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I know absolutely nothing about this act, but I was put off by the EFF’s tone of righteousness here. As a rule of thumb I worry when I hear something described

by alwa 2y ago

I know absolutely nothing about this act, but I was put off by the EFF’s tone of righteousness here. As a rule of thumb I worry when I hear something described in absolute or moralistic terms: rarely do complicated things happen just out of pure villainy. For slightly more detailed perspective into what proponents might be thinking, CSIS suggests that the status quo effectively allows large companies with armies of lawyers to steal IP from small firms at will, and that PERA seeks to remedy a category of iffy gotcha kind of challenges; the conservative Federalist society claims that PERA would remove a threshold challenge to patent validity but would not disrupt more substantial analyses and tests later in the process. I still have no opinion personally, but maybe a couple of contrasting opinions might be helpful for folks here. [0] https://www.csis.org/analysis/new-efforts-promote-us-innovation-pera-and-prevail-act-context https://www.csis.org/analysis/new-efforts-promote-us-innovat... [1] https://fedsoc.org/commentary/fedsoc-blog/the-patent-eligibility-restoration-act-pera-a-proposal-for-section-101-reform https://fedsoc.org/commentary/fedsoc-blog/the-patent-eligibi...

DidYaWipe 2y ago
"PERA would remove a threshold challenge to patent validity" Whatever that means...
- CuriousCosmic 2y ago
  The threshold they are referring to is the Alice/Mayo test. https://crsreports.congress.gov/product/pdf/IF/IF12563 https://crsreports.congress.gov/product/pdf/IF/IF12563 > The Supreme Court decisions referenced above established what has come to be known as the two-step Alice/Mayo test for patentable subject matter. The first step of the Alice/Mayo test addresses whether the patent claims are “directed to” an ineligible concept (i.e., a law of nature, a natural phenomenon, or an abstract idea). To be directed to an ineligible concept, the focus of the claims must be a patent-ineligible concept, as opposed to a technological process. If the patent claims are not directed to an ineligible concept, then the claims are patent-eligible. > If the claims are directed to an ineligible concept, then the invention is not patentable unless the patent claims have an inventive concept under the second step of the Alice/Mayo test. Step two considers the elements of each patent claim, both individually and as an ordered combination, in determining whether they contain additional aspects that “transform the nature of the claim” into a patent-eligible application of an ineligible concept. Claim limitations that are conventional, routine, and well understood, such as implementing an abstract idea on a generic computer, cannot supply an inventive concept. An extremely over-reductive TLDR is that the Alice/Mayo test limits patents to specific, concrete, and well understood applications of technology. The test exists because of overly broad patents that essentially attempted to patent the idea of using a computer to do anything as well as attempting to patent ideas that were not yet invented in the hope someone would invent something infringing so they could extract a payday.
  - AlbertCory 2y ago
    I don't think you can really expect non-lawyers to understand that. "Why is it being pushed?" and "who are the backers and the opponents?" would be better questions to ask. "What will be the practical consequences for software-intensive companies?" is another. If software were not patentable (as it was not before 1982) then we probably wouldn't be having this discussion.
thepuppet33r 2y ago
I know just about as much as you do, but I know the EFF has been fighting against bad parents for a bit. For example: EFF v. Personal Audio LLC | Electronic Frontier Foundation https://www.eff.org/cases/eff-v-personal-audio-llc https://www.eff.org/cases/eff-v-personal-audio-llc I imagine they're a little breathless because if these go through, they won't be able to advocate on behalf of cancelling bad patents as easily. I tend to agree with the EFF on this, but appreciate you providing some context.
pdonis 2y ago
> As a rule of thumb I worry when I hear something described in absolute or moralistic terms: rarely do complicated things happen just out of pure villainy. True, but to paraphrase Arthur C. Clarke, sufficiently advanced ignorance is indistinguishable from villainy. And as a rule of thumb I worry whenever I hear "Congress needs to take action to remedy problem X", because Congress is going to have sufficiently advanced ignorance about the actual complicated nature of problem X and whatever law they pass is far more likely to make things worse than to make them better. My basic problem with the patent regime as it exists today is that things are not what are supposed to be patented in the first place. The very idea of holding a patent on a gene (for example the BRCA1 and BRCA2 gene patents mentioned in one of the EFF articles on this topic [1]) seems obviously wrong to me. I could see a patent on a particular machine that does genetic tests, but not on the genes themselves. So to me, a patent like the Myriad one should never even have been able to pass the laugh test, let alone been granted so that a series of court cases was required to invalidate it. The Alice Supreme Court decision somewhat narrowed the scope of what is supposed to be prima facie patentable, but I don't know that it fixed the above problem. Nor do I see anything in the proposed bills the Senate will be voting on that does so. So I don't see any side in this debate that is really addressing what I think is the root problem. [1] https://www.eff.org/deeplinks/2023/09/bill-would-boost-worst-patents-software-and-human-genes https://www.eff.org/deeplinks/2023/09/bill-would-boost-worst...
kiba 2y ago
There's a power asymmetry between large and small firms and it doesn't favor small firms in term of patents and IP. IP and patents protect big firms from competition. Patents doesn't guarantee you business success. All it does is give you a seat at the negotiating table, the ability to countersue if one of those firms come after you. Otherwise, patents are worthless to small businesses.
nitwit005 2y ago
When large agricultural firms lobby congress, they always talk about the "small farmer". Similarly, with patent law, you have huge businesses talking about small firms or single inventors. Which is to say, they lie a lot. Take it with a gain of salt. Unfortunately they also frequently get non-profits to be their mouth pieces, which makes finding some sort of unbiased alternate viewpoint difficult. As a practical matter, I wouldn't trust anything the Federalist Society says.
- nceqs3 2y ago
  >Unfortunately they also frequently get non-profits to be their mouth pieces Important to note that the EFF is also a nonprofit, which is funded by big tech.
kelnos 2y ago
I suppose it depends on your opinions around patents. To me, anything that makes patents more "sticky" is a bad thing. I think patent grants should be scaled back heavily, and patent terms greatly reduced. There's far too much junk that's been awarded patents and then used as a bludgeon by companies to intimidate others (even worse when the company is a patent troll). Even if it's true that these measures would help stop larger companies from stealing patents from smaller firms (I'm skeptical of that), I'd still oppose them.
AlbertCory 2y ago
I gave some up above. The EFF is indeed self-righteous. That doesn't mean they're wrong.
rayiner 2y ago
To be clear, Fed Soc itself doesn’t take policy positions. (And it’s not clear to me what the “conservative” position on patent issues would be. Traditionally, plaintiff’s lawyers are liberals.)
- AlbertCory 2y ago
  "traditional" patents (mechanical, chemical, electrical, biological) should be separated from software. The former have some claim to validity under the law, sometimes. The latter: almost never. That's at the root of the problem.
- tptacek 2y ago
  It seems plain from their site that they do. Did you mean to say, FedSoc doesn't have an IP law position?

by alwa 2y ago

DidYaWipe 2y ago

"PERA would remove a threshold challenge to patent validity" Whatever that means...

CuriousCosmic 2y ago
The threshold they are referring to is the Alice/Mayo test. https://crsreports.congress.gov/product/pdf/IF/IF12563 https://crsreports.congress.gov/product/pdf/IF/IF12563 > The Supreme Court decisions referenced above established what has come to be known as the two-step Alice/Mayo test for patentable subject matter. The first step of the Alice/Mayo test addresses whether the patent claims are “directed to” an ineligible concept (i.e., a law of nature, a natural phenomenon, or an abstract idea). To be directed to an ineligible concept, the focus of the claims must be a patent-ineligible concept, as opposed to a technological process. If the patent claims are not directed to an ineligible concept, then the claims are patent-eligible. > If the claims are directed to an ineligible concept, then the invention is not patentable unless the patent claims have an inventive concept under the second step of the Alice/Mayo test. Step two considers the elements of each patent claim, both individually and as an ordered combination, in determining whether they contain additional aspects that “transform the nature of the claim” into a patent-eligible application of an ineligible concept. Claim limitations that are conventional, routine, and well understood, such as implementing an abstract idea on a generic computer, cannot supply an inventive concept. An extremely over-reductive TLDR is that the Alice/Mayo test limits patents to specific, concrete, and well understood applications of technology. The test exists because of overly broad patents that essentially attempted to patent the idea of using a computer to do anything as well as attempting to patent ideas that were not yet invented in the hope someone would invent something infringing so they could extract a payday.
- AlbertCory 2y ago
  I don't think you can really expect non-lawyers to understand that. "Why is it being pushed?" and "who are the backers and the opponents?" would be better questions to ask. "What will be the practical consequences for software-intensive companies?" is another. If software were not patentable (as it was not before 1982) then we probably wouldn't be having this discussion.

thepuppet33r 2y ago

I know just about as much as you do, but I know the EFF has been fighting against bad parents for a bit. For example: EFF v. Personal Audio LLC | Electronic Frontier Foundation https://www.eff.org/cases/eff-v-personal-audio-llc https://www.eff.org/cases/eff-v-personal-audio-llc I imagine they're a little breathless because if these go through, they won't be able to advocate on behalf of cancelling bad patents as easily. I tend to agree with the EFF on this, but appreciate you providing some context.

pdonis 2y ago

> As a rule of thumb I worry when I hear something described in absolute or moralistic terms: rarely do complicated things happen just out of pure villainy. True, but to paraphrase Arthur C. Clarke, sufficiently advanced ignorance is indistinguishable from villainy. And as a rule of thumb I worry whenever I hear "Congress needs to take action to remedy problem X", because Congress is going to have sufficiently advanced ignorance about the actual complicated nature of problem X and whatever law they pass is far more likely to make things worse than to make them better. My basic problem with the patent regime as it exists today is that things are not what are supposed to be patented in the first place. The very idea of holding a patent on a gene (for example the BRCA1 and BRCA2 gene patents mentioned in one of the EFF articles on this topic [1]) seems obviously wrong to me. I could see a patent on a particular machine that does genetic tests, but not on the genes themselves. So to me, a patent like the Myriad one should never even have been able to pass the laugh test, let alone been granted so that a series of court cases was required to invalidate it. The Alice Supreme Court decision somewhat narrowed the scope of what is supposed to be prima facie patentable, but I don't know that it fixed the above problem. Nor do I see anything in the proposed bills the Senate will be voting on that does so. So I don't see any side in this debate that is really addressing what I think is the root problem. [1] https://www.eff.org/deeplinks/2023/09/bill-would-boost-worst-patents-software-and-human-genes https://www.eff.org/deeplinks/2023/09/bill-would-boost-worst...

kiba 2y ago

There's a power asymmetry between large and small firms and it doesn't favor small firms in term of patents and IP. IP and patents protect big firms from competition. Patents doesn't guarantee you business success. All it does is give you a seat at the negotiating table, the ability to countersue if one of those firms come after you. Otherwise, patents are worthless to small businesses.

nitwit005 2y ago

When large agricultural firms lobby congress, they always talk about the "small farmer". Similarly, with patent law, you have huge businesses talking about small firms or single inventors. Which is to say, they lie a lot. Take it with a gain of salt. Unfortunately they also frequently get non-profits to be their mouth pieces, which makes finding some sort of unbiased alternate viewpoint difficult. As a practical matter, I wouldn't trust anything the Federalist Society says.

nceqs3 2y ago
>Unfortunately they also frequently get non-profits to be their mouth pieces Important to note that the EFF is also a nonprofit, which is funded by big tech.

kelnos 2y ago

I suppose it depends on your opinions around patents. To me, anything that makes patents more "sticky" is a bad thing. I think patent grants should be scaled back heavily, and patent terms greatly reduced. There's far too much junk that's been awarded patents and then used as a bludgeon by companies to intimidate others (even worse when the company is a patent troll). Even if it's true that these measures would help stop larger companies from stealing patents from smaller firms (I'm skeptical of that), I'd still oppose them.

AlbertCory 2y ago

I gave some up above. The EFF is indeed self-righteous. That doesn't mean they're wrong.

rayiner 2y ago

To be clear, Fed Soc itself doesn’t take policy positions. (And it’s not clear to me what the “conservative” position on patent issues would be. Traditionally, plaintiff’s lawyers are liberals.)

AlbertCory 2y ago
"traditional" patents (mechanical, chemical, electrical, biological) should be separated from software. The former have some claim to validity under the law, sometimes. The latter: almost never. That's at the root of the problem.
tptacek 2y ago
It seems plain from their site that they do. Did you mean to say, FedSoc doesn't have an IP law position?