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: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?

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.