Congress takes aim at patent trolls(thehill.com) |
Congress takes aim at patent trolls(thehill.com) |
>At a hearing in March, Rep. Mel Watt (D-N.C.) worried that without a proper definition, lawmakers will "impact adversely a bunch of people we should not be impacting." Rep. Hank Johnson (D-Ga.) warned that legislation targeting patent trolls could open the door to deny plaintiffs "their right to go to court in other tort situations."
It is interesting they "see" the problems with overlay broad statutes here, but with items such as the CFAA/SOPA/PIPA they fail to see just how overly broad a statute they have created/proposed.
So it's strange that some in congress still support the current patent situation. I want to believe those who serve there are generally smart and competent, regardless of whether their opinion on something agrees with mine. But the pro-troll arguments seem massively short-sighted.
Allowing the current situation to continue would be massively harmful to our descendants. I'm grateful there seems to be swelling bipartisan support to end it.
They may just be waiting on the lobbyists' checks to clear, or their supporters are benefiting from the current situation and hope to maintain it.
The Democrats are essentially the political wing of the American Bar Association. They are bought and paid for and represent the interests of trial lawyers. Lawyers make a lot of money from the current patent system. This is the same reason Democrats oppose tort reform to reduce frivolous class action suits (of course it's all in the name of the little guy getting his day in court).
The Republicans are beholden to big business (and the religious right). As much as big players are suffering the death of a thousand cuts in the current system no one is going out of business because of it. What's more arguably it hurts the smaller players more.
The patent mess is nothing new. Patents stifling innovation is nothing new. Benjamin Franklin was notably against patents [1]. The Wright brothers started a patent war [2] that completely paralyzed the US aviation industry to the point that when the US entered WWI it was completely incapable of producing planes and had to buy them from Europe. This eventually took Congressional action to resolve resulting in the system that exists today (aviation patent licensing).
Pharmaceuticals are the thorny problem here. It's true that it takes hundreds of millions to bring a drug to market and it's easy to reproduce so some protection is required.
But at the same time drug companies spend most of their money on marketing not research. Patents are effectively extended by slightly changing a molecule (sometimes making the drug less effective) and getting a patent extension, which they then push doctors to prescribe (over the generic) leaving consumers and insurance carriers to foot the bill.
But software is easy. Just get rid of them all. You can't patent mathematical formula. Algorithms, as all those with even a rudimentary CS education know, are just mathematical formulae. How the courts haven't worked this out yet is a mystery.
And of course there are the patents on "swipe to unlock" and similar obvious "inventions", which should never have been granted in the first place.
If two people can come up with the same idea independently then it probably shouldn't be patentable. The idea that you can write software that ends up infringing on any number of patents you know nothing about is beyond scary.
Yet the US continues to push foreign powers to tow the US line on software patents (with mixed results), which isn't helped by the current Obama administration, which has to be by far the most IP holder friendly administration in US history (between the original ACTA, stuffing the DoJ and the Federal bench with RIAA/MPAA lawyers, pursuing the Swartz case beyond all reason through the US Attorney, etc ad nauseum).
[1]: http://movingtofreedom.org/2006/08/31/ben-franklin-on-patent...
It always seems evenhanded to blame both sides.
When Bilsky came to the Supreme Court, there were four justices that signed onto a dissent suggesting that business methods and software were not patentable subject matter. They were Stevens, Breyer, Sotomayor, and Ginsburg. Four justices stood for patentability in general, but just not Bilsky's patent; they were Kennedy, Roberts, Thomas, and Alito. Scalia joined each opinion in part.
That's four so-called 'liberal' justices for software freedom and four 'conservatives' for more patents on software. Not exactly an even division of partisan blame.
In CLS Bank v. Alice before the Court of Appeals for the Federal Circuit, the division is more between the generalists (good) and patent specialists (evil). The CAFC governs federal employment and some international trade matters so there are some generalists. The patent reform side was one patent lawyer and four generalists; the unlimited patents side ("everything under the sun made by man" - actual quote) was four patent lawyers and one with the unusual specialties of federal employment and intellectual property law. The good guys were Bush-Clinton-Bush-Obama-Obama appointees and the baddies Reagan-Bush-Clinton-Bush-Obama, with only a slight and insignificant D/R lead for good, in contrast to the Supremes.
Maybe Congress is ineffective on both partisan benches and in both houses. It certainly seems so in recent years. Nevertheless, the courts are where patent law is made. And there is a clear partisan split between good and evil on our supreme court.
"But at the same time drug companies spend most of their money on marketing not research."
I'm not sure it matters the breakdown of how much they spend on marketing vs. research. The do spend plenty of money on research there is no doubt about that, right? Even if they spend 3x on marketing (arbitrary) that doesn't take away from what they do spend on research.
"Patents are effectively extended by slightly changing a molecule (sometimes making the drug less effective) and getting a patent extension"
I think you mean a new patent not an extension? I'm thinking of nexium vs. prilosec as an example of this.
See:
http://faculty.msb.edu/homak/homahelpsite/webhelp/Pharma_Pri...
My post above compares the record of the parties on patent appeals judges and the split is very different.
Republicans do have an advantage in paying attention to the needs of entrepreneurs in many cases, though. It's an important thing that Democrats could improve.
That's all beside the point. If patents are reformed so that only big corporations like Apple can use them to attack their competitors, what really will have changed? Sure, the swarm of bees (NPEs) might be gone but we'll still have to deal with the angry bear. And what of small inventors without the means to capitalize on their innovations? What will protect them if their legal power to enforce licensing deals is removed?