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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 According to the article, of the approx 7,000,000 existing patents, only 614 have been revoked, and only 3927 have had their claims narrowed."
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!!!