[linux-elitists] [susette@blackwellsf.com: SEEKING LINUX USERS FOR DOCUMENTARY STYLE PHOTO SHOOT IN SF]

Don Marti dmarti@zgp.org
Tue Mar 20 13:11:59 PST 2001

Any comments on the following patent reform suggestions? Working
version, with links, at http://zgp.org/~dmarti/patent-reform-draft/

I'm particularly interested in anything on the TRIPs treaty -- if it
requires signatories to allow patents on any damn thing, then the whole
patent mess could get a lot worse before it gets better.

The goal is to have a reasonable Patent Reform Document we can get a
bunch of Valley big cheeses to agree to, then set up a meeting with 
Rep. Anna Eshoo.

           DRAFT Three-point Plan for Patent Reform                            
           Last modified: Monday, March 19th, 2001                             
           Comments to Don Marti dmarti@zgp.org                                
           This is a draft.                                                    
           1. Give USPTO the funding it needs to do its job.                   
           Not only does USPTO not receive any tax money, about 25%            
           of the money collected in fees by USPTO is currently                
           diverted to other US Federal Government programs. Because           
           of the economic damage caused by invalid patents, this is           
           no way to save money. USPTO's ability to conduct                    
           meaningful examinations is already compromised. Last                
           year, USPTO Director Q. Todd Dickinson warned of an                 
           imminent "reduction in patent quality" resulting from yet           
           another inadequate budget.                                          
           The following quotations are taken from a letter to                 
           Howard Coble (R-NC) and Howard Berman (D-CA), Chairman              
           and senior Democrat of the House Subcommittee on Courts             
           and Intellectual Property dated January 9, 2000. Emphasis           
               To be a viable organization in today's high                     
               technology economy, the USPTO needs to conduct much             
               more of its business electronically. We are well on             
               the way to doing so, most notably, with our                     
               successful electronic trademark filing system and the           
               availability of our patent and trademark databases              
               via the Internet. Under the proposed mark, we would             
               have to make reductions in this area of $37 million,            
               wihch will force us to eliminate all new planned                
               automation projects and severely curtail many of our            
               already successful systems.                                     
               Specifically, we will be forced to significantly                
               reduce or eliminate the planned electronic filing of            
               patent examinations, on-line database searching (with           
               a consequent reduction in patent quality), our                  
               award-winning patents and trademarks on the Internet            
               program, our work-at home program, the electronic               
               filing of assignments, and necessary upgrades or                
               planned replacements to basic examiner computer                 
               equipment. We also would not be able to implement the           
               replacement of our PTONet, which is the critical                
               backbone of our information technology system,                  
               jeopardizing our entire operation.                              
               Our workforce here at the USPTO is among the most               
               highly skilled and sought after in the New Economy,             
               as well as the Federal Government. Cuts in areas such           
               as overtime and training would serverly weaken our              
               ability to recruit and retain the high caliber staff,           
               which is essential to our work.                                 
           Inadequate USPTO budgets benefit only one group of people           
           -- those who get invalid patents. Everyone else suffers.            
           Fund USPTO so that it can afford to attract and retain              
           highly skilled examiners, as well as maintain a                     
           world-class library of international patents, journals,             
           catalogs, and other information. A patent office without            
           full funding is the economic equivalent of a fully loaded           
           B-52 bomber with no maps, no compass, and an untrained              
           2. Stop and reverse patentability creep                             
           Would the economy be better off if Bruce Springsteen were           
           allowed to patent rhyming "back" and "Cadillac" -- and              
           sue any other songwriter who did so, even if the new song           
           was nothing like "Pink Cadillac?"                                   
           Would the economy be better off if the Green Bay Packers            
           were allowed to patent the best defense against a                   
           particular play, and sue any team that used that defense            
           against them?                                                       
           Would the economy be better off if a high-priced defense            
           lawyer were able to patent the use of a legal argument,             
           and sue any other defense lawyer who used it on behalf of           
           his client?                                                         
           Clearly, the answer to all three questions is no. We're             
           all better off when we can hear new songs, watch good               
           football games, and get a fair trial without getting                
           several patent licenses a day. Unfortunately, several               
           court decisions in the 1980s and 1990s have resulted in             
           the patentabilty of mathematical algorithms and of                  
           business methods, which is for programmers just as                  
           ludicrous as the above three examples.                              
           Software and business methods patents are examples of               
           "patentabilty creep" in action. Federal judges,                     
           legislating from the bench, are expanding the scope of              
           patentable content to not only overwhelm USPTO, but also            
           to do grievous economic harm.                                       
           There is no natural right to a patent. Patents are an               
           economic tool given to Congress by the US Constitution,             
           and exist, in the words of Article I Section 8, "to                 
           promote the progress of science and useful arts."                   
           Software and business methods patents do not promote the            
           progress of anything. In a recent study, economists James           
           Bessen and Eric Maskin of MIT found that                            
               Through a sequence of court decisions, patent                   
               protection for computer programs was significantly              
               strengthened. We will show that, far from unleashing            
               a flurry of new innovative activity, these stronger             
               property rights ushered in a period of stagnant, if             
               not declining, R&D among those industries and firms             
               that patented most.                                             
           Thanks to the AMA and other concerned medical                       
           professionals, the US has already won a victory in the              
           fight against patentabilty creep. In response to patents            
           on surgical techniques, Congress in 1996 redefin ed                 
           patent infringement to exclude surgery and other medical            
           treatment. As Richard M. Stallman has suggested, a                  
           similar measure to prevent infringement claims against              
           programmers and users of software for general-purpose               
           computers could achieve the benefits of software patent             
           reform without forcing Congress to define a "software               
           (Q: Is there an interpretation of the Agreement on                  
           Trade-Related Aspects of Intellectual Property Rights               
           (TRIPs), a WTO treaty, that would require signatories to            
           allow patents on anything? This is counterintuitive but             
           Whether or not you have been accused of infringing a                
           software or business method patents, unchecked                      
           patentability creep will eventually hurt your ability to            
           make a living. It's time to stop it now.                            
           3. Fix USPTO's incentive system to reward quality, not              
           The Department of Commerce should populate USPTO's                  
           advisory committee with members from outside the patent             
           bar, with a view to helping USPTO work toward the                   
           economic health of the nation as a whole and not for any            
           special interest group. Employee incentive programs                 
           within USPTO should be tied to patent quality, not                  
           In a New York Times article, James Gleick writes,                   
               Examiners know that their year-end bonuses depend on            
               productivity. The people interacting regularly with             
               patent officials and examiners -- their obvious                 
               clientele and customer base -- are inventors and                
               inventor representatives.                                       
               Each morning, as Commissioner Dickinson arrives at              
               his Crystal City office, he walks past a framed                 
               poster bearing the motto:                                       
                                Our Patent Mission                             
                         To Help Our Customers Get Patents                     
               It's virtually forgotten that the government's                  
               customers also include the rest of the nation, the              
               citizenry at large, whose fortunes depend on the                
               agency's judgments and policies.                                
           On March 29, 2000, USPTO became a "Performance-Based                
           Organization" and began to pay many employees bonuses               
           according to how well they achieve "specific measurable             
           goals". There is nothing wrong with this in principle,              
           but the criteria for incentivizing USPTO staff need to be           
           keyed to the overall economic benefit USPTO can offer,              
           not to the demands of patent attorneys.                             
           In 2000, the Secretary of Commerce chose the membership             
           of the Patent Public Advisory Committee without including           
           any of several advocates of patent reform who were                  
           nominated. In the next iteration of the committee, it               
           would be beneficial to include a professor of law without           
           financial ties to the patent system, perhaps Prof. Eben             
           Moglen of Columbia or Prof. Lawrence Lessig of Stanford.            
           Conclusion, Implementation and Supporters                           
           What now? Point 1 is a matter of appropriations, point 2            
           requires other legislation, and point 3 requires action             
           on the part of the executive branch. All three are                  
           important to ensure a healthy patent system for the                 
           future. Here in California, we will try to set up a                 
           meeting with Rep. Anna Eshoo to start the process of                
           patent reform.                                                      
           The final version of this document will be freely                   
           distributable, in its entirety, with attribution.                   
           Contributors of content, links, or comments will be                 

Don Marti              "I've never sent or received a GIF in my life." 
dmarti@zgp.org            -- Bruce Schneier, Secrets and Lies, p. 246.
http://zgp.org/~dmarti/        (Free the Web: http://burnallgifs.org/)

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