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Senate Vote Tomorrow Could Give Helping Hand to Patent Trolls

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Re: Senate Vote Tomorrow Could Give Helping Hand to Patent Trolls

#11

Post by pdonis »

alwa wrote: post #2

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 l…

> 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...

Re: Senate Vote Tomorrow Could Give Helping Hand to Patent Trolls

#14

Post by bluGill »

j-bos wrote: post #10
thepuppet33r wrote: post #6

Earlier quoted context omitted.

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...

What happens if the genes escape ala Monsanto seeds on the wind?

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.

Re: Senate Vote Tomorrow Could Give Helping Hand to Patent Trolls

#15

Post by kiba »

alwa wrote: post #2

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 l…

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.

Re: Senate Vote Tomorrow Could Give Helping Hand to Patent Trolls

#16

Post by dctoedt »

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 § 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 § 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.

Re: Senate Vote Tomorrow Could Give Helping Hand to Patent Trolls

#17

Post by AlbertCory »

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.

Re: Senate Vote Tomorrow Could Give Helping Hand to Patent Trolls

#18

Post by nitwit005 »

alwa wrote: post #2

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 l…

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.

Re: Senate Vote Tomorrow Could Give Helping Hand to Patent Trolls

#19

Post by kelnos »

alwa wrote: post #2

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 l…

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.

Re: Senate Vote Tomorrow Could Give Helping Hand to Patent Trolls

#20

Post by zonethundery »

dctoedt wrote: post #16

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 § 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 § 316…

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.

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