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Battling the Patent Trolls
opus writes "There's an interesting series of
articles at law.com on the current situation in patent law, which has become "a money-minting machine for a few patent holders". Includes an article on Peter Detkin, counsel at Intel, who spends much of his time battling patent infringement claims against Intel, and who coined the term "patent troll". Apparently it's not just the geeks who are unhappy with the current state of affairs in patent law."
Did you see the 60 minutes the other night? It was about bio-tech companies patenting genes. Someone DISCOVERED the genes related to breast cancer and patented them. Later on two researchers where doing studies related to breast cancer and got a letter from some lawyers. They had to stop doing research as they were infringing on the patents!
Apparently economists really want to change the patent laws. But unless an economist can come up with a revolutionary new theory, stuff isn't going to change because big corporations have too much vested interest in patents. The problem of patents dates back to radio, but we keep seeing it get worse and worse as time goes by. If you didn't have lawyers and thieves, patents could be a beutiful thing... Imagine open source on all intellectual property instead of restricting access... Bleh, lots of problems, but if you can solve em, everyone would love to hear from you. I tried a crack at it, but my solution resulted in a huge reliance on the courts.
God spoke to me
Well, in fact there is the comparatively rarely exercised latches doctrine. Roughly the idea is that if a patent holder encourages others to freely make use of the patent by making it appear as though it will not be enforced, waiting for them to expend lots of resources in doing so, and then blackmailing them with the patent, the patent can be invalidated with regards to the users. The courts do require that patents not be abused so as to function against their purpose.
Positively enticing use would probably qualify; I'm mostly curious about negatively silently permitting use.
-- This and all my posts are in the public domain. I am a lawyer. I am not your lawyer, and this is not legal advice.
As with all legal areas involving technology, if we as technology professionals do not make our voices heard, as the group most immediately and directly impacted by actions like this, then we have no one but ourselves to blame.
As for the sections of the article dealing with "abuses" by the infamous Jerome Lemelson (I'll let you search yourself if you are not familiar with him and his patent portfolio) and his "submarine patents," the particular aspect of patent law that allowed him to file applications, let them lie dormant for years while industries sprung up, then have new patents issue covering already established practices, the article is merely proagating more FUD. The law has changed and it is no longer possible to do this. In fact, the rule now is that applications are now published 18 months after filing - even before issuance.
Finally, ask yourself: If you worked hard and invented something, wouldn't you want to benefit from it instead of having someone with more resources steal it and sweep you under the rug? Patents provide that benefit. A good patent lawyer is the inventor's best friend because he will make sure the inventor is protected to the maximum extent permitted. And despite popular opinion, the PTO statistics say that fewer than 3% of all patents issued make money for the inventor, so getting a patent is not an instant win in the lottery.
Laws affecting technology will always be bad until enough techies become lawyers.
It's just before 9:00am where I am. Not everyone in this world lives on the East Coast of the USA :)
http://www.themeparks.ie
Intellectual property can be the most valuable asset of a high-tech company. Many times, a company's product(s) are based on technology that they have patented. If a competitor uses that patented technology to market a competing product, that can affect the revenue stream of the company holding the patent.
Many companies (including the one I work for) routinely purchase competitors products and take them into product evaluation/reverse engineering labs to see what makes them tick and also to see if they are using technology patented by the company doing the evaluation.
Typically, if a patent violation is found, a letter is sent to the company requesting a meeting, where they try to hammer out a licensing agreement. If that doesn't work, it may end up in court.
I actually work in the patent licensing division of my company. And to tell you the truth, most companies (except for a few of the super big ones) do NOT wish to go to court, even the ones trying to patent enforce. It is too costly for both sides, and it turns it into a lose-lose situation. Of the big companies that I have seen, only TI is not scared to litigate (but then again, they do spend 250 million a year on lawyer fees alone). Patent enforcement may be going downhill, but I still think it's respectable. IBM, as an example, is quite fair (they do use all their patents), and they charge relatively little. If it weren't for patent enforcement, many companies would lose their products and might end up having to PAY for their own inventions. Look at what everyone is doing off of Stuart Parkin's MTJ patents, for example. It's as if they treated Parkin like he didn't exist.
You're right that patents aren't inherently bad, but your argument needs refining.
The purpose of patents isn't to make money for inventors, but to allow and encourage inventors to put their inventions into the public domain (while still retaining rights for a limited time).
If Qualcomm do some original reasearch, they can choose to not patent (and therefore not publish details of) that technology, but can sell the technology to other companies. The recipients, having paid money for it, will protect it as carefully as Qualcomm does. Qualcomm can make as much, or more money that way, especially if they choose to withhold the details from their biggest competitors.
However, because of the patent system, if a competitor invents the same technology and patents it, Qualcomm is screwed. They can claim and prove prior art defence for their own use, but unless they published details, they can't stop the patent from being granted. All their competitors now know how to do it, and Qualcomm can't sell the technology to anyone any more.
Patents aren't designed primarily to protect your right to make money off of an invention (although they do that), they're designed to make it a good idea for you to publish details of the invention.
The flaw, of course, lies in the way the system is working. It's not. Frivilous patents are being claimed, granted, and enforced. The technique is irrelevant, the quality is irrelevant, it's all about quantity of patents, and about having a dreadful court system that means it's cheaper to pay up than to fight it in court - even if you win.
Sure, the patent office is swamped, but I'd fix the legal system first. Laws and proceeding in plain language, courts given the time and resources to investigate claims, and loser pays.
If you were blocking sigs, you wouldn't have to read this.
How did a system that was supposed to encourage innovation turn into a moneymaking machine for bottom-feeders?
Two factors loom large: 1) the creation of the Federal Circuit 2) ballooning impact of special interest money in politics
The Federal Circuit was created to handle trademark and patent law. Other Circuits do not play a role anymore. If you have a patent issue in your case, it will detour to the Federal Circuit. Because "IP specialists" fill the Federal Circuit, the Supreme Court is hesitant to review their precedents. Basically a single point of failure has been created, and bad decisions do not go through the peer reveiw process at the Circuit level. On a normal issue, if the 3rd cirucit does something weird, the 4th isn't bound by it and if they create conflicting precedents, the Supreme Court will often examine the issue a third time. The other problem with the Federal Circuit is that it makes the process more susceptible to infiltration. Heavy lobbying behind the scenes can get a judge favorable to a special interest in. Since there are fewer judges deciding the issues (only one Circuit) the effect of this is much more profound.
The second reason affects everything in government. It's the surgeing influence of special interest money in Congress. A few key players who make money in the patent arena can agressively voice their views with big checks attached and they will be listened to. Small players have a lot more difficulty. This blocks reform and influences key position choices in the PTO and in the Courts, as above.
there are differences in the way patents are treated. First of all, some of these are ligitmate patents, while many of the ones intel (and others) don't like are things they didn't consider worth patenting due to obviousness, or cases of petent every possibal way of doing something without doing any work to see which work. If I license a patent from intel because it would sovle a problem I expect to have, I can contract with Intel to get some expects in implimenting that patent if I need more help then the patent provides. Some of these patents don't have expects who worked on them, just claims that something could be done this way. Then there are broad claims that everyone will infringe on in some way due to the boardness of them, despite everyone doing that for years.
Intel, and for that matter most companies tend to use patents more defensively. That is you can sue me, but I have enough patents that I'll just find one you are violating and sue you, who only lawyers win. that isn't to say intel will never sue someone first, when there are obvious infringements that affects intel's buisness they will strike first, but they won't sue just on the chance that they would win, they sue because there is an infringement. (Remember patents don't have to be enforced unlike trademarks)
Don't forget the Rambus fiasco where they patent something that others discover, or they discover and then get someone else to use without mentionign they have a patent on it.
patents are not bad by themselves.