (2) there is no penalty for refusing to negotiate. The "stick" of treble damages for wilful infringement is never awarded in court, and licensees know that.

    The direct consequence of licensees refusal to negotiate outside of a lawsuit is that patent holders MUST file a lawsuit to have any hope of negotiating a license. Patent holders must pay enormous costs to lawyers and expert to file such a lawsuit, and these costs are never recovered in settlements - the pro forma settlement has each side paying their own costs. Potential licensees will pay millions in litigation costs before they are are wiling to negotiate a license - to them, anything that costs less than a license is just "good business" - even when any reasonable person could see that extending litigation would be fruitless. It is only when they've exhausted all the time leading up to trial that it becomes time for licensees to come to the table - since there is no penalty for delaying negotiations by extending litigation - in fact, since it delays payment, it can be seen as reducing expenses.

    REAL reform would be to have a "safe harbor" where patent holders and patent infringers can realistically negotiate licenses. In order to do so, infringers have to provide truthful information about production volume and projected volume, and patent holders would have to provide truthful information about previous license arrangements. Upon entering a good-faith negotiation, both sides need to have the facts at hand to make a fair settlement. If one side or the other fails to negotiate in good faith, such a fact should be material to a resulting lawsuit. Having a penalty at trial for forcing the patent holder to file suit in order to negotiate a license instead of engaging in good-faith negotiations is the way to avoid lawsuits in the first place. Likewise, forcing patent holders to negotiate first instead of filing suit first also avoids expensive lawsuits.

    If we are to value intellectual property fairly, reducing the "friction" in negotiating intellectual property licenses is key. At the moment, even for patents which have been examined by the patent office, "examined" by bringing those patents to court in prior cases, and re-examined by the patent office with senior patent examiners, and ruled on by patent appeal boards with several senior patent officials, the cost of litigation to negotiate a license can be tens of millions of dollars. What this means is that if you have a patent worth less than tens of millions of dollars, you can't get _anything_ of value for your patent. If your patent is more valuable than than, it's still a tremendous drag on patent value.

    The current system is rewarding lawyers, not inventors, and the AIA and these further "reforms" are making the problem worse.

    • by icebike (68054) on Monday June 24, 2013 @09:05PM (#44097403)

      Speaking as an inventor of more than 50 patents - the current system _is_ broken, but not in the way that these reforms are trying to fix

      You say this, but then you document the practices that might indeed be fixed by some of the proposed legislation. Specifically I suggest you reread some of the proposals in the Cornyn bill. These are aimed precisely at adjusting tie imbalance.

      • by Anonymous Coward

        I've read the Cornyn bill and it has nothing in it that fixes the problems I've described. As I said, the problem is that companies don't negotiate licences because there is no penalty for refusing to enter good faith negotiations. The Cornyn bill does nothing to fix this - it only creates additional obstacles for patent holders in litigation. For example, by suppressing information about previous license arrangements, it just makes it harder to express the value of patents at suit.

    • by drinkypoo (153816)

      The real problem is that companies do not and will not negotiate with patent holders until they are taken to court.

      Why is that the problem? Why doesn't the law force such negotiation? Or, why don't we have a system of law that doesn't permit case law to override what is written in the books? A bad law should be eliminated and/or changed, not moderated by precedent. That's how we got to our bullshit proliferation of lawyers who get to claim that they are necessary... yeah, because of all the bullshit hurdles placed in the way of progress by lawyers.

  • by Anonymous Coward

    Say it's radicaly and mod me down, but I think this would deter these jackaniddies:

    A) Instead of just slapping people on the wrist who DO infringe on patents, give them jail time INSTEAD of monetary compensation. Not sure if jail time is already included, but what can patent-trolling lawyers and companies get if they just send one or two guys to jail?

    B) No monetary rewards for obvious trolls. If you have a patent portfolio over, say, more than 30 patents, and you're not doing anything with ANY of them, the,

    • by icebike (68054)

      In fact, on that last note, I might add, if some jerkoff troll has been sittin' on a patent for more than a three years, and not made any effort to get it to be useful, then any lawsuit regarding it's "noble" cause should be tossed out and the patent invalid.

      I'm much more generous than you. I'd give them 5 years to start producing something or hiring it done. After that, its fair game.

      • by drinkypoo (153816)

        I'm much less generous than you. I'd give them a patent for five years, and then it's fair game. What fucking year is it? Shouldn't a company be able to go from conception to product in short order? I keep hearing about how our modern industrial economy demands massive power production all day every day, but then I find out that we can't even manage just-in-time production? (Well, not find out, I've known this.)

        I realize we're some way from being able to cost-effectively 3d print "everything" but sooner or

  • by slashmydots (2189826) on Monday June 24, 2013 @11:18PM (#44097913)
    It REALLY sucks that companies that clearly knew they were doing something immoral and shady like outsourcing their patent lawsuits to shell companies that are just lawyer pool patent trolls can't be prosecuted retroactively. There should be some sort of penalty that can be applied to them. The only loophole I know is modifying the current year's tax laws to include a massive penalty for sale and repurchase of the same patent for example. That's effectively retroactive.
  • It's the guy with the Patent on PAEs that's really raking in the dough.

  • 1) News flash: Competing patent reform bills have been trudging through and/or stuck in Congress for most of the past two decades. It's a constant race among snails to see which one actually crosses the finish line.

    This isn't surprising, because patent law serves multiple industries that widely differ in their characteristics and ideal uses of patents. The result is competing bills by big pharma, GMOs, big oil, the semiconductor industry, software companies, etc. The big players in each industry want to

  • just make everything patent able...Its what corporate wants.... and corporate is everything to the law makers bank accounts
    Fact is the patent system causes bias and handicaps advancement and this is against the original intent of the idea of patenting.
    There are solutions to problems that are suppressed because they are not patent able for corporate to make a profit off of so instead we get non solutions to medicate the symptoms of the problems.

    .

  • The proposed reforms attempt to improve the process of litigating patents. Senator Cornyn's bill seems quite beneficial. They all say that we need to reduce the number of bad patents. But none of the proposed bills do anything to change the incentives that cause the patent office to grant poor patents.

    It is possible to reform the patent office and mitigate the incentives to grant poor patents. But, first we must acknowledge that we have made some fundamental mistakes. In my opinion, they most critical mistakes are:

    • 1) More patents are not better than fewer patents. Patents are not Innovation. Patents are not Progress. Patents are simply grounds to file a lawsuit against an industry. More Patents are simply more grounds for more lawsuits. An occasional lawsuit might possibly spur innovation. BUT LAWSUITS DO NOT PRODUCE. Lawsuits are parasitic on innovation and production.
    • 2) Running the US Patent Office as a cost-recovery operation is a mistake. The US Patent Office is a very small, but critical component of the US economy. It's purpose was "..to promote the Progress of Science and useful Arts.." (US Constitution Article One, Section 8(8).) But, once the USPTO became completely cost recovery in 1990's, that primary goal became overshadowed by the more pressing goal of securing funding via patent fees. The primary effect of cost recovery is to guarantee continued regulatory capture by the patent industry.
    • 3) It is a mistake to organize the US Patent Office to create economic incentives to grant poor patents. Currently most of the revenue of the US Patent Office comes from GRANTING patents. See the USPTO FY 2013 President's Budget page 37: www.uspto.gov/about/stratplan/budget/fy13pbr.pdf "..More than half of all patent fee collections are from issue and maintenance fees, which essentially subsidize examination activities." A recent study by the Richmond School of Law found that the US PTO's actual grant rate is currently running at about 89%. In 2001, it was as high as 99%. See http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2225781 [ssrn.com] page 9. In 2001, it didn't matter if an application was overbroad, obvious, trival, a duplicate, or unreasonable, they ALL got granted. Things haven't improved much since then.
    • 4) Scaling up the Patent Office to produce more poor quality patents is a mistake. Currently, we expand the number of patent examiners based on demand. See the USPTO FY 2013 President's Budget, page 60, Gap Assessment: "Meeting this commitment assumes efficiency improvements brought about by reengineering many USPTO management and operational processes (e.g., the patent examination process) and systems, and hiring about 3,000 patent examiners in the two-year period FY 2012 and FY 2013 (including examiners for Three-Track Examination)." Again, the assumption is, more patents are better, even if it means decreasing examination, and increasing the number of untrained examiners. Poor quality is an inevitable result of this patent process.
    • 5) It is a mistake to grant all patents that meet minimum standards. A review of the last couple decades changes in the patent approval criteria will reveal that the minimum standard for granting a patent has consistently shifted downwards during the past few decades. We must abandon the idea that any patent that meets minimum standards is granted. Over time, the standard always degrades. Reform is easy. You rank Patent Applications according to an agreed measure of quality, and only grant the top few percent. Over time, the pressure will be to improve the quality of patent applications, instead of degrade them.

    Real patent reform is possible. The pressures that currently give rise to bad patents are fairly obvious. We can mitigate those pressures and institute processes that tend to increase patent quality. If we can somehow summon and maintain the political will to admit our mistakes.

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