Reform at the Ministry for Silly Patents

July 20th, 2007

The U.S. House Judiciary Committee yesterday approved something called the Patent Reform Act of 2007, which closely tracks a similar bill passed by the Senate committee last week. Big Pharma, manufacturing, and biotech had come together under the umbrella of something called the Coalition for 21st Century ~~Profit Protection~~ Patent Reform to oppose the bill, but had failed under the hail of complaints for from tech companies about how very silly some patents are.

Sen. Patrick Leahy says that infringement damages would be limited, “unless the claimant shows that the patent’s specific contribution over the prior art is the predominant basis for market demand for an infringing product or process.” The bill calls for a period during which a newly-issued patent could be mocked, ridiculed, and challenged. The Coalition of Getting Rich on Bad Patents is now concentrating on making sure that window for appeal is as narrow as possible.

I say “mocked and ridiculed” advisedly — for the first time, the bill gives the chance for public opinion to overturn bad decisions, which in recent decades have been legion. With some howling from the wings, many of these 10 Worst Patents could have been overturned:

* One-click online shopping (U.S. Patent No. 5,960,411.)
* Online shopping carts (U.S. Patent No. 5,715,314.)
* The hyperlink (U.S. Patent No. 4,873,662.)
* Video streaming (U.S. Patent No. 5,132,992.)
* Internationalizing domain names (U.S. Patent No. 6,182,148.)
* Pop-up windows (U.S. Patent No. 6,389,458.)
* Targeted banner ads (U.S. Patent No. 6,026,368.)
* Paying with a credit card online (U.S. Patent No. 6,289,319.)
* Framed browsing; (U.S. Patent Nos. 5,933,841 & 6,442,574.) and
* Affiliate linking (U.S. Patent No. 6,029,141.)

At present, these patents are observed more in the breach than otherwise, because to take them seriously would effectively shut down e-commerce. Here’s hoping that the new law will (if passed and not vetoed) will cut down on silly patents and act as a safety for the overwhelmed patent office.

I don’t know yet how the new law will affect existing silly patents.

Also on the web:

Ogan Gurel with a nice commentary on how the new law will save lives by encouraging convergent medical technology.
Sarah Adee at Tech Talk, who note that another provision of the bill will limit triple damages to “egregious” cases, and point to a non-tech Silly Patent, that for crustless peanut-butter sandwiches(No. No. 6004596)
Anne Broache of CNET, from an article some months ago, notes that vulture capitalists are lining up with Silly Patent defenders with the novel claim that patent reform would favor “deep-pocketed Goliaths.” The National Vulture Capital Association apparently expects us to believe that being able to, um, have a shopping cart, an affiliate program, and pay with a credit card would stifle innovation. It gives “mezzanine round” a whole new meaning.
Joe Beyers, also at CNET, looks at patent trolls, a true scourge in American business — far more significant, in my opinion, than so-called “cybersquatters.” These are people who look at business processes no-one thought to patent, then bring businesses to their knees with ransom demands.
Ars Technica notes that companies like Qualcomm, which exist on extracting fees from people who actually want to build things, worry about the bill “undermining value.”
Hance Haney, an industry ghoul for the fake grassroots blog Technology and Democracy, goes on and on about the dangers of letting common-sense inventions (using a credit card on a website, people!) go unchecked. Hance Haney hates the “second window” provision that would let people challenge a Silly Patent after it was granted. These are the same people who see Net Neutrality as an “encumbrance.”