Patent law passed in US, but Presidential veto could follow
House of Reps. approve smaller fines in copyright spats
A new US law which would reduce the damages to be paid out for patent infringement has been passed by one half of the US legislature. The proposed law was backed by large technology firms and banks but opposed by smaller tech companies and drug companies.
The Patent Reform Act was passed by the House of Representatives on Friday. It must be passed by a vote of the Senate and signed by the President before becoming law.
The bill's supporters said that it was aimed at improving the quality of patents awarded and cutting down on the amount of expensive litigation over patents that takes place. The law proposes a cut in the damages that can be awarded for patent infringement.
It also changes the basis on which patents are awarded. The US is unusual in awarding patents to the first person to invent a technology. The bill proposes that a patent be awarded to the first person to file a patent application. This is easier to determine and, proponents hope, will result in less litigation.
Software publishers' lobby group the Business Software Alliance, which represents companies such as Microsoft and Apple, had backed the new law, which it says goes some way towards fixing a 'broken' patent system. The large hi-tech companies lobby says that the current system plays into the hands of abusive patent litigation and opportunism.
The bill was passed by just 220 votes to 175 with Democrats largely backing it. The 60 Republicans who voted for the bill were almost cancelled out by the 58 Democrats who crossed the floor and voted against it.
Innovation Alliance is a lobby group which represents smaller technology companies such as InterDigital and Qualcomm. It says that the new law could end up costing small businesses and universities money. Spokeswoman Susan Mora said that it was not acceptable to change the law "so patent infringers can reduce their supposedly soaring litigation costs".
The pharmaceutical industry, which earns its money through licences from drugs it invents, has opposed the change and said that it has been motivated by sector-specific concerns from large software publishers.
There are said to be concerns in the White House about the fact that the new law limits a judge's discretion in awarding patent violation damages. Even if passed by the Senate the law could be blocked by a veto from US President George W Bush.
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@ Sean Thompson
RE: "The idea that someone could file and be awarded a patent for something you have been doing/providing commercially for years yet have not filed for a patent on is borderline criminal. The argument that the person should have filed a patent is ridiculous, if someone wants to provide a new product without requiring everyone else to ask them before providing the same product, then so what. We should have no responsibility to document and file our production/trade methods with the federal government."
If someone files a patent for something you have been doing/providing commercially for years, the application will be denied on the existence of prior art.
You shouldn't and in fact do not actually have any resposibility to document and file your production/trade methods with the federal government. It's when you want protection that you must. For example, inherent copyright is attained whenever you create something, but to effectively enforce it, it's in your best interest to register it with the government. It's the same principle here. You don't HAVE to register, but if you want the rotection that "I did it first" provides, a third party has to know about it. You can do what you like, but if you don't tell anyone about it, you have no right to yell at someone else for doing it too. Hence the PTO.
Prior Art still applies.
Even with the 'First to File' system, a patent can still be overturned if there is public evidence of 'prior art'.
If you invent a new kind of bicycle and ride around on it then, some time later a Cycle manufacturer patents the same kind of bicycle, that patent will, almost certainly be overturned due to prior art.
If, however, you had the idea for the new bicycle, scribbled it on a piece of paper and stuck it in a drawer, then there would be no publicly verifiable evidence of prior art and the patent would stand.
The 'Windsurfer' case is the classic example:-
The fact that there was physical and public evidence of prior art blew the patent away.
Its also the application date of the patent that is important, not the date it is actually awarded. If you come up with a new idea and take it to some company to see if they would like buy the idea and demo it to their MD, THEN decide to apply for a patent then you are in trouble. The company can start making your gizmo AND blow away your patent because the minutes of the meeting where you demoed your gadget pre-date the patent application. If you had applied for the patent beforehand then your patent should be safe.
The flip side is that if the Gizmo company decides to do the dirty and patent your invention themselves your evidence of prior art will shoot down their patent. If you were sensible and applied for your patent before making your invention public then your patent will invalidate theirs as your application date was earlier (even if they managed to get the actual patent awarded before yours).
Though this all does, to a large extent, depend on who can afford the best lawyers......
NB, this is all from my memory of UK IP law. I haven't dabbled in it for 4 or 5 years so all of this may now be completely bogus......
Re: UK sidesteps most of these problems
Lets not get ahead of ourselves here. You do not have to implement an "idea" in the UK to get a Patent. As an example, I would like to introduce you to Arthur Paul Pedrick: http://www.patent.freeserve.co.uk/pedrick.html . He never let practicalities get in the way of a good idea! Piping snow and ice balls from Antarctica to irrigate the Australian desert is my favourite.
That said I do think we have a more "sensible" [read practical] system than the US.
Saying that, a variant of Amazon's one click patent is in force in the UK. See http://v3.espacenet.com/textdoc?DB=EPODOC&IDX=EP0927945 and check it here: http://www.patent.gov.uk/patent/p-find/p-find-number.htm