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Patents Your Rights Online

The Difficulties of Patent Busting 159

Posted by michael from the uphill-both-ways-in-the-snow dept.
wheresjim writes "An article on CNN.com entitled 'Tough road for patent-busters' describes the hard road one has to follow to get a questionable patent revoked. According to the article, of the approx 7,000,000 existing patents, only 614 have been revoked, and only 3927 have had their claims narrowed."
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The Difficulties of Patent Busting More

The Difficulties of Patent Busting

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  • Someone should... (Score:5, Funny)

    by fiannaFailMan ( 702447 ) on Friday July 16, 2004 @05:37PM (#9722409) Journal
    patent the process of getting a patent revoked.
  • SAN JOSE, California (AP) -- A small company called Acacia Research Corp. went after some of the biggest names in broadcasting last month, suing nine companies for an estimated $100 million for allegedly violating its patent on streaming video.

    That earned Acacia a spot on what the Electronic Frontier Foundation considers a top 10 list of intellectual property ignominy: patents the online civil liberties group is seeking to strike down as unwarranted and harmful to innovation.

    "Good luck," said Paul Ryan, Acacia's chief executive. "Their chances are pretty remote."

    Part fighting words. Part truth.

    Only 614 of the nearly 7 million existing patents have been revoked, according to the U.S. Patent and Trademark Office. Some 3,927 patents have been narrowed since the agency began conducting re-examinations in 1981.

    The hardest part for challengers is qualifying for a re-exam at all.

    A challenger must find written evidence, called "prior art" in patent parlance, showing others developed the technology before the patent application was filed -- a formidable task that consumes a cottage industry of patent researchers and lawyers.

    One-time startup BountyQuest set out in 2000 on such a quest. It wanted to debunk questionable patents by letting interested parties offer rewards of $10,000 or more for hard-to-find prior art. But there were few takers and the business failed.

    The EFF is similarly relying on volunteers -- but without offering rewards. That's a surefire recipe for limited success, said Bradley Wright, a patent lawyer with Banner & Witcoff Ltd. "There are not a lot of people willing to spend free time to research for prior art."

    Even when prior art is presented, re-exams are rare. The patent office held only 6,136 between the time the agency was authorized to do so in July 1981 and the end of March 2004, said Brigid Quinn, a patent office spokeswoman.

    Intellectual property
    The Acacia patent the EFF objects to is on "the transmission of digital content via the Internet, cable, satellite and other means."

    Another on its list, owned by Clear Channel Communications Inc., covers the distribution of digital recordings right after concerts.

    "These companies are trying to claim a monopoly on the tools of free expression," said Jason Schultz, staff attorney at the foundation.

    The group's list, chosen from 200 suggestions solicited through its Web site, focuses on patents it contends are being unfairly used to demand licensing fees from rivals or individuals.

    Acacia and Clear Channel defend their patents and their right to seek royalties for intellectual property they say they spent millions to develop or buy.

    Clear Channel bought the so-called Instant Live patent two months ago. It plans to charge an "extremely small" licensing fee -- $1 per event in some cases -- to artists who want to distribute freshly minted CDs after their concerts.

    Acacia's digital media patents, granted to the founders of Greenwich Information Technologies in the 1990s, weren't enforced until Acacia bought them in 2001. Acacia has since secured dozens of licensing deals with companies ranging from adult entertainment sites to The Walt Disney Co. It sued the large cable and satellite providers for patent infringement last month.

    Ryan rejected the foundation's charges of bullying. "We're not trying to restrict anyone's freedoms, but we'd like to be paid for the use of our technology," he said.

    Schultz and fellow self-anointed patent-busters hope their crusade will raise awareness about concerns the patent office is issuing baseless patents because it lacks the resources to thoroughly investigate patent claims.

    "It's too easy to get a patent and too expensive to defend," he said.

    Greg Aharonian, publisher of the Internet Patent News Service and founder of www.bustpatents.com, questions the validity of a patent granted to Microsoft Corp. in June covering the use of the human body to transmit powe

  • MSPatent (Score:4, Insightful)

    by madprogrammer ( 214633 ) on Friday July 16, 2004 @05:37PM (#9722423)
    Hopefully some of the new MS patents will be among the patents that get revoked... Patenting the 'double-click'... come'on!!

    • Re:MSPatent (Score:3, Insightful)

      by yintercept ( 517362 )

      Patenting the 'double-click'... come'on!!

      Do you know how much coffee Microsoft had to invest to come up with the idea of double clicking.

      Regardless, the difficulties involved in revoking absurd patents seems to clearly indicate that the main aim of the current patent system is not to advance technology but to feed the patent creating machine. Each time a patanteer pulls the handle and flushes out a patent...they want to preserve it.

      Of course, the article fails to mention how many of the questionable

      • Re:MSPatent (Score:3, Funny)

        by jtwronski ( 465067 )
        Do you know how much coffee Microsoft had to invest to come up with the idea of double clicking.
        I don't know about you (or them for that matter), but after about 2 cups, I have a hard time only pushing the button once.
    • They could just use Slashdot's Mod numbering system and a public revue site for that.. MS wouldn't stand a chance.

    • Re:MSPatent (Score:3, Funny)

      by BillX ( 307153 )
      That's an Amazon infringement - twice!

  • Comment removed (Score:5, Insightful)

    by account_deleted ( 4530225 ) on Friday July 16, 2004 @05:38PM (#9722429)
    Comment removed based on user account deletion

    • Re:This is obvious (Score:5, Informative)

      by mdf356 ( 774923 ) <mdf356@gma i l . c om> on Friday July 16, 2004 @05:45PM (#9722488) Homepage
      Well, of course one starts out with as broad a claim base as possible. Doing otherwise does not make business sense.

      But most patents go through several rounds of non-final rejections by the review board for overly broad claims. By the time they're issued, there's a resonable chance for most of them (please note the qualifiers) that the claims are valid.

      When trying to invalidate a patent, there's several good ways:

      • Show the listed inventors are a subset or superset of the actual inventors.
      • Show that the patent does not describe the best method ("the preferred embodiment") for solving the given problem (many Japanese companies have trouble with this one in the American patent system).
      • Prior art
      • Issues regarding obviousness (hard to argue that one), or being implementable by someone of ordinary skill in the art within one year

      Patents are actually often very specific, and a company that wishes to sue another for patent infringemnet will find out too late that theirs is so, and the defendent is in fact not infringing on their too-specific patent.

      Cheers, Matt

  • It's a shame how Einstein had to go into physics; we really needed him at the patent office. What a waste.

  • Worrying (Score:5, Insightful)

    by Manip ( 656104 ) on Friday July 16, 2004 @05:38PM (#9722435)
    It worries me that the patent office assumes that wrong patents will be over-turned however makes it so difficult to do. They can't have it both ways, they either need to start doing their job correctly OR make reviews easier.


    /Manip
    • I think part of the problem is the patent office probably has less money than the large companies who can afford to spend a lot expertly crafting the patent application.

    • An institutionalized conflict of interest (Score:5, Insightful)

      by Morgaine ( 4316 ) on Friday July 16, 2004 @06:31PM (#9722781)
      They can't have it both ways

      That is a very good point.

      Unfortunately, the conflict of interest created by their earning money from each patent ensures that they are not institutionally able to act ethically in this, and so they do indeed have it both ways.

      The fault lies in their very foundations as a money-making organization. The fact that their actions are massively stifling innovation instead of promoting it would not be escaping their attention if this were not the case. As things stand though, they cannot possibly afford to listen to the worried whispers of their collective conscience.

  • That's a pretty crappy article (Score:5, Informative)

    by Anonymous Coward on Friday July 16, 2004 @05:39PM (#9722443)
    Why not link to the EFF's patent busting project to get some decent quotes from Jason Schultz? The ones on CNN were very weak and seemed to imply we are just whining about people having important patents... not that they have invalid patents which should never have been granted.

  • Patents (Score:5, Insightful)

    by Zebidiah ( 573736 ) <zebidiah+newslet ... minus herbivore> on Friday July 16, 2004 @05:39PM (#9722451)
    I'm finding it increasingly hard to take intelectual property seriously. Patents (while I understand why we have them) are turning out to be a huge, sad joke. They have become weapons for business

    • Re:Patents (Score:1, Insightful)

      by Anonymous Coward
      I'm finding it increasingly hard to take intelectual property seriously

      well the rest of the world would seem to agree [66.102.9.104], still if Americans want to have a circle jerk in their courts let them, the rest of us will just move forward regardless

      if buisness becomes too difficult to do in the USA buisness will simply go elsewhere [yahoo.com]
      • I don't know where you are from, but if from Europe we are probably heading down the same silly path.

        I see know advantage to me or other people like me for patents (especially software patents).

    • Re:Patents (Score:5, Insightful)

      by Kentamanos ( 320208 ) on Friday July 16, 2004 @06:33PM (#9722795)
      Weapons is an interesting choice of words.

      The patent attornies I've dealt with try to portray them as defensive weapons, much like nuclear weapons are portrayed as weapons of deterrence. They never seem to say "we're gonna sue the crap out of people doing anything like we do!".

      They talk about situations like the following scenario:

      Company A tells Company B they're infringing, and they want X amount of dollars.

      Company B responds with a list of patents they think Company A is infringing upon.

      Both sides decide to drop the matter (to avoid mutually assured destruction ;) ).

      • Re:Patents (Score:5, Insightful)

        by SpaceLifeForm ( 228190 ) on Friday July 16, 2004 @06:51PM (#9722890)
        To be more accurate, they don't drop the matter, they enter into cross-licensing agreements, which in theory, give respectability to the patents. Giving respectability to the patents, even if the patents are questionable, actually leads to further abuse of the patent system.

      • Re:Patents (Score:3, Insightful)

        by dmaxwell ( 43234 )
        When Company A can afford the same amount of legal representation as Company B and both have portfolios then mutual deterrence applies. The problems start when big Company A wants to strong arm small Company C and opensource project D. Then there is Company E which sells nothing but has a patent portfolio they can brandish at everybody with little fear of retaliation.

        It may come down to kill 'em all and let $DEITY sort 'em out.
      • At least the cold war afforded us the opportunity [slashdot.org] to buy a nice underground bunker/missile silo in which to live (or do whatever), and gainfully employed a large number of people for a good number of years.

        What does the patent-based corporate cold war that you describe give to anyone but the patent attorneys?

  • Back in the day... (Score:5, Funny)

    by k4_pacific ( 736911 ) <k4_pacific@yahoo . c om> on Friday July 16, 2004 @05:40PM (#9722454) Homepage Journal
    My Grandpa used to tell me about how, back in the day, rival companies would pay thugs to form a mob and go bustin' up each others' patents with nuthin' but axe handles and gumption...

    Maybe that's the solution.

  • Only 20 years of overturning patents (Score:5, Interesting)

    by SteroidMan ( 782859 ) on Friday July 16, 2004 @05:41PM (#9722462)
    The problem is the patent office doesn't have enough bandwidth to deal with current patents, much less overturn existing ones. There's a quote in the article by a member of the patent office saying that the goal is accuracy balanced very heavily against speed. All of the reviewers have quotas they have to meet, and it takes a lot longer to review a hairy software patent than a physical invention with drawings, but they aren't given the time. There wasn't even a mechanism for overturning patents until 1982, so its not suprising that they aren't good at it yet.

    • Re:Only 20 years of overturning patents (Score:5, Insightful)

      by chris_mahan ( 256577 ) <chris.mahan@gmail.com> on Friday July 16, 2004 @05:49PM (#9722517) Homepage
      Then, management needs to be terminated, the staff retrained, budget allocated, and new policies and procedures redrawn. And an audit too. And all this not necessarily in this order.

      As well, the fees need to be spectacular enough to fund the number of examiners needed. If few patents: few examiners. Conversely, if a lot of patents, a lot of examiners.

      The final thing is that the Congress (who we *pay* to do this job) should get off their ass and get going to reform the patent system.

      Well, since none of this is going to happen, I suppose I'll have to replace my congressperson.

      See ya'll at the polls. And quit bitching till then.
      • Let's start with something right about the US Patent Law: we allow only the "first to invent" to obtain a patent. First to the patent office does not win the race, innovation does.

        The whole thing went into the toilet with one book: "Rembrandt's in the Attic: Unlocking the Hidden Value
        of Patents." The IP world caught fire with this one.

        Nobody can claim that the USPTO is poorly managed. The office has been hobbled by outrageous rules and regulations governing their budget, e.g. the Commerce Department (U
      • The problem with this is, how do you ACTUALLY do it? Obviously you can't say, 'ok everyone drop what you're doing and prepare to overhaul the system.' This isn't a web server we're talking about here where you could take it offline for a year and no one would even care.

        1. Anything that halts the patent process for more than 6 months is unacceptable, especially in today's information age.
        2. Anything which involves massed hiring is also unacceptable. (We come back only to solve the problem of poor reviewers.)

  • A questionable basis for this "uphill battle" (Score:5, Funny)

    by phearlez ( 769961 ) on Friday July 16, 2004 @05:46PM (#9722493)
    The EFF is similarly relying on volunteers -- but without offering rewards. That's a surefire recipe for limited success, said Bradley Wright, a patent lawyer with Banner & Witcoff Ltd. "There are not a lot of people willing to spend free time to research for prior art."

    Yeah, may as well expect that people will spend hundreds of hours working on software that they'll give away for free. Hey, maybe they'll even give away the source code! Bwahahahaha, those crazy kids these days.

  • Offensive Patents? (Score:5, Interesting)

    by Dominatus ( 796241 ) on Friday July 16, 2004 @05:46PM (#9722498)
    This is a serious question, not meant to flame. Has any one actually recently used a software patent offensively? I know most firms get them for defensive purposes only, not to go sueing other companies. Has there actually been lawsuits to test the validity of a patent on an algorithm?

    • Re:Offensive Patents? (Score:5, Informative)

      by gnuman99 ( 746007 ) on Friday July 16, 2004 @06:39PM (#9722825)
      Has there actually been lawsuits to test the validity of a patent on an algorithm?

      Hmm, the entire GIF thing is one. Then there are a whole slew of encryption algorithms (which are part of Mathematics! - can't patent math? lol!). How about MS being sued over incorporating things into IE!! And then there is the 1-click Amazon *#$*s.

      There are A LOT of examples. Software patents are patents of human thought. Now all we need is to patent the method by which neurons transmit data to other neurons!!!

      • Then there are a whole slew of encryption algorithms (which are part of Mathematics! - can't patent math? lol!).

        Sigh. People *really* don't understand patents at all. If you actually go and do some reading (I know that a streach) you would find out that a patent covers an IMPLEMENTATION, not an idea. Read the LZW patent - note that it covers the implementation of the LZW algorithm on a computer. Not the algorithm itself. If you want to you are perfectly free to use the algorithm in any other form you wan
        • Sigh. People *really* don't understand patents at all. If you actually go and do some reading (I know that a streach) you would find out that a patent covers an IMPLEMENTATION, not an idea.

          *Anyone* with an little bit of math education (you know, something beyond first year university) can read the "cryptic mathematical papers" (I'm sure you will describe it as such). The Implementation is virtually the same as the math paper describing it! Sure, there will be some simplifications, but it is still math.

          • You can patent the later!!!

            Actually, no, you can't. See here. [utexas.edu] and here [uspto.gov]

            In particular:

            (c) Non-Statutory Process Claims

            If the "acts" of a claimed process manipulate only numbers, abstract
            concepts or ideas, or signals representing any of the foregoing, the
            acts are not being applied to appropriate subject matter. Thus, a
            process consisting solely of mathematical operations, i.e., converting
            one set of numbers into another set of numbers, does not manipulate
            appropriate subject matter and thus cannot cons
            • (c) Non-Statutory Process Claims

              If the "acts" of a claimed process manipulate only numbers, abstract concepts or ideas, or signals representing any of the foregoing, the acts are not being applied to appropriate subject matter. Thus, a process consisting solely of mathematical operations, i.e., converting one set of numbers into another set of numbers, does not manipulate appropriate subject matter and thus cannot constitute a statutory process.

              The fact is, you have no clue as to what you are talk

              • Then you might understand that *ALL* encryption is *MATH*

                What the fuck does encryption do?? It changes one set of numbers into another!!

                WRONG. Encryption transforms publically readable information into information that is not publically readable. It is not just mapping numbers absent meaning from one set to another. That abstract mapping of the encryption algorithm of one set of numbers into another set is not patentable. The application of that mapping for information hiding is.

                Of course you are too fr
    • Didn't Rambus? The FSF has also run into problems with the LZW patent.

  • statistics (Score:5, Insightful)

    by queequeg1 ( 180099 ) on Friday July 16, 2004 @05:47PM (#9722506)
    The 614 out of 7,000,000 comparison doesn't really offer much useful information. First, the 7,000,000 figure appears to be all patents ever issued by the USPTO. However, it appears that the USPTO has been accepting these re-examinations only since 1981. Further, we're given no idea as to how many requests for re-examination have ever been filed. What would be nice to know is the success rate of having a patent revoked (declared invalid, etc.).
    • Looks like 10%.

      "Even when prior art is presented, re-exams are rare. The patent office held only 6,136 between the time the agency was authorized to do so in July 1981 and the end of March 2004, said Brigid Quinn, a patent office spokeswoman."
      • I think a more interesting article would compare the number of revoked and narrowed patents to the number of patents which are enforced succesfully.

        On a similar note, I'd like to know what percentage of patents are non-aggressive, either patents that are filed and never infringed or attacked, due to obscurity, or patents that are purely defensive. I'm sure no-one really cares about a large percentage of the 7,000,000 patents referred to.

    • Re:statistics (Score:5, Informative)

      by Ian Peon ( 232360 ) <ianNO@SPAMepperson.com> on Friday July 16, 2004 @06:00PM (#9722593)
      From the article:

      Even when prior art is presented, re-exams are rare. The patent office held only 6,136 between the time the agency was authorized to do so in July 1981 and the end of March 2004

      So, if I'm readin this right, it looks like there were 6,136 re-exams, of which 3,927 (64%) were narrowed and 614 (10%) were revoked. Of the re-exams, 3/4 of them succeeded to changing the scope of the patent in question!

      Looks like getting the re-exam is the hard part...

      • Re:statistics (Score:3, Interesting)

        by tricorn ( 199664 )

        Even when you have an excellent case, it might never be heard. DEC, I think, had a claim that they "never" lost a patent case. If true, it would be because whenever they were about to lose, they'd turn around and settle and avoid having their patent invalidated.

        I was involved in a case where DEC was suing a peripheral manufacturer for using a patented method of communicating with the operating system. Given that this was the only way to communicate with the operating system, this was a significant barri

    • Statistics [bbc.co.uk] being used to obfuscate? [amazon.com] How can this be [amazon.com]?

      Did you know that nearly 54% of statistics are made up on the spot?

  • How Can We Expect... (Score:5, Insightful)

    by nbmorgan ( 459099 ) on Friday July 16, 2004 @05:48PM (#9722511)
    How can we expect other countries to respect our patents if we continue allow such patents to continue to be filed?
    • " How can we expect other countries to respect our patents if we continue allow such patents to continue to be filed?"

      Our patents, or our patent system?

      Other countries DON'T have to respect our patents, as long as they don't try and do business in the U.S. And vice-versa. A purely U.S. company could copy an invention patented in France, and as long as the company didn't try and sell the product in France, there is no infringement. And vice-versa. That's why we have the patent cooperation treaty -- s

  • Flawed process (Score:3, Insightful)

    by macdaddy ( 38372 ) on Friday July 16, 2004 @05:49PM (#9722519) Homepage Journal
    The patent process must obviously be flawed. How else can they explain how so few patents have ever been voided? They can't claim that the application process adequately weeds them out when you take a cursory glance at the crap that slips through. The whole damned system is screwed up.

  • legal ads (Score:3, Insightful)

    by Doc Ruby ( 173196 ) on Friday July 16, 2004 @05:52PM (#9722533) Homepage Journal
    said Bradley Wright, a patent lawyer with Banner & Witcoff Ltd. "There are not a lot of people willing to spend free time to research for prior art."

    Newsflash: CNN reporter publishes self-serving lawyer ad for their services.

  • The problem is... (Score:5, Insightful)

    by Banner ( 17158 ) on Friday July 16, 2004 @05:53PM (#9722538) Journal
    Patents were supposed to Enhance Inovation, not Stifle it. The whole process needs to be reviewed and probably reworked, it just cannot seem to deal properly with modern technology.

  • Ruling Against Acacia Last Tuesday (Score:5, Informative)

    by SallyDivInorum ( 640207 ) on Friday July 16, 2004 @05:53PM (#9722543)
    The article doesn't include the Markman hearing results that were filed on tuesday. After the filing ACTG lost 40% of its value. Judge Ware ruled against Acacia several times and even invited the defense to file for summary judgement on a significant number of claims. It is not the end, but let's hope this is the first step. More info on Acacia at - http://www.fightthepatent.com

  • He isn't? (Score:1, Interesting)

    by Anonymous Coward
    See this leaked HP memo [newsforge.com] revealing Microsoft's patent strategy with regard to Linux and Open Source. This is why we must reform the patent system.
  • Benkler Lecture [duke.edu] This is the most though prevoking essay I think I've ever read in favor of Open Source and the problems with the current state of the patent system.
    • Whatever you feel about the premise of this lecture, it is quite clear that the author doesn't understand patents and trademarks one iota.

      Patents are a contract between government and the inventor where the inventor fully discloses his technology in return for a limited term monopoly. By virtue of this contract, patents cannot be copyrighted - the intent is to place NO barrier on the dissemination of the information, only the practice of the invention for commercial gain. The patent is a economic tool aime

  • Submarine Patents (Score:5, Interesting)

    by gregmac ( 629064 ) on Friday July 16, 2004 @06:01PM (#9722602) Homepage
    One of the biggest problem is the so-called submarine patent [c2.com].

    It would be nicer where after the patent is issued, they do a follow-up check a year or two later to be sure that you've made progress on actually building/using your invention, otherwise it's invalidated.

    Similarly, if you don't actually sue anyone for patent infringement for a period of say, 5 years, you should lose your patent. There's too many companies that hold patents and wait until there are a signifigant number of companies to sue before starting anything. While it makes sense from a business standpoint (most bang-for-the-buck), it seems totally against the ideas behind having patents.
    • Similarly, if you don't actually sue anyone for patent infringement for a period of say, 5 years, you should lose your patent.

      I agree with the sentiment, but that doesn't actually help, as suing a company out of the blue 4 years and 11 months after they launched a product and worked hard to get it accepted in the market and made it profitable is still submarining.

      Patent holders should be required to notify manufacturers about a believed infringement within the first year of an allegedly infringing produc
    • It would be nicer where after the patent is issued, they do a follow-up check a year or two later to be sure that you've made progress on actually building/using your invention, otherwise it's invalidated.

      The problem with that argument is that not every invention which fails to find a market within a year or two is a submarine patent. Submarine patents are where the owner of the patent intentionally delays the issuance of the patent while waiting for a competitor to make it to market.

      Let's say that
    • Submarine patents really aren't the problem they once were. Back in the old days (prior to June, 1995) patents were good for 17 years from the date of issue. So, you could file a patent, keep quiet about it, and then use continuation practice to keep it alive, but not issuing, for a long time. Then, you let it issue once someone else has invested in the technology, and bam -- you've got a 17 year monopoly on technology that others are using, with a "priority date" long before anyone else. It didn't happ
    • 0. I presume by "don't acutally sue", you don't mean that people who concientiously license their patent around don't get screwed.

      2. Others have explained that there are no more submarine patents.

      3. It's not cheap to sit on your patent. It costs $10000+ to get the patent in the first place. After that, patents have increasing maintenance fees due every 4 years ($910, $2090, $3220). If you don't pay, you lose your patent. The idea is that patents that have been forgotten about or aren't making money wi
      • It's not cheap to sit on your patent. It costs $10000+ to get the patent in the first place. After that, patents have increasing maintenance fees due every 4 years ($910, $2090, $3220). If you don't pay, you lose your patent. The idea is that patents that have been forgotten about or aren't making money will expire sooner. (Of course, they should probably be much, much higher, like $5000, $25000, $125000, $625000, so that the fee tracks the value of the patent.)

        The problem with using money for this is fig
        • True. Those sorts of numbers are for big businesses. (The PTO has for a long time used two fee schedules: one for small entities and a different one for large entities.)

          However, I am intending by these fees that people who aren't using their patent to make money should abandon it to the public domain sooner than later. I'm hoping that some one else will then make better use of the invention.

    • It would be nicer where after the patent is issued, they do a follow-up check a year or two later to be sure that you've made progress on actually building/using your invention, otherwise it's invalidated.

      Nonsense. Many patents take 10-15 years to become commercially viable. Look at the pharmacuetical industry, for example. This would be impossible to make work.

      Similarly, if you don't actually sue anyone for patent infringement for a period of say, 5 years, you should lose your patent.

      Can anyone say

  • The statistics are misleadning (Score:5, Informative)

    by cleetus ( 123553 ) on Friday July 16, 2004 @06:05PM (#9722622) Homepage
    First of all, the most important factors relating to whether a patent can be overturned or not are the actual claims in the patent. No statistic can save a facially invalid patent.

    Next, there are procedural and statutory hurdles that do need to be overcome, but the statistics in the CNN article is misleading. This is because while 7M patents might 'exist,' a smal small percentage of them are actually maintained. [ssrn.com] The percentage of patents that generate net positive revenue, either through licensing or direct sales of products is miniscule.

    Finally, valuable patents do get litigated, but they are a small percentage of the above net profitable patents ("at most only about two percent of all patents are ever litigated, and less than two-tenths of one percent of all issued patents actually go to court." [emphasis mine; quote from linked SSRN paper.])

    Rational firms/inventors will be willing to spend P(n-$0.01) in the cost of defending a patent, where n is the net revenues derived from the patent and P is the probablility of successfully defending the patent. (Note that P is affected by not only the substantive validity of the patent, but also procedural issues, such as the financing of the patent's challenger and the cost of litigation to them).

    Bottom line: crappy patents will fall quickly if they are crappy enough, barring unclean hands on the part of the challenger.

    Now if you could all focus some positive energy my way so I can pass the bar exam that I will take in less than 2 weeks. I promise not to patent the process of harvesting said energy.

    cleetus

    • Re:The statistics are misleadning (Score:5, Insightful)

      by KrackHouse ( 628313 ) on Friday July 16, 2004 @06:14PM (#9722679) Homepage
      "The percentage of patents that generate net positive revenue, either through licensing or direct sales of products is miniscule." But how many people never bother create their idea simply because they're afraid of the inevitable lawsuit? Revenue is generated because competition fails to materialize.
      • If you look at the formula I posted above, you could see that if the idea was valuable enough, the inventor would be willing to litigate.

        I think your question betrays a misunderstanding of the patent system. If you invent something and get a patent, you get the right to stop other people from doing your invention (and the concurrent right to contract not to sue them for doing your invention in exchange for money, i.e. a license). If you invent something, practice your invention publicly, and don't patent

    • Bottom line: crappy patents will fall quickly if they are crappy enough, barring unclean hands on the part of the challenger.

      You are missing the point a lot of patents (especially software patents and the like) are used strategically. As your linked article states, most patents are indeed not used to earn back investments (even though that is what patents were supposed to allow, in order to encourage innovation and economic welfare).

      They are mostly just bartering tokens, traded among themselves by th

      • "Patent law is a purely economical law for X sake, so why shouldn't economical effects have precedence?"

        Purely economical? - so everyone keeps saying but what bothers me about software patents is that they're not just economical are they? In fact if I had thought they were I would probably never have taken any interest in the issue.
        • Patents are supposed to be a purely economical tool to encourage investment in innovation. You're right that software patents do not reach that goal. However, patent lawyers make good money writing them and litigating about them, and some big companies like IBM and Microsoft see them as tools which can be very effective when dealing with smaller companies which threaten some part of their market (+ for rent seeking [ffii.org]).

          The result is that those two classes keep claiming, against all evidence to the contrary,

          • Well it wasn't very hard for Thomas Jefferson to understand nearly two centuries ago (I'm sure you've read that letter) and I cannot understand how the entire legislative structure of Europe could have failed so miserably to grasp the essentials of the issue. Then again, given the UKPTO's behaviour I suspect the law schools are just handing out alternative MBAs to their graduates these days, teaching nothing about the law other than how to use it to make money.

            As far as I can see, the legislation the Commi

  • open source patents (Score:2, Insightful)

    by A_GREER ( 761429 )
    Why doesn't the open source community apply for patents?

    I mean if OSDN and its members start patenting software, it would keep it open, would it not?

    FIGHT FIRE WITH FIRE.

    • Re:open source patents (Score:3, Informative)

      by Halo1 ( 136547 )
      Because it would cost a lot of effort and money which can't be spent on more useful things. Besides, not all SME's use open source software (I would guess even only a minority does), and they don't have money for this either (and yet they are perfectly capable of innovating without requiring the incentive of being able to get a monopoly on the underlying principles).

      So a better suggestion is to simply abolish software patents, since then you lose a lot of unnecessary and even hampering [ftc.gov] juridical overhead.

  • Patent Reform (Score:5, Insightful)

    by wkitchen ( 581276 ) on Friday July 16, 2004 @06:10PM (#9722654)
    Reform patents by ensuring good review processes up front is a step in the right direction, but it's the process of overturning patents that most needs reform. Preventing future damage is not enough. We need a way to repair the immense damage that has already occurred.

  • self-organizing capitalism (Score:4, Interesting)

    by Doc Ruby ( 173196 ) on Friday July 16, 2004 @06:11PM (#9722659) Homepage Journal
    "The real question is how do we help the patent office so they don't issue the crap in the first place?"

    The patent office should charge a royalty. Corporate assets include valuations of their patented intellectual property. Their corporate federal income tax should include their percentage of the total of those reported assets as a percentage of the tax collected for running the Patent Office. That would not only finance the overburdened system that perpetuates their "limited monopolies" over their patents, but also encourage them to valueate their assets appropriately. And to obtain patents on only those inventions from which they derive profits, which are their only justification for that limited monopoly.

  • Article a bit misleading (Score:5, Insightful)

    by servognome ( 738846 ) on Friday July 16, 2004 @06:15PM (#9722683)
    Only 614 of the nearly 7 million existing patents have been revoked
    Only about 3,750,000 actually could have been reviewed. This is the number of patents since 1964 (1981 was first year they could be reviewed and so anything before 64 would have expired).
    Also, how many actual disputes are there?
    There are many really crazy patents [uspto.gov] so these never get challenged.
    There are patents that are too ahead of their time [uspto.gov] so they expire before anybody needs them.
    Then you have the "my patent stack is bigger than yours" where its easier to threaten counterclaim than to invalidate a patent
    Even when prior art is presented, re-exams are rare. The patent office held only 6,136 between the time the agency was authorized to do so in July 1981 and the end of March 2004,
    The important question is how many times prior art has been presented vs how many times was there an overturn. I think that would give us a better indication of how well the review process works. If people/companies think its too expensive to find prior art, thats a business decision not a problem with the patent system.

  • Market Control (Score:5, Interesting)

    by Quirk ( 36086 ) on Friday July 16, 2004 @06:18PM (#9722707) Homepage Journal
    At one time the passes through the Alps were controlled by "robber barons" who taxed trade from the Mediterranean to the developing nations of Western Europe. In another era cartographers were secreted away as were their maps that held the trade routes to the spice trade and the new world. As world trade develops, trade pacts like NAFTA and the European Union have slowly opened markets while trying to protect the home markets of the various participants. Patents are the means to ensure profit in markets open to trade pacts. The intellectual property rights are the controlled mountain passes of today. Patents enforce a tax on trade. Patents ensure profits at "home" while permitting free trade and the development of new markets in the third world.
  • Well, we all know there is a lot of patents, and that is clear from the discussion... but there are two problems and the stats blur them together.
    1. How many have been challenged out of the mass? We know that patents are much easier to get than to defeat... But what is the percentage that has been challeged (besides low), and has that percentage gotten better or worse over time?
    2. How many have been challenged and lost. The interesting statistic is not how many have been over-turned, but what percentage

  • more on meaningless statistics (Score:3, Insightful)

    by cinnamon colbert ( 732724 ) on Friday July 16, 2004 @07:16PM (#9723029) Journal
    Of those 7,000,000 patents, how many are WORTH challinging ? Most patents actually have no value, other then to the lawyers who get paid to file them, and the PR people who put out another press release. My guess, of those 7e6 patents, probably 1% actually have any real value, or have enough value that it would pay to hire a lawyer also, if re exams have been allowed only since 1982, then the first 3 or 4e6 patents are no longer valid. as the old patent atty says, millions try, thousands make money.... Finally, most large companies are pretty carefull; if IBM or merck or ford or PPG files a patent, they have probably done a lot of work before filing. So, there is the same problem with this statistic ( x out of 7e6 ) as with mutal fund statistiscs: survivorship bias. most of the bad, challengable patents (or bad mutual funds) don't survive review by corporate (of course, these are stats; u can always find lots of conter examples; but are they statisctically significant ?

  • Let's not just make up facts (Score:3, Informative)

    by werdna ( 39029 ) on Saturday July 17, 2004 @07:04AM (#9724412) Journal
    of the approx 7,000,000 existing patents, only 614 have been revoked, and only 3927 have had their claims narrowed

    True enough, so far as it goes, but misleading in fact. While it is true that 3927 patents were narrowed throught a USPTO administrative process called reexamination, and 614 patents were revoked, to compare those numbers to the 7 million patents issued without more is nothing short of ludicrous.

    First, while 7 million patents issued since the late 18th century, patent reexamination has only been around as an administrative process since the early 1980s. The relevant measure for the ease of invalidating a patent through reexamination would consider not the total number of patents issued in the last 200 years, but rather the total number of reexaminations in the last 20.

    Second, patent are invalidated through many processes, reexamination being but one of them. Patents may be, and are, invalidated through litigation and patent interferences as well. None of those statistics were offered.

    No, it is not easy to invalidate the patent. But yes, it is very easy to lie with statistics to try to prove that point.
  • my prediction....

    OK, slashdot is US centric, the rest of the world is just an small annexe off the main corridor, US foreign policy is the rest of the world is just a small island off Florida, and US legal / IP law says the rest of the world is a couple of quaint and obsolete bye-laws.

    What's going to happen?

    Any person or company operating inside the continental united states is going to find themselves working less and less under an ever increasing burden of patent and IP legislation.

    Anyone outside the

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