Tuesday, April 29, 2008

Tell your Senator to vote NO on S. 1145

Don't just read this...do something about it!
Senate bill 1145 must be stopped. Call your Senator today!
This legislation presents a danger to American inovation and is part of the on going effort to globalize everything...please take the time to read including the comments. This will affect YOU and every American!
Patent Bill Should Die

The so-called Patent Reform Act is fundamentally flawed. It combines many bad provisions. Some of the worst parts of the bill include a new, administrative route to challenge patents after they are granted, the ability to infringe a patent without having to pay back what the patented product is truly worth, giving a patent to the first party to file an application rather than the traditional first-to-invent standard, and forcing publication of patent applications at 18 months.
A group of the largest high-tech firms is pushing this legislation, which certain lawmakers are all too eager to accommodate. In short, though, S. 1145 and H.R. 1908 would destroy what the Founding Fathers put into the Constitution with the specific intent of stimulating invention.
The bills purport to “harmonize” (in fact, dumb down) our patent system with the model predominant in Europe and Asia. Proponents claim their bills fix problems like low patent quality. But it ain’t so.
The so-called Patent Reform Act is fundamentally flawed. Some of its worst parts include new post-grant challenges, the ability to infringe for cheaper, “first-to-file” and forced publication at 18 months.
Under the bills, a patent’s validity could be challenged throughout a patent’s life. These appeals would be brought in a lower-cost, administrative forum instead of a real court. It’s easier for competitors to antagonize patent holders for years. And the competitors could do it more often because such challenges would be cheaper.
Also, what’s touted as “proportional liability” is actually rewarding infringers with less liability exposure for unlicensed usage of patented elements. It would be tougher to prove “willful” infringement and thereby win punitive damages. Instead, IP pirates would only have to pay back a small portion of the patented element’s value.
The legislation adopts the foreign first-to-file-a-patent-application standard. Currently, America awards patents to the “first to invent.” Big companies with armies of lawyers can afford to get their patent applications in before the little guy toiling away in his garage who actually first invents something. It also kills off provisional patent protection, which costs less and is of prime benefit to independent inventors.
The forced publication measure will require all inventors to disclose all their invention’s details after 18 months. It takes the Patent and Trademark Office about 33 months to issue a patent. So, for a year and a half an inventor would face hordes of Chinese, Indian and other thieves who’ll steal his invention and gain a commercial edge. The American inventor wouldn’t have any legal rights to protect his creation.
Is this what the Founders had in mind? Hardly. Article I, Section 8 of the Constitution empowers Congress “[t]o 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.”
Why did men of competitive private enterprise choose to grant people an outright, legally protected monopoly? As they explained in Federalist 43, “The utility of this power will scarcely be questioned. . . . The right to useful inventions seems with equal reason to belong to the inventors.”
They noted the rights of copyright under British common law and that it wouldn’t work for each state to try to create its own laws governing intellectual property within the common nation.
“The public good fully coincides in both cases with the claims of individuals.” That is, the success of America’s private enterprise, market competition and international competitiveness, from which all Americans benefit, hinges on rewarding creative people with strong intellectual property rights.
This model has proven itself extraordinarily successful. It’s no coincidence that America became the world’s strongest economic engine because of its patent and copyright laws. It’s why inventors like Thomas Edison, Alexander Graham Bell and George Washington Carver sit among the panoply of American heroes.
The facts, cited by U.S. Business and Industry Council, tell what the patent bills risk. U.S. manufacturers perform two-thirds of the R&D. They own six out of ten patents and, increasingly, corporate intellectual property is a firm’s greatest asset. Small inventors, independent firms, research universities and nonprofits file a third of the patent applications.
At heart, the legislation advantages a single sector and disadvantages all other sectors. High-tech, which uses many patented elements and so has to secure licenses from the various patent holders, wins. Notably, Big Tech contributes lots of its political money to Democrats.
Who loses? The productive sectors. They range from independent inventors to small businesses to universities to venture capitalists to large and small manufacturers of every sort to nonprofit research entities.
So, we’re pressed to scrap our highly successful patent model for an inferior one, unilaterally disarm in the highly competitive global market and disadvantage the most creative sectors of our economy.
We’re to rob America’s inventors. We’re to remove the economic incentive that entices them to invest time and treasure in turning an idea into an item.
We’re to gut the very thing that’s made the rewards worth someone’s risks -- and that produces the miracle medicines, the labor-saving devices, the safety and security improvements that benefit all Americans.
If it really wanted to be constructive, Congress would allow the Patent and Trademark Office to retain application fees. That would enable the PTO to review more applications more quickly. It would also improve patent quality.
A Congress willing to sell the birthright of America’s real innovative sectors for the porridge of “harmonization” and tech execs’ campaign contributions is a disgrace.

Mr. Edwards is an adjunct fellow with the Hudson Instutute. He coauthored The Congressional Politics of Immigration Reform (Allyn & Bacon) with Professor James Gimpel and has contributed to several published works, most recently Debating Immigration (Cambridge University Press), edited by Carol M. Swain. Dr. Edwards is a principal at the Washington consulting firm Olive, Edwards, & Cooper.
Reader Comments: (

Here are the comments submitted by Human Events readers:
Page 1
Report Abusive PostThank you for that, I’ve been trying to get my head around the proposed patent reform act for weeks. This article has really helped my understanding of it.
Ryan, London, England
Apr 22, 2008 @ 04:40 AM
Report Abusive PostCharacterizing the bill's purpose as being to "dumb down" patents is absolutely right on. That has been the major goal of the USPTO leadership under the Bush administration and the oxymoronic "Coalition for Patent Fairness" (which has lobbied Congress). They want to make it *impossible* for any innovative startup to ever obtain patents that a "tech giant" (using the phrase loosely to include MS, HP, etc.) could not infringe and/or break at will. Thus, by eviscerating patent system, we would effectively transfer all new technology from the innovators immediately to the mass marketing Big Corps.

As if selling each other hamburgers made in China is going to keep our economy strong.
David, Alexandria, VA
Apr 22, 2008 @ 06:33 AM
Report Abusive PostThe topic of patents always perks my ears. About 40 US patents bear my name as inventor. So I know something about them.

James R Edwards is telling us an opinion he's formed about patents, but he doesn't tell us why. He asserts that the reforms would benefit industry which files 2/3 of patent filings and would harm the small interests that file for 1/3. I don't see any hint of why he holds this view in the article.

Of the 3 main points of reform he cites, [1] penalties for infringement, [2] publication, and [3] first to file rights, I'll offer my opinions.

[1] Penalties. This is the biggest problem area. The entire premise of patent rights is exclusivity ... that the patent holder has the right to sole benefit from an invention for a period of years. Unfortunately, big business has been lobbying hard against patent exclusivity. It's hard for people to appreciate what this means, but an example is worth 1000 words. We're everyday baraged with TV commercials to sign up for VONAGE, to cut our phone bills. Vonage has in a court of law been found to have been illegally using proprietary patented inventions owned by Verizon. But in court, Vonage has pleaded that upholding Verizon's ownership rights would be a hardship for all the millions of Vonage customers. While Vonage was ordered to pay $58 Million in damages to Verizon, the courts declined to uphold Verizon's patent rights to exclusive usage of their patented inventions ... Vonage was NOT shut down, or even ordered to stop infringing. The author is correct on this one ... the court system has for some time been intentionally chipping away at the rights of patent holders at the request of non-patent holding businesses, under the belief that patents infringe competition. If you believe patents infringe competition that undermines the entire concept of patent protection for innovation. Why bother with R-and-D? Just sit back and wait for others to invent things, and then just steal and copy every new product. R-and-D loses the basic premise which underwrites INVESTMENT in research.

[2] First to file rights ... I got'ta tell you all, that the patent office has (in over 100 years) never really been able to determine who is the first to invent anything. Patents have HISTORICALLY been granted to the first to file, with very few patent litigations actually over-turning patented rights to the first filer in favor of a later discovered first inventor. And then what happens? Overturned patents in favor of a later discovered first-inventor are typically decided SO MANY YEARS LATER that it reversal of rights becomes nearly impossible (witness the famous patent inventorship reversal for the computer ... just years ago while the inventorship was over 50 years ago!).

[3] International patent applications become publicly viewable as soon as they are filed, while in the US they are private until issued. I'm not sure how this reform (making us more like Europe) helps anyone in the US. I would agree with the author that this is not necessarily a good thing ... but be aware that it is the way the rest of the world operates.

Plain sense dictates that inventors file patents quickly when an invention is realized. I agree with the author regarding taking the teeth out of patent laws is a bad thing for those that would invest in innovation ... but be aware that this has been the trend for some time in patent litigation (reducing penalties for infringement has been the recent mindset of the courts) and the same mindset is now trying to make this law.
Doc, aka Rich from Chicago, IL
Apr 22, 2008 @ 12:54 PM
Report Abusive PostNewt Gin-rich SCREWED us the last time on Pat. so-called reform! What is remainig to take away? This is "just another" global-socialist (glob)step toward "harmonizing" every thing in prep for WORLD GOVERNMENT!!!!!!
Jingo John, Formerly FREE USA
Apr 22, 2008 @ 02:30 PM
Report Abusive PostDoc AKA Rich, MegaBuck Global Marketer CAN and WILL take a great idea the second it is filied! THEN, 'Ol MegaBuck MARKETS the hell out of YOUR idea that you just filed 10 days ago AND uses "their" profit to FIGHT YOU in court. COOL huh! Great for good 'ol MegaBuck SEE MY POST SUPRA!
Jingo John, Formerly FREE USA
Apr 22, 2008 @ 02:35 PM
Report Abusive PostJingo John,
I hope I didn't say anything contrary to your words. I agree with you. I didn't suggest that publishing upon filing was good ... I said I wasn't sure it was good for US, and the rest of the world publishes everything upon filing.

I guess I could have said it was definitely bad, instead of I wasn't sure it was good for the United States. I'm sure you're correct, in that only the rest of the world would stand to benefit from publicizing everything invented in the United States.

But the figure in the article is correct, in that the average filing-time-to-issued -patent is about two and a half years. While a good head-start, it's hardly conclusive that an infringement would be able to use profits to pay for their patent infringement defense in such a short time. But there's no denying that publishing upon filing only helps those that wish to infringe as soon as possible.
Doc, aka Rich from Chicago, IL
Apr 22, 2008 @ 02:52 PM
Report Abusive PostAs I read the last two posts by "Doc" and "Jingo" -- it appears tat there is basic concensus that the proposed S.1145 is Baaaad. It IS BAD. And while the Double-Speak Patent FAIRNESS folks are attempting to HARMonize us down to the Lowest Common Denominator of the Least Inventive Countries in the world -- they are also asking us to DESTROY the hugely CREATIVE STRENGTH of America.

In other words -- they're saying -- that Because the rest of the world has the CANCER of Non-protective and anti-innovation Patent Systems -- they want US -- the U.S. to infect ourselves with cancer so we can join the Global Chorus of mediocrity.

In the mind of virtually all of us American professional inventors -- HARMonizing us so that we can Sing in the Global Chorus would require a small operation -- one which would cause us to SING IN THE SOPRANO SECTION. 'Nuf said?
INVENTOR, Newport Beach, CA
Apr 22, 2008 @ 07:01 PM
Report Abusive PostDoc and Inventor! BOTH EXCELLENT posts and RIGHT on the nail head!

Doc, with modern CAD-CAM a 'hot' idea could be put on the market in 2-3 weeks!

And "MegaBucks: COULD and WOULD use "their" income from YOUR idea to fight you for 10-15-20 years! ALL the while using income form YOUR idea to fight YOU.

All: Google "attrition litigation". I think that search term will lead you to the legal concept of "fighting a war of attrition". NOT many folks have the tens of millions to fight a "legal war of attrition".
Jingo John, Formerly FREE USA
Apr 22, 2008 @ 11:15 PM
Report Abusive PostJingo John,
Good thoughts, but I've not seen much from inspiration to profit in less than 18 months ... minimum ... typically longer. IF a corporation with a lawyers to file a patent saw a competitor attempt to turn it into product (while their own patent was pending), what could they do? First off, a company filing for a patent is typically developing their own implementation ... then if and when their patent issued they would bring infringement lawsuit seeking injunction (shutting off the illegal copy).

I don't fear the illegal knock-off using their profits to fight your patent infringement lawsuit. I fear the Chinese knock-off, which gives a rats ass whether you ever get a patent, because they are not within US jurisdiction ... and their GOVERNMENT ENCOURAGES IPR THEFT. This is why I should have been more forceful (as you were) that US publication of patents pending is bad.
Doc, aka Rich from Chicago, IL
Apr 22, 2008 @ 11:24 PM
Report Abusive Post"International patent applications become publicly viewable as soon as they are filed"

Doc, it's nice to hear from an inventor (you too, Inventor). International patent applications become viewable at 18 months after filing, and if you file internationally, then your U.S. application also becomes viewable at 18 months, without any exception that I am aware of. (Meaning the only way to keep your U.S. patent application secret till issuance is to forego foreign rights.)

BTW, if you've ever seen a patent application from MS versus one from an innovative startup, you would immediately understand Mr. Edwards' "why", I think. MS relies on quantity more than quality/innovation. And no one really wants to license MS' patented "inventions" anyway, so there portfolio is mostly "defensive" because people aren't paying to use them and generally don't care that MS even has them. (Yes, "defensive patents" makes no logical sense, but that's what people call them if they're numerous and they're not being asserted.) [P.S. And if we can't think of a single important invention that MS ever invented, perhaps they're not the voice that should be guiding patent reform.... It would be like having Big Oil guide environmental protection. Oh, wait, scratch that.]

Here's one random example of a MS patent application subject matter:

David, Alexandria, VA
Apr 23, 2008 @ 01:03 PM
Report Abusive PostOops, it cut off the link.... You can go to the USPTO patent search web site (an/microsoft) or the EPO patent search web site (Applicant=Microsoft) and see the kinds of things they patent.

P.S. I wonder if MS filed a patent application on the Microsoft Word paper clip assistant too? Actually, the patent on disabling the assistant might be more valuable. :-)
David, Alexandria, VA
Apr 23, 2008 @ 01:12 PM
Report Abusive PostCheck out latest Patent battle between Victoria's Secret and an independent inventor who claims patent infringement over US Patent 6,733,362 - "Brassiere".


search on "Plew, Katerina" in "inventor name"

Can't cut and paste the patent URL here, as the URL uses amphersand ... but you can search and find the patent easy enough with the inventor name from the US patent website using the URL above.
Doc, aka Rich from Chicago, IL

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