Slashdot Mirror
Losing the War on Patents
theodp writes: "Jeff Bezos and Tim O'Reilly's once-hyped BountyQuest.com takes a beating in a Salon article today that takes note of Amazon's recent decision to license one of the few patents BountyQuest claimed to have found winning prior art for, a patent held by the InTouch Group, who had sued Amazon for infringing on the patent prior to Bezos' reported $1+ million BountyQuest investment. In the article, professional patent buster Greg Aharonian provocatively remarks that "BountyQuest was always a joke...Bezos and O'Reilly were never seriously interested in patent quality...Bezos just used O'Reilly to help Amazon...That Amazon ended up licensing the InTouch patent just shows how stupid the whole thing is.""
Then some @sshole finds a nugget of gold. Suddenly there's a town upstream, polluting the river, 1000s of stinky (and paranoid) prospectors pointing shotguns ("git awfa mah propertah!"), and the river is clogged with boats.
We can only hope that the gold runs dry quickly, the prospectors drown trying to run the rapids on their way to sell their sacks of gold (which they tend to tie to their bodies, thankfully), and things will get back to normal sooner or later.
Either that, or its time to move.
I've got a bad attitude and karma to burn. Go ahead. Mod me down.
If you can't prove it, you're SOL. The patent will stand.
If you can, then either the patent will be rejected (if the PTO is made aware of your invention), or the courts can invalidate the patent after the fact.
Which demonstrates the clarity of corporate thinking in contrast to our muddy old fashioned notions of "right" and "wrong". From my experiences of talking to my employer's legal department, here's how corporates involved in litigation think:
That's it. That's the only consideration. If the cost of paying lawyers to win the case is more than the cost of paying the litigant, it won't be fought, and no precedent will be set. Right and wrong is irrelevant. Note that in a case where both parties have limited access to resources, it really is the ability and willingness to spend that decides the verdict. When one party runs out of money or blinks, the case is settled.
A step towards helping this would be if the courts took an example from (e.g.) English courts, where it's much more usual for the loser to pay both sides' legal costs. This generally requires a countersuit in the US, except in a few well defined cases, like when you can prove breach of registered copyright (yes, that's right, if someone steals your unregistered copyrighted work, you have to pay to prove they did it, then all that happens is that a court tells them to stop [and if they don't, you have to bring another suit]. You don't typically get a sizable award, not even your legal costs).
Second, courts could stop awarding randomly huge amounts of damages to successful litigants. As with unregistered copyright, they could simply say "Stop it" to the losing party, and let both sides pay their lawyers and weep over how stupid they were to let it get to court in the first place. There's an argument that punishing the transgressor is necessary to make an example, but we have swung too far, to the point where people are using the courts as a primary means of income (not just at a corporate level over patents and IP, some people make a good living through personal injury suits)
Third (an important adjuct) we could trim the crap out of our legal system and translate it from Lawyerese. It's no coincidence that about 50% of both Senate and Congress are members of the American Bar Association. Separation of powers my ass, US law is written by lawyers for lawyers. What we need is a system where neither defendant or litigant needs a lawyer, and a streamlined process that forces both parties to stick to the primary evidence by giving a fixed amount of time to present whatever evidence and arguments they want (without interruption), then a fixed time to rebutt their opponents. This often happens in an ad hoc fashion in lower courts dealing with minor issues, but there is no reason why it shouldn't apply at all levels of civil litigation which considers "balance of probability" rather than "beyond all resonable doubt". If you can't make your case in two hours (without interruption), you can't make it at all and are just stalling to bleed your opponent and to inflate the perceived important of your arguments relative to his.
Whew. There we are. I firmly believe that patents aren't the problem. Sure, it's farcical that the USPTO is funded through granting patents, but I don't believe that's the real problem. The problem is that it costs a lot of money to defend a patent suit, and we give ludicruous awards to the winner based on theoretical damages. Chances are that the defendant has more to lose and will blink first and settle. As we've seen again and again, we now have a new breed of company that exists solely to file speculative patents, sit tight until someone else implements them, then sue on the basis that they could have made X amount of money if they'd bothered to implement their own idea.
Simple enough answer: you didn't implement the idea, you don't get damages. You can stop people from using your idea, and you can negotiate to license or sell it, but what you can't do is negotiate using the threat of an insanely huge lawsuit. If you want to stop OmniMegaCorp from using your idea, find a pro bono lawyer, sue, win, get your legal costs awarded, and let them come to you offering to pay you a fair amount. If the implementor thinks they've got prior art, they have less to lose by fighting it to the end, and having your patent invalidated. We really do need to encourage both sides to see a case through to the end by lowering the risks, and I'd be willing to put tax dollars into the courts to make that happen, because I know that every time a company buckles under and agrees to license an idiotic patent, those costs will eventually be passed on to me.
Does that sound insane?
If you were blocking sigs, you wouldn't have to read this.
The Supreme Court in 1996 actually reduced the power of juries fairly significantly in patent lawsuits by saying that ""Judges, not juries, are better suited to find the acquired meaning of patent terms"
Basically judges interprets the patent and the jury nods their head. So don't always blame my peers.
You can't say that the patent office shouldn't grant patents on common sense ideas. The only way a patent examiner can show that something was *common* is by finding relevant prior art. If the idea has existed, THEN the examiner can deem it as common sense because somebody talked/wrote about it before.
... but by what the public has shown it knows through prior art references.
A patent examiner doesn't have the luxury of just saying, "oh, well this is obvious." If it was so obvious, then why is there NO prior art mentioning it in the past?
Let's face it, as computer geeks, we think just about any computer idea is obvious because it all builds from prior knowledge. But to the patent office, they can't be so subjective. They need to guage the public's knowledge NOT by what they THINK the public knows
If something is truly common knowledge, then some reference to it must exist somewhere. That's the problem that places like IP.com are trying to solve. Make prior art more easily visible to examiners to prevent these "bad" patents from issuing.
- vin
The case you're talking about, which was responsible for the creation of Markman hearings, has probably saved society billions by now.
Most lawsuits end after the Markman hearing, in which the definitions of the words used in the claims of the patent(s) are decided by a judge. Juries are still responsible for deciding the facts in the case, Markman hearings merely ensure that someone with legal training interprets the claims, which are not unlike a legal contract in that they contain legal terminology, syntax, etc. -- would it be fair to expect a jury to interpret the claims as such?
Uh, shouldn't that be "Just your average nitpicker."?
-- MarkusQ
"If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of everyone, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density at any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property."
When did the strong spirit of these beautiful ideas become so meaningless?
~shiny
WILL HACK FOR $$$
It's worth pointing out that the 100mpg carbeurator did actually "exist" on paper, but that it "worked" by ignoring the laws of physics. That is to say, it /didn't/ work, reducing the myth of the greedy auto companies stifling fuel economy to just that, a myth.
Get your Google on if you want confirmation.
Rubbish. The american patent system is and always has been one of the worst in the world - First to Invent? Don't make me laugh. First to file is far fairer.