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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.)
I hope the Red Cross sues the dude and demands blood for repayment.
what does it take to chase a charity for alleged patent abuse. How does he sleep at night?
"...saying he had patented the electronic process by which the donations were made. Ziarno demanded a licensing fee from the non-profit agency for infringing on his patent, which he applied for in 1993 -- before most people had even heard of the World Wide Web."
This seams strange (in 1993?). For some reason, I do not think I understand US patents.
Webmaster of Infoweb
If the patent holder loses it's case in court, it's forced to pay the legal fees of the defendant.
Oh yes, they get kicked in the nuts afterwords.
Also, the patent office needs to be held accountable as well. Maybe they could fire the examiner that issued the patent.
I'm not saying that this is the difinitive answer, just some ideas to change things for the better.
Take the cheese to sickbay, the doctor should see it as soon as possible - B'Elanna Torres, "Learning Curve"
The main argument behind patents is that without them, nobody would have motivation to come up with new ideas and no research and development would be done.
I say bullshit.
Patents are holding developments back. If you have an idea for a better mousetrap build it and sell it. If someone else copies your idea then you'll just have to improve it, or find a way to make it cheaper than them, or whatever. You'll have to act quicker to make money on your ideas, and innovate faster. I think that's a good thing.
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?
I'm surprised that no one has filed suit claiming ownership of a patent which describes the mechanisms of email based spam.
...of course claiming ownership of spam would not be too handy for your image, but if you're a patently litigious batage image probably isn't a 10th as important as the payola.
:P
You'd think with the DoJ and corporate suits out and about, someone would be trying to cash out on their chips.
In fact, a spam patent is probably the one item I wouldn't mind seeing used and abused through the legal system.
Yeah... hypocrosy, but it's the thought that counts right?
Right?
The main argument behind patents is that without them, nobody would have motivation to come up with new ideas and no research and development would be done.
The actual argument for patents is that, without patents, people who use new inventions and innovations would waste huge amounts of effort keeping their discoveries secret from the competition.
The patent process is designed to encourage inventors to publish their ideas so that other people can build off of them. And after a number of years, the patent expires, and anyone can use the work for free.
The US legal system isn't so good. If it worked as it should then companies would not be scared into declaring that 'coffee is hot' or 'cape does not enable wearer to fly' in order to avoid getting sued. If the legal system worked then cases based on things that obvious wouldn't even be brought up.
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?
"Something can be simple, but we shouldn't be deceived by this," said Jack Slobodin, another patent attorney. "If no one has done it before or thought of it, it deserves a patent. Like the paper clip, or the Post-it note." And the inventor deserves compensation, Slobodin said."
Protecting the rights of inventors is a necessary part of the research and investment fields, said Slobodin.
Otherwise, he said, there would be little incentive for taking risks: "The inventor should have a key to the courthouse. There's a long, sordid history of big companies stealing the work of private inventors."
The same old hopelessly flawed logic and a very good example of it: To make paperclips available to the World, which is what you are expected to do in return for the exclusive rights to profit from doing so, you need to invest in a paperclip factory, it's workforce, distribution network and all the other expenses associated with manufacturing investment. There lies the risk - a very great financial risk and rightly addressed by the patent system. If you consider an equivalently simple software or business method idea, where is that risk now? Just what exactly is it that needs to be protected? The only investment risk that needs to be protected in this case is the investment in the patent application itself and the litigation expenses required to extort money from legitimate and honest businesses and organisations.
Just who do the legislators think they're protecting when they engineer a system that enables worthless parasites like PanIP to persecute small businesses and others even to gratuitously attack charities?
Why not directly base a patent on the ammount of R&D done and some 'market time' value: eg a stupid web patent such as donations on the net which obviously took someone back in the early days of the net all of 3 minutes to figure out would have a very low 'R&D value' and a very low chance of being granted or upheld aditionally the internet/computing industry moves very fast, so the patent would only be granted for say 1 or 2 years if it was granted at all.
:P ) and because the car industry moves abit slower (lots of people still drive cars from the 90's) it would get a value of say 8 years and the R&D value would be taken into consideration in upholding its patents and charging royalties.
If a company had spent 5 years and billions in R&D of an innovative new type of engine it would get a high R&D value (dont ask me how thats calculated
The patent system is to give incentive and it does that by giving just enough time for someone to use a patent as an advantage before its open to everyone.
This comment does not represent the views or opinions of the user.
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.
Corporatism != Free Market
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.
As I said, losing a lawsuit does not mean that the Lawsuit was frivolous.
There is a difference between a Frivolous lawsuit (suing McDonald's because I'm fat), and a Lawsuit with merit, that is lost (suing Ford for negligence relating to SUV Roll-Overs).
What 'loser pays' means, is that you must have an absolutely air-tight, 100% case before attempting a lawsuit as a private citizen or small firm. And if it's 100% air-tight, there really isn't any need for a trial now is there?
The whole point to a trial is to determine the facts when they are in dispute. 'Loser pays' removes that option from the private citizen, and makes corporations nearly untouchable, since a private citizen can't risk failure without facing bankruptcy.