Joystick Port Patented, Now the Lawsuit

Panaqqa writes "It appears that Fenner Investments, a Texas based patent troll, is at it again. This time, they are suing Microsoft, Sony and Nintendo for infringing a patent they hold on joystick ports. Perhaps they felt they needed a "Plan B" now that their lawsuit against Juniper Networks, Nokia, Cisco, Alcatel and Ericsson is not going so well."

Comments

Prior Art anyone?

[Zeek40]

The patent was applied for in 1998, I believe the first atari consoles had joysticks in the late 70s, and I'm sure there are earlier examples. The only thing that the patent application seems to have going for it is the specific use of CMOS fabrication for the circuit. This seems to me like making a keyboard out of metal/wood/some other material not usually used, then trying to patent it. Am I missing something, or will this lawsuit go just as well as their previous one?

Its called "reexamination"

[kansas1051]

What we need, as part of patent reform, is the ability to call BS on a patent during these lawsuits, which puts the infringement claim on hold until the patent itself is reviewed and debated over. Start a seperate court case to review the patent, with both parties able to produce evidence and expert testimony about the technology in question. If the patent is ruled bogus, then it should be invalidated on the spot and the infringement suit dropped.

The U.S. Patent Office has such a procedure -- its called "reexamination." "Inter parties" reexamination allows two parties (the patentee and an accused infringer) to "reexamine" a patent before the USPTO in view of new prior art. If the USPTO agrees with the accused infringer, it can invalidate the patent. Lawsuits regarding patents in reexamination are commonly stayed (i.e. put on hold) until the reexamination terminates.

Reexams often result in dubious patents being invalidated. The reason you do not read about them more often on /. is that the purported prior art is often grossly exaggerated by the accused infringer (as in the RIM/NTP patent case), so there may not actually be sufficient grounds to invalidate the patent.

Re:Prior art?

[thebdj]

Actually, I would argue that it is not the laws faults. At least not the way it is written. As written, 35 USC 103 explains obviousness in relatively good terms. Obviousness did not become an issue until relatively recently. I will not fault SCOTUS in Graham v. Deere, because the requirements they set forth were not very restrictive. The issue came later when the Court of Appeals for the Federal Circuit (CAFC) including the requirement that the joining of the two items must be taught in the prior art.

This is an extremely rare thing and actually makes the requirement hard to fulfill. It actually limited the Graham Factor, "one of ordinary skill in the art," practically eliminating it. I do not think the CAFC truly thought this out before making a decision, because if you already the idea to combine the two technologies (and mention as much in your patent specification) then you would almost certainly have claimed it, which would make it a 35 USC 102 violation, something that is really easier to defend for a Patent Examiner.

I believe we are still waiting to see the end result of KSR v. Teleflex before SCOTUS. If SCOTUS rules with KSR and essentially says the CAFC over-stepped their bounds, then you could be looking at the mass invalidation of thousands (maybe tens of thousands) of patents. You mention the standard is hurting Microsoft and Sony, but it actually is helping another industry with as much if not more money. The pharamaceuticals and bio-tech companies love the standard as it is because it helps them get a lot of patents on new drugs passed. I believe if you review the documents from KSR v. Teleflex, you will find support for KSR's writ from a group that included Microsoft, while the big pharma's filed in opposition (supporting Teleflex).