Even before Microsoft announced that open-source software collectively infringes on 235 Microsoft patents -- Linux alone allegedly trespassing on 42 of them -- it was clear that the U.S. patent system is broken. A system that was created to protect invention has warped into a heavy drag on innovation in America.
With patent-reform proposals rattling around Capitol Hill, we thought our wonky readership should weigh in on the mess. So earlier this month, Wired News asked you to suggest and rank creative ways to fix the U.S. patent system. You responded, and Tuesday, we submitted your most popular ideas to the House Judiciary Subcommittee on Courts, the Internet, and Intellectual Property. The committee began marking up its patent-reform legislation yesterday, and agreed to take a look at your suggestions and provide feedback.
Ever-prescient, readers voted up a plan to abolish software patents to the No. 2 spot, but plenty of other intriguing ideas are also on the table. Readers also voted up and down a variety of proposals already in front of Congress. Here's the list of the top-ranking ideas (as of 2 p.m. Wednesday). We'll keep you posted on what happens on the Hill.
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Restrict Forum Shopping
In current proposed legislation
Ever heard of Marshall, Texas? You have if you're a patent troll. Plaintiffs looking for favorable court rulings in patent cases flock to towns like Marshall. Current laws do little to stop them. Congress wants to change that and require that any patent-related court action be brought in a district where at least one party resides, or where the defendant has committed acts of infringement and has a regular business. 139-10
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Abolish Software, Business Method and Gene Patents
By Anonymous
As in many parts of Europe, patents should only be granted on tangible inventions. Software is already protected by copyright law, innovative business ideas have the first-mover advantage, and gene information should be treated as automatically patented by the intelligent designer. 124-19
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Pre-Grant Opposition Procedure
By Robert E. Novak
Patent applications are treated as trade secrets and are often kept confidential. The purpose of the patent process is to foster innovation. Patent applications are often submarined for a long period of time to allow a patent troll to keep their patent priority hidden until long after a market begins widespread use of the technology. Have a fixed limit on the time between first application and publication of the application to allow better debate and input before the patent is awarded. 116-13
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Limits on Infringement Awards
In current proposed legislation
Tech companies often make products based on multiple patents. Congress proposes limiting damage awards in infringement cases to a "reasonable royalty" that reflects the value of the infringed patent, instead of the value of the entire product. Under the current system, Microsoft could soon have to pay AT&T hundreds of millions of dollars for infringing two MP3 patents used in Windows. 95-27
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Post-Grant Opposition Procedure
In current proposed legislation
To curb runaway litigation, lawmakers are considering creating a way to challenge patents after they've been granted, without going to court. Within 12 months after a patent's issue -- called the "first window" -- a petitioner can file a complaint and initiate a review process. The proposed Patent Reform Act also provides for a controversial "second window," in which a petitioner could challenge a patent at any time if he can prove significant economic harm. 87-23
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Make the Government Liable for USPTO Mistakes
By Andrew
Currently it costs millions to get a bad patent invalidated by the courts, and the costs are borne by the plaintiff. These costs should be recoverable from the federal government. A simple reform, but one that would ensure that the U.S. Patent and Trademark Office was properly funded and would also make it much more careful about what patents it issues. 76-35
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Use It or Lose It
By Anonymous
All patents granted must have a product demonstrably in progress within 12 months of the patent being granted. Note: For the inventor, a "product" might not be commercially viable, or even have been produced or licensed, but a reasonable-faith effort must have been made to progress to a product (e.g. the inventor should be in the business, or should be shopping the invention to companies for licenses). The reasoning? No more trolls, and no locking up of sections of knowledge. If the inventor fails to act on their invention, they lose the rights to it. 40-15
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Abolish Patents for Life Forms and DNA
By Anonymous
It is unethical and immoral to grant patents on life forms such as seeds (which farmers can't even save lest they be sued by Monsanto) and the building blocks of life such as DNA (which shouldn't be monopolized by one person or company, as they exist in all of us already). What's next -- can I patent the human foot? 28-3
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Make Inventor's Oath Legally Binding
By Anonymous
An applicant for a patent has to declare under oath that his invention is original. Make this declaration legally binding and enforceable through fines or punishment. The inventor must also swear that, to the best of his ability, he has sought out and provided information on prior art. 31-11
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Hired to Invent
By Luther
The courts' "hired to invent" decisions that permit businessmen to grab both monopolistic profits and a reasonable royalty for inventors should be overturned. It makes no sense to use the patent system as an incentive for businessmen and exclude inventors from incentives for inventing. This is perhaps the primary cause of the decline of U.S. industry. With little innovation, we are competing on the basis of labor cost. 30-10
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Law Forbidding Obvious Patents
By Myron
How about something like this? "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." 21-4
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Require a Prototype to Patent
By Patent Monkey
Back in the day you had to show your idea worked to get a patent. That's not a bad idea -- that way you only reward people who've actually invested the time and money to get something working. Not just the people who sit back patenting everything, waiting for someone else to do it -- so that they can then just sue! 14-1
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Set More Stringent Requirements for Patent Examiners
By Patent Monkey
The biggest problem with the patent system is that examiners let "bad" patents through. So, raise their salaries, create an incentive for reliable examiners to take the job, and up the qualification requirements. Then ban incentive structures within the patent office that promote granting a patent over common sense. 8-1
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Bring the Patent Office Into the Electronic Age
By Robert Maxwell Case
The two important dates are the filing date (the start of the protection period) and the issue date. The goal is to shorten the time between the two without reducing the quality of examination. Applications should be published to the internet upon filing to allow interested parties to assist the examiner. The number of applications in queue and the mean average age since filing should also be published to the internet daily. 7-3
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More ...
By Robert Maxwell Case
More examination emphasis on "ends" versus "means" will reduce issued patents claiming to use new technology to do ordinary things. A specialized prior art search engine that searches worldwide patent applications as well as non-patent "published" documents should be developed either internally or externally. 5-2
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Patent Holder and/or USPTO Must Refund for Invalid Patent
By Anonymous
If a patent is declared void then the patent holder and/or USPTO must refund loss for all society working in the market that (has) been damaged by that patent. A patent can slow innovation, can (shut down) business activity, can damage a state economy ... but whoever makes the patent or grants the patent is never responsible for his mistake. 3-0
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Independent Invention Should Be a Defense
By Anonymous
Patent infringement should be like copyright infringement -- copying should be required for infringement. There are too many patents that are inadvertently infringed by people of ordinary skill, and it's impossible to find them all and avoid them all. 6-4
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