DISQUS

l0b0t · 2 years ago

Not being a lawyer, I'm having trouble understanding why "...significant economic harm resulting from assertion of the patent." would be considered cause for action. I was under the impression that the only way to bust a patent was to show that the patented item was already extant and in use by others prior to the date of the patent, is that not the case? The whale-oil concerns and the wagon works certainly suffered "significant economic harm" from the internal combustion engine but that should not be a justifiable reason to go after the engine's patent. What about the manufacturer's of pay-telephones versus the mobiles, or Amalgamated Computer Punchcards ltd. vs. Intel/AMD et al. Pity the stoop-laborers, made redundant by the combine harvester. Reductio ad absurdium to be sure but is anything gained by having an overly complicated patent system? You invent something new, you get exclusive rights of use for a limited (VERY limited) period of time, then your invention passes into the public domain. Why is it more complicated than that?

dimitris · 2 years ago

First, someone can challenge a patent anytime, throughout the patent’s life if they can show they are likely to suffer “significant economic harm” from the patent. This is extraordinary [...]

It isn't; rather, it fairly counterbalances the continuous threat presented by bogus patents throughout their term.

To use your crime analogy, a (threat of use of a) bogus patent is a crime that takes up to twenty years to perpetrate. A statute of limitations which limits action to the crime's end date is therefore only fair, and perhaps too lenient.

Tim Lee · 2 years ago

By subjecting patents to opposition at any time and making the outcome less predictable a Sword of Damocles will hang over the patent holder and innocent collaborators, such as investors and employees, who help market his or her innovation.

Hance, I don't understand this line of reasoning. I don't see why it would be fatal for an innovative company to lose a patent. If they had a valuable product before the patent were invalidated, that product would continue to be just as valid afterwards. Losing a patent doesn't mean losing an invention—it just means the inventor will face more competition than he expected.

The "Sword of Damacles," as far as I can see, mostly points in the opposite direction: that a company like Vonage or RIM faces a constant threat of frivolous patent lawsuits. Being convicted of patent infringement is far more damaging to a company than having one of your patents invalidated.

You write that the presumption of validity "tends to reduce litigation by increasing the importance for all parties to fully participate in agency deliberations," which may very well be true. But notice the implicit premise here: that "all interested parties" have the resources and knowledge necessary to participate in the USPTO process. To put it in concrete terms: somewhere in San Francisco, a couple of 20-somethings on a shoestring budget are developing the next breakthrough technology. You're demanding that, as a condition of participating in the technology industry, they hire a team of patent lawyers to monitor every patent application and challenge those that intersect with their own technology. I think it's pretty obvious that not only do they not have the resources to do that, but it's also not reasonable to expect them to do so.

Given the enormous damage a bogus patent can do to an innovative company like Vonage or RIM, we should make it as easy as possible to get bogus patents invalidated. If that raises the costs of holding a patent, that seems like a small price to pay to make sure the patent system doesn't wreck innocent companies whose only crime is not having hired enough patent lawyers.

Don Marti · 2 years ago

The fundamental problem is the mismatch between USPTO and the courts. USPTO doesn't have enough predictive power -- it's failing by granting too many patents that don't hold up. USPTO got into this mess because of patentability creep -- jumping into software and business methods without orders or funding from Congress. In the long run, Congress is going to have to roll back patentability creep to fix the problem of low-quality patents.

Hance Haney · 2 years ago

Bogus patents and patentability creep

The changes I have described (new layer of post-grant review, elimination of the presumption of validity and reduced evidentiary burden) wouldn't merely apply to bogus patents (nor would they even be limited to newer categories of patents such as software and business methods). They would apply to good as well as bad patents and could subject deserving patent holders to harassment. So there is a question of how much collateral damage is reasonable in going after the bogus patents? But I don’t think the changes are necessary, in any event, to root out the bogus patents. In KSR v. Teleflex, the Supreme Court rejected the formalistic analysis of the obviousness standard by the Court of Appeals for the Federal Circuit and clarified that advances which are the product of ordinary skill and common sense are not patentable. So it is already much easier to attack bogus patents. Another recent Supreme Court decision, eBay v. MercExchange will reduce the possibility that a bogus patent will qualify for injunctive relief.

Losing a patent doesn't mean losing an invention—it just means the inventor will face more competition than he expected.

Investors aren’t willing to endure a substantial risk in exchange for a modest return when there are plenty of safe havens for investors seeking modest returns (e.g., government bonds). We should allow truly novel, useful and nonobvious inventions to earn a handsome profit, because the prospect of such a profit leads people to invest their time and money in risky pursuits.

Being convicted of patent infringement is far more damaging to a company than having one of your patents invalidated.

If a company is convicted of infringing a patent that means they broke the law. There should be a downside to that.

[S]omewhere in San Francisco, a couple of 20-somethings on a shoestring budget are developing the next breakthrough technology. You're demanding that, as a condition of participating in the technology industry, they hire a team of patent lawyers to monitor every patent application and challenge those that intersect with their own technology.

I don’t think anyone has a right to participate in someone else’s legitimate patented invention. And I am confident that if we have strong protection for intellectual property, a couple of 20-somethings who develop a breakthrough technology will be able to attract the capital necessary to bring it to market.

Tim Lee · 2 years ago

I don’t think anyone has a right to participate in someone else’s legitimate patented invention.

I agree, but that's not what we're talking about. The question is, in cases where a patent is illegitimate, how high should the bar be for getting it declared invalid? I don't have any firm ideas about where the bar should be set, but I think it's obvious that the current setting of the bar (under which NTP can extort $612 million from RIM for a patent portfolio that everyone agrees is bogus) is too high. Maybe Teleflex will fix the problem. Maybe post-grant review is the wrong approach. But clearly, it's too difficult right now to get bogus patents invalidated.

What you seem to be contending (and forgive me if I'm misunderstanding you) is that RIM should have more "fully participated in agency deliberations" regarding NTP's patent applications. I'm not sure which deliberations you're talking about, specifically, but in any event this seems to me to be an unreasonable burden on RIM. Keep in mind that NTP was granted its patent in 1995, four years before RIM entered the wireless market, and nearly a decade before the BlackBerry became a household term. You say that "make their views known and submit their challenges during the pendency of agency decision-making," which I guess means that RIM should have filed its challenges to NTP's patents in the early 1990s. But this is obviously unreasonable since RIM not only didn't know about NTP's patents at that point, but they also probably had no idea they were going to be entering the wireless email market.

It's certainly true that administrative agencies and the courts should strive for legal predictability and finality wherever possible. But justice is an even more important principle. And it's not right to exclude someone from a market based on a bogus patent simply because they didn't "fully participate in agency deliberations" at the time the patent was granted.

Tim Lee · 2 years ago

"four years before RIM entered the wireless market"

...what I meant here is "the wireless email market."