Saturday, May 21, 2005

The Patent System Needs to be Significantly Improved

The United States patent system is in need of significant reform. The most serious problems include patents being issued for obvious (and therefore theoretically un-patentable) things, a poor legal system to manage patent claims and organizations and people taking advantage of the first two problems to essentially extort money from others.

From the lessig blog, "The 'Progress' and 'Freedom' Foundation has called (rightly) for Supreme Court review of the 'obviousness' standard in patent law."

Even Microsoft, always a strong proponent for the protection "intellectual capital rights" sees the current system is failing. While not all Microsoft's suggestions make sense to me I do share common ground with them on several points. From a question and answer session with Microsoft General Counsel Brad Smith posted on Microsoft's web site:

Microsoft Calls for Reforms to the U.S. Patent Systemwe need to ensure that interested parties have sufficient opportunities to alert the PTO about questionable patents within the PTO review process itself. Under current law, parties typically can only raise concerns after patent issuance by filing a reexamination request or a lawsuit -- an obvious disincentive, given the costs of patent litigation. One proposal that has been suggested is to allow third parties to submit information regarding "prior art" to patent examiners during the patent examination process itself, rather than only after a patent has been issued. "Prior art" is a legal term used to refer to the processes, devices and modes of achieving the end of an alleged invention that were known before and at the date of the invention.
Another proposal is to establish a post-grant patent-opposition procedure, which would allow third parties to challenge patents administratively, rather than through litigation. Such a procedure already exists in the European system and could help weed out questionable patents before they become the subject of costly and time-consuming litigation.

The statement Microsoft makes include some language about "business-process" patents and supporting addressing the problems that exist in that area. Without stating it they seem to support the current award of "business-process" patent and just want some minor adjustments. On the whole these patents seem to be obvious and unworthy of patent protection, in my opinion.

John Hunter

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