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August 24, 2005
Lord Save Us From Patent Reform
Posted by Alan Wexelblat
...or so prays Robert X. Cringely's latest column. In it he paints a bleak picture of everyone's favorite sock puppet Orrin Hatch using a last-minute "hearing" to push through a piece of highly favoritist legislation. Fortunately, it seems like Hatch didn't quite succeed, yet.
Unfortunately, Cringely's attempt to discuss IP law is overgeneralized to the point of wrongness (patents don't protect ideas, they protect inventions). His basic thrust - you and I aren't being helped by attempts to reform patents - seems correct. He asserts that the majority of patents are issued to "smaller companies" (here he means smaller than Microsoft, which is a pretty big list) and individual. Is that true? Given the patenting engines run by IBM, HP, MSFT and not to mention the pharma/bio companies it seems like this may no longer be true. Cringely admits that he knows a number of individual inventors so this may just be his personal experience bias.
He also notes that the switch to first-to-file isn't really the problem with the US patent system, and goes on to list a number of problems implicit in the proposed "reform." Regardless of the details I think there is general agreement outside of the big patent-holding companies that this is a bad bill. Let's just hope Congress can actually manage to focus on the real problems with patents and not be distracted by this kind of boondoggle.
Comments (7)
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1. Jason Taylor on August 24, 2005 2:45 PM writes...
You asked, 'He asserts that the majority of patents are issued to "smaller companies" (here he means smaller than Microsoft, which is a pretty big list) and individual. Is that true?'
Yes. A nice work on this area is Allison et al., "Valuable Patents", 2003 (on the web @ http://repositories.cdlib.org/blewp/art91/ ). Read it for more details, but this and other research does strongly suggest that patents from large companies are less valuable than those from small companies and independent inventors. In other words, small companies, individuals, and entrepreneurs have historically provided much of the innovation that has made this country great. Indeed, the American Dream, something that has been a beacon to bright immigrants from around the world, is to strike out on your own and make it. Patents help allow this innovation by offering some protection to entrepreneurs, inventors, and investors who may offer to help finance these activities. This bill to some extent threatens this Dream and thus a very foundation of what has made this country so great.
While established companies have been well represented on their opinions about this bill, the startups and entrepreneurs have not. This is despite the fact that large corporations are a surprisingly rare member of the corporate populace. In my opinion, this lack of small-entity representation is primarily because only the larger companies can afford to support work on such side issues; small companies only do things that that yield a tangible ROI. The real problems with the US patent system, like avoidance of the easy-to-litigate Jepson claim, or the long backlog aren't even addressed by this bill.
I hope this answers your question.
Sincerely,
Permalink to CommentJason Taylor
2. patent attorney on August 24, 2005 3:00 PM writes...
US Patents are not "issued" to companies.
They are issued to the human "inventors".
Permalink to CommentThe U.S.A. is one of the last places on Earth where an individual human being is entitled, as an inventor, to recognition and attribution for his or her good work. U.S. patent law requires that a declaration be signed by the invetor(s) upon filing unless the inventor is dead or unreachable, and in that case, someone else signs on his "behalf". The patent still issues with the name of rightful inventor on its top.
3. Ronald J Riley on August 24, 2005 3:56 PM writes...
I am disappointed in the comments by Alan Wexelblat concerning Cringely's column Patently Absurd - Patent Reform Legislation in Congress Amounts to Little More Than a "Get Out of Jail Free" Card for Microsoft dated August 18, 2005. Cringely was not writing for patent pros, he was writing for the public and the public considers an invention an idea.
The essesence of Cringely's article was dead on. Senator Hatch aligned himself with predatory companies during the patent reform fight which raged from the early 1990s to 2000 and he has aligned himself with many of the same players once again.
Hatch clearly asserted that he was not going to do anything with the so called patent reform legislation until there was consensus, Then he was nailed by the Professional Inventors Alliance trying to sneak the hearing through on Tuesday of the last week Congress was in prior to recess. And his buddy was caught red handed trying to trying to sneak a markup in on Friday the last day before recess.
So far all the hearings have been stacked with proponents of the bill. Again the same tactic was used in the 1990's.
Patent reform is really the wrong label for this legislation. It is not about reform. It is about making changes to allow predatory companies to get away with stealing others property. It is about protecting large vested interests from being displaced by a startup company. Individual inventors are much more likely to produce important inventions and it is the uncertainly of this which big companies are desperate to stop.
I urge all to read the material on our web site. If you decide you are against the legislation please join our efforts to kill it.
Permalink to CommentRonald J Riley, President
Professional Inventors Alliance
www.PIAUSA.org
RJR ?at? PIAUSA.org
RJR Direct # (202) 318-1595
4. Dr. wex on August 24, 2005 4:08 PM writes...
"patent attorney" is correct. US patents are filed in individuals' names but immediately assigned irrevocably and in perpetuity to the employer (company). This is a standard feature of IP contracts signed by all employees I'm aware of in high tech companies. So the inventor's name has become little more than a polite fiction in the corporate patent world.
As to Ronald Riley's comments I'm not sure why you're disappointed. I think Cringely gets one or two of the details wrong but his gist is correct and I've long said that the so-called "patent reforms" contemplated in Congress have zero to do with what's actually wrong with the US Patent system today.
Permalink to Comment5. patent attorney on August 24, 2005 9:06 PM writes...
Dr. Wex is sadly uninformed. If the correct set of inventors are not properly named on an issued U.S. patent, the patent may be invalid. The inventors' names are much more than a polite fiction, they are an essential part of the issued patent.
See for example,
http://www.law.duke.edu/journals/dltr/articles/2003dltr0020.html
Those who seek to DEFORM the current US patent scheme are aiming to fundamentally change the way the patent system has succesfully operated for the benefit of the America's general welfare over the last 200+ years. Their motto is, "It is good and fixed, therefore let us break it."
In doing so, they are willing to spread false fictions about how important it is to recognize and commend the actual human beings, the scientists and engineers, who contribute to the progress of science and the useful arts in America.
Permalink to Comment6. Dr. wex on August 25, 2005 5:18 PM writes...
If the correct set of inventors are not properly named on an issued U.S. patent, the patent may be invalid.
Yes, and if the patent doesn't disclose proper relevant prior art it might also be invalid. Now, for laughs, go look at the pathetic state of prior art citations on software patents. I was not speaking to a point of law; I was speaking to the ongoing practices of the software patenting engines of major US software companies.
Permalink to Comment7. Jim on September 5, 2005 8:09 PM writes...
if this awful bill passes will it be retroactive? My application is currently pending in the PTO (already received notice of allowance) and has yet to be granted. The allowance was based mainly on our antedating the prior art (using inventor notebooks and other proof). I am extremely concerned that the bill could send us back to square one. Any thoughts on this?
Permalink to Comment