Software Patent Reform Happening Now

Jim Hall writes "Many of us in IT recognize that software patents are a bad idea — you can patent just about anything if you put "on a computer" at the end of it. But now we can finally do something about it. Congress is considering the America Invents Act — your Representatives are very interested in hearing from you. Also, the USPTO is inviting public comments to change the system (you need to file by June 29, 2011.) I've written a blog post about software patents with more, starting with a primer of copyright and patents."

Re:Should vs Will

[Jim Hall]

I don't believe this is really the case.

It's true that politicians don't understand technology very well. They come from varied backgrounds, but rarely does that include IT. So they need people to explain technology topics in terms they can quickly understand. Otherwise, they'll listen to the people who are in their face most often - and that's usually the big lobbyists.

Do some research on software patents before you talk to your Senator or Representative. I often bring up the progress bar patent [blogspot.com] (which expired just a few months ago.) Start with "You know when your computer boots up, or you're loading a web page on your browser? Notice that progress bar at the bottom of the screen? That's patented, and technically someone would have had to pay a license for that."

Never fails to stun them into realizing that's stupid.

I honestly believe that if enough people go to their Representatives RIGHT NOW and talk to them about software patent reform, they'll listen.

Re:USPTO'S RFC mischaracterized

[Jim Hall]

The RFC by the USPTO is limited in scope to restructuring the re-exam process for increased efficiency, quality, and throughput. Comments on this process will need to be framed by the current statute and case law built on the statute, because the USPTO cannot change the statute by itself. Instead, this is talking about changing internal procedure as well as possibly changing the regulations (37 CFR).

Correct, and as pointed out in TFA:

The USPTO seems open to considering this issue, and it is inviting public comments on a proposed rule to streamline patent reexamination proceedings (although you would need to file by June 29, 2011). See Docket No. PTO-P-2011-0018. As you probably know, the patent reexamination process allows a third party or an inventor to have a patent reexamined by a patent examiner to verify that the subject matter it claims is patentable. During patent reexaminations, trial proceedings may be put on hold if a judge agrees to wait for the outcome of the reexamination.

Streamlining patent reexamination proceedings could help in software patent litigation by offering a quicker and more cost effective option for invalidating software patents awarded for obvious methods. Reexaminations have been increasing steadily in recent years, and claims in almost 75% of reexaminations have been either amended or canceled - whereas in courtrooms the majority of claims are decided in favor of the plaintiff patent holders.

(emphasis mine) (TFA is mine too, actually)

Maybe I should have made it clearer that I'm advocating two separate actions here:

1. Contact your Representative and/or Senator about the America Invents Act, and talk to them about adding software patent reform.
2. Respond to the USPTO's RFC to recommend streamlining the reexamination process. This isn't the ideal solution, but if the AIA can't get amended to include real software patent reform, then a procedural change with the USPTO can at least mitigate the damage.

Re:Rrrrriiiight....

[Anonymous Coward]

This is true. I work for a Rep in the US House. And I've been talking to lots of people about this bill. Not too many constituents, though, which is too bad. Lots of business people from our state though. We do want to hear. Especially on bills like this, which are very technical. I'm having trouble offering a recommendation since this is a flawed bill with some good, some bad, and much missing.

But I'll tell you this, too: It's pretty much too late to change this bill on most issues. That was a done deal by leadership and committees over the past 6 months. Rank and filers don't get much of a say on the major issues unless they're on that committee. Big changes (like software patents) will blow it up. There is a small chance the House will have a chance to substantively amend on the floor, which could get interesting. So this advice if you call:

0. Call the House. The Senate voted (something like 95-4) to pass this bill. Now's the time to influence the House process. You can go back to the Senate if there's a conference.
1. As for the "LA (Legislative Assistant)" handling patent issues. Talk to them if you can. If you can't, leave a message and ask for a call back. Many LA's will work 12-16 hour days and are still way behind. So the odds are they won't be there. But most will call you back.
2. Don't focus overly on software patents. You can say that they're bad. You can say vote against them in an amendment if you get the chance. But ...
3. For the most part we'll want to know what you think of this bill. Will things be better or worse if we pass it? Yes, I know it's flawed, but ... how should the Rep vote given that reality?
4. If you want to go deep, look at amendments next week and offer opinions on those if there's something impt.

re: "Do the right thing".

[TaoPhoenix]

But is it the right thing?
Slightly at odds to my remarks about Microsoft in a sibling post, let's try this Microsoft example from Wikipedia.

Any comments?

--- From Wikipedia
Impact of the changes

Opponents of H.R. 1249 assert that the impact of the changes to the current law will be to effectively neuter the U.S. patent system. Patents owned by startup companies, research institutions, and independent inventors ("startups") will be unenforceable against large corporations. Avistar Communications Corporation's encounter with Microsoft illustrates how this plays out. In 2007 Avistar was a startup developing desktop videoconferencing and online collaboration tools. Avistar had 29 U.S. patents, a number of pending U.S. patent applications, and numerous foreign patents and applications. Avistar approached Microsoft to negotiate a license to Avistar's patented technology. Microsoft wanted a license on terms Avistar would not agree to, and decided to use post-grant opposition in the PTO to litigate Avistar into submission. After six months of licensing negotiations, Microsoft, in February and March 2008, requested reexamination of each of Avistar's 29 U.S. patents.[66] Defending a single patent in a reexamination proceeding "routinely costs a patent owner hundreds of thousands of dollars in legal fees."[67] To pay the legal expenses associated with the reexaminations, Avistar, in April 2008, announced that it would cut its work force by about 25 percent.[68] This was not enough. With legal costs piling up, Avistar was forced to sell substantially all of its U.S. patents and patent applications, and related foreign patents and patent applications to Intellectual Ventures ("IV"). IV, originally called the Patent Defense Fund, was founded in 2000 by two-ex Microsoft employees. The idea was that IV would provide a way for Microsoft and other large technology companies to protect themselves against patented inventions. "Initially, each company ... was asked to pony up $50 million. The plan was that IV would then go out and buy patents that were knocking dangerously around the marketplace, and investors would get a license to the entire portfolioâ"effectively immunizing them from the danger of intellectual property litigation." [69]. IV has raised over $5 billion.[70] Avistar sold its patent portolio to IV in January 2010, taking a grant-back license so it could continue to sell its patented products.[71]

Avistarâ(TM)s encounter with Microsoft reduced the price of Avistar stock 61%,[72] and Avistar no longer owned the intellectual property it spent years developing. Microsoft imposed unbearable costs on Avistar using the reexamination procedure available under current law, i.e. without the benefit of the even costlier post-grant opposition procedures created by H.R. 1249.
http://en.wikipedia.org/wiki/America_Invents_Act [wikipedia.org]