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.'"
The patent system is fcked up and going get worse! (Score:5, Informative)
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:
http://en.wikipedia.org/wiki/America_Invents_Act [wikipedia.org]
Interesting results (Score:2)
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Defining publication (Score:5, Informative)
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.
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First off, there is an easy way to deal with patent interference .. that is .. don't grant the patent to either party. If there is a patent interference that means the idea itself may not be brilliant .. so why does someone deserve a 21 year monopoly on it?
Also, no .. this is not to help the USPTO in interference cases .. that's the claim .. but it's not true .. there are very very few interference cases a year. Think about it, they are knowingly redefining the term "inventor" .. I could understand (sort of
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First off, there is an easy way to deal with patent interference .. that is .. don't grant the patent to either party. If there is a patent interference that means the idea itself may not be brilliant .. so why does someone deserve a 21 year monopoly on it?
Doesn't even matter if it's brilliant or not. If two people independently file for the same patent around the same time, surely both should fail because it was an obvious invention?
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So if two people out of 7 billion+ come up with something, it's obvious?
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Yes.
Re:Defining publication (Score:4, Insightful)
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.
Re:Defining publication (Score:5, Interesting)
I don't know who this "we" is to whom you are referring, but I do NOT want to encourage invention. Invention happens whether it's encouraged or not. There is no need to "encourage invention." This is the problem with the patent system: it solves a problem that doesn't exist, at extraordinary expense.
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The point of patents, from what I understand, was to encourage documenting the concept and getting something in return, instead of hiding the workings and depriving people from that knowledge. It also provided the chance to recover and benefit from effort that led to the invention. Lack of patents won't stop people inventing, but it may stop people from inventing and may facility ripping off of true inventions in domains where progress is slow and expensive.
Research in software is rarely slow or expensive.
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The problem with this philosophy is that the patent application does not document the concept except on a very broad basis. Rarely have I ever seen a patent application document what exactly it is supposed to do even by somebody "skilled in the field". At best, a patent application disclaims what it isn't in very terse legal language, basically listing previous patents and explaining why it is something different and therefore patentable.
Years ago the Patent Office required an inventor to submit either a
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What the patent law does is protection your investment that was needed for the invention. (Like the 100 millions spend to develop a new drug in the pharma industry)
Pharmaceutical companies and their efforts to patent drugs is a special case all unto itself and is not a valid argument either for nor against patents, with extra rules that come from the Food and Drug Administration which make the process of creating new drugs extra hard and almost impossibly expensive. The role of the USPTO in that game is mostly incidental other than the rules of the game are even more complex as a result of patents getting into the mix. I would dare say that patenting of drugs out to
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No, he's exactly correct. It's not patent-worthy if people independently invented it in multiple places at the same time. That's just a common combination of existing technology. That is actually part of the intent as far as patents go, that neither should be able to patent this. It's part of the "machine transformation" stuff, etc.
Meanwhile, it'll never be possible to prevent the first to file problem this way because things like this would slip past oversight from the patent office continually. The real
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So if two people who can afford and actually file a patent out of a few thousand of 7 billion+ come up with something, it's obvious?
There, fixed that for you. A patent filer is not by definition an inventor. not in the least.
It's not 7 billion (Score:3)
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Sadly, not true. There are many patent treaties, although this is not universal both in terms of types of patents, or their term. Whether or not they're enforced with the same vehemence is another story for another time.
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If you filter the set down to two people (or more likely, two teams of people) amongst those who specialize in the same field at the same time looking for the solution to the same problem reduces the number ever so slightly from 7 billion people.
Filtering it down that far, there's a decent possibility that in some cases of interference, those two teams may represent every team looking to solve that particular problem at that time.
Redefining inventor along the lines of author (Score:3)
You tell me, if you come up with the wheel independently .. are you the inventor of it .. simply because nobody before you patented it?
Under a redefinition of inventor in parallel with author, then yes,
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You tell me, if you come up with the wheel independently .. are you the inventor of it .. simply because nobody before you patented it? Now granted wheel is a bad example since every human has seen one .. but there are many examples in computer science of algorithms that you may come up with that someone may have discovered before you and may or may not even be in wide usage without being patented (say it's in a lib file). If you happen to come up with it independently, you deserve a 20 year monopoly?
Are you an inventor? Sure, if the other guy who came up with it earlier kept it a secret and you independently came up with the same invention, you're both equally inventors of it. Does that necessarily mean you should be granted a patent? No ... but then obviousness and such disqualifications could take care of that one if the USPTO actually had the manpower to really evaluate patent applications properly rather than just rubber-stamping them.
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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.
Re:The patent system is fcked up and going get wor (Score:5, Insightful)
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.
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The solution that works for the deep fryer is not necessarily the right solution or the best solution for every superficially similiar problem.
But in this case it is, they've taken that idea and applied to another kind of appliance, how does that deserve patent protection?
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It depends upon how different the implementation is. I could, for example, come up with two different implementations of the magnetic breakaway plug that are unlikely to violate Apple's patent. (The caveat being that they would be much more expensive to produce.)
Now I'm not saying that Apple deserves a 20 year monopoly on their implementation, but I do think it is overly easy to over generalize a patent into an idea then dismiss that patent on the merits of the idea rather than dismissing the patent on th
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It depends upon how different the implementation is.
So in this case for example, what is the innovative part? What's the thing that should be protected?
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Well, the innovative part is the breakaway plug to protect an electronic device.
But breakaway magnetic plugs already existed to protect appliances so what's the invention? What is new that didn't exist before? The thing that deserves to be protected by patent law?
The only thing i can see is that they've used it on a laptop, that's not an invention.
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Reading the actual MagSafe patent [uspto.gov] and the fryer patent [uspto.gov], I find that it's not so much anything that didn't exist before, but rather the removal of an unnecessary feature (a heat-conducting probe) that separates the two inventions. Note that the fryer patent is the third item of prior art in the MagSafe patent.
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But unfortunately, Apple having this patent is either being used as an excuse to drive sales of new laptops (to replace broken motherboards) or general patent fears.
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Taking an idea and applying it to another industry IS patentable. It may not stand a court challenge - it may be ruled "obvious", but this is how it works.
Well that's my point, there doesn't actually appear to be any invention so such things shouldn't be patentable. I understand that's currently the way it is but i suppose that's how messed up the system is.
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That shoehorn example .. there is a simple way to test if your idea deserves a patent (20 year monopoly).
The patent judge should ponder these questions:
1. How long have shoehorns been around? decades?
2. How long has teflon been around? decades?
3. Also, has anyone previously thought of expressly making the shoehorn out of a material that reduces the slippage against socks? (you cannot get a patent by simply changing the material presumably unless there is a novel functional purpose of it)
If shoehorns and te
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If shoehorns and teflon have been around for a long time .. but nobody thought of putting them together .. then we can safely say your idea is novel & non-obvious.
Or that until recently, teflon was prohibitively expensive for a simple shoehorn. Diamond-tipped garden spades are obviously a good idea too. I probably won't bother patenting them though...
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You can if the original patents specifically exclude the new material. If the original inventor thought that the material was important enough that no other material would do, the original material would be included in the patent claims. Going off the shoehorn example, the original patent would have to include some requirement that the shoehorn be made from, for example, polished wood, to meet some need for flexibility and friction. A flexible plastic shoehorn won't meet the requirements of such a claim, so
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I agree that making a shoehorn out of teflon wouldn't be covered by the original wood shoehorn patent, but wouldn't the teflon shoehorn become obvious once the wood shoehorn patent was filed?
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But in this case it is, they've taken that idea and applied to another kind of appliance, how does that deserve patent protection?
If it didn't, then the company who made the mag-safe fryer would have a ridiculously broad patent.
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I take that as an argument that the concept of patents is flawed. If you allow people to patent minor modifications, you get a lot of trivial patents; if you don't, you get ridiculously broad patents.
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Uh, no, it's considerably worse to have broad patents. If your patent is valid outside of the market you have gone into, then it's worth much much more than in its current limited state. Thay means way more effort by the Apples of the world to patent generic things and demand licensing.
As for trivial... I have to ask: If the mag-safe connector has been around so long, and the idea is so good everybody wants it, why did it take twenty years to finally turn up?
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Uh, no, it's considerably worse to have broad patents. If your patent is valid outside of the market you have gone into, then it's worth much much more than in its current limited state. Thay means way more effort by the Apples of the world to patent generic things and demand licensing.
I agree. My point is that it's bad to allow patents on trivial ideas too, so either way, you get a flawed system.
I have to ask: If the mag-safe connector has been around so long, and the idea is so good everybody wants it, why did it take twenty years to finally turn up?
I don't see anyone rushing to copy the idea. The patent is so specific any competitor who wants to use the idea can make some minor modifications if they want to use it in their own electronic product. The patent is only useful for preventing competitors to make accessories compatible with Apple's products, since the accessory would need a connector that looks just like Apple's.
The reason it took
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If it didn't, then the company who made the mag-safe fryer would have a ridiculously broad patent.
Which would have well expired by now.
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I'm not sure I understand your point. NOBODY would have been able to use it without licensing it until now. The way it has already played out, plenty of people (including Apple!) were never affected.
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No, we don't. We have that situation with laptop computers. Huge difference.
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No, we don't. We have that situation with laptop computers. Huge difference.
The patent is specific to laptop computers?
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Apparently not. They got an overly broad patent.
Fuckin Apple.
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"The solution that works for the deep fryer is not necessarily the right solution or the best solution for every superficially similiar problem."
But it IS the same idea -- Apple's patent is broad so you can't even change the connector shape etc. They nicely got a broad patent on any electronic device that uses the concept of a magnetic breakaway power cord. You are telling me that Apple deserves a 21 year monopoly for being the first to apply the idea to protecting laptops instead of fryers? Nobody else wou
Re:The patent system is fcked up and going get wor (Score:4)
What this also means is that whenever a new type of device comes out ... trolls can rush to the patent office to try to patent everything under the sun "when applied to a XYZ device" .. If someone invents a flying car .. the first person to rush to the patent office and file a patent for "GPS device in a flying car" will get the patent. "Door on flying car" ..patent granted. "Bubble sort algorithm used in a computer system in a flying car" .. patent granted.
Or even today they can scour the patent office for software patents and just apply the words "tablet device" or "mobile device" to it since many things don't have device specific patents even today. Hello riches.
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Yup. For instance Acacia, one of the scummiest patent trolls, did not invent HTML or CDROMs. But they have a patent for "HTML on a CDROM". It was issued in 1994, so should still be valid. They have threatened to sue numerous companies, including mine. I didn't reply to their threatening letter, and got a more threatening letter a few weeks later. I didn't reply to that one either, and never heard from them again.
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If I recall correctly, that was the same company that tried to sue my company for something like 25% to 50% of their gross income. The had a stack of patents which basically covered any transmission of digital audio and/or video. So effectively the patent covered telephones, cable TV, satellite TV, and of course all those pesky Internet companies. Just think, they could nail every Geocities site that had the damned dancing baby, or some crappy song embedded on their home page. Too bad
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The other day I noticed Microsoft had a patent on creating a table in a word precessing document using "keystrokes on a keyboard".
But thankfully I'm making a text editor and not a word processor, so I can still use a keyboard shortcut to create a table. Yes! The system works! Let me call my intellectual property attorneys!
(I'm to lazy to cite the number, but it was issued in 2010, so it patent number 8 million something if you want to look it up.)
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Well, I think the point is that the improvements were obvious given common technical knowledge. Any engineer who sat down with the task of adapting a magnetic breakaway connector to that specific device, would easily come up with a solution by just applying common knowledge. The only reason nobody came up with and patented it before, is that there are so many different variations and each device requires a slightly different adaptation.
In this case, the patent is so ridiculously specific, it doesn't stop an
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But it IS the same idea -- Apple's patent is broad so you can't even change the connector shape etc
Is it really? What's your source?
It's nothing magical beyond what if you went up to any connector designer and said simply "hey I need a magnetic connector for my laptop power cord" .. it's something anyone can make.
Same 2 questions...
Re:The patent system is fcked up and going get wor (Score:4, Insightful)
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.
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Re:So if I invent something new that used a wheel (Score:2)
Sure! Car Tires that record information on where you drove, presented to Big Brother with HTML!
Re:The patent system is fcked up and going get wor (Score:5, Insightful)
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.
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"(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.)"
Actually the USPTO themselves said it was not that many. How can ambush tactics work, how would you know what the other guy invented until after he files a patent or publishes it? Patent interference should be dealt with simply .. if two people invented the idea before the idea was publicly disclosed, that means it's an obvious idea. Patent Denied to BOTH parties.
After idea publica
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First off, that's not true .. all the inventor has to do is to show proof that he showed the corporation his invention (this is standard .. he'll have an NDA).
Anyway, under the new law .. the Big Corporation will not only get to use Independent Inventor Guy's invention for free but they would be able to prevent Independent Inventor Guy from even making and selling his OWN invention.
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Fraud before USPTO, etc., etc.
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"Patent pending [wikipedia.org] means the patent has been filed but not yet granted. If anything in this case first-to-file would protect the little guy, the big corp can't say they invented the idea first but filed for it afterwards.
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While true, Inventor Guy was not necessarily going to work for them, only sell them the tech.
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True, calculus wasn't obvious in any conventional sort of the word. But the fact that it was discovered independently by two different people at roughly the same time, suggests that it was an idea "whose time had come", and that someone else would have discovered it even if Newton and Leibniz never existed.
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The so-called "invention" on the back of the napkin shouldn't be worth the paper it's drawn on. (An exception might be a circuit drawn with conductive ink and pasted components.) It should be the first working model that gets evaluated for a patent. Ideas should not be patent-worthy.
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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.
This paragraph doesn't make sense to me. I think it says the current system lowers the quality, but I can't see how a change in where the fees go would change that. Currently if an examiner grants more patents it makes no difference to the funding for the USPTO, so how does it encourage more grants? If examiners were paid according to how many they examined (as could happen if the USPTO budget was determined by examination fees), wouldn't that encourage quick shoddy examinations?
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Very few patents are for actual original innovations that warrant a 21 year monopoly. Let me give you an example
No let *ME* give you an example. I bought an Aten UC-232A (which BTW gives me BSoD in Win7 when lots of data comes through) USB serial converter. It has patent D436924 attached to it. The claim, I kid you not is "The ornamental design for computer cord connector, as shown and described." Really?! They can spend money on patents for the molding shape of the connector but not on non-flaky drivers. .
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Very few patents are for actual original innovations that warrant a 21 year monopoly.
Wow, wrong fact right in the first sentence. All credibility: gone.
You don't get a 21 year monopoly, or even a "20 year monopoly" which is what you were probably thinking of. You get a monopoly that lasts between patent issuance and the end of a 20 year period starting from the earliest claimed priority date, plus any patent term adjustment (assuming the patent was filed after 1995; pre-1995 is a little different).
So you're wrong right out of the gate, then, yup, a bunch of anti-patent blathering. And modde
"patent term adjustment" (Score:2)
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It's determined by how long the patent application took to get through the patent office, minus any delay caused by the applicant.
That sure sounds like the old file+20 or grant+17 whichever is longer rule.
Re:The patent system is fcked up and going get wor (Score:4, Informative)
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.
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The earliest claimed priority date may be the filing date, but if it claims priority to an earlier application, e.g., it being a continuation or a divisional, then no, it's not this patent application's filing date.
And while you currently have a year to file a patent application (in the US) you have no monopoly during that year or until the day before your patent issues. Anyone is free to copy your idea and do whatever they want until you have a patent. Without an issued patent, you have no enforceable righ
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His point doesn't depend on the intricacies of filing dates, so he used four words where you used forty and got it close enough. Your description is much more precise, but pounding it in as you did is inane.
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That's what weasel words are for: "Very few patents are for actual original innovations that warrant an up to 21 year monopoly." Experts can (hopefully) use them to prevent either the truth or their point from being obscured. The OP's technically flawed writing on such an emotionally charged issue that also revolves around a byzantine bureaucracy makes me not want to take their word as gospel truth.
To be clear, by "technically flawed writing" I meant the following little grammatical and general writing issu
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Thank you for looking at the file history. Before I get to that, some details. This is an image of I could fine of a fryer system. There may be others: http://www.shunertrade.com/UploadImage/2011530175270.jpg [shunertrade.com]
Looking at this, it appears that the magnet just holds it and the stubby tongs are what electricity is sent through. But I'll be the first to admit I'm not sure how that works.
Here is what apple can prevent other people from making, i.e., not the entire concept of magnetic connectors:
1. An apparatus fo
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You've done a great job of pointing out what the law says, but do you haven't shown a single iota that you know what it means.
You can correct my spelling all day but at the end of it you still haven't proven yourself to be a writer of any worth.
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That very few patents are for actual inventions to the original inventors.
Cite please? Most inventions are made due to the funding of someone's employers, so.... not sure the point you're making here.
Which is patently obvious, and has even been shown to be comically obvious when people successfully patent the wheel.
Cite please.
Tell me, if they received a 20 year patent for something they didn't invent instead of 21, does that fix it? Or is it insignificant detail that does not affect the main point.
His main "point" was wrong in seven different ways. I've now outlined them in a reply. Feel free to check it out.
Tell me, does the 1995 subrule make it different? Or is it insignificant detail intended to portray you as an expert whose opinion should be deferred to without challenge?
Actually, yes, the 1995 subrule makes a huge difference because patents filed before then get the longer of 20 years from the earliest claimed priority date or 17 years from issuance. If it was filed in 1991 but issued in 1999, it would still have years of lif
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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.
First, the pending bill doesn't eliminate the one-year statutory bar that exists in current law. That is, if there is anticipatory prior art that was published more than a year before your filing date, then you can't get a patent on your invention. It doesn't matter whether it was a patent, scientific paper, book, magazine article, or what have you, as long as it was published.
Second, even by just adding "on a mobile device" to your claims, you're not going to get a patent on a well-known concept. At thi
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Ha ha ha. Pull the other one, it's got bells on.
Building a better mousetrap (Score:2)
You can't patent the idea of a mousetrap, but you can patent the implementations of new variations on the idea.
the percentage of patents invalidated on the merit (Score:2)
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You also have a system where all parties assume that the status quo is fine and that some other part of the system will clean up after them.
The courts assume that the PTO is acting in good faith. The PTO assumes that the courts will clean up their crap.
No one seems to be minding the store.
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Of course; most that are confronted with a lawsuit would rather pay the racketeer.
I think "would rather" is a bad phrase here. More like: most that are confronted with a lawsuit find very little choice between spending massive amounts of money on lawyers and suffering the distractions and stress associated with a lawsuit vs. paying off the racketeer.
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That tells me that the legal system is rather broken...
Not at all. The problem is ridiculous patents being approved combined with laws that assume patents are valid once approved and require a preponderance of evidence to invalidate along with having the outcomes determined by judges and juries that have no understanding of the technical complexities involved in most patents.
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I agree - this is the most unsatisfying aspect of this study, in that most cases end with settlement and a non-disclosure agreement, meaning there is absolutely no data on how meritorious the claim was and how exploitative the settlement was. It seems quite obvious to me, (IANAL) that only relatively strong patent claims would actually result in litigation, and that most "troll-like" behavior would be in cases that are simultaneously weak but expensive enough to contest that a settlement is cheaper. Argu
Of course most cases settle (Score:2)
Most civil lawsuits settle. If the defendant's attorneys see that they're likely to lose, they usually propose settlement.
Initiatives against software patents (Score:2)
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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 c
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Person dies they become public domain.
Is a hitman cheaper than a license?
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The answer is to pass laws that reverse the decision made in court cases such as State Street Bank v. Signature Financial Group, AT&T Corp. v. Excel Communications and others that lead to the mess we have now.
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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.
The trouble with this is that it screws up the economy. Companies that by all rights ought to merge for reasons having nothing to do with patents, but they can't because they would lose patents valuable enough to make it not worth it. Also, it harms start-ups because prospective investors and creditors would know that they couldn't sell the patents to recover part of their costs if the start-up fails.
But the overall idea is in the right direction. I think what would make more sense is to make patents "use i
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The problem I have with the patent system is this:
Using the LZW algorithm as an example - say I had no knowledge of this algorithm but through my own independent research I developed something very similar. Even though I had nothing to do with the original patent author, I'm not entitled to use my own invention, because someone else had already invented it.
I understand that you should profit from your work, but why should someone else not profit from there's just because it is similar to yours (without copy
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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.
Garbage does not mean "unusable" - but that it should not have been patented. For LZW it is even obvious: It's pure mathematics. Do you want to patent any advancements in mathematics?
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Software should not be patentable. Mathematical formulas are not patentable. Should Einstein have just "given away" Relativity? That's such a loaded question on so many levels. It implies that he suffered a loss, through his own carelessness in managing his work. Telling some information to the world is not really giving it away, though that expression is commonly used in this context. The information was never property to begin with. It didn't belong to Einstein or anyone else. Had he not announced
Like a pig or a turd... (Score:2, Insightful)
...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.)
This Paper doesn't properly address the debate (Score:2)
The paper itself sets up some straw man arguments, really on both sides, then goes about collecting data that is really beside the point. Here are the questions it addresses:
A. Are Litigious NPEs a Recent Phenomenon? I say, who cares? And the author's definition of "recent" is just strange. The oldest troll is about 25 years old. Isn't that recent relative to patents themselves which have been around for a couple of hundred years more or less?
B. Are NPE P
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Last I checked, extortion in any form for any purpose was illegal .. so no .. you can't do that unless you don't mind going to prison.
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It won't work.
A patent that attempts to stifle the actions of the incumbent status quo will ironically be suppressed.