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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 ?
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!
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)
The ECMA standards body rules section 1.4 say that if a company shows up with a patent and doesn't license it with "reasonable, non-discriminatory" license practices, then the standard will be cancelled.
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.
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.