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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 According to the article, of the approx 7,000,000 existing patents, only 614 have been revoked, and only 3927 have had their claims narrowed."
patent the process of getting a patent revoked.
Drill baby drill - on Mars
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Only 614 of the nearly 7 million existing patents have been revoked, according to the U.S. Patent and Trademark Office.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
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's a shame how Einstein had to go into physics; we really needed him at the patent office. What a waste.
I regularly report MSN spam to the Hotmail admins.
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
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.
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
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My Grandpa used to tell me about how, back in the day, rival companies would pay thugs to form a mob and go bustin' up each others' patents with nuthin' but axe handles and gumption...
Maybe that's the solution.
Unknown host pong.
The problem is the patent office doesn't have enough bandwidth to deal with current patents, much less overturn existing ones. There's a quote in the article by a member of the patent office saying that the goal is accuracy balanced very heavily against speed. All of the reviewers have quotas they have to meet, and it takes a lot longer to review a hairy software patent than a physical invention with drawings, but they aren't given the time. There wasn't even a mechanism for overturning patents until 1982, so its not suprising that they aren't good at it yet.
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.
Yeah, may as well expect that people will spend hundreds of hours working on software that they'll give away for free. Hey, maybe they'll even give away the source code! Bwahahahaha, those crazy kids these days.
Bad management trumps ideology - Show the world you want better leadership. http://www.timefornewmanagement.com
This is a serious question, not meant to flame. Has any one actually recently used a software patent offensively? I know most firms get them for defensive purposes only, not to go sueing other companies. Has there actually been lawsuits to test the validity of a patent on an algorithm?
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?
The patent process must obviously be flawed. How else can they explain how so few patents have ever been voided? They can't claim that the application process adequately weeds them out when you take a cursory glance at the crap that slips through. The whole damned system is screwed up.
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."
Newsflash: CNN reporter publishes self-serving lawyer ad for their services.
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make install -not war
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.
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
Benkler Lecture This is the most though prevoking essay I think I've ever read in favor of Open Source and the problems with the current state of the patent system.
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http://houndwire.com
One of the biggest problem is the so-called submarine patent.
It would be nicer where after the patent is issued, they do a follow-up check a year or two later to be sure that you've made progress on actually building/using your invention, otherwise it's invalidated.
Similarly, if you don't actually sue anyone for patent infringement for a period of say, 5 years, you should lose your patent. There's too many companies that hold patents and wait until there are a signifigant number of companies to sue before starting anything. While it makes sense from a business standpoint (most bang-for-the-buck), it seems totally against the ideas behind having patents.
Speak before you think
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
Why doesn't the open source community apply for patents?
I mean if OSDN and its members start patenting software, it would keep it open, would it not?
FIGHT FIRE WITH FIRE.
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 real question is how do we help the patent office so they don't issue the crap in the first place?"
The patent office should charge a royalty. Corporate assets include valuations of their patented intellectual property. Their corporate federal income tax should include their percentage of the total of those reported assets as a percentage of the tax collected for running the Patent Office. That would not only finance the overburdened system that perpetuates their "limited monopolies" over their patents, but also encourage them to valueate their assets appropriately. And to obtain patents on only those inventions from which they derive profits, which are their only justification for that limited monopoly.
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make install -not war
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.
D6 63 0D 70 89 81 BB 8E 7B 7C 5F 5D 54 EA AB 73
At one time the passes through the Alps were controlled by "robber barons" who taxed trade from the Mediterranean to the developing nations of Western Europe. In another era cartographers were secreted away as were their maps that held the trade routes to the spice trade and the new world. As world trade develops, trade pacts like NAFTA and the European Union have slowly opened markets while trying to protect the home markets of the various participants. Patents are the means to ensure profit in markets open to trade pacts. The intellectual property rights are the controlled mountain passes of today. Patents enforce a tax on trade. Patents ensure profits at "home" while permitting free trade and the development of new markets in the third world.
"Academicians are more likely to share each other's toothbrush than each other's nomenclature."
Cohen
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 ?
This is a bad analogy because it involves screwing the customer over. A patent lets you put your competitors out of business or it makes it significantly hard for them to do what you do, thus giving you the advantage.
A better analogy would have been that everytime your comptetitors use their cash register, it deducts a little from their pockets and adds to yours, which is exactly what a patent license is.
A patent is a business tool to put your competitors out of business. Yes it sounds harsh, but a business is about maximizing profit. Not being a nice guy. Is this nice? No. Is this popular? No. Will this make you very very rich because you are the only one customers can turn to? Yes. See the motiviation for grabbing as much as you can? Why put X and Y out of business when you can put X, Y, Z, A, and B out? If the patent office says you can't claim what A and B do, fine. Amend your claims to cover X, Y, and Z. But what is the point of just going after X when you still are competing with Y, Z, A, and B?
-truth
I had a steady B+ in my AI class until I failed the Turing test...
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.
" 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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