
Bill to End Patent Office Validity Challenges Introduced in House - DiabloD3
https://news.bloomberglaw.com/ip-law/bill-to-end-patent-office-validity-challenges-introduced-in-house
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jcranmer
Okay, what does the bill actually do?

1\. Switches the US back from first-to-file (which is the norm in literally
the entire rest of the world) to first-to-invent. This is something that
sounds like a good idea, but in practice ends up being more bureaucratic
hassle than any sort of actual improvement.

2\. Repeals inter-partes review, i.e., a means to assert "this is a bad
patent." Note that SCOTUS decided in April that inter partes review is in fact
constitutional, so I assume this is basically a change of tactics of
litigators from "try to get SCOTUS to rule it unconstitutional" to "try to
repeal the law."

3\. Eliminates fee diversion. I don't know the law well enough to understand
what exactly it's trying to do here.

4\. Overturn most of the recent SCOTUS §101 decisions of the past decade
(e.g., Bilski, Alice). It's debatable if this is actually possible, though--
these decisions didn't rest on "well, they're not actually authorized by law"
as much as "it's been well-agreed by common sense that these things can't be
patented."

5\. Explicitly declares patents as "private property rights." This calls into
mind the argument in Oil States, that the government can't revoke these kinds
of rights without means of a court (which, if they had been private rights,
would have made inter partes review unconstitutional). But I again wonder if
it's actually within Congressional power to make this kind of declaration.

6\. Stops patent applications from being published automatically. Because
publishing patent applications creates prior art, and that would retard
innovation. No, seriously, that's the literal argument in the text of the bill
itself.

7\. In legal cases, the defendant would now have to argue that the patent is
invalid, that each individual claim is invalid (even if the claim depends on
an invalid claim), and that a permanent injunction is not appropriate, even if
the patent owner doesn't make its own patent.

In other words, this bill attempts to undo every aspect of patent reform in
the past decade, both from SCOTUS and from Congress. I can't think of anyone
who'd be happy about any of this, save for patent trolls.

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monochromatic
> these decisions didn't rest on "well, they're not actually authorized by
> law" as much as "it's been well-agreed by common sense that these things
> can't be patented."

By their own terms, these decisions purport to be based on the statute section
101. The Supreme Court rarely if ever bases a decision only on what it
considers common sense.

If the text of 101 changes, there’s no reason to think the caselaw that’s
grown up around it would stay valid.

~~~
jcranmer
I haven't read the opinion of Alice directly, and it's been a long time since
I read Bilski, but my recollection is that both of them turn on "it's long
held that some things can't be patented as a matter of nature, and this patent
is an example of something that falls into that category." There are things
that Congress can't do, and given that SCOTUS is very likely to have an
originalist rather than a legislative intent majority, the framework for
analysis is very likely to be "what would an 18th century lawyer say about
this?" rather than any amount of exhortation about how this is necessary to
promote the progress of science and useful arts.

I'm not sure about the exact interplay of different kinds of law here, and I'm
certainly not an expert in any variant of law. That's why I pointed out that
the legislation might not have any actual effect as opposed to saying that the
legislation will not have an effect.

~~~
monochromatic
Well regardless of the statutory interpretation tools employed, they purport
to be interpreting section 101, not the constitution. If 101 changes, those
cases _should_ be out the window.

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KirinDave
Calling this "bipartisan" because they got Kaptur on board is in that "extreme
technicality makes this correct" correct category. Kaptur is perhaps one of
the most pro-intellectual-property-is-the-province-of-corporations folks in
the House and in general is tightly aligned with Republican fiscal policy.

The linked article links to a draft:
[http://src.bna.com/z0P](http://src.bna.com/z0P)

It's H.R. 6264: [https://www.congress.gov/bill/115th-congress/house-
bill/6264](https://www.congress.gov/bill/115th-congress/house-bill/6264)

I'm not a patent lawyer but it looks like a bad idea to me. I'm especially
nervous given how excited certain orgs who I usually DIS-agree with are hyping
it as a solution: [https://cpip.gmu.edu/2018/06/29/rep-massie-introduces-new-
le...](https://cpip.gmu.edu/2018/06/29/rep-massie-introduces-new-legislation-
to-restore-americas-patent-system/)

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jmull
This would be a disaster that would fundamentally unbalance the patent system
-- in favor of trolls -- which would be a disaster for innovation in the US.

The problem is, large numbers of patent applications come in and the patent
office can't possibly review all of them upfront in extreme detail. Of course
the great majority of them are not especially high-stakes so don't warrant
extremely detailed, considered review.

The administrative review process lets them focus their limited resources on
high-stakes, contested patents.

Anyway, it would be bizarre to give the patent office the responsibility to
grant patents but not give them the ability to fix mistakes in this extremely
complex domain.

Bringing a judge into it makes matters worse since courts are more expensive
and much less able to evaluate the validity of patents than the patent office
itself.

An obvious land-grab by patent trolls that would strangle tech .

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fhrow4484
Most comments discuss the usefulness of the PTO but it seems like a major
section of it is that one:

>> PATENTABILITY OF SCIENTIFIC DISCOVERIES AND SOFTWARE INVENTIONS.

>> ...

>> this amendment effectively abrogates Alice Corp. v. CLS Bank International,
134 S. Ct. 2347 (2014) and its predecessors to ensure that life sciences
discoveries, computer software, and similar inventions and discoveries are
patentable, and that those patents are enforceable.

See the bill text linked: [http://src.bna.com/z0P](http://src.bna.com/z0P)

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dwheeler
This is a bad bill. The PTO is notorious for issuing bad patents; examiners
don't have the time or the information necessary to do a good job. Giving the
PTO a chance to re-evaluate bad patents saves literally billions of dollars;
the courts are far more expensive.

~~~
Alex3917
They also get paid more for approving patents than rejecting them.

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pjdemers
The examiners don't get bonused on allowing patents. But if too many of their
decisions are challenged, their career prospects dim. At least that's the way
it was in the 70's when my dad was a patent examiner. The way the game worked
then was for the examiner to negotiate with the filer to reduce the number and
size of the patent's claims until the patent could be allowed, but was so weak
as to not be worth challenging by the filer's competitors.

~~~
Alex3917
> The examiners don't get bonused on allowing patents.

Yes, they do. They are paid based on how many patents they process, and it
takes less hours to approve a patent than to reject one.

~~~
binarymax
Citation please? I've never heard of any federal agency employee getting any
kind of commission such as this.

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hedora
Not the best article to cite to make this point, but:
[https://www.washingtonpost.com/news/the-
switch/wp/2014/07/31...](https://www.washingtonpost.com/news/the-
switch/wp/2014/07/31/inside-the-stressed-out-time-crunched-patent-examiner-
workforce/?noredirect=on)

> "Our data finds that as examiners are given less time to review
> applications, the less prior art they cite, the less likely they are to make
> time-consuming prior art rejections, and the more likely they are to grant
> patents," the researchers report.

...

> Patent examiners have an incentive to approve or reject a patent as quickly
> as they can. That's because every time they do, they get two "credits" that
> go toward a progression system that determines when they get promoted (and
> how much they make). One interesting feature of the progression system,
> though, is that as you rise in rank (from, say, a GS-7 to a GS-14) the
> amount of time you're expected to spend on each patent decreases.

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spamizbad
This sounds like a huge boon to patent trolls, undoing the modest reforms
passed earlier. Is this correct?

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oneplane
All this does is screw the USA even more than it already is. The rest of the
world just laughs.

~~~
spruciefic399
Unfortunately, I think you're right. From my perspective, this is exactly the
sort of government-sanctioned monopoly / rent-seeking that's causing so much
income inequality and economic pathology. The government should be encouraging
competition, not destroying it.

I think the idea of intellectual property per se is fundamentally flawed, but
I can see patents as incentives. This just shifts too much power to trolls and
undeserving patents.

~~~
oneplane
I think the government should be there to provide a general interface to
general policy, perhaps create, check, enforce it, and ensure some sort of
level playing field so people that miss the genetic lottery aren't screwed by
default.

(basically, just making sure people can work together if they want to, but
without having the will of the strongest/most powerful be the law)

If you undermine any of that by making bad rules or doing bad governance, you
are screwing the whole country and all the people in it.

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protomyth
Sadly, the primaries are over, but you can make your displeasure known to:
Rep. Thomas Massie (R-Ky.), Reps. Marcy Kaptur (D-Ohio) and Dana Rohrabacher
(R-Calif.).

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jostmey
Innovation will rush to china if bills like this become law

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shmerl
Really evil move no doubt driven by patent trolls and patent racketeers.

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DiabloD3
tl;dr Congress is apparently trying to pass a law that makes it impossible to
challenge patents, and opens the door for an ever escalating abuse of invalid
patents sneaking into the system.

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chris_wot
Wow, could they get any more stupid if they tried?

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nickserv
This isn't stupidity, this is malice.

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oneplane
It's an example where Hanlon's Razor doesn't apply. So if you ever need one to
point out the rare cases where this is so, this case would be a really good
one to use.

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notlob
One biotech person's perspective is that these are changes in the right
direction. Things were certainly not perfect in the pre-AIA era, but post-AIA
and recent court decisions have had many negative impacts on our industry,
particularly diagnostics and particularly new ventures. The uncertainty
associated with an “issued” patent has decimated their value, to the loss of
innovation in our industry.

~~~
lixtra
I hope you get down voted not for taking a contrarian position but just
because your comment does barely support the argument. Maybe anecdotes would
help to illustrate your point?

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notlob
I wasn’t intending to advance an argument, merely present that as a biotech
entrepreneur in the process of forming a new company I for one like many of
the changes in this proposal. I completely get why software people take
umbrage with patents, but wanted to politely put forward that it isn’t a
universal feeling.

~~~
AnthonyMouse
> I completely get why software people take umbrage with patents, but wanted
> to politely put forward that it isn’t a universal feeling.

The obvious solution would be to not have software patents, but this bill
seems to be proposing the exact opposite of that.

