Slashdot Mirror
The Difficulties of Patent Busting
wheresjim writes "An article on CNN.com entitled 'Tough road for patent-busters' describes the hard road one has to follow to get a questionable patent revoked. According to the article, of the approx 7,000,000 existing patents, only 614 have been revoked, and only 3927 have had their claims narrowed."
SAN JOSE, California (AP) -- A small company called Acacia Research Corp. went after some of the biggest names in broadcasting last month, suing nine companies for an estimated $100 million for allegedly violating its patent on streaming video.
That earned Acacia a spot on what the Electronic Frontier Foundation considers a top 10 list of intellectual property ignominy: patents the online civil liberties group is seeking to strike down as unwarranted and harmful to innovation.
"Good luck," said Paul Ryan, Acacia's chief executive. "Their chances are pretty remote."
Part fighting words. Part truth.
Only 614 of the nearly 7 million existing patents have been revoked, according to the U.S. Patent and Trademark Office. Some 3,927 patents have been narrowed since the agency began conducting re-examinations in 1981.
The hardest part for challengers is qualifying for a re-exam at all.
A challenger must find written evidence, called "prior art" in patent parlance, showing others developed the technology before the patent application was filed -- a formidable task that consumes a cottage industry of patent researchers and lawyers.
One-time startup BountyQuest set out in 2000 on such a quest. It wanted to debunk questionable patents by letting interested parties offer rewards of $10,000 or more for hard-to-find prior art. But there were few takers and the business failed.
The EFF is similarly relying on volunteers -- but without offering rewards. That's a surefire recipe for limited success, said Bradley Wright, a patent lawyer with Banner & Witcoff Ltd. "There are not a lot of people willing to spend free time to research for prior art."
Even when prior art is presented, re-exams are rare. The patent office held only 6,136 between the time the agency was authorized to do so in July 1981 and the end of March 2004, said Brigid Quinn, a patent office spokeswoman.
Intellectual property
The Acacia patent the EFF objects to is on "the transmission of digital content via the Internet, cable, satellite and other means."
Another on its list, owned by Clear Channel Communications Inc., covers the distribution of digital recordings right after concerts.
"These companies are trying to claim a monopoly on the tools of free expression," said Jason Schultz, staff attorney at the foundation.
The group's list, chosen from 200 suggestions solicited through its Web site, focuses on patents it contends are being unfairly used to demand licensing fees from rivals or individuals.
Acacia and Clear Channel defend their patents and their right to seek royalties for intellectual property they say they spent millions to develop or buy.
Clear Channel bought the so-called Instant Live patent two months ago. It plans to charge an "extremely small" licensing fee -- $1 per event in some cases -- to artists who want to distribute freshly minted CDs after their concerts.
Acacia's digital media patents, granted to the founders of Greenwich Information Technologies in the 1990s, weren't enforced until Acacia bought them in 2001. Acacia has since secured dozens of licensing deals with companies ranging from adult entertainment sites to The Walt Disney Co. It sued the large cable and satellite providers for patent infringement last month.
Ryan rejected the foundation's charges of bullying. "We're not trying to restrict anyone's freedoms, but we'd like to be paid for the use of our technology," he said.
Schultz and fellow self-anointed patent-busters hope their crusade will raise awareness about concerns the patent office is issuing baseless patents because it lacks the resources to thoroughly investigate patent claims.
"It's too easy to get a patent and too expensive to defend," he said.
Greg Aharonian, publisher of the Internet Patent News Service and founder of www.bustpatents.com, questions the validity of a patent granted to Microsoft Corp. in June covering the use of the human body to transmit powe
Why not link to the EFF's patent busting project to get some decent quotes from Jason Schultz? The ones on CNN were very weak and seemed to imply we are just whining about people having important patents... not that they have invalid patents which should never have been granted.
But most patents go through several rounds of non-final rejections by the review board for overly broad claims. By the time they're issued, there's a resonable chance for most of them (please note the qualifiers) that the claims are valid.
When trying to invalidate a patent, there's several good ways:
Patents are actually often very specific, and a company that wishes to sue another for patent infringemnet will find out too late that theirs is so, and the defendent is in fact not infringing on their too-specific patent.
Cheers, Matt
Terrorist, bomb, al Qaeda, nuclear, yellowcake, kill, assassinate. Carnivore is dead... long live Echelon.
The article doesn't include the Markman hearing results that were filed on tuesday. After the filing ACTG lost 40% of its value. Judge Ware ruled against Acacia several times and even invited the defense to file for summary judgement on a significant number of claims. It is not the end, but let's hope this is the first step. More info on Acacia at - http://www.fightthepatent.com
From the article:
Even when prior art is presented, re-exams are rare. The patent office held only 6,136 between the time the agency was authorized to do so in July 1981 and the end of March 2004
So, if I'm readin this right, it looks like there were 6,136 re-exams, of which 3,927 (64%) were narrowed and 614 (10%) were revoked. Of the re-exams, 3/4 of them succeeded to changing the scope of the patent in question!
Looks like getting the re-exam is the hard part...
Never never never smoke crack before geometry class!
First of all, the most important factors relating to whether a patent can be overturned or not are the actual claims in the patent. No statistic can save a facially invalid patent.
Next, there are procedural and statutory hurdles that do need to be overcome, but the statistics in the CNN article is misleading. This is because while 7M patents might 'exist,' a smal small percentage of them are actually maintained. The percentage of patents that generate net positive revenue, either through licensing or direct sales of products is miniscule.
Finally, valuable patents do get litigated, but they are a small percentage of the above net profitable patents ("at most only about two percent of all patents are ever litigated, and less than two-tenths of one percent of all issued patents actually go to court." [emphasis mine; quote from linked SSRN paper.])
Rational firms/inventors will be willing to spend P(n-$0.01) in the cost of defending a patent, where n is the net revenues derived from the patent and P is the probablility of successfully defending the patent. (Note that P is affected by not only the substantive validity of the patent, but also procedural issues, such as the financing of the patent's challenger and the cost of litigation to them).
Bottom line: crappy patents will fall quickly if they are crappy enough, barring unclean hands on the part of the challenger.
Now if you could all focus some positive energy my way so I can pass the bar exam that I will take in less than 2 weeks. I promise not to patent the process of harvesting said energy.
cleetus
Hmm, the entire GIF thing is one. Then there are a whole slew of encryption algorithms (which are part of Mathematics! - can't patent math? lol!). How about MS being sued over incorporating things into IE!! And then there is the 1-click Amazon *#$*s.
There are A LOT of examples. Software patents are patents of human thought. Now all we need is to patent the method by which neurons transmit data to other neurons!!!
Let's start with something right about the US Patent Law: we allow only the "first to invent" to obtain a patent. First to the patent office does not win the race, innovation does.
The whole thing went into the toilet with one book: "Rembrandt's in the Attic: Unlocking the Hidden Value
of Patents." The IP world caught fire with this one.
Nobody can claim that the USPTO is poorly managed. The office has been hobbled by outrageous rules and regulations governing their budget, e.g. the Commerce Department (USPTO operates under this executive agency) requires the USPTO to pay for itself through patent fees. Costs of operation are estimated every few years (per regulation) and the USPTO then changes fees to bring revenue into compliance with the projected operating costs.
The fees then change during the pendancy of every patent. No patent-holder can pay all of his/her fees up front because they don't know what the fees will be until they find out what the current fees are when the payment dates arrive. You can't pay a fee more than one(1) year early and you can never pay a fee late (patent is forfeit). This is nuts.
If Congress actually legislated a rational budget for the USPTO then the system would work - at least as well as it did until the early 1980s. Ever heard of a "patent agent" as opposed to a "patent attorney"? How about the costs of small vs. large entity patents? Why do we still have 1 year of "hidden prior art" - (OK, the USPTO is supposed to identify common art and create an interference internally)?
Of course, the system does not operate in a vacuum: If you have a patent on something really swift, then you can buy off congress and have a patent extension created by special legislation. So the rules apply equally to everybody, except for those who have enough money to buy their own rule.
Then there are the arcaine and backward aspects of the USPTO:
What the heck are Markush Groups doing in chemical patents? Pick your poison and stick with it. You shouldn't be able to claim 30% of isomer 1 and 20% of isomer 2.
The USPTO has only recently gone to computerized applications and searches of issued patents (I have over 80 years of USPQ volumes for the rest of the "prior art"). They used a rod-and-index-keyhole-card system for their searches of various classes of prior art. This system changed to computers under Leaman - in the second Clinton term!
The vast majority of patents that are challenged in court are found invalid. And, the "supreme court" of Patents is the Court of Appeals for the Federal Circuit. That court has patent attorneys as judges. Finally, It has only taken 214 years for 6 million patents to issue in the US. The first patent act went into effect in 1790.
So a better suggestion is to simply abolish software patents, since then you lose a lot of unnecessary and even hampering juridical overhead.
Donate free food here
of the approx 7,000,000 existing patents, only 614 have been revoked, and only 3927 have had their claims narrowed
True enough, so far as it goes, but misleading in fact. While it is true that 3927 patents were narrowed throught a USPTO administrative process called reexamination, and 614 patents were revoked, to compare those numbers to the 7 million patents issued without more is nothing short of ludicrous.
First, while 7 million patents issued since the late 18th century, patent reexamination has only been around as an administrative process since the early 1980s. The relevant measure for the ease of invalidating a patent through reexamination would consider not the total number of patents issued in the last 200 years, but rather the total number of reexaminations in the last 20.
Second, patent are invalidated through many processes, reexamination being but one of them. Patents may be, and are, invalidated through litigation and patent interferences as well. None of those statistics were offered.
No, it is not easy to invalidate the patent. But yes, it is very easy to lie with statistics to try to prove that point.