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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 According to the article, of the approx 7,000,000 existing patents, only 614 have been revoked, and only 3927 have had their claims narrowed."
Hopefully some of the new MS patents will be among the patents that get revoked... Patenting the 'double-click'... come'on!!
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It worries me that the patent office assumes that wrong patents will be over-turned however makes it so difficult to do. They can't have it both ways, they either need to start doing their job correctly OR make reviews easier.
/Manip
I'm finding it increasingly hard to take intelectual property seriously. Patents (while I understand why we have them) are turning out to be a huge, sad joke. They have become weapons for business
The 614 out of 7,000,000 comparison doesn't really offer much useful information. First, the 7,000,000 figure appears to be all patents ever issued by the USPTO. However, it appears that the USPTO has been accepting these re-examinations only since 1981. Further, we're given no idea as to how many requests for re-examination have ever been filed. What would be nice to know is the success rate of having a patent revoked (declared invalid, etc.).
How can we expect other countries to respect our patents if we continue allow such patents to continue to be filed?
Then, management needs to be terminated, the staff retrained, budget allocated, and new policies and procedures redrawn. And an audit too. And all this not necessarily in this order.
As well, the fees need to be spectacular enough to fund the number of examiners needed. If few patents: few examiners. Conversely, if a lot of patents, a lot of examiners.
The final thing is that the Congress (who we *pay* to do this job) should get off their ass and get going to reform the patent system.
Well, since none of this is going to happen, I suppose I'll have to replace my congressperson.
See ya'll at the polls. And quit bitching till then.
"Piter, too, is dead."
Patents were supposed to Enhance Inovation, not Stifle it. The whole process needs to be reviewed and probably reworked, it just cannot seem to deal properly with modern technology.
Reform patents by ensuring good review processes up front is a step in the right direction, but it's the process of overturning patents that most needs reform. Preventing future damage is not enough. We need a way to repair the immense damage that has already occurred.
"The percentage of patents that generate net positive revenue, either through licensing or direct sales of products is miniscule." But how many people never bother create their idea simply because they're afraid of the inevitable lawsuit? Revenue is generated because competition fails to materialize.
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Only 614 of the nearly 7 million existing patents have been revoked
Only about 3,750,000 actually could have been reviewed. This is the number of patents since 1964 (1981 was first year they could be reviewed and so anything before 64 would have expired).
Also, how many actual disputes are there?
There are many really crazy patents so these never get challenged.
There are patents that are too ahead of their time so they expire before anybody needs them.
Then you have the "my patent stack is bigger than yours" where its easier to threaten counterclaim than to invalidate a patent
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,
The important question is how many times prior art has been presented vs how many times was there an overturn. I think that would give us a better indication of how well the review process works. If people/companies think its too expensive to find prior art, thats a business decision not a problem with the patent system.
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They can't have it both ways
That is a very good point.
Unfortunately, the conflict of interest created by their earning money from each patent ensures that they are not institutionally able to act ethically in this, and so they do indeed have it both ways.
The fault lies in their very foundations as a money-making organization. The fact that their actions are massively stifling innovation instead of promoting it would not be escaping their attention if this were not the case. As things stand though, they cannot possibly afford to listen to the worried whispers of their collective conscience.
"The question of whether machines can think is no more interesting than [] whether submarines can swim" - Dijkstra
Of those 7,000,000 patents, how many are WORTH challinging ? Most patents actually have no value, other then to the lawyers who get paid to file them, and the PR people who put out another press release. My guess, of those 7e6 patents, probably 1% actually have any real value, or have enough value that it would pay to hire a lawyer also, if re exams have been allowed only since 1982, then the first 3 or 4e6 patents are no longer valid. as the old patent atty says, millions try, thousands make money.... Finally, most large companies are pretty carefull; if IBM or merck or ford or PPG files a patent, they have probably done a lot of work before filing. So, there is the same problem with this statistic ( x out of 7e6 ) as with mutal fund statistiscs: survivorship bias. most of the bad, challengable patents (or bad mutual funds) don't survive review by corporate (of course, these are stats; u can always find lots of conter examples; but are they statisctically significant ?
" Imagine if someone had patented conjunctions..."
I'll call bullshit on that fallacy too. Yeah, yeah, I keep hearing such heart-warming appeals to strong feelings as "but what if someone pattented sex?" Or "but what if someone patented making food, and you had to go to bed hungry?"
(Believe it or not, I didn't pull those out of the hat. They come almost verbatim from the homepage of someone whose programming work I still respect A LOT. His views on patents, well, let's just say I respect a whole lot less.)
The problem with that fallacy is two-fold:
1. Prior art. Noone could actually patent conjunctions, sex or food, because they bloody exist already. Or would get that patent overturned in a jiffy.
2. Patents expire. If someone actually invested enough time and research to invent a brand new grammatical structure, or a brand new way to have sex, or a brand new way of cooking food... and it's so useful and revolutionary that everyone wants to use it right now... what's the problem with letting patenting it?
It would mean that patents actually worked: they gave someone incentive to research something new. And in 20 years, which is a ridiculously short time on a history scale, we get it in the public domain.
Whereas without that, we probably wouldn't have got that thing researched at all.
I.e., between:
A. we get some new useful invention, but get to wait 20 years before it's public domain, and
B. we _might_ get it in 100 years or not at all, ever, because it wasn't economical for anyone to pay for that research...
which would you choose?
I'll choose A any time.
If your ideal world is more like B, may I suggest you go join the Amish or some other such fine group? Just pretend you're in an alternate universe where patents never existed, and not much new ever got invented.
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