Patent Sense

Today’s New York Times reports that House Passes Bill to Curb Suits by Patent Owners:

The House approved the most sweeping changes to United States patent law in more than half a century on Friday in a victory for computer companies like Microsoft and finance companies like Goldman Sachs.

The legislation, approved 220 to 175, would make patents harder to obtain and easier to challenge and is intended to curtail litigation by limiting where patent owners can file suit and how much they can collect in damages.

The measure passed by the House would change the rules at the Patent and Trademark Office so patents would go to the first person to file an application, not necessarily the first inventor. That would limit years-long disputes over who was the first to invent new technology and would bring the United States in line with other countries’ patent rules. It would also allow third parties to introduce evidence against applications and would create a system, called post-grant opposition, to challenge new patents.

In litigation, it would limit where patent suits could be filed so that cases are not concentrated in court districts deemed favorable to plaintiffs, create a new way to calculate damages to reflect the contribution of the invention to the overall product and allow immediate appeals of court rulings on the interpretation of patent terms while cases are proceeding.

While many of us have often heard or used the phrase “patent nonsense” this is an instance of “patent sense,” a sensible proposal that I hope goes on to become law.

I know that many open-source developers have strong feelings against patents. I’ve never had such strong opinions on this, though it does seem to me that the pendulum has swung too far in the past few years by allowing the creation of “business process” patents that are “patent nonsense,” thus encouraging the accumulation of patents by companies, known as “patent trolls,” that exist solely to enforce their patents and profit by the threat of litigation. This proposed legislation is I hope a sign that the pendulum is moving back to a more sensible location.

By the way, the article does contain an interesting part about the value of the intellectual property involved, suggesting to me why there are so many trolling these murky waters:

Intense lobbying has surrounded the issue, reflecting the importance of patents to the American economy. Intellectual property in the United States, dominated by patents, is valued at as much as $5.5 trillion, more than 40 percent of the nation’s gross domestic product, according to a 2005 study by USA for Innovation, a Washington group that advocates free trade.

It’s worth noting that several billions of dollars worth of that intellectual property is freely available to anyone interested to use as they see fit and at no cost — all the open-source packages available today, including in particular Linux and my own favorite form of Linux, Ubuntu.

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