[jira] [Created] (LEGAL-184) Apache should join in the Movement for Patent Clarity

["Lawrence Rosen (JIRA)" <ji...@apache.org>]

Lawrence Rosen created LEGAL-184:
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             Summary: Apache should join in the Movement for Patent Clarity
                 Key: LEGAL-184
                 URL: https://issues.apache.org/jira/browse/LEGAL-184
             Project: Legal Discuss
          Issue Type: Question
            Reporter: Lawrence Rosen


W3C PSIG is currently trying to identify ways in which to make patents less of a risk for its web standards. Among the discussion items there are changes to the W3C Patent Policy to require more precise information from members who are excluding their Essential Claims. 

I encourage Apache members to support this effort.

Let me refer you below to a few references I found in Google on the topic of "patent claim clarity". Many legal scholars and advocacy groups are recommending specific efforts, particularly with software patents, to reduce disincentives of the patent system. Those efforts have a common feature: They burden patent owners to cooperate more to clarify their patents.

Below are some interesting quotations and links.

To be fair, none of those articles proposes specifically that participants in standards organizations cooperate to make their excluded patent claims clear and unambiguous. But doing this in W3C would be a simple step towards the goal advocated in the articles cited below. And it is something small we can do as cooperating W3C members to avoid our own patent risks.

I will not be attending the next W3C PSIG meeting to make this argument, but I ask other Apache members to speak up through their W3C reps if you can. 

/Larry

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EFF Files Comments with PTO on Patent Clarity.

Vague patent claims, especially in software patents, are causing enormous harm. Lack of adequate notice means innovators work in the shadow of unavoidable risk. And when creators can’t adequately evaluate their risk, the patent system acts as a disincentive to innovation and creation.
Today, EFF filed comments with the U.S Patent & Trademark Office (PTO) regarding proposals for improving patent clarity. We welcome the PTO’s efforts to make patent claims easier to understand. We are particularly encouraged by the proposal to require applicants to indicate which parts of the specification (this is the description of the invention) relate to claim elements (the supposed boundaries of the patent). We think this will make it easier to narrowly limit patents to what applicants actually invent and disclose.

https://www.eff.org/deeplinks/2013/03/eff-files-comments-pto-patent-clarity

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Promoting Patent Claim Clarity 
by Peter S. Menell, University of California, Berkeley - School of Law

Fuzzy patent claim boundaries undermine the functioning of the patent system by making it difficult for inventors and competitors to assess freedom to operate in many technology marketplaces, especially those relating to computer software and business methods. This commentary advocates the use of a detailed, electronic, claim application form to address this problem. By placing greater responsibility on patent applicants to delineate the precise boundaries of their claims -- by, for example, specifically indicating whether they intend to invoke the means-plus-function claim format by checking a box -- patent examiners could more easily evaluate what is being claimed, competitors could more easily know contested intellectual territory, and courts could more easily construe patent claims.

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2171287

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2. Tightening Functional Claiming. The PTO will provide new targeted training to its examiners on scrutiny of functional claims and will, over the next six months develop strategies to improve claim clarity, such as by use of glossaries in patent specifications to assist examiners in the software field.

In my view, these two elements are sorely needed and will generally improve the patent system without actually limiting the ability of patent assertion entities to derive value from their innovations through patent assertion. In addition, the PTO will begin a number of outreach mechanisms intended to provide assistance to non-patent-insiders who receive patent demand letter.

http://www.patentlyo.com/patent/2013/06/patent-reform-2013.html

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Inventions are often difficult to describe in words,1 and patents
often contain technical information intertwined with legal meaning,2
making patent claims more difficult to interpret than other legal documents.
Despite complex interpretive rules, patent law has failed to
accomplish one of its essential missions: allowing interested parties to
understand a patent’s scope in a consistent and predictable manner.3

The Failure of Public Notice in Patent Prosecution, Harvard Journal of Law & Technology, Volume 21, Number 1 Fall 2007




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