[linux-elitists] [firstname.lastname@example.org: SEEKING LINUX USERS FOR DOCUMENTARY STYLE PHOTO SHOOT IN SF]
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 email@example.com
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
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
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
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
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."
firstname.lastname@example.org -- Bruce Schneier, Secrets and Lies, p. 246.
http://zgp.org/~dmarti/ (Free the Web: http://burnallgifs.org/)
More information about the linux-elitists