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Evaluating Patent Troll Myths 167

Posted by Soulskill
from the wooden-stakes-still-work-but-they-like-garlic dept.
An anonymous reader writes "In a guest post on the Patently-O blog, Villanova University professor Michael Risch summarizes his detailed study into the methods and efficacy of patent trolls. He writes, 'It turns out that most of what I thought about trolls — good or bad — was wrong.... Perhaps the biggest surprise in the study was the provenance of patents. I thought most patents came from failed startups. While such patents were represented (about 14% of initial assignees were defunct), most came from companies still in business in 2010. Indeed, more than a third of the initial assignees were publicly traded, a subsidiary of a public company, or venture capital recipients. Only 21% were patent assertion entities at the time the patent issued, and many of those were inventor owned companies (like Katz) rather than acquisition entities (like Acacia). ... Another area of surprise was patent quality. While trolls almost never won their cases if they went to judgment (only three cases led to an infringement finding on the merits), the percentage of patents invalidated on the merits was lower than I expected.'"
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Evaluating Patent Troll Myths

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  • by westlake (615356) on Monday September 05, 2011 @08:24PM (#37311744)

    Let me give you an example .. the concept of a magnetic breakaway safety mechanism for power cords was invented in the 1990's for deep fryers (though it may actually have a longer history than that). In the early 2000s, Apple got a patent for the same concept when applied to electronic devices.

    The key word here is "concept."

    The patent is not for the idea.

    The patent is for the device or the machine or the process.

    The solution that works for the deep fryer is not necessarily the right solution or the best solution for every superficially similiar problem.

  • What you are referring to is the first-to-file system for patent priority. It is the norm for the rest of the world. America is the outlier and the AIA is meant to normalize our intellectual property laws with the rest of the (Western) world.

    First-to-file makes sense when you consider the policy goals of a patent system, which is to encourage disclosure of new ideas in return for a (not so) limited monopoly. The current system of giving the patent to the first-to-invent encourages submarine patents and other ambush tactics. It also costs ridiculous amounts of money proving when something was patented. (You wouldn't believe how many inventors claim to have written the idea up on the back of a napkin that they wish they kept.)

    Moving to first to file makes determining priority a lot easier. Who filed first? Let's check the USPTO website. Bang. So this system forces people to patent ideas as soon as possible after they invent it.

    The AIA also (and very significantly) allows the USPTO to keep the revenue it generates on fees. Currently, the fees paid to the USPTO are taken by the government for general funds.That lowers the quality of patents issued because examiners are paid less, worked more, and encouraged to generate more fees by granting more patents and encouraging more applications.

    Finally, the new law would make it easier for patents to be challenged by third parties in USPTO proceedings. For instance, Groklaw could submit prior art to knock out SCO's claims. That's a huge change.

    These changes will make the patent system clearer and hopefully will increase the quality of the patents issued.

  • by greenbird (859670) on Monday September 05, 2011 @08:41PM (#37311804)

    The solution that works for the deep fryer is not necessarily the right solution or the best solution for every superficially similiar problem.

    I think his point was that simple making minor changes to adapt something for a slightly different use case doesn't justify getting a 21 year monopoly.

  • by Anonymous Coward on Monday September 05, 2011 @08:56PM (#37311892)

    I agree that most 'software patents' are fairly obvious garbage. But to say *all* are garbage is not true.

    Lets start with the one that started it all. The LZW one. This is the one that pissed everyone off.

    But LZ part of the name spent many years coming up with that work. It was natural that they patent it.

    If you spent say 15 years working on something that could change the world. Would you just give it away?

    I would say that answer depends on who you are and what you are working on.

    For example the one click is just obvious. Click on something and you buy it. It is obvious. What is not so obvious is many would not really want that sort of thing. Most people want some sort of feedback that they are buying something. Not 'woops I just bought a car'.

    What many people forget is the reason they do not like these sorts of patents. It is the submarine nature of them. Someone can spend 5 years making something putting a patent on it. Then go out of business. Then someone can 2-3 years later and come up with something similar. Then that second group is basically screwed. The first one is never going to use it. Ever.

    I think I have what would clear this mess up is fairly clear actually. Go out of business (including chapter 7 and 11) and the patent is public domain. Patents can be assigned to a business from a person within the first 6 months. Then after that they are permanent. Person dies they become public domain. This sort of thing would clip most of this sort of patent trolls. Company buys another company all the patents from the acquired company become public domain. It would also stop groups amassing huge numbers of patents just to flame thrower each other. Basically the idea is stop transferring them around. The idea was to get inventors to publish their ideas. It is now consider property. Which is wrong.

  • by jhd (7165) <xyllyx@gmail.com> on Monday September 05, 2011 @09:13PM (#37311972)

    ...all of the lip stick and polish in the world will not change the fact that patent trolls are scum. (Unfortunately, the fault really lies with the patent system though.)

  • by bzipitidoo (647217) <bzipitidoo@yahoo.com> on Monday September 05, 2011 @10:23PM (#37312224) Journal

    Moot.

    Such questions are hard, bad, and pointless. Even if we could do so, there is no real value in coming up with the exact number we should use for making an arbitrary distinction about an invention's obviousness. It's bad because as well as implying all kinds of things, it frames the debate in a useless way. We want to encourage invention, not enrich lawyers.

    We can change the system so that answers to questions like that are not important.

  • by bzipitidoo (647217) <bzipitidoo@yahoo.com> on Monday September 05, 2011 @10:49PM (#37312320) Journal

    Is it really? What's your source?

    It doesn't matter if he has nothing. What matters is that people believe the patent system covers ideas. Chilling Effects. This believe is so pervasive now that patents in effect do cover ideas. We have software patents and business method patents. Even if technically Apple has no grounds to stand on, they can still credibly threaten to sue, because they might win. Could a jury of average people make such a fine distinction as that between an idea and an implementation of an idea, with the lawyers doing their utmost to cast the issue in very different ways? Besides, they aren't really interested in a win, they'd rather it not actually go to trial at all. This is blackmail, not a serious and righteous reaction to a real injustice, and the punishment is not a loss in a court case which is of course uncertain, but the guarantee that a trial will cause expenses and delays no matter what the outcome.

"Just the facts, Ma'am" -- Joe Friday

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