MSNBC Looks At Patent Abusers' Victims

Camel Pilot writes "Patent claims have reached a new low when "inventor" Witold Ziarno sued the American Red Cross for using the web to accept donations. This MSNBC article discusses this case and how it was beat using web archives and prior art! Also Pangia Intellectual Property has given up hope on extracting fees from small e-commerce websites for its supposedly patent on e-commerce. The only problem with the PanIP case is that they got away without having to pay for the legal fees for the defense in an obvious abuse of the system." (See this previous post for more on PanIP's dropped case.)

Comments

no conscience

[Anonymous Coward]

what does it take to chase a charity for alleged patent abuse. How does he sleep at night?

Re:no conscience

[Kardamon]

As Pierre-Joseph Proudon analyzed (around 1840): property _is_ theft.

Re:no conscience

[trezor]

As a lot of people futilely have tried to explain to people like you before, stealing a physical item is in it's very nature different than coming up with an idea someone may or may not have had before you did.

Not to be rude, but I sometimes I wonder if the people unable to see this difference get a rise out of accusing others of theft....

Btw. It's called "patent infridgement", not theft. This also applies to copyright violations. Please correct yourself.

But anyway, since people somehow have been allowed to "own" ideas/thoughtpatterns/whateveridontcare, the term stealing is really, well, a steal.

I mean, just who likes thieves?

Re:Maybe this is where tort reform should start

[mc6809e]

The Official Handbook of the Vast Right-Wing Conspiracy

Loser pays is a great idea.

These lawyers are playing the lottery. Without "loser pays", the tickets are all free.

Charity should not matter

[mst76]

The question is whether the patent itself is valid or not. If this was a genuinely innovative patented process that Red Cross violated, would it matter whether they're a charity or not?

Re:Charity should not matter

[odano]

The article is really more for shock value than anything else. This has gone on for a long time, but when you see something like this "Man sues red cross for trying to accept donations" it jumps out at you. I don't think the fact that it is a charity matters, The main issue is how stupid it makes the patent system out to be.

However, my grandfather used to work at the patent office, and still is a practicing patent attorney (at age 90), and will defend to the death the needs of patents. He is incredibly conservative and an old engineer who was in the army during WW2 and then went to a steady job at GE. The main issue is that people like him are controlling the importance of patents, and from prior experience debating with him, he has no understanding of the new type of intellectual property and the new needs of the patent system. Sadly, since people like him are the ones making the decisions, I doubt the patent system will change in the near future.

Question

[pubjames]

There are lots of clever people here on Slashdot. I have a question.

Has anyone here filed a patent for an invention (as an individual, not for their employers or a university) from which they now profit?

My belief is that the vast majority of patents are issued to, and profit, large companies. Or am I wrong, and there are hundreds of garage inventors out there profiting from their patents? Anyone?

Re:this isn't the first time

[Anonymous Coward]

You do realize that the second link "MS patents zeros and ones" is just a cut and paste job from the Onion, don't you? Microsoft didn't really patent zeros and ones :)

Re:Maybe this is where tort reform should start

[Mycroft_VIII]

Clearly I took the post from a different angle. the original post seemed to be talking about lawyers not wanting to get into litigation anymore unless they shure thier side wins because of who pays. That seemed a non-sequiter outside of the sub-case where the looser was unable to pay.
While looser pays puts pressure on potential initiators of lawsuits to be shure they have a good case first, it's little pressure on the lawyers. They get paid in any event unless the looser can't pay.
Looser pays has a significant downside. Those with the money can still sue even when thier odds aren't so good. An even if the odds are against them they only have to be high enough to dissuade laywers from signing onto the little guys side, and even if the little guy gets a lawyer they can still play games with injunctions, delay the actual trial as much as possible, and so on till the little guy or his lawyer gives up or he does.
And if it's the little guy wanting to sue, his case has to much, much more certain to get a lawyer to sign onto it.
The actual trial and verdict are only a small part of the game, especially when the game isn't win in court, but shut the little guy down. This gets even easier in when we're talking about IP in the IT realm, where you only need a couple of years to render something effectively pointless.

Mycroft.

Losing LAWYER pays

[WCMI92]

I think loser pays is a good idea, but some other things need to be added as well:

1. An agency will be set up to oversee the state Bar... They will track how many frivilous suits a laywer is involved in and sanction attorneys who, say, take 5 of them to court that get tossed or they lose invoking loser pays. Sanctions should include suspensions and eventual disbarment.

2. Loser pays should only be invoked under these circumstances:

1. The loser reprsesents a corporation
2. The loser has means (more than a $5 million net worth) in the case of it being an individual.

Loser pays should be up to the judge, as a sanction against a party filing and PURSUING a frivilous claim, wasting the court's time.

3. The losing lawyer should have to forefit all fees to the WINNING party if loser pays is invoked.

4. A defendant should never be subject to loser pays, only the initiator.

5. Contingency fees should be subject to a 75% tax.

6. Judges should have greater lattitude in disposing of frivilous cases out of hand, INCLUDING forcing the plantiff to show sufficient evidence in initial discovery to show cause for there to be a valid claim for trial (think SCO here). This should be based on the theroy that if you DONT ALREADY HAVE EVIDENCE TO TRY SOMEONE, you don't belong in court!

These proposals aren't perfect, but they'd help.

Agreed that some patent reform is due

[werdna]

I agree that patent reform is due, at least in two areas evident in this example:

1. attorney fees. There are insufficient disincentives to "roll the dice and sue anyway" in cases where noninfringement or invalidity are clear; the attorney fee awards in such cases are too rarely awarded; and
   
   
2. invalidity standard. While the presumption of valiidty is very sound public policy in view of the elaborate examination process of the USPTO, the presumption relies upon the demonstrably false proposition that the PTO examined all relevant art. Clearly they do not. The presumption should be relaxed from "clear and convincing" to "preponderance of the evidencee" when a defendant raises "new" art creating a substantial new question of patentability (the standard for granting reexamination). A patentee in such a case has the choice of testing the validity of new art before the PTO on reexamination, where he may amend his claims to exclude the new art, or before a judge and jury, where he may not. It creates, I think, exactly the right incentives -- pay a reexam fee BEFORE bringing forcing some sucker defendant to defend the patent -- the risk of failure is to lose a patent you might not have to have lost.
   
   1. 
      
      Accordingly, it is my view that prosecuting a case against art raising a substantial new question of patentability and losing, or in view of representations that the accused device is without a particular element (not merely a question of what the claim means, the meaning must be clear and the thing must not have it), and losing, should be sufficient grounds for an award of fees. Moreover, if art is asserted against a claim that raises a substantial new question of patentability, the art should be tested under a relaxed presumption of validity: the defendant still bears the burden to show invalidity, but only by a preponderance of the evidence.
      
      If we want to limit the scope of this, we could limit this analysis to process (method) and product-by-process claims, the type of claims most likely to be subject to undiscovered or hard-to-discover "surprise" art.
      
      The virtue of this approach is that a patentee's incentive to use the "stomp-for-nuisance-value" technique is significantly diminished. A defendant actually can harm the patentee to some extent for overreaching, while pretty much maintaining the plaintiff's proper edge in cases where the plaintiff is supposed to win.

Re:Maybe this is where tort reform should start

[Arker]

Better yet, why not just close the patent office and repeal the patent laws? Save taxpayers money and everyone a lot of aggravation.

Just because you lose a lawsuit...

[AzrealAO]

Just because you lose a lawsuit doesn't mean it was frivolous. It just means you lost.

What 'loser pays' does, is remove civil lawsuits as a remedy against corporations, since corporations can almost always afford to pay any sort of legal fees a citizen could amass, but a private citizen is rarely going to be able to afford the corporations legal fees if they lose the suit.

How about this...

[Phil John]

...hold the Federal Patent Office liable for any and all patents. If they grant it and it later turns out there was prior art the patent holder can sue them for their lawyers fees, patent filing fee and any other expenses incurred because of the office's incompetence.

Maybe then we'd see an end to overly broad and obvious patents.

In order to balance things out the patent office would be able to send a patent back much more easily if they felt it was either overly broad, obvious or was just written in such a confusing way that the overworked patent examiners cannot understand what all the little letters on the page mean.

It has failed

[Anonymous Coward]

As a Software Engineer, I've been instructed by company lawyers not to review patent databases. Doing so opens us to triple damages if it is shown that we could have known about the patent. Yet we are expected to come up with unique ideas and extend the art to file our own patents. They make it clear that we are not to assess whether an idea is patentable; their lawyers will make that determination.

The system is fundamentally flawed in providing any real advancement in the sciences. It has only proven to being useful in blocking competition from entering a market.

To defend a market, the company doesn't need valid patents or to show actual infringement. They only need a large stack of patents that a competitor might be infringing. This is enough to put the competitor out of business or at least force them into a settlement.