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FTC Investigates Submarine Patents
Schnake writes: "An article on USAToday talks about how the FTC is investigating Sun Microsystems, Unocal, and Rambus to determine whether they illegally kept patents secret while helping set industry standards! And a quote from the ZDNet article: "It noted that all three companies had filed patent infringement lawsuits against firms they say owed them royalties. But the litigation backfired when those firms countersued, charging them with concealing their patents, and complained to the FTC.""
The whole point of the patent system is openness. You only get a patent monopoly in exchange for full disclosure. So it should be easy (in principle) to find out what patents cover something you are working on. But in practice the sheer volume of patents out there is too large.
I think that a legally binding 'patent challenge' might be the answer. You should be able to send a letter to Rambus or whoever saying 'I am developing the following... please disclose whether you have any patents or patent applications which cover this area'. The company receiving the letter then has to disclose what they have patented. If they lie or keep quiet, they lose the right to sue you later on. Obviously you couldn't do this for internal R&D, but for standards bodies (where the process is open anyway) this could be a useful tool to reduce threats from submarine patents. The only question is whether it places an unreasonable burden on the patentholding company.
-- Ed Avis ed@membled.com
What about all the patents related to jpeg2000 and mpeg4 ?
It seems most (or at least some) of them were requested and granted just when the relevant technology/algorithms got accepted into the standard. (See also this article)
As the article on advogato mentions : why can't ISO/ANSI/whatever enforce policy stating that no patented work should be included in standards released by it ?
Patents aren't really secret. They're "published" in a dead-tree-focused database in a format that's essentially unreadable even by most competent programmers. Just finding out whether an invention is already patented takes thousands of dollars worth of highly skilled, mind-numbing legal work.
Since publication is what the 20-year monopoly rewards, any patent that competitors didn't find and learn from obviously failed to promote progress in the art. This system doesn't work.
United States Patent 6,270,404
Sines , et al. August 7, 2001
Submarine chamber door allowing partitionment of exterior from interior while still allowing a beautiful, roomy feel with plenty of fresh air and sunshine.
Abstract
System consisting of wooden frame and screening material used as replacement for airlocks on submarines. After sitting here long enough, we decided that submarines just don't get enough fresh air or sunlight, and that the main problem is that their door is either open or shut. The solution: screen doors for submarines.
Inventors: Sines; Randy D. (Spokane, WA); Kuhn; Michael J. (Spokane, WA); Gregory; Randy A. (Spokane, WA)
Assignee: Digideal Corporation (Spokane, WA)
Appl. No.: 749046
Filed: December 26, 2000
For example, Unisys's patent for the LZW compression in the GIF format leaps to mind. They didn't exactly keep it a 'secret', but they did wait ten years before trying to enforce it. By that time the vast majority of the developers out there had forgotten about it.
'Life is like a spoonful of Drain-O, it feels good on the way down but leaves you feeling hollow inside'
How is it possible to keep a patent "secret?" Aren't all patents part of the public record?
"How to Do Nothing," kids activities, back in print!
Will they also investigate Microsoft's submarine software patent on procedure invocation which make it impossible for anyone else to legally make a ECMA standard .NET runtime.
So, just remember, patents don't protect the inventer. Patents exist to the benefit of corporate america and the us government...
Actually I would slightly disagree with you on this matter.
Patents do a great deal to keep control of an idea/concept/plan/what-have-you for even single people. It is like all things that have come from the US so far, it started off as an excellant idea, but from there we grew as a nation and as a planet, however the systems we put in place have not. And that is the problem with not only the patent system but many other aspects of our life.
---
ps -aux | grep mind
we could get the patents *revoked* on the human genome.
/.'s datab...(mysql error processing this directive)
complete BS, If you ask me, consider one case reported by 20/20 (IIRC) where a guy's blood (hence genes) were resistant to the AIDS virus.
Essentially this comes down to theft and fraud. His Blood, His Genes and a Corp. says they own it? MYHAPPYASS they do.
By that logic, I could let Kingston/Rambus/(whoever) make memory, figure out the tech for it (do all the work)...and go buy a stick of memory (or steal it/whatever) and say "this is my memory company now".
And the courts are *believing* this piffle?
Riiiiigggghhhttt.
Moose.
Losing Karma not to my own stupidity, but bugs in
Have you read the moderator guidelines? Well, have you, PUNK? (and I want a Karma: Gnarly option)
A quick patent primer:
The 20 year monopoly does NOT reward publication. It only confers upon the patent owner the right to EXCLUDE others from making, using, or selling the invention covered by the patent.
Secondly, in the United States publication of the patent applications has only recenly begun. Prior to the change in the laws this past November, information regarding any pending patent application in the Patent Office was unavailable to any parties other than the Examiner at the PTO or the individual or corporation which filed the application. The patents were "submarined" by extending the pendency of the applications by filing continuation and divisional applications which kept the information out of the public domain by preventing the patent from being granted and finally publishing in the US.
The patenting process in Europe and under the PCT system provides for publication 18 months after the first priority date, so there is a tremendous amount of information about what US companies are doing (or have done) that is available by searching the EPO and PCT websites at http://www.european-patent-office.org/ and http://www.wipo.org, respectively.
What is being alleged here is a type of fraud/unfair competition. The crux of the claim is that it is unfair for a company to propose its technology be adopted as an industry standard without discloising that it has patents or patent applications on file. If adopted as the standard, the others in the industry will automatically infringe. Options at that point: concede the market to the patent holder, redesign the product so it deviates from the standard set by the industry, or pay a royalty to the patent holder.
To the extent that patents have already issued they are public record, as noted in another post. But currently the law is in flux. The general rule is that until a patent issues, the application and all materials submitted to the PTO is confidential. (The confidentiality allows companies who cannot get patents to still protect the way they do business under trade secret law.) There is a group of applications that fall into this category. However, since the passage of the AIPA (American Inventors Protection Act) and some other tweaks to the law, there is now a publication requirement - applications are published 18 months after filing.
So - in my humble legal opinion, it is unfair for a company participating in standards-setting not to disclose that it has patent applications pending, but as for issued patents, companies should be aware of what their competitors are doing. Especially if it is a public record.
Laws affecting technology will always be bad until enough techies become lawyers.
Did you study advanced ignorance in school or something? Patent law existed long before the US.
The principle defect of the US PTO, the lack of public review before a patent is issued is unique to the US.
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Patent law existed long before the US.
Wrong. "Royal patents" existed long before the US -- but these were gained by political pull rather than set procedures, and were more likely to grant a monopoly on well-known processes than to protect innovations. Most people simply didn't recognize that inventions were valuable until the industrial revolution was well underway, that is, the latter half of the 18th century. (One exception might be military technology -- see for example Leonardo da Vinci's notebooks -- but no country has ever forgone useful weapons in war time just because they don't own the patents.)
It's possible that some other countries enacted patent laws before the Constitution allowing American patent laws took effect in the US (1793?), but we certainly weren't far behind anyone. We were way ahead of most European aristocrats, who in 1793 still thought that true wealth lay in vast tracts of farmland worked by downtrodden peasants...
What about all the patents related to jpeg2000 and mpeg4?
ISO/IEC JTC1 SC29 Working Group 1, better known as the Joint Photographic Experts Group, developed the JPEG bitstream standard (part of IS 10918-1), the SPIFF (.jpg) file format (IS 10918-3), and a new "JPEG 2000" wavelet coding system. JPEG has a policy of requiring all members to license patents royalty-free if the patent is essential for implementing the standard.
On the other hand, MPEG has more lenient standards, requiring members to pool and license their patents on a "reasonable and non-discriminatory basis," but not recognizing that a "non-discriminatory" policy toward Free Software implies royalty-free redistribution.
Will I retire or break 10K?
is that these companies had *applied* for patents, but not received them, so they had nothing to declare, or so they said.
This was the case with Rambus... they participated in standards writing.. and then *afterwards* were granted the patent.
New precedent is required to prevent this in the future.
The letter you ask for sounds great, but the problem is, who do you send the letter TO?
Rather.. companies involved in standards negotiations should be forced to sign declarations that they are not holding or attempting ot hold IP rights over the standards in question.
On a side note, monopolies are legel, abused monopolies are not. Patents grant legal monopolies, abuse of patent should be prosecutable (think of
Brazil against pharmaceutical laboratories, selling remedies 10 times their costs. If it's not an abuse of monopoly, what is?).
Sure, 10 times the cost of making that one little pill, but it costs a lot to develop the drug and then you have the interest on those costs piling up for years before any revenue comes in, and you have the other failed drugs that they try to make but that never work or kill people or whatever happens.
BUT...I do agree with you, and personally I would do something like this: Make licensing fees proportional to the average incomes of the nation the drugs are being licensed to. That way, rich nations pay a boatload, and poor nations pay very little, and it is based on their "average" ability to pay. and if the costs aren't being covered, then raise the prices on everyone so that the rich nations have to pay much more proportionally.
Best. Comment. Ever. Enjoy!
The USA Today article keeps saying "patent" where it means "patent application." Patents are on public record. Patent applications are not, for the first 18 months (formerly forever in the US), because it would be idiotic to let the gov't publish your hot new technology, and then take a year or two to process the application and give you some protection against imitators.
"Submarine patent" refers to patent applications that were kept in limbo at the USPTO for a very long time by a stream of amendments and other maneuvers, then finally emerged with apparent claims to whole broad areas of technology. For instance, someone filed a patent application about 1960 for several transistors grown on one block of silicon, interconnected by wires soldered between transistors, instead of the then-usual procedure of sawing up the silicon into individual transistors. After 20-some years of amendments, this finally became a patent which claimed to cover _all_ integrated circuits, never mind that there is as much resemblance between the original invention and a modern IC as between a high-wheel bicycle and a modern automobile. But the "inventor" hoped to collect royalties from companies that felt it was cheaper to pay than to fight.
The things talked about in this article aren't submarine patents, but rather are patent applications that became patents in the normal time, but belonged to companies sitting on the committees writing standards concerning the technology in the applications. That's clearly a conflict of interest, and so standards committees usually require members to sign contracts to disclose related patents and patent applications, and to license them at set rates. The three companies are accused of breaching those contracts. Rambus (at least) is also accused of using the standards committee discussions to target technology to add to their patent claims.
The feds seem to be claiming that this breach of contract voids the patents. That might be too far of a stretch under the laws as written by Congress, but it's certainly justice, and the Constitutional clause authorizing Congress to pass patent laws ("To encourage the progress of science and the useful arts...", or something like that) would seem to require voiding a patent like Rambus's that was deliberately written to _impede_ the adoption of new technology.
Forgot to say: "submarine patent" was not in the USA Today article, but is a mistake by the slashdot headline writer.
Strong disagreement here, at least within the low-capital-investment realm of software patents. If I had to poll everyone who might have worked on the same stuff that I'm working on, I would be sending out millions of letters per week. This is totally impractical for stuff like software patents.
As copyright owner of this comment, I authorize everyone to defeat any technological measure which limits access to it.
Patent holders have the right to selectively enforce their patents. It is not trademark. The only thing 'allowing' people to use their patent limits is the amount of damages they can claim, because they chose to do nothing.
What is investigated here is different; this is about companies entering negotiations and striking deals/standards/etc, while keeping it a secret that they have filed for patents covering parts of the deal/standard/etc, and then later trying to profit from that. The premise is that if the other parties involved knew about the patent, they would have done something else.
it's not that black and white.
A better analogy is if you took some Rambus memory, and discovered that it actually acted as a high-gain subspace antennae. You COULD patent that, even though someone else built the ram, and held patents on it, because it's a new discovery.
The industrial revolution began a century before the US Constitution was written. The idea of awarding patents to inventors was already well established in the UK. Adam Smith came up with the definitive rationale, although by the time he wrote wealth of nations the sale of state monopolies was known as the continental system because that is where it was used.
The US did not in any case become an industrial power for another 75 years just before the civil war. And it only became a technology leader with Ford and Edison.
Even then Ford's main claim to fame was not the idea of a cheap car. It was taking on the patent baron who had obtained a fraudulent patent on the internal combustion engine.
The framers of the constitution were not making it up as they went along. They were attempting to codify what they saw as the best political traditions of the old world. The innovation was the idea of a federal political structure, but even that was a fact that had to be accounted for rather than a deliberate choice.
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