Patent reform bill surfaces in Congress, but is it too little, too late?

Patent reform bill surfaces in Congress, but is it too little, too late?

Summary: According to a report by's Declan McCullagh, if a new bill before Congress becomes law, it's proposer, Rep.

TOPICS: Patents

According to a report by's Declan McCullagh, if a new bill before Congress becomes law, it's proposer, Rep. Lamar Smith, says it will improve the overall quality of patents and target some of the legal practices that have irked high-tech companies.  Among the changes that the law would institute is the creation of a process for challenging patents up to nine months after they're awarded or six months after a legal notice alleging infringement is sent out.  McCullagh's report notes that "another major change would be to award a patent to the first person to submit their paperwork to the Patent Office. Currently, patents are awarded to the first person who concocted the invention, a timeframe that can be difficult to prove."

While it's about time that a patent reform bill appeared in front of Congress (see Rage against the patent machine, but is anybody listening), I'm curious as to what happened behind the scenes that facilitated the overnight birth of this bill.  As I reported  in that "rage" blog, the last time the issue surfaced in any federal discussion was in 2002.  Here we are five months later, and we have a bill.  Not only that, it's a bill that the tech industry apparently likes.  McCullagh reported that the Business Software Alliance was quick to praise the bill.  The BSA is backed by many of the industry's biggest vendors, many of which have also been the squeakiest wheels when it comes to the problems that exist with U.S. patent law today. On the patent front, 2005 has been a busy year for the technology industry, which has been lobbying hard for reform.  At the end of April 2005, the Judiciary Committees of both the House of Representatives and the Senate held hearings on patent reform, and here we are barely seven weeks later with a bill.  For Congress, this has to be a land-speed record of some sort and surely it, *cough*, was the bests interests of The People that motivated them to move so quickly. 

OK, whatever it takes.  But now the question comes: is this too little too late?  For example, asks a ZDNet reader, what about grandfathered patents? In response to the aforementioned "paperwork" change, reader George Mitchell opined "this means he who pushes paper always triumphs over he that writes software."  While the grandfather issue is an obvious problem that will hopefully be dealt with before this bill becomes a law, the paper pushing issue is a bit stickier.  While I'll be the first one to admit that I don't have any easy answers, I'm troubled by the idea of issuing patents on the basis of paperwork alone.  I personally would like to see some evidence of real research or implementation since, as Mitchell implies, anyone could push paper.  But I'm also aware of the problems that presents.  For example, why shouldn't some engineer be able to wake up in the middle of the night with the next better-than-sliced bread idea, map out all the details and patent it.

On the larger debate of whether there should be patents on software at all, this is turning out to be a more difficult situation to reconcile than many realize -- mostly because of the international complexities of patents.  Assuming that we ditched patents here in the U.S., everything would be fine, right?  No patents, no lawsuits.   That is, until you head into international territory (and the world has not demonstrated a proclivity towards following America's lead).  So, while the spirit of never using a patent offensively may eventually prevail in the U.S., what the open source world has taught us is that patents actually come in handy for defensive purposes where that spirit may not exist (for example, in the EU). 

Topic: Patents

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  • That seems backwards.

    It was my understanding that major European nations are against the idea of software patents. And that US is one of the few (only?) nations that currently grant software patents. Perhaps I'm misinformed. But I could have sworn it was the US trying to encourage other nations to 'follow their lead' and get software patents. Which I think need to die a horrible death. Software is instruction. It should only exist under copywrite.

    If I am knowledgeable and patient enough, I can manually read machine binaries. Just like if I am knowledgeable enough I can manually read any human language.
  • Remember Why We Do This?

    The patent system is a contract between "we the people" and creators. Inventors get 17 years to own their magic technology exclusively. What do "we the people" get in exchange? We get publicly disclosed knowledge of the invention so that the idea is never lost.<p>
    The problem with the current system is that little inventors can't afford to defend their patents but IBM and the other big guys can. This law makes that problem worse, not better.
    • also...

      Journyx has 5 patents, but enforcing them on known violators is pretty expensive.
  • reform bill

    I wonder how the process to challenge patents would really differ from the current re-exam procedures.
    Oh, and a few questions:
    What happens to a patent being challenged? Is it enforceable during the challenge process? How long can a challenge procedure last (current appeals can last 3-4 years)? If a patent is non-enforceable while being challenged, how will the patent owner be reimbursed for potential revenues lost during the challenge procedure if the patent owner prevails?
    What will be the threshold for initiating a challenge (i.e., could someone submit a stack of 1,000 references and request a patent be challenged, or must there be some showing of a reason why the patent may be invalid)?
    How expensive will it be for a patent holder to defend their patent in the challenge process (assuming the patent owner can even be involved)?
    I guess I'm not yet convinced that this challenge process being proposed is such a good idea. I think the money would be better spent updating the information resources available to patent examiners, allocating money for more patent examiners, and allowing examiners more time per application.
  • They should require a working model..

    if you cannot demonstrate your idea with a working model, then you should not be able to get the patent. That will remove the "paper pushers" from the equation.

    And if they are not going to get rid of software patents, they should reduce their time to3 or 4 years.

    And reduce the time frame on other patents.
    Patrick Jones
  • international complexities of patents

    On the larger debate of whether there should be patents on software at all, this is turning out to be a more difficult situation to reconcile than many realize ? mostly because of the international complexities of patents.

  • When I grow up I want to be a Lawyer


    Thanks for this - a great post.

    This whole scam, sorry scheme, (the Bill) smells to me like a plan to increase the hours of lawyers. Because the patent office is rewarding patents at a low value threshold, and because the current patent review process is taking a long time (unfortunate, but inevitable), the lawyers have spotted (and are exploiting) a gap in the market.

    From the links in this story it appears that the lawyers have got the backing of big business software by:
    (a) Promising that, while costs in the short term go up as the backlog is cleared - in the long term (like, after those lawyers have retired very comfortably, thank you) they go down (as patent quality is improved by removing poor patent roadblocks, and case law creates a fast-track method of shooting down patents); and
    (b) Presenting this move as a way to improve the quality of their IP portfolios (i.e weed out the spears from the nukes in their IPR portfolios), and tackle some of the more obvious abuses of the curent system [such as companies that exist purely to register, buy, own, and sue for patent infringement] - thus strengthening their (big biz) bargaining position when a REAL patent reform bill rolls into town.

    In the unlikely circumstance that any Software Company big-wigs read this: Research the American Intellectual Property Law Association's report: Economic Survey 2003. There you will find that you have just been sold a pup. More legal regulation creates economic pressure by increasing patent litigation - your costs are going to keep going up...

    I am being cynical I know - but, then again, one has to principled to see the cynical viewpoint - when I say this is a quick fix. A fix, so that corporations can play for time on the bigger issues. Big software corporations are only trying to protect their shareholder's interests (and, lest we forget, that includes most people - through their pension funds and savings). However, on balance, I really have to pause and wonder whether it serves the wider social interest. Okay, I've paused and wondered, and the answer is; No. It doesn't serve our interests as citizens, as consumers, or even as ICT professionals.

    Well done David, in particular, for highlighting some of the basic arguements on what software innovators' protection ought to be like. As I have posted at ZDNet before, patents and copyrights are both unsuitable methods, ultimately, of protecting/rewarding innovation in software development. I have been telling my customers that it is only a matter of time before copyright is challenged in this context - so thanks for that link.

    There is one aspect of your report, David, that troubles me. You assert that " ...people who sink years of research and thousands if not millions of dollars into developing something that's never been done before should be entitled to protect that idea as a means of at least recovering the investment... ". On the face of it, who could argue against that? But let us pause for a moment and reflect. There are software systems out there that were created in bedrooms, garages, libraries, dormitories, and back rooms that compete, directly, with software systems that were generated by companies investing 'thousands if not millions of dollars'.

    In other words, you are promoting the Software Corporate perspective, without balance, when you simply assert this as true. If we really want to protect the little guy, then we have to look at the bigger picture. If a bunch of students and hobbyists can create Linux - to compete with every major operating system designed by corporations then, surely, it is time to wonder if corporations are the right structures for organising investment in new software technologies. Because, if those corporations that invested in new O.S.s were wasting their money society at large ought to be asking the question: Why not use the free stuff, and stop these companies from wasting resources that could be better invested elsewhere (including, for our pensions)? I too have heard these agruments. I'm waiting for someone to tell me about one, just one, pure software innovation in the last twenty years (i.e. since the P.C. / L.A.N. era matured) that REQUIRED major investment. I'm not holding my breath.

    At best, software companies help to gather the interests of like-minded customers, and produce software that meets the needs of most of them, most of the time, at the cost of the loss of full flexibility and higher prices (i.e. the price of developing the software using a corporate structure).

    At worst, software companies misdirect resources to wasteful activities that are best left to customer companies themselves, supported by freelance programmers who can use the Net (as they already do) to organize collective, core, efforts. This also protects their freedom to re-use each others' software, and those core projects, to customize (i.e. meet the exact needs of customers 'right out of the box').

    IMHO, this is nothing more than a truly democratic, meritocratic, freedom-oriented (for each citizen), and market-centric capitalist model. The difference is that it is a SERVICE model, and not a PRODUCT model for software.

    Assume, for one mad moment, that we could agree that software (all software) is written, distributed, used, tuned, and tailored, as a service. What intellectual property rights are required? Apart from Trade Marks (to protect the good names of core projects such as Apache), I can't think of any - though I need time to give it more thought. After all, on the Net it is easy to spot a coycat... Maybe even TMs are OTT?

    I have a challenge for ZDNet. Get a corporate software lawyer in to argue the opposite case:
    - Software is a product;
    - Software requires major investment;
    - Software companies are the best means of creating software; and, therefore
    - Software requires IPR to protect investment.

    Finally, you mention the rest of the World's apparent lack of enthusiasm to follow where the U.S. leads. The U.S. Courts led the U.S. into adopting software patents by default (i.e. without political debate - Diamond v. Diehr 1981, then State Street Bank & Trust Co. v. Signature Financial Group Inc. 1998). On that basis, what's to follow? Having researched the European approach I can tell you that the only reason that software patents are an issue there is because the U.S. Government has been pushing the subject.

    Now, all we need is a simple description of what software is...
    Stephen Wheeler