[HN Gopher] Senate Vote Tomorrow Could Give Helping Hand to Pate...
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Senate Vote Tomorrow Could Give Helping Hand to Patent Trolls
Author : speckx
Score : 143 points
Date : 2024-09-18 16:50 UTC (6 hours ago)
(HTM) web link (www.eff.org)
(TXT) w3m dump (www.eff.org)
| alwa wrote:
| I know absolutely nothing about this act, but I was put off by
| the EFF's tone of righteousness here. As a rule of thumb I worry
| when I hear something described in absolute or moralistic terms:
| rarely do complicated things happen just out of pure villainy.
|
| For slightly more detailed perspective into what proponents might
| be thinking, CSIS suggests that the status quo effectively allows
| large companies with armies of lawyers to steal IP from small
| firms at will, and that PERA seeks to remedy a category of iffy
| gotcha kind of challenges; the conservative Federalist society
| claims that PERA would remove a threshold challenge to patent
| validity but would not disrupt more substantial analyses and
| tests later in the process.
|
| I still have no opinion personally, but maybe a couple of
| contrasting opinions might be helpful for folks here.
|
| [0] https://www.csis.org/analysis/new-efforts-promote-us-
| innovat...
|
| [1] https://fedsoc.org/commentary/fedsoc-blog/the-patent-
| eligibi...
| DidYaWipe wrote:
| "PERA would remove a threshold challenge to patent validity"
|
| Whatever that means...
| jacoblambda wrote:
| The threshold they are referring to is the Alice/Mayo test.
|
| https://crsreports.congress.gov/product/pdf/IF/IF12563
|
| > The Supreme Court decisions referenced above established
| what has come to be known as the two-step Alice/Mayo test for
| patentable subject matter. The first step of the Alice/Mayo
| test addresses whether the patent claims are "directed to" an
| ineligible concept (i.e., a law of nature, a natural
| phenomenon, or an abstract idea). To be directed to an
| ineligible concept, the focus of the claims must be a patent-
| ineligible concept, as opposed to a technological process. If
| the patent claims are not directed to an ineligible concept,
| then the claims are patent-eligible.
|
| > If the claims are directed to an ineligible concept, then
| the invention is not patentable unless the patent claims have
| an inventive concept under the second step of the Alice/Mayo
| test. Step two considers the elements of each patent claim,
| both individually and as an ordered combination, in
| determining whether they contain additional aspects that
| "transform the nature of the claim" into a patent-eligible
| application of an ineligible concept. Claim limitations that
| are conventional, routine, and well understood, such as
| implementing an abstract idea on a generic computer, cannot
| supply an inventive concept.
|
| An extremely over-reductive TLDR is that the Alice/Mayo test
| limits patents to specific, concrete, and well understood
| applications of technology. The test exists because of overly
| broad patents that essentially attempted to patent the idea
| of using a computer to do anything as well as attempting to
| patent ideas that were not yet invented in the hope someone
| would invent something infringing so they could extract a
| payday.
| AlbertCory wrote:
| I don't think you can really expect non-lawyers to
| understand that.
|
| "Why is it being pushed?" and "who are the backers and the
| opponents?" would be better questions to ask. "What will be
| the practical consequences for software-intensive
| companies?" is another.
|
| If software were not patentable (as it was not before 1982)
| then we probably wouldn't be having this discussion.
| thepuppet33r wrote:
| I know just about as much as you do, but I know the EFF has
| been fighting against bad parents for a bit. For example:
|
| EFF v. Personal Audio LLC | Electronic Frontier Foundation
| https://www.eff.org/cases/eff-v-personal-audio-llc
|
| I imagine they're a little breathless because if these go
| through, they won't be able to advocate on behalf of cancelling
| bad patents as easily.
|
| I tend to agree with the EFF on this, but appreciate you
| providing some context.
| pdonis wrote:
| _> As a rule of thumb I worry when I hear something described
| in absolute or moralistic terms: rarely do complicated things
| happen just out of pure villainy._
|
| True, but to paraphrase Arthur C. Clarke, sufficiently advanced
| ignorance is indistinguishable from villainy. And as a rule of
| thumb I worry whenever I hear "Congress needs to take action to
| remedy problem X", because Congress is going to have
| sufficiently advanced ignorance about the actual complicated
| nature of problem X and whatever law they pass is far more
| likely to make things worse than to make them better.
|
| My basic problem with the patent regime as it exists today is
| that _things_ are not what are supposed to be patented in the
| first place. The very idea of holding a patent on a _gene_ (for
| example the BRCA1 and BRCA2 gene patents mentioned in one of
| the EFF articles on this topic [1]) seems obviously wrong to
| me. I could see a patent on a particular _machine_ that does
| genetic tests, but not on the genes themselves. So to me, a
| patent like the Myriad one should never even have been able to
| pass the laugh test, let alone been granted so that a series of
| court cases was required to invalidate it.
|
| The Alice Supreme Court decision somewhat narrowed the scope of
| what is supposed to be _prima facie_ patentable, but I don 't
| know that it fixed the above problem. Nor do I see anything in
| the proposed bills the Senate will be voting on that does so.
| So I don't see _any_ side in this debate that is really
| addressing what I think is the root problem.
|
| [1] https://www.eff.org/deeplinks/2023/09/bill-would-boost-
| worst...
| kiba wrote:
| There's a power asymmetry between large and small firms and it
| doesn't favor small firms in term of patents and IP. IP and
| patents protect big firms from competition.
|
| Patents doesn't guarantee you business success. All it does is
| give you a seat at the negotiating table, the ability to
| countersue if one of those firms come after you. Otherwise,
| patents are worthless to small businesses.
| nitwit005 wrote:
| When large agricultural firms lobby congress, they always talk
| about the "small farmer". Similarly, with patent law, you have
| huge businesses talking about small firms or single inventors.
|
| Which is to say, they lie a lot. Take it with a gain of salt.
|
| Unfortunately they also frequently get non-profits to be their
| mouth pieces, which makes finding some sort of unbiased
| alternate viewpoint difficult. As a practical matter, I
| wouldn't trust anything the Federalist Society says.
| nceqs3 wrote:
| >Unfortunately they also frequently get non-profits to be
| their mouth pieces
|
| Important to note that the EFF is also a nonprofit, which is
| funded by big tech.
| kelnos wrote:
| I suppose it depends on your opinions around patents. To me,
| anything that makes patents more "sticky" is a bad thing. I
| think patent grants should be scaled back heavily, and patent
| terms greatly reduced. There's far too much junk that's been
| awarded patents and then used as a bludgeon by companies to
| intimidate others (even worse when the company is a patent
| troll).
|
| Even if it's true that these measures would help stop larger
| companies from stealing patents from smaller firms (I'm
| skeptical of that), I'd still oppose them.
| AlbertCory wrote:
| I gave some up above.
|
| The EFF is indeed self-righteous. That doesn't mean they're
| wrong.
| rayiner wrote:
| To be clear, Fed Soc itself doesn't take policy positions. (And
| it's not clear to me what the "conservative" position on patent
| issues would be. Traditionally, plaintiff's lawyers are
| liberals.)
| AlbertCory wrote:
| "traditional" patents (mechanical, chemical, electrical,
| biological) should be separated from software.
|
| The former have some claim to validity under the law,
| sometimes. The latter: almost never. That's at the root of
| the problem.
| tptacek wrote:
| It seems plain from their site that they do. Did you mean to
| say, FedSoc doesn't have an IP law position?
| Loughla wrote:
| Honestly, how can you patent a human gene? What happens if I'm
| born with that gene? I have to pay a company for the right to be
| alive?
| thepuppet33r wrote:
| Naturally occuring genes can't be patented, but artificial ones
| can. Theoretically, you'd never have the artificial ones, but
| yeah, sticky subject.
|
| https://www.science.org/content/article/us-supreme-court-str...
| svieira wrote:
| Where this _could_ go was covered by (among others) Michael
| Chrichton 's last novel _Next_ [1] which games this out in
| some detail (as far as I am aware it 's his only novel with
| endnotes).
|
| [1]: https://en.wikipedia.org/wiki/Next_(Crichton_novel)
| j-bos wrote:
| What happens if the genes escape ala Monsanto seeds on the
| wind?
| bluGill wrote:
| Depends on details. Monsanto doesn't worry about seeds on
| the wind. The cases I've read have come down to the fact
| that they escaped to someone who was trying to take those
| genetics. The farmer planted next to a round-up ready
| field, and then saved seeds - this would have been fine
| except the farmer then used those seeds and sprayed round-
| up which ensured all the plants without the round-up ready
| genes died and his next batch of seeds was all round-up
| ready. If the farmer had just used all the seeds without
| round-up Monsanto wouldn't have cared - at least so far as
| we have evidence, but then of course the farmer lacks the
| benefits of those genes.
| j-bos wrote:
| Huh, hadn't read that context until now. Thanks
| hathawsh wrote:
| Is there an online discussion about this happening somewhere?
| This sounds very important, but without some dissenting opinions,
| it's hard to be sure what details are being glossed over.
|
| On the EFF's side, there's this:
| https://www.theregister.com/2009/05/11/scheduling_paradigm/
|
| The opposing CSIS article posted by "alwa" in another comment
| also sounds very convincing. https://www.csis.org/analysis/new-
| efforts-promote-us-innovat...
|
| Where is the civil debate?
| zamalek wrote:
| I manually contacted all of the senators suggested by EFF. It
| took me all of 10 minutes. You should really share your opinion,
| even if it differs from that of the EFF.
| dctoedt wrote:
| Inactive patent lawyer here (these days my practice is in other
| areas).
|
| 1. This bill doesn't appear to address _Alice /Mayo_
| unpatentability under 35 USC SS 101.
| https://www.congress.gov/bill/118th-congress/senate-bill/222...
|
| 2. My concern is that this bill seems to inappropriately raise
| the evidentiary bar for a patent challenger to prove invalidity
| in an _inter partes_ review in the USPTO:
|
| - Existing law, at 35 USC SS 316(e) says a challenger in an IPR
| must prove invalidity by a preponderance of the evidence.
| https://www.law.cornell.edu/uscode/text/35/316
|
| (In a _court_ challenge to validity, the Supreme Court has ruled
| that invalidity must be proved by clear and convincing evidence,
| the highest standard in civil litigation, just short of beyond a
| reasonable doubt.)
|
| - Section 4 of this amendment, when it comes to issued claims,
| would raise the IPR challenger's burden to clear and convincing
| evidence. For new claims, the challenger would _still_ have the
| burden of proof, but by a preponderance.
|
| Both standards are bad public policy, because in most cases a
| single, very-busy patent examiner is in effect making national
| industrial policy -- and granting the patent applicant a
| nationwide monopoly on the claimed subject matter -- all by his-
| or her lonesome after doing a prior-art search; the applicant
| must disclose material information known to him/her but is under
| no obligation to do a search. That's been the law for a long
| time.
|
| It'd be as if a graduate school made a rule that a Ph.D.
| candidate _must_ be issued the degree unless his (or her)
| dissertation committee does a literature search and shows that
| the candidate 's research wasn't sufficiently novel. (As I
| understand it, every reputable Ph.D.-granting institution
| requires _the candidate_ to do a literature search to demonstrate
| novelty.)
|
| But of course it's worse than that, because -- unlike a new
| patent holder -- a newly-minted Ph.D. can't weaponize his- or her
| dissertation to try to "extract" royalties from other
| researchers.
| zonethundery wrote:
| 1- It's PERA that changes the alice/mayo test. PREVAIL is the
| old STRONGER Patents act that is introduced every Congress.
|
| 2- Yeah, the one 'reasonable' complaint of IPR critics is the
| different evidentiary bar for litigation vs IPR.
|
| IANAL but it's difficult to find a member of the patent bar
| outside of pharma/npe's that supports either bill.
| AlbertCory wrote:
| > the patent bar outside of pharma/npe's
|
| that's it exactly. Pharma really should have its own patent
| regime, or at least, software & pharma should not have the
| same one.
| derf_ wrote:
| _> (As I understand it, every reputable Ph.D.-granting
| institution requires the candidate to do a literature search to
| demonstrate novelty.)_
|
| It is also worse than that, because for most dissertations,
| your committee is generally going to be more widely-read than
| the candidate, and have discussed the topic with them for
| years. Although the candidate may have more _specific_
| knowledge by the time they are finished writing the
| dissertation, the committee is going to have much broader
| knowledge of the field in general, and is pretty likely to be
| aware of the relevant prior art anyway.
|
| A closer analogy would be saying the Ph.D candidate must be
| issued the degree unless a _randomly chosen undergraduate_ can
| show the research wasn 't sufficiently novel.
| AlbertCory wrote:
| Former tech advisor to Google Patent Litigation here.
|
| The Ex Parte Reexamination is a fundamental tool for fighting
| against patent trolls:
|
| https://en.wikipedia.org/wiki/Reexamination
|
| They _can_ also be used by big companies to steal IP from small
| inventors. However, this is not why the backers of this bill are
| trying to limit them.
|
| When a troll buys up a patent from the early 2000's, they hope to
| stretch its claims, with the help of a patent-friendly judge, to
| cover some modern technology. Naturally, it's the FAANG and other
| big companies they really want, but first they build up a war
| chest by settling with smaller fish.
|
| Filing an IPR is a cheaper way than going to trial for
| challenging these bogus patents, and believe me, nearly all
| software patents are bogus. I busted lots of them, including
| this:
|
| https://www.zdnet.com/article/microsoft-patent-may-block-goo...
|
| If you go to trial, it's some unsophisticated jurors who decide
| if the patent is valid. For a reexam, it's PTO people, who at
| least know what the law is.
|
| So that's why trolls want to get rid of reexams: to force
| companies to negotiate with them.
| doctorpangloss wrote:
| Google's patent strategy is to patent everything it sees and
| hears about. This is a good case of it:
| https://patentpandas.org/stories/company-patented-my-idea . As
| long as patent attorneys are on quotas at Google, they will be
| filing bullshit patents they didn't invent all the same as the
| trolls.
|
| Anything sincere about US patents must always be about how they
| should cost basically nothing to file correctly by inventors
| themselves. Otherwise it's just rich people suing other rich
| people.
|
| Especially software patents. If you are pro startup you are
| anti software patent. The status quo is a deadweight transfer
| from investors to patent attorneys.
|
| The more you think and read about this, the more it will piss
| you off.
| siliconc0w wrote:
| Raising the standard in PTAB like this bill seems like a pretty
| bad idea, a huge % of patents are invalidated today in PTAB (I
| think like 80%) because a huge percentage of them are horseshit.
| One overworked patent examiner can basically derail an industry.
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