Subject: Re: IC's patent-pending technology
From: Thomas Lord <lord@emf.net>
Date: Thu, 28 Sep 2006 16:23:28 -0700

stephen@xemacs.org wrote:


 > I'd like to hear what you have in mind [...]

Here are the main reforms suggested:


1. The Option of Shorter Terms

   Patent applicants should be permitted to declare, in their
   applications, a term less than the statutory maximum term of
   a patent grant.   Such declarations shall be binding and when
   the declared term has passed, the invention shall revert to
   the public domain.

   Cost: A new data field on application forms and in patent
   databases.

   Impact: In isolation, little/none.


2. The Option of a Public License Fee

   The FTC is directed to authorize and regulate non-profit
   organizations to collect individual or group purchase fees for
   the reversion of a granted patent to public domain status.

   Patent applications may designate one such organization and a
   price for reversion to public domain status.  Such an offer
   shall become binding at the time of patent grant.  Reversions
   shall be purchased through the NPOs who may charge a service
   fee to the patent holder, not to exceed _____% of the
   purchase price.

   Patent holders may revise the price of reversion or change
   the designated NPO under certain conditions.  Neither the
   price or NPO designation may be changed more than once per
   month.  Within that constraint, downward revisions to the
   price are permitted at any time.  Upward revisions are
   permitted by an amount not to exceed ____(some formula)____.

   Cost: Regulation of the NPOs.   New data fields in patent
   databases.

   Impact: In isolation, little/none.


3. Direction to the Courts and PTO Regarding "Obviousness"


   Title 35, Part II, Chapter 10, paragraph 103 famously says:

     (a) A patent may not be obtained though the invention is
        not identically disclosed or described as set forth in
        section 102 of this title, if the differences between
        the subject matter sought to be patented and the prior
        art are such that the subject matter as a whole would
        have been obvious at the time the invention was made to
        a person having ordinary skill in the art to which said
        subject matter pertains. Patentability shall not be
        negatived by the manner in which the invention was made.



  The courts are directed, that:

  Sufficient though not necessary evidence that an invention is
  obvious, and thus not entitled to a patent, is that the
  invention would more likely than not have been made by those
  skilled in the art, at the time of invention, within a period
  of time equal to 1/2 of the interval of the duration of a
  patent from the date of grant, given reasonable budgetary
  constraints.  An estimate of reasonable budgetary constraints
  shall not exceed 1/4 of the declared price, if any, for
  reversion of the patent or proposed patent to the public
  domain.

  [I am very loosely borrowing some language from Pr. Sarnoff et
   al. who have filed amici in the current KSR case.]

  Cost: none.

  Impacts:
    a) The so-called "TSM test" that has been used by the
       Federal Circuit, even upheld in the KSR
       case, would be weakened -- yet a reasonably practical and
       definite test would fill the gap.  (Even the administration
       is against the TSM test!  This is *not* a political non-starter.)

    b) SCOTUS precedents would stand, although "1/2 of the
       interval" provides more specific directions.

    c) "1/4 of the declared price" is a no-op unless the
       patent applicant or holder has exercised
       "The Option of a Public License Fee".   There
       may be some indirect hints here, to the court,
       about "reasonable budgetary constraints" in general.

    d) Presuming that options to declare short terms and public
       license fees exist, these changes regarding obviousness
       would create an incentive for inventors to use them.


4. Authorization for Streamlined Review; Lowered Fees for
   Limited Patents

   The FTC is directed to authorize and regulate certain NPOs
   to review and make recommendations for patent applications
   which are:

        a) publicly disclosed
        b) have declared terms not to exceed 7 years
        c) have public license fees not to exceed $1M
        d) pertain to domains of technology for which the NPO
           is authorized

   The FTC is further directed to charge only a basic $75
   fee for applications approved by such NPOs.


   Costs: regulation

   Impact: reduced transaction costs


Those are the largest points.  There are other related reforms I
haven't listed here.

People will have incentive to use limited patents because, when
carefully and appropriately constructed, they will be highly
defensible.

Limited patents will be fairly useless defensively.   The
other reforms I haven't listed here, relating scope more
closely to practice, would make them fairly useless to
evil patent sharks (yet, potentially useful to desirable
patent holding/promoting companies).

-t