My comment on the vote (originally a comment to a post on PatentlyO):
Looks like the Watt (D-NC), Jackson-Lee (D-TX), and Conyers (D-MI) amendments failed. The text of amendments isn't on Thomas yet but the Congressional Black Caucus has been very skeptical of even the hint of loser-pays provisions for a long time and several members emphasized that objection in committee. I'm guessing those amendments were aimed at fee-shifting provisions. Looks like a slim majority of the CBC voted against final passage while non-CBC Democrats voted three-to-one in favor.
My favorite CBC members Barbara Lee (D-CA, yes) and Donna Edwards (D-MD, no) were split.
I couldn't see any pattern in Republicans that voted no, though I was disappointed in favorite Republican Justin Amash (R-MI). There doesn't seem to be any distinct lean among Progressive, RSC, Hispanic Caucus, Tea Party, regional groups, or other subdivisions for or against the measure.
Well, except the SF bay area which is solidly in favor. Maybe the new PTO office there will be the site of protest rallies someday.
I don't know what's in the Rohrabacher (R-CA) amendment that was adopted, either. It seems to have passed with mostly Democratic votes.
See the roll call for your congressman. [1] Roll 629 "On Passage" is the vote on final House passage.
Summary of the amendments extracted from the report (only the Rohrabacher amendment passed; Goodlatte's was automatically added since he's the committee chair):
(see also Thomas's Rules Committee report [1])
Goodlatte's has technical changes.
Watt's amendment weakens the loser-pays provision
Polis's Requires claimants to provide additional
disclosure information in any pre-suit notification to
establish a willful infringement claim. (no vote)
Massie's Strikes section 5, the ``Customer-suit
exception'' provision.
Jackson Lee's first Expands covered customer definition to
all small businesses so long as their annual revenue does not
exceed $25 million.
Jackson Lee's second Requires the Director to conduct a
study regarding the economic impact of the changes in current
law resulting from Sections 3, 4, and 5 of the bill on the
ability of individuals and small businesses owned by women,
veterans, and minorities to assert, secure, and vindicate their constitutionally guaranteed exclusive right to their inventions and discoveries.
Rohrabacher's moves patent applicant appeals back to district courts such as the Eastern District of Texas instead of the CAFC as the original bill specified. (This is the amendment that passed.)
Conyers's essentially waters down the entire bill and replaces it with the much weaker and pro-troll Senate bill. Anybody who voted for this is not really our friend (roll call 628)[1]. This would drop the pleading reform, discovery reform, and loser-pays provisions that constitute essentially all the effective reforms in the bill.
The problem is that few of these people feel directly touched by patent issues and that is certainly the case for their constituents. For the average citizen patents are far removed from their daily reality. This means the issue has little political power. And this is probably true across all political alignments.
It's a lot easier to get political movement on things that aren't headline political issues where politicians are handcuffed to a certain stance by past statements/promises/party policy.
That's why we get patent reform changes much more easily than changes around taxation, gun control, abortion rights, education, healthcare and so on.
So does this make it so if the intermittent wiper blade inventor Kearns[1] had lost due to having cheaper lawyers versus the millions that the auto companies can spend on top knotch lawyers, he would be liable for the millions and have his life completely destroyed?
Not if Kearns was substantially justified in bringing a suit under the Equal Access to Justice Act, which would be hard to deny based on his having demonstrated the invention to Ford. Kearns could have still taken the $18 million awarded to him without additional risk. (His son could maybe not nowadays get away with putting his .45 automatic on the desk during negotiations, though)
What the bill would do is prevent Kearns from selling his invention to a shell company with Chrysler as parent and suing Ford drivers for using the intermittent-wiper invention, since Ford would now be able to act on behalf of the defendants in these cases, and Chrysler would be liable for paying fees if they had acted in bad faith.
Can we please discontinue the practice of setting policy based on anecdotes?
Answer this question: What percentage of recent patent plaintiffs are the named inventors on the patents and what percentage are either non-practicing entities with a lawyer majority of employees or large corporations?
"Kentucky Republican and holder of 29 patents, Thomas Massie...claims the bill will 'weaken the patent system overall.'"
What kind of of inane statement is that? The system needs to be made weaker as illustrated by the patent trolls. Does he think patents need to be made stronger?
It's not "inane" but reflects the views of many people in the engineering community outside this particular bubble.
Ironically, he's one of those engineers that Reddit/HN say that there aren't enough of in Congress:
http://en.wikipedia.org/wiki/Thomas_Massie ("Thomas Massie was born in Huntington, West Virginia. He grew up in Vanceburg, Kentucky and met his future wife, Rhonda. He earned a Bachelor's degree in electrical engineering and a Master's degree in mechanical engineering from Massachusetts Institute of Technology.
In 1993, at MIT, he and his wife started a successful company, called SensAble Devices Inc. Massie was the winner in 1995 of the $30,000 Lemelson-MIT Student Prize for inventors. The company was re-incorporated as SensAble Technologies, Inc. in 1996 after partner Bill Aulet joined the company. They raised $32 million of venture capital, had 24 different patents, and 70 other employees.
After Massie sold the company, he and his wife moved back to their hometown in Lewis County. They raised their children on a farm, where he built his own off-the-grid timberframe house.").
I know a couple of founder-engineers who would probably share Massie's view. The patent system has lots of problems, but it does allow for something very valuable: arms-length transactions in the products of R&D efforts.
It's inane because any reform that helps invalidate patents can be seen as weakening the patent system.
Notice he didn't specify whether or not it weakens strong patents, but the patent system. A good thought experiment would be to ask yourself if you think the patent system needs to be made stronger. If you don't think it needs to be made stronger then would it still work if made weaker? If neither is true, you are close to saying the system is perfect the way it is.
That doesn't follow. The way these changes are being billed in Congress is that they're necessary to keep trolls from taking advantage of the patent system. Taking measures to prevent gaming of the system is not the same as weakening the system.
Undoubtedly some proponents of the bill see it as a first step towards weakening patents generally, but that's not how it's being billed.
The current state of the patent system is such that having been granted a patent legally supersedes in power the act of enabling technological advancement. That is to say that the power of the patent system has surpassed its social justification, and therefore should be scaled back to bring those two things in line. Doing so would weaken the patent system, but bring it in line with its intended purpose.
If you prefer to think of it in terms of loopholes, I would point out that loopholes in a system of restrictions act to increase the powers enabled by that system. To close those loopholes is to decrease the power that the system is capable of imparting.
All of that is to say that taking steps to make it harder for non-practicing entities to abuse the system in a way that has a net detriment on technology and innovation is the very act of closing the areas of copyright law that empower non-practicing entities to the detriment of practicing entities. Ideally such a change would decrease the power of the patent system just enough to shut out those who have a negative net impact on the advancement of technology and innovation.
> The current state of the patent system is such that having been granted a patent legally supersedes in power the act of enabling technological advancement. That is to say that the power of the patent system has surpassed its social justification...
I'm not sure what your first sentence actually means, but there is not enough evidence to support the following sentence. I know it's a popular opinion around here, but really, it's because this place is an echo chamber when it comes to certain topics.
There are studies that show how NPEs have beneficial effects (see work by Michael Risch, Jay Kesan, Anne Layne-Farrar etc.), and others showing their harmful effects are not as bad as media makes it look. The GAO report on NPEs, for instance, found that they are no big problem, really.
Unfortunately, the data available is limited in a big way: there is no data at all on demand letters that trolls like Lodsys send. There's an act that would help track these things too (http://www.patentlyo.com/patent/2013/11/patent-reform-2013-d...), and that's the one I'm really looking forward to. That data would give a much clearer picture of the NPE situation.
It might help rally support for reform if you were willing to describe it as strengthening the patent system by eliminating abusive and illegitimate patents.
It won't just weaken the system, it'll shift the balance of power in favour of large corporations. If I get a patent on some new invention and a huge corporation decides to ignore my patent, what recourse do I have? Risk losing tens of millions of dollars and bankrupting my company and potentially myself personally? No, I guess my best chance is to sell my patent to their huge competitor and hope they destroy each other.
Or would the threat of selling the patent give me enough leverage for a settlement? I hate the idea of having to rely on another large corporation to be my champion, as it were.
The Customer Suit Exception, while nice, seems disturbingly reminiscent of feudalism. Now, as a customer of a corporation we elevate them to the status of lord and master; entrusting them to defend us against threats (lawsuits) to which we are unable to defend ourselves.
Think about the absurdity of being sued for patent infringement if you were a pizza shop and your oven allegedly infringed on a troll patent. You didn't manufacturer the oven, why are you being sued?
The vendor's reputation is irreparably damaged by patent trolls who prey on customers due to the patent's apparent weakness. Sometimes corporations need justice too.
A month ago we lost the Covered Business Method review that would have been so valuable. Then today we lost venue improvements for patent applicant appeals which is a small issue.
We'll see the bill stripped even more in the Senate. That's the essential battle now. Then the conference committee that reconciles the bills will be very important.
Would it be outrageous to ask them to slap an MIT (or equivalent) license on some of the 51,000+ patents that they hold that are somewhat "expected behaviors" these days and aren't critical to their infrastructure? In my mind it would be an incredible PR move and would probably inhibit some of my hesitations of trusting Google.
Google hasn't ever sued anyone for infringing any patent at all unless they've sued Google first. At least, I can't find a single news report in the fifteen year history of the company about it.
If Google put out a free license for all their patents, they'd be unable to strike back when unethical companies sue them over garbage patents. If you're big enough to get on their radar, you can ask for a cross-license agreement.
Not technically, but if I recall, during the Motorola acquisition, when the terms of the deal included requiring Google's okay to do any patent lawsuits while the acquisition was pending, Motorola started several patent lawsuits non-defensively.
Moto went after Apple and Microsoft that were threatening and trolling and suing Android vendors. Those cases were clearly defensive.
But they were surely trolling cases fought with garbage patents on Moto's side. Google grossly overestimated the quality of Motorola's portfolio and was blinded by the sheer number of mostly worthless patents Moto had.
Well I supposed that was my underlying question. I understand that Google has taken the position where they're effectively holding the patents in good faith, but my question is if it would be beneficial for them to open license them so smaller companies could find them cheaply in a discovery for a patent infringement case so nonsense troll cases like the new law seems to be trying to fight could be more effective or whether it would be better to let google safeguard them just in case. (Possibly my longest run-on sentence ever)
"Loser pays" is usually a republican ploy to gut regulation. E.g. you're never going to sue Exxon for polluting your town if you could be on the hook for Exxon's legal bills if you lose.
Many Democrats are afraid of any "loser pays" system due to the belief that smaller or personal entities won't properly litigate when they aught to due to fear of losing and paying.
"Loser Pays" is the convention in most of the rest of the world, but not America, due to opposition from American liberals who say that poor people will be afraid to sue anyone if they fear having to pay the other side's legal fees if they lose.
The problem with the American system, and it's a huge one, is that it allows TONS of legal extortion. Everyone pays their own legal fees even if they win, so all you have to do is threaten a lawsuit, then tell your victim that you'll "settle" for some amount less than it would cost them to go to court. No matter how baseless your lawsuit is, they still pay you because they can't afford to go to court and pay their own legal fees. Thus the poor suffer far more under this system.
Looks like the Watt (D-NC), Jackson-Lee (D-TX), and Conyers (D-MI) amendments failed. The text of amendments isn't on Thomas yet but the Congressional Black Caucus has been very skeptical of even the hint of loser-pays provisions for a long time and several members emphasized that objection in committee. I'm guessing those amendments were aimed at fee-shifting provisions. Looks like a slim majority of the CBC voted against final passage while non-CBC Democrats voted three-to-one in favor.
My favorite CBC members Barbara Lee (D-CA, yes) and Donna Edwards (D-MD, no) were split.
I couldn't see any pattern in Republicans that voted no, though I was disappointed in favorite Republican Justin Amash (R-MI). There doesn't seem to be any distinct lean among Progressive, RSC, Hispanic Caucus, Tea Party, regional groups, or other subdivisions for or against the measure.
Well, except the SF bay area which is solidly in favor. Maybe the new PTO office there will be the site of protest rallies someday.
I don't know what's in the Rohrabacher (R-CA) amendment that was adopted, either. It seems to have passed with mostly Democratic votes.