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Evaluating Patent Troll Myths 167

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 backslashdot ( 95548 ) * on Monday September 05, 2011 @07:59PM (#37311632)

    Very few patents are for actual original innovations that warrant a 21 year monopoly. 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. Now surely does Apple deserve a 21 year monopoly for copying an idea that someone else came up with .. just because they added the word "electronics devices" ?

    OK, now there's that .. now here is something scarier .. the America Invents Act .. which is very shortly due to become law (its in the reconciliation process). The new law redefines what an inventor is (in order to get around the US Constitution which says only inventors can have patents) .. by defining inventor to be anyong who independently comes up with an idea. So that means that if you come with an idea before me, and can even prove it .. say you posted in online (somewhere which doesn't count as printed publication) .. I can still get the patent for your idea .. as long as I 1) File for the and pay the patent fee first and 2) state that I came up with the idea independently (though after you).

    Not only that think about all the stuff out there that has not been patented .. for example .. In computer science .. the Bubble sort (to be honest I am not sure if it's patented .. but there are other algorithms out there of equal value that haven't) .. today maybe many apps on mobile phones may be implementing bubble sort in mobile phones applications .. but nobody got the patent on it .. I can file for a patent on "using the bubble sort patent in a mobile phone app" .. similarly I can go through all the computer science books and start patenting all the various algorithms by appending "on a mobile device" to it. The pay off will be huge and it will all be legal. Heck maybe I can patent the Bubble sort itself .. by claiming that I independently came up with it!

    Of course, I sound ridiculous right ? How could they really be making such a dumb law? And why (it's to take away the burden from the patent office for having to google for prior art because a lot of patents were being overturned in lawsuits when it turned out that a simple google search would have brought up prior art .. thus humiliating the patent office).

    Anyway .. dont believe me .. read it and weep: []

  • Defining publication (Score:5, Informative)

    by tepples ( 727027 ) <tepples@gmail.BOHRcom minus physicist> on Monday September 05, 2011 @08:20PM (#37311732) Homepage Journal

    say you posted in online (somewhere which doesn't count as printed publication)

    This appears to be the key to the whole change. If a work is made available for download and gets downloaded, then it's certainly "distribution of copies to the general public with the consent of the author" at least under copyright law. I'd like to see a reliable citation stating that publication of a work under copyright law does not constitute publication of the machine or process described in the work under patent law.

    Heck maybe I can patent the Bubble sort itself .. by claiming that I independently came up with it!

    As I understand it, a change to "first to file" doesn't change novelty or obviousness, only interference: who gets the patent if two people file an application at nearly the same time.

    Anyway .. dont believe me .. read it and weep

    Reexamination of an issued patent is expanded greatly, and the period for filing third-party prior art that might threaten a patent application's novelty has been extended from two to six months.

  • by backslashdot ( 95548 ) * on Tuesday September 06, 2011 @12:45AM (#37312848)

    LOL .. you couldn't point out a single error in my analysis so you went after a few pedantic and irrelevant details.

    "You get a monopoly that lasts between patent issuance and the end of a 20 year period starting from the earliest claimed priority date." -- "earliest claimed priority date" --> I assume you mean filing date .. because that's what the law states --- so how is this different than a 20 year monopoly? And it can actually be 21 years .. because you have a year from the date you publish an idea to file the patent ... so the clock on when people are barred from making that idea (aka your monopoly) technically can start one year before you file the patent .. which then starts the 20 year clock.

Who goeth a-borrowing goeth a-sorrowing. -- Thomas Tusser