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The battle over patents

Tomorrow, the Senate Judiciary committee holds a hearing on patent reform. The weeds are tall on this one. If you're not a lawyer, and I'm not, the reading will cross your eyeballs. But it's a big issue for many, many companies and for the economy.

Congress tried to change patent laws a couple years ago, but the bill failed because its opponents are huge companies that are as effective at lobbying as Tiger Woods is at striking a golf ball.

The bill was resurrected last week. The most controversial provision would reduce the likelihood of major damage awards and increase the standard of proof for willful infringement.

The supporters of the bill are no slouches either -- Google, Microsoft and other big tech firms. Google's Head of Patents, Michelle Lee, blogged about it last week:

"All too often, Google and other companies face mounting legal costs to defend against questionable patent claims from speculators gaming the system to reap windfall profits. And those lawsuits make it more difficult and costly to introduce the next revolutionary product."

But other industries, small inventors and labor unions say this is bad legislation.
Monsanto's head lawyer, David Snively, responded to Lee:

"Unlike the solution for rampant copyright infringement the perverse solution for rampant patent infringement is to propose "reforms" that would both reduce incentive to invest in research, development and marketing of innovative American products and services and provided impediments for improving patent quality."

In English, that means the bill will discourage innovation and cost the economy more jobs.
Opponents say the courts have already made it more difficult for "patent trolls" to collect huge
damage awards, so this bill isn't necessary.

But Scott Fulton at Betanews points out:

In the modern era, entire businesses are based on a model of cultivating IP portfolios to execute and to win lawsuits, and potentially gain treble damage awards by jumping through the low-grade hoop of "willful infringement."

Not to mention companies like Monsanto that are very good at gaming the system as well.
The new bill also has a "first to file" provision. That means whoever files the patent first, gets credit. Marketplace's Innovations reporter Janet Babin says:

"That has small inventors up in arms - sometimes they don't have the resources to be first to file, even if they are first with the actual invention...so they say this provision heavily favors the big guys."

I doubt many people want to see small entrepreneurs lose any edge they might have. But the bill can be tweaked. It's been 50 years since the last major revision of patent law, and I'm guessing some changes are necessary. This seems like a pretty fair fight, so hopefully the legislation comes out protecting ideas and inventors, not trolls.

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The term patent troll is widely misused. The last sentence in this article states:

"protecting ideas and inventors, not trolls."

This is patently incorrect. Any one who gets a patent issued is an inventor with an idea that deserves protection (by legal definition).

A troll is a derogatory terms used for patent-
holders who do not commercially practice their invention, but simply are in the business of inventing, patenting, and selling issued patents, which is entirely legal and reflects the intent of the patent system. Apparently, some businesses feel this is a misuse of the patent system, even though the entire system is based on inventing, which does not require any commercial activity.

Note that trolls are actually doing the innovation that the large companies are not, and so find paying trolls for their patents a nuisance. Also note that nearly all of such large companies are trolls themselves, in that they patent a vast number of ideas which they never commercialize, but simply license, or cross-license. So the message is that the term 'patent troll' suggests a great deal of hypocracy and manipulation of the patent system in the interest of large entities.

Okay, fair point, AgentG. But what's your remedy? How do you separate the small inventors from the big companies who are essentially doing the same thing, which is referenced by Benjamin in the comment above? Or do they need to be differentiated?

This is about the software industry, nothing more nothing less. The patent office has granted patents to things that not only are completely obvious, but have been in active use on the internet and/or industry for years. This is not a one-time occurence, this has happened dozens if not hundreds of times. The patent office has completely failed to hire any managers who know even the most basic facts about computer software, and that is what the fuss is all about.

Marketplace should watch itself. I mean, I noticed that you have your ads going down the right hand side of your screen, with a dashed line between them and the main article. Did you have your lawyers do a patent search to see if this 'invention' of your web team has not been patented by someone else already? I noticed that you guys also produce a 'podcast' where you 'wrap up' the weeks news. Are you sure that idea hasn't been patented? How about the fact that you allow people to search your articles by topic, AND by reporter? Are you sure nobody patented that 'invention'?

These sound extreme, but it is exactly the sort of thing that happens in the software industry all the time. It has been this way for years, no matter how many times people scream at the patent office to improve its incompetence.

Oh, but the patent office *has* improved its incompetence - that's the problem. ;-)

ok well, i guess it is about quite a bit more. Monsanto, for example, wants to force every farm in America to buy seed from Monsanto, by suing any farmer whose crop gets accidentally pollinated with genes from a Monsanto crop, based on patent law. The claim is that the farmers downwind from the Monsanto crop are 'stealing intellectual property', because the wind blew the pollen containing monsanto's IP into their field.

Another issue with software patents: Patents on software conflict with rules saying math can not be patented. Computer software can be distilled down to a math problem, and math is not supposed to be patentable. Computers are sophisticated calculators. If the patent office does not allow a patent on 3+3-1 then why allow it on a math problem that goes on for 40 million pages of 'code'?

I think it sucks that a company can patent genes found in my body and then charge me for any procedure, medication, or remedy that I even tangentially involves those genes. My own genes! Making a drug sounds like patentable work. Patenting a medical procedure sounds more sketchy. But allowing a patent on the gene itself, to me, is akin to allowing a patent on a scent or a novel creature found in nature. How can allowing a patent on such basic knowledge further the arts and sciences?

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