Netflix Sued Over Fradulently Obtained Patents

An anonymous reader writes "Techdirt has a story about a new class action lawsuit against Netflix, claiming that the patents the company is using to sue Blockbuster were obtained fraudulently. Specifically, the lawsuit claims that Netflix was well aware of prior art, but did not include it in its patent filing, as required by law. The lawsuit also claims that Netflix then used these fraudulently obtained patents to scare others out of the market, in violation of antitrust law. 'Certainly, it makes for an interesting argument. Patents grant a government-backed monopoly -- which should get you around any antitrust violations. However, if that patent is obtained fraudulently, then I can see a pretty compelling claim that you've abused antitrust law. It would be interesting if other such cases start popping up (and, indeed, the lawyer who sent it to us said his firm is looking for additional patents to go after in this manner).'"

Comments

burn netflix

[Danga]

I hope they get punished for this...

Re:burn netflix

[Danga]

If netflix did in fact obtain those patents fraduently then they deserve to pay for it. I know if this class action lawsuit results in a loss for netflix that the lawyers will get the lions share of the money which sucks, but at least netflix will have to pay for their wrong doing and other companies may think twice before doing something similar.

I guess since the entity that I want to "pay up" isn't Microsoft, the RIAA, or the MPAA the mods decided to mod me offtopic. Whatever...

Re:burn netflix

[Danga]

No, I don't prefer Blockbuster. I am actually a happy Netflix user myself. If they did obtain the patent fraduently though I believe they deserve to pay the price. Just because I like them wouldn't make this ok.

Re:burn netflix

[carl0ski]

you are joking who gives a damn about blockbuster

This Netflix action caused the prevention of new companies

entering as competition resulting is less generous/competitive pricing to us consumers

Burn Netflix

Grow multiple brand new competitors from the ashes

About time...

[astonishedelf]

that someone found a way to sue the bejesus out of patent trolls and their BS patents...

Re:About time...

[plover]

What, because one patent troll sues another patent troll we should celebrate?

Now, if someone were to invalidate all software patents, that would be a reason to celebrate. This is just the (hopeful) invalidation of two patents out of two million, and perhaps the spanking of yet another company acting evil.

In the time it's taking me to write this response, I imagine three other software patents are being granted. Even if this moves forward (which it hasn't yet) we're still moving backwards.

Re:About time...

[iamwahoo2]

If Netflix loses, it creates a precedent. Anyone whom files for an obvious patent or a patent in which there is clear and obvious prior art can be sued for exploiting the patent system to create an anti-competitive environment. In the context of software patents, this would be huge because so many software patents are junk.

One Click Shopping

[popo]

Plenty of video games featured in-game stores with one click shopping. That should constitute prior art. Amazon knew about these but discounted them because the transactions were virtual.

Re:One Click Shopping

[nexuspal]

Very Insightful! I never thought about the one click shopping in games that existed before Amazon's patent. And, since we're all using fiat money, there is little difference between a fiat money transaction in a game using one click, and a one click transaction using real life fiat money.

Re:One Click Shopping

[Actually, I do RTFA]

This seems like a legitimate distinction to me. After all, just like video games show shrink-rays yet a real one would be worthy of a patent, so would being able to walk into a store and pressing a button under the item you want to buy it.

Obvious guy whispers in ear

What? You mean they're a online (virtual) store..?

Re:One Click Shopping

[Slow Smurf]

You shouldn't be able to patent the idea of a shrink ray anyway, so it's not a good example.

Now if a game detailed how to make a shrink ray, and it worked for some bizare reason, that'd be another issue.

Re:One Click Shopping

[Actually, I do RTFA]

I would like to amend my previous submission to read as follows.

If a game taught a process by which:

A HUD which consists of a glowing red button. The pressing of said button activates a shrink ray.

And a real life shrink ray operated off of a glowing red button.

Is that analogous? Or should I give up and take a nap.

Re:One Click Shopping

[hurfy]

"so would being able to walk into a store and pressing a button under the item you want to buy it."

So like a vending machine then ..... ?

Re:One Click Shopping

[Anonymous Coward]

You shouldn't be able to patent the idea of a shrink ray anyway, so it's not a good example.

Of course you shouldn't be able to patent a shrink ray. Jan Benes already patented it. The Soviets were very angry about it. So angry they tried to kill him.

You must have missed the documentary.

Re:One Click Shopping

[Slow Smurf]

I'm afraid I don't get the reference(assuming it is one), but I'm somewhat curious if you happen to read this again.

Re:One Click Shopping

[garoo]

That mode of interaction seems oddly familiar. Would that be an online (virtual) automat? Buttons next to each item and all.

Presumably the patents on the automat are well and truly time-expired. So it's definitely nothing like that at all ;-)

Does that make this lawyer a

[zappepcs]

patent troll troll?

It would be nice to see this force reasonable patent reform.

Re:Does that make this lawyer a

[Joebert]

It makes the Defence Lawyer a Patent Troll Troll Troll.

It's all Rumplestiltskin from here.

Re:Does that make this lawyer a

[DragonWriter]

It would be nice to see this force reasonable patent reform.

It would be nice to see magic pixies appear beside my desk handing me gold coins, too.

Slightly more probable than this particular suit forcing reasonable patent reform, too.

Don't care about suing people

[LiquidCoooled]

I don't care about suing people or companies, what I care about is the ambulance chacing all these friggin' vampire lawyers do.

Without lawyers I am quite certain the world be a better place.

(Before anyone starts, yes I know there are good decent lawyers who do their jobs really well who practice criminal law, not this corporate bullshit)

Re:Don't care about suing people

[orclevegam]

Without lawyers I am quite certain the world be a better place. (Before anyone starts, yes I know there are good decent lawyers who do their jobs really well who practice criminal law, not this corporate bullshit)

This is semi-offtopic at this point, but here's a good start, ban lawyers from holding political office. 90% of the problems we have with lawyers stem from the fact that almost all politicians started as lawyers, and so it's impossible to pass any laws that have a negative impact on the income of lawyers, and laws pass all the time that improve the income of lawyers.

Re:Don't care about suing people

[scooterjohnson]

Ban lawyers from holding political office?? Of course! It makes perfect sense to stop those who spend years studying law from actually making laws. That would be like outlawing doctors from doing medical research. I for one like the idea that most of the people creating and managing our laws are people who are actually certified to do so.

Re:Don't care about suing people

[drinkypoo]

I for one like the idea that most of the people creating and managing our laws are people who are actually certified to do so.

What we should really do is outlaw all campaign contributions and all gifts to elected representatives.

Re:Don't care about suing people

[Kickersny.com]

What we should really do is outlaw all campaign contributions and all gifts to elected representatives.

And who do you think will be passing these laws? Unfortunately, I doubt there is a single politician willing to even suggest this law, let alone get it passed.

Re:Don't care about suing people

[nebaz]

The difference between law and medicine is that medicine is a discipline of discovery. Law is that of human creation. Lawyers can shape laws for their own benefit, whereas doctors could only discover what actually exists. Being a lawyer only makes you familiar with the current state of law. There is no absolute requirement that
laws be written the way they are. Harder to change the realities of science.

Re:Don't care about suing people

[bhmit1]

Considering they are supposed to be writing the laws, I don't know how wise it is to have people that don't understand the law in that position. It's like banning economist from holding a position at the federal reserve.

What would help is to end the special interest influence. Law firms are huge donors to political groups. Make it so that people are the only ones able to donate, and put a cap on how much they can donate per year. No golf trips, no vacations, no planes, etc. Make politicians go back to being public servants as a position of honor and service instead of greed and power. Sadly, this will never happen as long as politicians make their own rules, political parties maintain their status quo, and people are afraid of wasting votes on independents.

Re:Don't care about suing people

[Anonymous Coward]

Well, you have a strong argument, given what a good job politicians have done so far!

Re:Don't care about suing people

[orclevegam]

It makes perfect sense to stop those who spend years studying law from actually making laws.

The problem is you have a conflict of interest. The lawyers make their money by exploiting loopholes in the legal system, so it's in their best interest to keep those loopholes in place. You don't have to be a lawyer to study law, but people seem to assume that politicians MUST be lawyers because they know the law. It's the same principle as banning people on a sports team from placing bets on their games, it's a conflict of interest.

Re:Don't care about suing people

[drinkypoo]

And who do you think will be passing these laws? Unfortunately, I doubt there is a single politician willing to even suggest this law, let alone get it passed.

Sure, I agree. Of course, if we were voting with our heads instead of just for the incumbent (who is reelected 95% of the time, at least in congress) then perhaps we would have a better chance at it. Of course, we elect people based on what they look like and how much they spend on their campaign, so it's not going to happen until human nature changes, which is to say, after the rise of skynet.

Re:Don't care about suing people

[DragonWriter]

Of course, if we were voting with our heads instead of just for the incumbent (who is reelected 95% of the time, at least in congress) then perhaps we would have a better chance at it.

Since, generally, the people voting are the same people that voted for the guy 2 years ago, and the opponent is generally of a similar ideology to the opponent from 2 years ago, is it really surprising that, even if people were voting with their heads, the incumbent would be reelected in the vast majority of cases?

Re:Don't care about suing people

[Schemat1c]

Ban lawyers from holding political office?? Of course! It makes perfect sense to stop those who spend years studying law from actually making laws. It makes perfect sense to stop those that spend years learning a language that the average person cannot understand and clog the system with libraries of useless laws meant only to benefit the wealthy.

Re:Don't care about suing people

[Anonymous Coward]

Did you mean "ambulance caching" for efficiency purposes?

Re:Don't care about suing people

[Short Circuit]

So only rich people can run for office?

"My God...it's full of hollywood stars!"

Re:Don't care about suing people

[Short Circuit]

Without lawyers I am quite certain the world be a better place. The pilot episode of ST:TNG presented one idea of what that would be like. I'm rather inclined to think they're right.

"There will be no legal trickery!"

In fact, if you banned the practice of civil law, things would be much, much worse. Laws like the DMCA would be used by everyone and their brother. Lawsuits alleging libel and slander would erupt from schoolyard fights.

And nobody would be allowed to school themselves in the very laws upon which such lawsuit chaos would erupt. Today, many frivolous lawsuits get recognized and thrown out of court. What happens when the judge is prohibited from learning how to interpret the laws they're supposed to rule on?

Re:Don't care about suing people

[drinkypoo]

is it really surprising that, even if people were voting with their heads, the incumbent would be reelected in the vast majority of cases?

Polls show both that over 50% of the voting population believes we need a change, yet we reelect the incumbent 95% of the time.

So yes, it is that surprising.

Re:Don't care about suing people

[drinkypoo]

So only rich people can run for office?

Actually I have a more comprehensive program in mind.

Campaign contributions must be made to a general fund which is to be distributed evenly across all those on the ballot. For every dollar spent on one's own campaign, one dollar must be placed into the fund to be distributed to all candidates. Candidates are placed on the ballot based on petition; the n people with the highest number of signatures may be on the ballot.

Also we would be forcing broadcast media to provide some airtime, in equal portions to all candidates who want some, and at equal prices (all the airtime would be in roughly the same slot, and during a time when people are commonly away and near the television.) Part of the idea behind the FCC was that it should be protecting and preserving the airwaves in the public interest, so with a little stretching this is reasonably part of their mandate - it certainly involves less stretching than to believe that they should reasonably be arbiters of taste on the air.

There are other details to be worked out, such as the problems with PACs which are already very real, and of course, the fact that we could never get politicians to go for any of this.

Re:Don't care about suing people

[Trailwalker]

Most legislatures employ lawyers to look over intended laws before they are introduced into the legislative process. These lawyers make sure the wording of the new law states what is intended and is in good legal form.

If one profession, the law, is forbidden to hold elective office, the other two traditional professions should also be barred, i.e., The Clergy and the Military. All three traditional professions have special privileges and obligations in our society.

Re:Don't care about suing people

[DragonWriter]

Polls show both that over 50% of the voting population believes we need a change, yet we reelect the incumbent 95% of the time.

So yes, it is that surprising.

It shouldn't be. There are 535 (voting) members of Congress, 532 of which were not elected by the voter you are questioning. More than 50% believe we need a change, of course. But vastly more of them believe we need a change in the 532 members of Congress that the person be polled didn't have a vote in selecting than in the 3 that they did.

Re:Don't care about suing people

[DragonWriter]

Most legislatures employ lawyers to look over intended laws before they are introduced into the legislative process. These lawyers make sure the wording of the new law states what is intended and is in good legal form.

Most legislatures actually employ (some in the narrow sense, some in a broader sense) several sets of lawyers in this process.

The first is the lawyers employed, on paper, by industry or lobbying groups which actually write the laws that some member of the legislature is convinced to introduced. Then there are lawyers on the staff of individual legislators that review the law and advise the member on it, lawyers on the majority and minority party's staff on each committee that the bill goes through that do analysis, and often lawyers on a nominally nonpartisan legislative counsel office that also do analysis available to members.

Of course, all of that illustrates why stopping lawyers from holding elective office would really not reduce the influence of lawyers in the process, whether for good (understanding the law) or bad (conflict of interest).

If one profession, the law, is forbidden to hold elective office, the other two traditional professions should also be barred, i.e., The Clergy and the Military.

The three traditional "professions" are law, medicine, and the clergy, not law, clergy, and the military.

Re:Don't care about suing people

[loganrapp]

Why? Does it not occur to you that perhaps the change they want isn't in what the opponent is offering?

Most people keep the incumbent because they haven't done anything to screw things up royally. When that happens, you get the 2006 elections.

Just because I want something different than the incumbent doesn't mean I want to deal with the bullshit the opponent's feeding me.

Re:Don't care about suing people

[mOdQuArK!]

Considering they are supposed to be writing the laws, I don't know how wise it is to have people that don't understand the law in that position. It's like banning economist from holding a position at the federal reserve.

That makes knee-jerk sense, but if you step back and look at the problem, it forms a bad feedback loop. Any system of professionals has a culture and jargon which sets them somewhat apart from the general populace. Any documentation that those professionals write will be couched in terms of their own jargon.

In other words, if your laws are written by lawyers, then they will tend to be written FOR lawyers. If you want laws that are meaningful to the general populace, then lawyers might not be your best choice for the people who you want to write the laws.

Re:Don't care about suing people

[larry bagina]

People assume politicians are lawyers because (at the federal level) they are overwhelmingly lawyers.

Re:Don't care about suing people

[maxume]

Many people take the rather cynical view that our current government is a result of the subversion of democracy. I take the somewhat more cynical view that our current government is an example of democracy working fairly well.

Being a little less obtuse, all it takes to counter your problem is to get people to vote in their own interests, something that seems rather difficult to do.

Re:Don't care about suing people

[maxume]

So who can we get to work in the government that doesn't have a conflict of interest?

Florists are out, they would be creating new holidays like mad.

Re:Don't care about suing people

[BillyBlaze]

Heh, let's do it like we do jury duty. Joe Schmoe for President!

Re:Don't care about suing people

[Anonymous Coward]

Unfortunately, lawyers making laws is an inherent conflict of interest. It's in their best interest to make the laws so convoluted that only a lawyer can understand them.

Re:Don't care about suing people

[Anonymous Coward]

Being a lawyer only makes you familiar with the current state of law. There is no absolute requirement that laws be written the way they are.

Are you trying to define chaos? because that's what we will end up with if new laws are written without understanding their effect on the rest of the system.

Law writing is like programming in a way, if you ignore everything around you and write your "own thing" you'll reek havoc on everyone, including yourself and you'll just end up doubling (if not tripling) the very problem you were trying to solve...

Re:Don't care about suing people

[cbacba]

talking about suing patent protection into oblivion, sounds like this shyster found a new way.

Patents are a two way street. They reveal to the world the secrets or details involved in a device for the priviledge of a limited time minimal monopoly. That minimal monopoly means the owner has theright to sue for redress in court for the infringement. The benefit to society is the information is not lost and becomes available after a few years. The purpose is to eliminate the loss to civilization of information that might otherwise be protected by trade secrets - like the antikythera clockwork mechanism rediscovered in the last century to have contained 'technology' that was lost to the world for over a thousand years prior to its 'rediscovery' over the last few centuries.

Prior art invalidates a patent. Even a signed and dated lab notebook can be used to invalidate someone else's patent. This is not something that would be available to anyone else seeking a patent. When prior art research is used in a patent submission, it's normally to establish what is the new and novel Claims being made concerning this application that warrants receiving a patent.

It's up to the patent office to determine if there are any that would preclude issue. However, it's up to others who can simply ignore the patent and let the patent owner sue them - and then present the prior art as a defense for not violating a valid patent. If the patent owner fails to sue, the value of the patent is worth nothing anyway.

Re:Don't care about suing people

[petermgreen]

the trouble is most people make the choice that they think is best for them assuming that other voters do roughly what they did last time

and that generally means voting for the less bad of the candidates (or parties)who took the two top places last time.

people who think this way will only vote for a third candidate if they think the two leaders are equally bad, most people will think one of the top two is less bad than the other and hence the top two will remain the top two.

OMG I chose the wrong profession...

[RingDev]

"and, indeed, the lawyer who sent it to us said his firm is looking for additional patents to go after in this manner"

Forget IT, go to law school.

1) Help company get patents
2) Profit
3) Help company threaten to sue infringers
4) Profit
5) Defend company against other lawyers representing other patents
6) Profit
7) Sue other companies for bogus patents
8) Profit

Heck, even if the company they represent gets burned and goes under, they still walk away with no penalty. It's like all the financial benefits of inventing something, with out the work or risk!

-Rick

Re:LOL PATENTS RULE LOL

[Zonk (troll)]

Patents are being obtained fraudulently and abused? Wow, what a shock.

Hard to prove

[umStefa]

While successful lawsuits of this type could result in patent reform, since having a weak patent (with clear prior art) could end up costing company's money instead of being used as corporate weapons, an instantanious problem arises.

You need to be able to prove that the company ignored prior art and if a case comes down to two people saying different things the courts will generally find in favor of the defendant.

I can see it now:

Lawyer 1: "You knew about the prior art before you filed for the patent because your secretary told me so!"

Defendant: "No I didn't!"

Judge: "Case dismissed"

In order for this cases to be sucessful, hard evidence needs to found (i.e. an e-mail saying "Lets ignore the prior art"). Otherwise the only ones who will win are the lawyers (as always).

Re:Hard to prove

[Anonymous Coward]

The only problem with what you say is that no knowledge of prior art does not a patent make. IANAL, but I'm pretty sure that it is the job of the person filing a patent to find out if the patent can be valid. If they don't do that, whatever happens is their own stinking problem.

Re:Hard to prove

[Anonymous Coward]

Someone inadvertently missing a piece of prior art may still invalidate the patent, but it would not make for a case of fraud.

Re:Hard to prove

[kebes]

You need to be able to prove that the company ignored prior art

That's part of patent law I've never understood. I've been told by people (who have patents) that it is in their best interest to *NOT* do a patent search before applying for a patent, since that search could be used against them later, to prove willful infringement, which carries a stiffer penalty (I guess) than mere incidental infringement.

But, why the heck is the system run this way? A patent application is supposed to be a legal document. It's not worded this way, but it is basically meant to convey "Under penalty of perjury, I hereby claim that this is a novel invention, that no other before me has invented. I have no knowledge of any prior art in this regard, and I find it highly unlikely that anyone else could have invented something similar, because it is so unique and novel."

Obviously, that's not how patents are viewed today. No one is afraid of submitting a bogus patent. The worst thing that will happen is that it's thrown out. But shouldn't they be treated as binding legal statements? If it is discovered that you claimed something was "novel and patent worthy" and it is later determined to be "obvious and prior implementations were publicly known" then the penalty should be that for perjury. After all, you filed a legal document with the government where you made some very strong claims, and it turned out that you were very much wrong.

A great amount of patent nonsense could be eliminated if they were treated like the binding legal documents that they are. No other legal document gives so much power with zero accountability the way a patent does. Imagine if an assayer certified that there was oil in a certain area. So a company buys the land in question, and discovers there is no oil. Would it be reasonable for the assayer to say: "Sorry there isn't any oil there--I actually didn't check myself, so you can't hold me accountable." Where is the liability for misrepresentation in weak patents?

Re:Hard to prove

[geekoid]

Those people are wrong.

They take a great risk if they wait to find out later there patent is invalid.

Now, I don't pay for a search, I do it myself. Still risky, but I can claim I did the search.

Re:Hard to prove

[VGPowerlord]

That's part of patent law I've never understood. I've been told by people (who have patents) that it is in their best interest to *NOT* do a patent search before applying for a patent, since that search could be used against them later, to prove willful infringement, which carries a stiffer penalty (I guess) than mere incidental infringement.

I don't know about for patents, but failure to practice due diligence will get you into trouble in other legal circumstances.

Re:Hard to prove

[SydShamino]

At least the way I've been told it works is this:

If you are filing for a patent, you do need to perform searches for prior art. However, you always do so with your company's lawyer present (and maybe even let them work the mouse and give you advice about things on the fly).

No law requires that you explain what you did or said while consulting with your attorney. Thus, you can legally testify that you never searched for the patent, even if you did know about it the whole time. If the truth somehow came out (let's say, because the other side had bugged your office), the record of what you did with your attorney present would be thrown out in any court in the country. You could not even be charged with perjury based on it.

Re:Hard to prove

[1ucius]

In the US at least, you need to give PTO any prior art of which you are aware. However, you are not under any obligation to affirmatively search for art.

That said, there are a good reasons to do a search (e.g., it's expensive to prepare a patent, ensure support for differentiation, avoid doctrine of equivalents limits).

Re:Hard to prove

[1ucius]

That's part of patent law I've never understood. I've been told by people (who have patents) that it is in their best interest to *NOT* do a patent search before applying for a patent, since that search could be used against them later, to prove willful infringement, which carries a stiffer penalty (I guess) than mere incidental infringement. But, why the heck is the system run this way?

They are trying to distinguish between the innocent infringer and the one who says 'I don't care, let them care.'

Obviously, that's not how patents are viewed today. No one is afraid of submitting a bogus patent. The worst thing that will happen is that it's thrown out. But shouldn't they be treated as binding legal statements? If it is discovered that you claimed something was "novel and patent worthy" and it is later determined to be "obvious and prior implementations were publicly known" then the penalty should be that for perjury. After all, you filed a legal document with the government where you made some very strong claims, and it turned out that you were very much wrong.

What is the alternative? The patentability standard is objective - 'not known by anyone, anywhere.' There are real cases where the key document is a master's thesis located in some obscure university. Even if you spent several years searching, you might never stumble across something like that. And if you required that everyone swear the search for prior art for a week, you'd just get lots of people submitting junk (i.e., "I must not have put the magic term into Google . . . "

Re:Hard to prove

[Macadamizer]

That's part of patent law I've never understood. I've been told by people (who have patents) that it is in their best interest to *NOT* do a patent search before applying for a patent, since that search could be used against them later, to prove willful infringement, which carries a stiffer penalty (I guess) than mere incidental infringement.

Other posters have presented a number of reasons why an inventor might not do a search. Here's another one.

If you search for prior art, you are obligated by law to disclose the art that you do find. Now, not all art is created equal, and the law only requires you to disclose "material" art that is not "cumulative." So, let's say you find some art that is maybe relevant to your patent.

What happens if you don't disclose it? Well, if you ever try and enforce your patent, the other side is for sure going to get a hold of all of your notes in discovery, and if they find evidence that you knew about a particular piece of art, and didn't disclose it to the USPTO, then they will try and prove "inequitable conduct" and get the patent declared unenforceable. Now, maybe the art is sketchy, and you will be able to prove up the fact that the ommission was reasonable because the art was either not more material than art already in front of the examiner, or that it was merely cumulative to art that was already in front of the examiner -- but this is something for a jury to decide, maybe not a risk you want to take.

But what happens if you do disclose this art, that may or may not be relevant? Best case, nothing. The examiner ignores it, and it gets noted as a piece of art cited by the applicant. But what could (and sometimes does) happen is that the examiner decides that the art is more relevant than it objectively is, and makes rejections based on this art. If the art is really sketchy, then you should be able to traverse or amend around these objections -- but every time you amend, or traverse a rejection, you are creating a paper trail (prosecution history estoppel) that can be used against you in a later court action to narrow the scope of the patent.

Of course, if the art is good, then yeah, you should have to explain why you are entitled to the patent. The problem is, sometimes examiners, who are overworked and have little time to spend on any particular application, make rejections based on art that are just ridiculous -- and even if you can work your way around the rejections, you have now limited the scope of your patent's claims if you ever end up trying to enforce the patent in court.

So, if you do a search, and you find art that is maybe kosher, maybe not, you end up with a Hobson's choice -- decide not to disclose, and face having to try and overcome an inequitable conduct claim later on, or disclose, and face having your patent scope narrowed during prosecution.

That's a reason why patent attorneys often counsel their clients NOT to do a search. If you haven't looked, you can't be held responsible for knowing about something and not disclosing it.

NOTE: I am not saying that this is the best way to do things, just that, under the current system, this is why an attorney might advise a client not to search. Also, it's not like relevant art that was not disclosed, and not found by the examiner, can't be used to invalidate a patent during litigation -- a defendant in a patent litigation suit has far more resources, and far more incentive, to scour the globe to find real, honest-to-goodness invalidating art...

Re:Hard to prove

[Watson Ladd]

You should *at least* research common, similar, technology. It's not about being perfect, it's about being reasonably honest. To make things short: When our reason tells us something is unreasonable to expect, it is.

bout time, now if only

[LOTHAR, of the Hill]

Someone would sue the patent office, charging negligence. Maybe get an injunction against them from issuing any patents until they can issue them properly.

now that's an amusing thought.

Yeah, it's a beautiful racket.

[Mahjub Sa'aden]

I have patented several products and have a patent pending (in manufacturing, not in software, so please no-one try to dissolve me in acid) for products and techniques I think are at least fairly innovative. That said, it's no use blaming the lawyers for the state of affair in the US and Canada. The fact that they're needed at every step of the process -- truly and absolutely needed -- is a testament not to lawyers greed but to legislative bloat.

Now, you can argue that lawyers and lawmakers form a recursive loop, but I'll leave that for people smarter than I.

Re:Yeah, it's a beautiful racket.

[mazarin5]

George Washington once held an opponent's wife's hand... in a jar of acid... at a party.

Re:Yeah, it's a beautiful racket.

[nanosquid]

is a testament not to lawyers greed but to legislative bloat.

You are aware that the majority of legislators are, in fact, lawyers?

Re:Yeah, it's a beautiful racket.

[TheRealMindChild]

int main(int argc, char **argv)
{
/*Some code goes here*/
BuyoffLawmakers();
/*Some more code goes here*/
return 0;
}

bool BuyoffLaymakers()
{
/*Some code goes here*/
HireLawyers();
/*Some code goes here*/
return true;
}

bool HireLawyers()
{
/*Some code goes here*/
BuyoffLawmakers();
/*Some more code goes here*/
return true;
}

So I prototyped the situation above, and all I get is "Out of stack space" :(

Class action?

[Volante3192]

I'm curious how this could be a class-action suit. I thought that's when a huge group of people band together to fight a company. This looks like Blockbuster v. Netflix.

Re:Class action?

[DragonWriter]

I'm curious how this could be a class-action suit.

Probably because the lawyer filing the case is going to claim a wide range of potential victims constituting a valid "class" through the antitrust allegations.

I thought that's when a huge group of people band together to fight a company.

No, when people band together, you get a big direct action suit with lots of plaintiffs (like the one depicted in Erin Brockovich). A class action suit is when a lawyer and a small number of plaintiffs allege the existence of a vast number of victims that are similarly situated, and seek to claim the right to represent all of them.

This looks like Blockbuster v. Netflix.

Its related to the patent issues in Blockbuster v. Netflix, but separate.

How would you fix the patent office?

[Mahjub Sa'aden]

I hear a lot of moaning and bitching about the patent office. I can see where it comes from, as the laws they operate under are pretty broken, all told. But seriously, how would you fix the patent office? These are people that have to deal with patents on subjects they might not even have a tenuous grasp on, much less fully understand. And not just a few patents, lots and lots of them.

The question remains: how would you fix the patent office?

Re:How would you fix the patent office?

[Tofystedeth]

Well, they generally have something like an idea of what they are doing. At least they are supposed to. They hire people as patent examiners who have degrees in science, like CS, engineering, physics, and experience in manufacturing, and business where it applies. The problem is they have a huge backlog of patents waiting for confirmation; something on the order of 270k expected to increase to 300k next year. It's no wonder that a lot of times things get overlooked by the examiners, not forgetting the oft poorly written and documented patent applications. The patent office is hiring around a thousand new patent examiners every year. Pretty good money too. All info gotten from an NPR interview with some guy in the administration side of the patent office yesterday on All Things Considered.

Re:How would you fix the patent office?

[CyberLord Seven]

#1. Completely eliminate software patents. This would free up examiners for real work.

#2. Test all remaining examiners for competence in the fields they will be examining. Promotion for higher levels would require more stringent testing. Ask if any of the State colleges would be willing to assist in the development of an internet testing and grading process for such use. Select colleges based on the competence of their graduates.

#3. ???? #4 Profit!

Re: How would you fix the patent office?

[Mahjub Sa'aden]

So I imagine then that you would want the number of patent examiners increased even further, or the criteria for rejection broadened?

Re:How would you fix the patent office?

[compro01]

These are people that have to deal with patents on subjects they might not even have a tenuous grasp on, much less fully understand.

have you seen the qualifications you need to get a job of that type?

Re: How would you fix the patent office?

[Tofystedeth]

Yeah, I guess I never actually gave any kind of opinion or commentary there. Those are both good things to have happen. Another that would help is to have patent submitters write clear and easy to prove/disprove patents (or quite filing frivolous patents) thus making the job of the existing examiners easier. I know that isn't improving the patent office itself, but a guy can dream can't he?

Re: How would you fix the patent office?

[Mahjub Sa'aden]

America is made of dreams, or something :)

One thing I've always wondered is how bad a patent has to be before patent examiners reject it out of hand. Something tells me that if the rules were tightened on just plain bad submissions, a bunch of patents would be tossed in the trash. And maybe the patent office would make some money on the submissions and re-submissions... so a win for everybody?

Re:How would you fix the patent office?

[eric76]

how would you fix the patent office?

Change the way patents are granted and prosecuted.

1) Make the bar of being granted a patent much higher. The applicant should have to demonstrate significant effort to make the invention. It should take far more effort to invent something than to patent the results.

2) For each patent, give adequate notice to the public to give them a chance to protest the patent. Hold as many hearings as necessary before the patent is granted.

3) Require a demonstration of the patent if there is any doubt over whether or not the applicant has ever actually built one.

4) Make patents non-exclusive. Any inventor should be able to use, sell, and market his own inventions, even if someone invented the same thing first. If he went to substantial effort to invent the item with no knowledge of products containing the same invention or of the patent, either permit him his own patent or add him to the previously existing patent. Reserve licensing of the patent to other parties for the first inventor only.

5) Before a patent lawsuit may be initiated, require the patentee to notify the infringer and give him adequate notice of his patents and ample opportunity to stop using the invention. Enable the infringer the ability to request a hearing over the question of whether or not the patent was rightfully granted.

6) Permit the patent owner to recover damages only from willing infringers. That would be someone who either knew about the patent before using it or who continued to use it more than a year after being given notice of his infringement.

7) Base the damages awarded on the greater value of the invention to the patent owner and to the infringer. That is, if the patent owner and the infringer is only making minor use of the patent internally, than the patent is not worth much and damages would be minimal. If one of them is actively selling devices for which the patent is a major portion of the device, then the value of the patent would be greater.

8) Require the patentee to actually use the patent in order to recover damages.

Re:How would you fix the patent office?

[Mahjub Sa'aden]

Yes. I have a cousin who is a patent officer in Canada (and we have some stimulating discussions on patent-related subjects when we see eachother), which I imagine is at least somewhat similar to being a patent examiner in the US. I also have a close friend who is a patent lawyer, though we don't talk about that stuff much because it bums out all our other friends.

But still, there are so many things being patented, in such esoteric fields, that even smart people with training in related fields or tangential field or whatever don't have the technical knowledge to grasp the subject at hand, or -- and this is pretty important -- don't have a way to access the information that would give them a better grasp of it.

I mean, you're probably not a dumb guy, but imagine yourself presented with a sheaf of materials that you only vaguely know about from college five years ago. It's written in technical language that, even though broken down as much as it can be, is still pretty arcane. How are you going to judge if that patent application represents something truly innovative, something truly worth granting a patent for?

We can all say, "Well, they should know," but that's much harder said than done. Another problem is that the people truly qualified to judge the patent's worthiness are often very expensive people. While the patent office may pay a lot of money to their examiners, they still don't, as far as I am aware, pay as well as private industry.

Re:How would you fix the patent office?

[Dog-Cow]

Actually, your numbers are off. The backlog is 700k+ now and expected to reach 800k by next year. This is according to an interview I heard on NPR the other day.

Re:How would you fix the patent office?

[Intron]

The reason they have the huge backlog is because they approve so many patents. The reason that they approve so many patents is that they get fees for maintenance on patents that they approve, but only filing fees for patents that they reject. Also, if they reject a patent the filer can file objections, so its more work to reject than accept.

Maybe if they stopped granting patents on discoveries (like genes), ideas (like software and business processes), or obvious stuff (like XOR) and just granted them on real inventions, then there would not be a huge backlog.

Re:How would you fix the patent office?

[intangible]

Easy, 5 steps.

1. Make a public system for reviewing patents for prior art alongside the examiners process.
2. Don't grant patents on ideas, business-methods, pre-existing systems (like a potato, the human genome), and software (already covered by copyright).
3. Make it easier to invalidate patents.
4. Only allow one re-file for a patent (and have time-limits on the process).
5. (Optional) Require a prototype before granting patent.

Present any argument why my solution wouldn't work.

Re:How would you fix the patent office?

[AK Marc]

But seriously, how would you fix the patent office? These are people that have to deal with patents on subjects they might not even have a tenuous grasp on, much less fully understand.

You asked and answered your own question. Get some subject matter experts in there. Give them only patents dealing with their specialty or of general scope. Then every patent requiring technical knowledge will be handled by an expert. Problem solved.

Re:How would you fix the patent office?

[Mahjub Sa'aden]

I don't really have any arguments, as I think you points are fairly insightful (had I any mod points and had I not, you know, started this thread, I'd donate some to your most laudable cause). That said,

1. Could you develop this further? How would you incentivise the public -- or more likely, corporations -- to do the legwork on this? Do you see people being interested simply because they don't want a patent to be granted?
2. I like this. Although I disagree somewhat in that I can see cases where things covered by copyright would also deserve to be patented.
3. Absolutely.
4. Why? The patent office makes money every time they invalidate a patent and it is re-filed. It's not really in the patent office or the patenter's best interest to do this, I think.
5. Could work, but could also be infeasible in a lot of cases that I can think of.

Re:How would you fix the patent office?

[Mahjub Sa'aden]

I like #8 a lot. It would prevent submarine patents quite well. But also, you could add to it that if a patent is infringed upon, the patenter must protect his patent. Much like trademarks. If you just leave it lying around, well, your loss.

Re:How would you fix the patent office?

[intangible]

1. I do think people would volunteer to do this; Corporations themselves could even hire people to monitor patent applications (put the current patent lawyers to good use). The fact is, there are more and more people and more and more ideas every year, unless we expand the size of the patent office tremendously every year, they'll never be able to devote essential time to reviewing each patent thoroughly. Getting the public's help is the only option I can see.
2. Perhaps, but this is something that has to be addressed soon, software in particular shouldn't be able to be patented, the field grows too quick.
3. N/A :)
4. The Patent Office isn't supposed to be a business that provides profit, it's supposed to be a public system to provide a service for the good of the people. Most government agencies should not be thought of as businesses, that blurs the line where "good for the people" and "good for the government" is.
5. Right, that one is one I could concede on if presented with some valid arguments...

Re: How would you fix the patent office?

[veganboyjosh]

so a win for everybody?
Except for the broke ass innovative guy with a good idea who's not so much a good communicator.

Re: How would you fix the patent office?

[Mahjub Sa'aden]

Frankly, there are people in the world to help that guy out, even people who are willing to do it free of charge.

Re: How would you fix the patent office?

[Mahjub Sa'aden]

Well, if you can consider that an answer. It's pretty obvious. But how would you go about doing that, exactly? The patent office isn't exactly a deep well of talent into which politicians are willing to simply throw money for the good of the country.

Re:How would you fix the patent office?

[Mahjub Sa'aden]

You know, the more I think about your first bullet point, the more I like it. It's workable, it seems like something that would scale well, and frankly, could you imagine the feedback they'd get if a request for prior art to invalidate a patent was, say, posted on Slashdot?

Although it'd give a whole new meaning to "patent troll". I think I'm going to go rush out and patent "a method to prevent trolling on patent feedback" right now... :)

Re:How would you fix the patent office?

[LOTHAR, of the Hill]

I just come here to complain, not offer solutions. ;)

I don't know enough of the process to know what to fix. However, since you asked.

1. If an examiner doesn't understand the subject matter, subcontract to someone who does.
2. Peer Review required for all patents. Patents are probationary during peer review.
3. Patent fraud should be severely punished. Perhaps cancelling all pending patent applications for any companies found guilty. The companies would then have to resubmit with a new start date.

Re:How would you fix the patent office?

[mOdQuArK!]

I've always liked the idea of putting a relatively low, hard limit on the total number of valid patents. That would make the patent database much easier to search. As various patents expire by age, or by being invalidated through prior art or obviousness judgements, then their "slots" become available to be filled by new patents.

By using some sort of competitive process to compare the patent applications for each slot against each other, you could weed out most of the bad patents. My favorite "competitive process" would be an auction setup - you allow anyone to submit a patent applications for a particular open slot, then you allow everyone else to bid on being able to own the patent rights for any of those applications. The application with the highest bid becomes a valid patent.

The reason I like this setup is because it forces all of the bidders to do "due diligence" on each application, since they will waste a lot of money if they bid a big amount & the patent becomes invalidated for prior art or obviousness reasons.

In addition, if the bid amount is actually given to the submitter of the application, then you have a really big incentive to submit ideas for the "little" inventors who might have a lot of brainpower, but not necessarily the resources to bring their ideas to market. For a really good patent idea, this setup might end up making those inventors much richer than even hitting the lottery. (You have to make sure that the submitter can't pay themselves if they bid on their own application, of course.)

It's also a win for society, since the ideas also end up in the hands of those organizations that DO have the resources to exploit them (instead of being held by someone who might not be able to exploit them properly).

Re:How would you fix the patent office?

[aaarrrgggh]

One approach for creating an incentive for peer review is the (theoretical) value of the information presented in the patent. If someone comes up with a great idea, you have a chance to develop a business around it and pay them license fees.

Re: How would you fix the patent office?

[AK Marc]

The patent office isn't exactly a deep well of talent into which politicians are willing to simply throw money for the good of the country.

I don't understand. It's like you know the fix, but are asking for people to tell you the fix. Then, when the fix is pointed out, you explain that it isn't likely to happen. Well, if it were likely to happen, it should have already happened. I do not think it will ever be fixed. But the fix is straightforward (even if not exactly cheap and quick).

I guess it's so obvious that it is confusing. Like the answer to world peace: everyone stops killing people. It's correct, but too simple for people to actually follow.

Re:How would you fix the patent office?

[eggbert.net]

1) I agree - it should be harder to get a patent. It will drive the quality of patents up and make patents more valueable for those that get them.

2) They do give adequate notice. Search google for "USPTO Public Pair". Anyone can submit relevant art on any pending application.

3) You do not need to build the thing being patented. You can - but the patent application itself is a constructive reduction to practice and that is the way it should be. If an inventor can tell someone how to build a rocketship that can transport people to pluto in a weeks time but does not have the factory to make it - then by disclosing to the world the information so that someone with the means to produce the thing can make and practice the invention is valuable even though the inventor did not himself build the rocket ship.

4) If I buy your house without knowing that you own it should I be able to live in it too? I promise I wont sell it to someone else but you can - Ill just keep living there - sorry for the impact it will have on the value of your house.

5) Any lawyer in his right mind would do this - easier to settle out of court.

6) Go back to my comment on (3). I did not willingly buy your house knowing you lived there - so you would have no remedy against me.

7) Back to my comment on (3) but it is your vacation cabin - you don't use it much and I live there or am homeless - your damages should be reduced or eliminated. If the patented invention is only a small part of the device - then there should be alternatives that would be sufficient to replace the small part of the device to avoid paying licensing fees.

8) Can the patentee use the patent by licensing it? I think that is a fair use, go back to my rocket ship example. The inventor disclosed his brilliant ideas to the world so that it could become a reality even though he could not do it himself. For being a website full of scientists and engineers everyone seems to want to f**k themselves out of the ability to innovate on their own. I am sure many of you are capable of generating great and patentable subject matter that would improve the world - yet the general opinion seems to be that patents are evil and all of the suggested proposals promote policies that favor the large corporations that many of us work for. Most scientists and engineers work at companies that get all of the IP they produce in exchange for $50-$150 grand a year while the shareholders and management get the majority of the revenue genrated. I think it is great when a scientist or engineer can go off on their own, invent something and patent it, and then get what is rightfully theirs.

Scientists and engineers get too little respect in this country and patents are one tool that they can use to gain a posture of power in a system that oppresses them under management that often does not know what is going on, downsizing, and outsourcing.

Re:How would you fix the patent office?

[BillyBlaze]

Limiting the discussion to software patents, here's how I'd fix the USPTO:

First, I'd increase the amount of detail required in software patents. Basically you'd need an actual implementation, in source or binary form. There would be a corresponding increase in the similarity required for an act of patent infringement. Only very limited, fair use of the patent would be allowed.

To address the problem of independent inventions of the same thing, I'd limit the definition patent infringement to instances where the implementation itself was copied, almost verbatim, though even a small amount of copying would be infringement. This would also make it very difficult to unknowingly infringe, and thus feasible to protect yourself legally.

To make the patent system more accessible to small players (and cut costs), I'd reduce the filing fees and simplify the process. I'd automate the examination process, so that all patents were granted by default. And I would grant patents to everyone, as soon as they fixed their implementation into durable media. Actually filing for patent protection would only be necessary to bring suit.

I'd change the term of patents to 14 years. Hopefully I could prevent Congress from later retroactively expanding the term to 28 years, inventor's life + 50 years, inventor's life + 70 years, etc. Maybe a more strict interpretation of "limited times" should apply.

Finally, I'd change the name of software patents to something that more closely reflects the exclusive right they grant. Something like "copy-ability" or "duplicate-right".

Re:How would you fix the patent office?

[Macadamizer]

1) Make the bar of being granted a patent much higher. The applicant should have to demonstrate significant effort to make the invention. It should take far more effort to invent something than to patent the results.

But what if you have something easy to make, but very, very innovative? And how do you determine how much effort went in to the innovation? I'm not saying this is an unworkable idea, just that there has to be more than this -- the patent system is designed to reward innovation, not just hard work.

2) For each patent, give adequate notice to the public to give them a chance to protest the patent. Hold as many hearings as necessary before the patent is granted.

Something along that line is coming if the patent reform act passes and gets signed into law.

3) Require a demonstration of the patent if there is any doubt over whether or not the applicant has ever actually built one.

This is a tricky piece, in my opinion. The patent system is designed to reward innovation, like I noted above, not hard work. You could come up with an innovative idea that might be very, very hard to implement, and might take years, or decades, to actually implement. If we wait until you actually build it, it could be a long time -- whereas granting the patent on the innovation puts the knowledge into the public domain so that others can build upon it.

Like 1) above, it's hard to separate out the innovation from the hard work.

4) Make patents non-exclusive. Any inventor should be able to use, sell, and market his own inventions, even if someone invented the same thing first. If he went to substantial effort to invent the item with no knowledge of products containing the same invention or of the patent, either permit him his own patent or add him to the previously existing patent. Reserve licensing of the patent to other parties for the first inventor only.

Kinda defeats the purpose of a patent. This is what copyright law is for -- you can protect against copying, but not independent discovery. But that's also why it is far, far easier to obtain a copyright than a patent, because the scope of protection is far more limited. If you are going to make patents non-exclusive, then the patent process should be made very, very easy. It makes no sense to have a tough approval process for a patent that has no real ability to be enforced in any meaningful way.

5) Before a patent lawsuit may be initiated, require the patentee to notify the infringer and give him adequate notice of his patents and ample opportunity to stop using the invention. Enable the infringer the ability to request a hearing over the question of whether or not the patent was rightfully granted.

This is already the de facto rule -- the damages clock doesn't start ticking until the alleged infringer is put on notice by the patent holder that they might be infringing. If you file suit, and the alleged infringer stops his activities immediately, there are no damages to collect.

The only exception is marking -- if you sell a product, and you mark the product with your patent number, then you get a presumption of notice.

Of course, there is always the injunction, which doesn't require starting the damages clock -- but injunctions are much harder to get these days than they used to be.

6) Permit the patent owner to recover damages only from willing infringers. That would be someone who either knew about the patent before using it or who continued to use it more than a year after being given notice of his infringement.

See above -- you can only collect damages once the alleged infringer has been put on notice, or if you mark your products to make it known that you have obtained a patent (and, presumably, intend to enforce it).

Why should there be a year grace period?

7) Base the damages awarded on the greater value of the invention to the patent owner and to the infringer. That is, if the patent owner and the i

Re:How would you fix the patent office?

[Macadamizer]

By using some sort of competitive process to compare the patent applications for each slot against each other, you could weed out most of the bad patents. My favorite "competitive process" would be an auction setup - you allow anyone to submit a patent applications for a particular open slot, then you allow everyone else to bid on being able to own the patent rights for any of those applications. The application with the highest bid becomes a valid patent.

I assume that you mean "becomes a valid patent" after going through prosection, right? The problem becomes that the patent application, even if it got the highest bid, might not be all that great if, during prosecution, it had to be amended to the point where it became very limited in scope. Or worse, didn't issue at all because of prior art. What then?

If you hold the auction after prosecution, well, who is going to go through the time and expense if they only have one chance in 5, or 10, or 1000, or getting the patent issued, even after going though all of the prosecution hurdles.

Finally, as has been noted in other posts at other times, the value of a patent is not always apparent at the time the patent is filed.

Re:How would you fix the patent office?

[eric76]

4) If I buy your house without knowing that you own it should I be able to live in it too? I promise I wont sell it to someone else but you can - Ill just keep living there - sorry for the impact it will have on the value of your house.

A far more appropriate analogy would be to you buuilding a house in California and me building pretty much the same identical house in Florida with neither of us having any idea what the other was up to.

Re:How would you fix the patent office?

[thomas.galvin]

We can all say, "Well, they should know," but that's much harder said than done.

They claim to know. They claim to test for reasonableness and obviousness. That means it's their problem, not ours. Saying "it's hard" is a cop out.

Re:How would you fix the patent office?

[mOdQuArK!]

That's all part of the due diligence that each bidder has to apply to choosing their bid amounts. Somebody who wants ownership of the patent has to be darn sure that they'll get their money's worth after the auction is over & they've got ownership of the patent. Figuring out the narrowness of a claim, or whether a patent will be overturned due to prior art or obviousness is part of that valuation process - and with the auction, you get that due diligence performed without having to depend on overworked patent examiners. Given enough participants with enough information, auctions are pretty good at assigning financial values.

As far as those auction bidders who don't use good due diligence in determining the value of a patent? Well, financial stupidity is also known to be a part of a "real" marketplace. At least a rich moron who pays too much to achieve ownership of a worthless patent is much less likely to be completely destitute after the dust settles.

One detail I haven't figured out is if the application submitter also wants to bid for the patent ownership (i.e., get the patent for themselves). You obviously can't let them pay themselves, so I'm trying to figure out how to deal with that money in a way that causes a good feedback loop (maybe the money goes toward applied R&D for public use?).

Re:How would you fix the patent office?

[Macadamizer]

Given enough participants with enough information, auctions are pretty good at assigning financial values.

I don't disagree. The problem is, the market for each particular patent is probably pretty narrow, so it's not clear to me, at least, that any particular patent will have enough interested parties willing to do enough due dilligence to make such an effort worthwhile.

That's all part of the due diligence that each bidder has to apply to choosing their bid amounts. Somebody who wants ownership of the patent has to be darn sure that they'll get their money's worth after the auction is over & they've got ownership of the patent. Figuring out the narrowness of a claim, or whether a patent will be overturned due to prior art or obviousness is part of that valuation process - and with the auction, you get that due diligence performed without having to depend on overworked patent examiners.

How? Prior art is only one facet of patentability -- there's also the whole disclosure issue, whether the "best mode" is disclosed, whether the claims are fully enabled by the specification, etc. Obviousness of a patent, or whether or not it is anticipated, is only part of the question -- and it just doesn't seem likely that the marketplace is really in the position to do that level of due diligence.

Further, determine whether or not a particular claim has prior art requires not just finding art, but construing the claim language to get the proper scope of the claim -- only then is the prior art really relevant. Maybe I am naive, but I just can't see a lot of people really getting into this enough to make it worthwhile.

Probably a better way to keep "obvious" inventions from being patented would be to start building a database of prior art that is readily searchable, and has a way to access (either directly, or at least tells you a location to look) the original documents. Or original knowledge, even. Combine that with the soon-to-be-in-some-form (assuming the patent reform act passes) public review period, and that should solve the worst of the abuses in the system.

I just can't see enough people willing to spend enough time and energy to do the due dilligence to make the auction system work. It's a clever idea, but I just don't think it usually possible to know with any level of confidence what the scope, or value, of any particular patent might be -- and this would be a real problem for drub patents and a lot of biotech patents, which rely on clinical trials and FDA approval before you can make a dime on a patent -- I'm not sure any amount of due diligence can determine with ANY level of confidence the value of a drug or biotech patent before the clinical trials are underway.

Re:How would you fix the patent office?

[Anonymous Coward]

Since when were patents written in technical language? If only they were, that would at least justify the idea that patents disseminate technical information that would otherwise be kept as a trade secret. But the fact is that the technical descriptions are shrouded in layers of patent law jargon, and obfuscated with the explicit aim of trying to cover as many implementation techniques as possible.

Re:How would you fix the patent office?

[asninn]

But still, there are so many things being patented, in such esoteric fields, that even smart people with training in related fields or tangential field or whatever don't have the technical knowledge to grasp the subject at hand, or -- and this is pretty important -- don't have a way to access the information that would give them a better grasp of it.

Then the application should be forwarded to a different examiner, and if it turns out that noone can assess it, then I'm sorry, but the patent shouldn't be granted at all.

Re:How would you fix the patent office?

[DustyShadow]

#5 would pretty much prevent the "little guy" inventor from ever getting patents. It takes a lot of money to make a prototype and corporations are generally the only ones who are able to do it.

Re:How would you fix the patent office?

[eric76]

You do not need to build the thing being patented. You can - but the patent application itself is a constructive reduction to practice and that is the way it should be. If an inventor can tell someone how to build a rocketship that can transport people to pluto in a weeks time but does not have the factory to make it - then by disclosing to the world the information so that someone with the means to produce the thing can make and practice the invention is valuable even though the inventor did not himself build the rocket ship.

I belive that at one time, a working model was required.

In any event, if it has not been built, it is not an invention, but a conjecture. In many cases, I suspect it is a kook who is gratifying his inward desires to be an "inventor" and not something of any consequence.

The problem is that permitting inventions that have not been built encourage submarine patents. The applicant attempts to patent something that has not been built with the intention of drawing out the process so that he can add claims in the future to cover other people's work.

The result is that permitting inventions that have not been built accomplish nothing in the best cases and may seriously hamper innovation in the worst cases.

Another problem is determining whether or not the patent is really "enabling". Whenever there is a question about whether or not it is "enabling", why not hire a person "skilled in the art" who has no ties to the applicant to build the invention from the patent application. Of course, the costs involved would be paid by the applicant?

Besides determing whether or not the patent was "enabling", it would also cut back on inventions that have never been built. As we all know, or should know, making something completely new work properly can be very difficult. If an inventor can patent something without actually building it, how do you know that the patent is really "enabling"? Because the inventor said so? Make the inventor/applicant put up or shut up.

No patent should ever be granted for something that has not been built.

Re:How would you fix the patent office?

[eric76]

the patent system is designed to reward innovation, not just hard work.

In my experience, true innovation always requires hard work. A "brilliant idea" is just the start, not the end.

You could come up with an innovative idea that might be very, very hard to implement, and might take years, or decades, to actually implement.

Of course, if it took decades, the patent would be moot except, maybe, for historical purposes.

If it will take years or decades to build the invention based on what is in the patent, is the patent even "enabling"? Could you say that based on what is in the patent, a person of ordinary skill in the subject area could build the device?

If you can't build it based on what is in the patent, then the patent should never be granted.

Re:How would you fix the patent office?

[mOdQuArK!]

How? Prior art is only one facet of patentability -- there's also the whole disclosure issue, whether the "best mode" is disclosed, whether the claims are fully enabled by the specification, etc. Obviousness of a patent, or whether or not it is anticipated, is only part of the question -- and it just doesn't seem likely that the marketplace is really in the position to do that level of due diligence.

Well, the due diligence in question wouldn't be any more difficult than what companies normally have to do to challenge a patent in the Patent Office or the courts, so I don't think it would be any big deal for the usual companies with patents who have deep pockets. If they can't find an easy reason to kill a potential patent, then they can be reasonably sure that someone else won't either, which would make that potential patent more valuable. There's always the risk that they're wrong, but that's just part of business.

Probably a better way to keep "obvious" inventions from being patented would be to start building a database of prior art that is readily searchable, and has a way to access (either directly, or at least tells you a location to look) the original documents. Or original knowledge, even. Combine that with the soon-to-be-in-some-form (assuming the patent reform act passes) public review period, and that should solve the worst of the abuses in the system.

We've already a got a massive database like that - the database of patents itself - and it has already been demonstrated numerous times that the availability of such a system does very little to prevent the granting of bad patents.

but I just don't think it usually possible to know with any level of confidence what the scope, or value, of any particular patent might be -- and this would be a real problem for drub patents and a lot of biotech patents, which rely on clinical trials and FDA approval before you can make a dime on a patent -- I'm not sure any amount of due diligence can determine with ANY level of confidence the value of a drug or biotech patent before the clinical trials are underway.

Just about _any_ kind of business investment has risk associated with it, but businesspeople keep on investing anyway. I think you might be overestimating the risk involved with valuing a patent, and underestimating the amount the effort that some people will put forth to have a chance at getting a good business opportunity.

Re:How would you fix the patent office?

[Macadamizer]

Well, the due diligence in question wouldn't be any more difficult than what companies normally have to do to challenge a patent in the Patent Office or the courts, so I don't think it would be any big deal for the usual companies with patents who have deep pockets. If they can't find an easy reason to kill a potential patent, then they can be reasonably sure that someone else won't either, which would make that potential patent more valuable. There's always the risk that they're wrong, but that's just part of business.

I guess the main problem is that this just concentrates patents into the companies with deep pockets. You are right, this probably wouldn't be any more expensive than challenging a patent is now anyway -- but now, you only have to spend that kind of cash challenging patents when a lawsuit arises. With your proposal, you would need to spend that kind of cash any time that you wanted to patent a technology you developed. Right now, you can obtain a patent for $10,000 (or less), but companies will spend a million dollars or more to challenge a patent in a lawsuit -- there is just no parity between those two numbers.

And a number that high to obtain a patent just means that only companies with that kind of money can obtain patents.

We've already a got a massive database like that - the database of patents itself - and it has already been demonstrated numerous times that the availability of such a system does very little to prevent the granting of bad patents.

Well, yes and no. Sure, if you are patenting a new type of gear, or new type of fastener, the current patent database is more than sufficient to check for relevant prior art.

But in very fast-moving technologies, where a lot of technical papers are written, the use of the patent office database can create a "lag" where lnwon technologies are not reflected (yet) in the database at a time an application is moving through the process, which can result in patents being issued on "obvious" improvements, which is one of the biggest gripes around here. Having a database which is more current and "cutting edge" might reduce that problem.

Especially if we move to a first-to-file system instead of the current first-to-invent system.

This issue is particularly relevant with respect to software patents. Part of the reason (a big part) that a lot of "obvious" ideas in the software field were patented (and are being patented) is because software patents are a relatively recent idea, and there isn't a huge database of software patents to check for prior art. The patent examiners would use their database, find no art, and issue -- even though such an idea was well known in the field. Once the software part of the patent database is fully populated (like it is for other fields, particularly mechanical inventions), then you will see few outlier patents that appear, on their face, "obvious." But until the time comes, we need a better database to pull art from.

Just about _any_ kind of business investment has risk associated with it, but businesspeople keep on investing anyway. I think you might be overestimating the risk involved with valuing a patent, and underestimating the amount the effort that some people will put forth to have a chance at getting a good business opportunity.

I agree -- but not all risk is equally risky, or equally expensive.

You are right, for "commodity" patents, it's really not a big deal to value them. But for a true "pioneer" patent, and for a lot of drug patents, it can be very difficult to value them. For a pioneer patent, you may not know when, or even if, a market will develop for the technology. For drug patents, like a alluded to earlier, just getting the drug created and patented is just one hurdle -- you still have to go through years of clinical trials to get a drug approved, and the approval (or even efficacy) of a drug is never guaranteed.

Does that mean nobody invests in these things? No, of course not. But spending a

Just one wish.

[ushering05401]

That this is a sign of things to come.

Netflix needs to get nailed on this

[jandrese]

Even as a person who has used Netflix for years now and absolutely love their service, I can say that if this is true they should be nailed to the wall over it. This is the sort of Patent System BS that must not be allowed to stand if we are to maintain our technology superiority as a country.

It's said that no great idea ever comes out of nowhere. All of the greats stood of the shoulders of giants. However, if people get it into their head to abuse the patent system like this, then there will be no shoulders to stand on and in the end no great achievements.

Re:Netflix needs to get nailed on this

[plierhead]

Even as a person who has used Netflix for years now and absolutely love their service, I can say that if this is true they should be nailed to the wall over it. This is the sort of Patent System BS that must not be allowed to stand if we are to maintain our technology superiority as a country.

yeah, except that if NetFlix hadn't done what they did, they might have been taken down themselves by someone else doing exactly the same thing - to them.

The patent system is a nuclear standoff. Everyone would be better served if they didn't exist - but they do. Sticking your head in the sand and saying "I'm not going there, thats evil" just means you're not playing the game - the sure way to lose.

Netflix will end up paying out a small amount of money, the lawyers will keep most of it, and then the standoff will resume again for a while.

IANAL

[Kelz]

But it seems to me these lawyers have to prove that Netflix "knew something" about the prior art.

So unless they can subpeona some emails from WAY back when they got the patents talking about something like that, all Netflix has to do is claim ignorance.

Re:IANAL

[DragonWriter]

But it seems to me these lawyers have to prove that Netflix "knew something" about the prior art.

So unless they can subpeona some emails from WAY back when they got the patents talking about something like that, all Netflix has to do is claim ignorance.

Sure, direct evidence would be nice, but circumstantial evidence works to. And, in a civil case, the standard of proof is "preponderance of the evidence" (that is, the jury must merely be conviced that it is more likely than not that the charge is true), not the "beyond a reasonable doubt" standard of criminal. Its quite possible to establish, to that standard, that someone "knew" something without producing a document in which they admit to knowing it.

Re:IANAL

[Todd Knarr]

Actually it's "knew or should reasonably have known". That second part is the kicker. When applying for a patent an applicant's required by law to do certain due-diligence research (including the prior-art search) first and include the results in the application. If a reasonable person doing the research required by law would've discovered the prior art, then whether Netflix actually knew about it doesn't matter.

Or that's the theory, anyway. In practice you get into extended argument about what's reasonable, and things go downhill from there.

Re:IANAL

[Anonymous Coward]

From the complaint: Despite the startling breadth of its claims, the '450 Patent Application made no reference to any prior art. Conversely, the '381 Patent Application listed over 100 references to prior art.

So they knew about 100 references to prior art for one patent, but they didn't know about any for another, closely related patent?

More from the complaint: Despite acknowledging that it knew of the NCR Patents, that it had an apprehension that NCR would actually sue Netflix for infringing the NCR Patents, Netflix failed to disclose the NCR Patents to the Patent Office.

It's going to be pretty hard to argue igonrance on this one...

Re:IANAL

[onemorechip]

You are right on both points. But I'm having a hard time imagining what sort of circumstantial evidence might exist in a case like this. In a criminal case, it might be something like "witnesses saw suspect walking away from the scene of the crime with what appeared to be blood stains on his clothing". In this case, what? "Netflix employee was spotted at library"?

It's kind of interesting; patent attorneys at corporations often tell the engineers not to do patent searches on their own. If the company subsequently infringes a patent, and the designers are found to have potentially known about it, damages can triple. The possibility of a case like this creates a double bind. If there is prior art, is it better to know, or to avoid any appearance of the possibility of knowing?

Re:IANAL

[Anonymous Coward]

Actually it's "knew or should reasonably have known". That second part is the kicker.

No. actually it's "disclose to the Office all information known to that individual to be material to patentability". There is no second, 'reasonableness' standard.

Invalidating a patent on the grounds alleged in this suit is a much higher hurdle than you suggest, as the standard for the duty of disclosure is that "no patent will be granted on an application in connection with which fraud on the Office was practiced or attempted or the duty of disclosure was violated through bad faith or intentional misconduct". In other words, the plantiff must show that not only did the patentee know about the prior art, but also that the patentee intentionally withheld it from the Patent Office (or acted in some other fraudulent manner). Additionally, the prior art must be "material" to patentability (i.e., the patent examiner would have rejected the claim(s) had the missing prior art been submitted). In sum, the plaintiff must prove both "materiality" and "intent".

When applying for a patent an applicant's required by law to do certain due-diligence research (including the prior-art search) first and include the results in the application.

The patent applicant is not "required by law" to perform any due diligence research concerning the prior art. However, if the patent applicant has performed a prior art search, he must then disclose any findings that are "material" to patentability in order to comply with the law.

And yes, IAAPA.

Re:IANAL

[Macadamizer]

Proving fraud on the patent office to the point where you can get a patent declared unenforceable requires a showing of "clear and convincing" evidence, which is a higher standard than preponderance of the evidence, but a lower standard than "beyond a reasonable doubt."

Also, to show "inequitable conduct," you have to show two things. First, that the art is both "material to patentability" and "not cumulative." In other words, if the "prior art" in this case is either less pertinent than the art that was cited, or is merely cumulative (think "me too!"), then the art is not material prior art for the purposes of inequitable conduct.

Second, it's not enough to show that they knew about the art -- you have to prove that they deliberately failed to disclose the art with the intent to deceive the patent office. Now, this doesn't have to be an admission from the witness -- you can prove this through circumstantial evidence -- but if the patent applicant can prove that the resonably believed that they didn't need to disclose the art -- because they had a good faith and reasonable belief that the art was not material, or merely cumulative -- then that can defeat any claims of inequitable conduct.

Re:IANAL

[Macadamizer]

This is a better explaination than mine:

http://yro.slashdot.org/comments.pl?sid=235267&thr eshold=0&commentsort=0&mode=thread&pid=19184649#19 185733

Who's in the class?

[jfengel]

I can see Blockbuster suing them, or some other company whom Netflix threatened. But I can't imagine that there are enough of those companies to form a "class".

The article is pretty vague on exactly what the evidence is. The actual lawsuit is more informative, but harder to read.

The class (as I finally figured out on page 17 of the lawsuit) is Netflix customers, of whom Dennis Dilbeck is the representative sample. They're suing based on the idea that Netflix's prices are higher than they should be, because competition by Blockbuster should have brought prices down. I just can't see a judge buying it; these people all paid for Netflix's service at the asking price voluntarily.

From what I've read so far, I'm just not buying their claim. They are citing one patent in particular, which is about delivery of resources based on people making requests on a computer, but that's considerably different from Netflix's rental queue.

(I'm assuming that patents are not a completely stupid idea. Please, if you're in the "all patents are inherently evil" category, can you just assume that I agree with you and go preach to the choir in some other thread?)

I don't consider Netflix's idea at all obvious. I thought it was pretty neat when I came up with it: the idea of a rental service which doesn't have a due date is pretty cool and I'd never heard of it.

I know we hate patents, but I hate idiot class-action lawsuits even more. I've been involved in dozens of them; I literally throw them away unopened when they arrive in the mail. The lawyers always make money and I always get a coupon for 30 cents off my next bag of Chex Mix.

Sometimes, I'm even suing myself. Some of those lawsuits were shareholders suing the company. Well, I'm still a shareholder, so I'm suing myself.

All the lawyers need to find is one fool member of the class to make a claim, and the company will often settle rather than fight. It's free money for class-action lawyers.

Re:Who's in the class?

[Anonymous Coward]

I just can't see a judge buying it; these people all paid for Netflix's service at the asking price voluntarily.

You miss the point. That the customers signed up "voluntarily" is not the issue, it's that had Netflix not been engaged in their anti-competitive behaviour, then the prices that were paid _could_ have been lower. The reason customers signed up was that there was no alternative but to sign up with Netflix to receive that type of service. Kind of like the case where people voluntarily purchased PC's with Windows pre-installed, they didn't do it because they liked paying the "Windows tax", for the most part they simply had no choice.

Re:Who's in the class?

[Anonymous McCartneyf]

Okay. You are suggesting that it's not worth suing to learn whether Netflix holds this patent legitimately (as in "no prior art") because Netflix isn't actually using what it has patented?
I myself am not against class action lawsuits absolutely. In this case, if Netflix loses, we get rid of a pesky patent.
So, if the patented method could be useful for anyone else in Internet DVD rental, then if this patent is (especially) illegitimate, Netflix not using the method makes things worse.

Re:Who's in the class?

[DragonWriter]

You are suggesting that it's not worth suing to learn whether Netflix holds this patent legitimately (as in "no prior art") because Netflix isn't actually using what it has patented?

A class action suit isn't going to find that out. It is going to end up either (a) dismissed, or (b) with a settlement in which Netflix will not admit wrongdoing but will give a pile of money to the lawyers and some token discount or payout to the class members.

Its more likely that Blockbuster v. Netflix will actually end up with a resolution of the validity of Netflix's patents, since the patent is both key to Netflix's business model and such a substantial barrier to Blockbuster that there is a good incentive for both sides to push the issue.

Re:Who's in the class?

[onemorechip]

Might be hard to show actual damages if that's the argument. Haven't prices stayed the same since Blockbuster entered the online rental business?

Re:Who's in the class?

[Anonymous Coward]

I hate the idea of class action lawsuits.

I find the notion disturbing that a lawyer can represent a client whom he has never met.

And it seems so often that there is a lame settlement, where the lawyers get paid, and the class gets a free sample of the product that they are suing over.

If I hated a company/product enough to sue over it, why would I want a free/discounted sample of that product? It's ridiculous.

Re:Who's in the class?

[aztektum]

What they should do is stop using Netflix and sign up for Blockbuster. Then Netflix wouldn't be able to afford the attorney's to sue Blockbuster because they would go out of business.

Well,

[romland]

this comes as no surprise to any big corporation, I think. There's a reason why, at Microsoft (for instance), you are told to *not* investigate whether something is patented or not. Just do it. That way, should it go to court, they can honestly claim that they had no idea about prior art and thus be in line with law.

Slightly ironic. :)

A useful precedent.

[Actually, I do RTFA]

I wonder if every linux user/developer will join in a similar case against M$ and it's 235 patents. Hey, at least that way we could find out what they were!

Non including prior art?

[HaeMaker]

What company HASN'T done this?

This isn't fraud, this is standard operating procedure.

Re:Non including prior art?

[Pop69]

This isn't fraud, this is standard operating procedure.

Just because everybody does it doesn't mean it isn't fraud.

Re:Non including prior art?

[asninn]

That's a false dichotomy: the fact that something is fraud doesn't rule out that it's SOP, and the fact that something's SOP doesn't rule out that it's fraud. It's perfectly possible for actions to be fraudulent to be SOP at the same time.

-1, Threadjack

[Anonymous Coward]

that is all

wha?

[Anonymous Coward]

What the hell does Fradulently mean? Is it anything like Fraudulently?

Or, more realistically...

[Mahjub Sa'aden]

Instead of invalidating software patents, we could shorten their term to a reasonable period (two or three years generally ensures obsolescence for most software products), and drastically expand the criteria against which a particular software patent is judged invalid. Would that not be at least a workable compromise?

Re:Or, more realistically...

[Qzukk]

Would that not be at least a workable compromise?

It would be a reasonable thing to do, and doing reasonable things seems to be anathema to most governments.

Re:Or, more realistically...

[Anonymous Coward]

It would be a reasonable thing to do, and doing reasonable things seems to be anathema to most people.

There, I fixed your typo.

Re:Or, more realistically...

[Mahjub Sa'aden]

Most governments and most people, it would seem.

Maybe the problem is that lawmakers simply don't understand that software is not an analog to the real world. They don't understand that it moves faster, and that software development often simply doesn't have to bear the cost of traditional inventions and innovations. Not to say that there aren't software products or implementations worthy of patenting, but rather to say that patents in a software world are simply different.

Or maybe, just maybe, non-technical people are so used to being explained things in terms of analogy they tend to lose sight of the fact that simply because an analogy is the most useful or expedient method of explaining a concept the concept itself isn't bound by the realities an analogy might suggest.

Re:Or, more realistically...

[plover]

Maybe the problem is that lawmakers simply don't understand that software is not an analog to the real world. [...] Or maybe, just maybe, non-technical people are so used to being explained things in terms of analogy they tend to lose sight of the fact that simply because an analogy is the most useful or expedient method of explaining a concept the concept itself isn't bound by the realities an analogy might suggest.

So if I understand you correctly, software patents should be treated like soft wax sculptures that don't last very long, but hardware patents are more like durable cast iron hammers. That means we can melt software patents into candles, using them for lighting and ending the energy crisis, while we can use hardware patents to pound legal textbooks into pulpwood to burn for heat, ending the energy crisis. Both end up solving the energy crisis, so shouldn't we treat them the same?

:-)

Re:Or, more realistically...

[PsychosisC]

Instead of invalidating software patents, we could shorten their term to a reasonable period (two or three years generally ensures obsolescence for most software products), and drastically expand the criteria against which a particular software patent is judged invalid. Would that not be at least a workable compromise?

That is simply absurd. Two or three years seems like a reasonable period a junk patent, but this is terribly unfair for meaningful discoveries which arguably justify a patent, like RSA.

Hypothetically, let us say that a researcher independently discovered a new algorithm which performed discrete Fourier transformations 2x faster than anything we have today. The commercial and societal value of this discovery is pretty huge. Two or three years of exclusivity couldn't do justice to the impact of this huge discovery.

(No, I am not endorsing patents on algorithms. RSA shouldn't have been patentable. It's just shortened patent periods is not a reasonable compromise, and far from 'Insightful')

Re:Or, more realistically...

[rubycodez]

two or three years of exclusivity versus a thousand years of widespread use? better yet, zero years of exclusivity for math (algorithms)

Re:Or, more realistically...

[mackyrae]

One BIG difference is the fact that if you're a loan inventor trying to sell something, it costs you a lot every time you re-make that thing to sell it, until you can sell enough to get bulk pricing on parts. Invent (write) a new piece of software, and it costs virtually nothing to copy infinitely (if they want it on a disk, it costs 50 cents; if they're fine with downloading, free if you find a free web host which isn't hard).

Re:Or, more realistically...

[greenbird]

Hypothetically, let us say that a researcher independently discovered a new algorithm which performed discrete Fourier transformations 2x faster than anything we have today. The commercial and societal value of this discovery is pretty huge. Two or three years of exclusivity couldn't do justice to the impact of this huge discovery.

So what you're saying is math should be patentable. I'm going to patent 2 + 2 = 4. You're a moron.

Re:Or, more realistically...

[kirun]

Read the whole post...

No, I am not endorsing patents on algorithms. RSA shouldn't have been patentable. It's just shortened patent periods is not a reasonable compromise, and far from 'Insightful'

The GP specifically stated they weren't making a case for the patentability of algorithms. Seems you're the one that's a moron.

Wonderful irony

[Colin Smith]

Leeches feeding on leeches.

Isn't that neglagence(sp?)

[Actually, I do RTFA]

IANAL, but...
Isn't there a positive obligation to investigate prior art before filing. Just like you have a positive obligation to keep your walkway free of ice, protect children from attracive nuiscences and pay your taxes?

Wait, I have a car analogy too! If you're driving your car, and you close your eyes and speed through every stop sign, then shouldn't you still be ticketed (AFAIK, not seeing a stop sign is a legitimite, although difficult to prove, defense. But I'm not very sure as I made up the fact for my car analogy as required by Slashdot bylaw 22.45.b)

Re:Isn't that neglagence(sp?)

[onemorechip]

The attorneys and the patent office are supposed to do due diligence when a patent is applied for. The fear is that an engineer, searching for prior art, may uncover a patent that the company is unknowingly infringing. Then the unknowing infringement becomes a willful infringement from that point forward, with a potential treble damage award. Whereas, an attorney might find the same patent but would not know that the company he represents is infringing the patent.

Nobody (that I'm aware of) does a patent search on a new design that they don't intend to patent.

Microsoft claims Netflix' online site violates....

[xtaski]

And in other news, Microsoft claims Netflix' online site violates 237 of its patents on Windows and Office. And still in other news, Amazon.com says Netflix' one button into the queue feature also violates Amazon.com's one click order patent.

Arguing over software patents has become the "in thing"... everybody's doing it. Prior art is so yesterday.

Wow, That's Weak

[MikeyTheK]

That has got to be the weakest attempt to extort money I've ever read. If you read the claims in the complaint, essentially the amblance-chasers are trying to attack Netflix not by invalidating the patents, but by arguing that the patents are invalid and therefore Netflix is guilty of abusing monopoly power given to it (by the existence of patents that the complaint contends are invalid).

That's pretty weeak. Looks like they're going for extortion and to certify a class all in one shot. Amazing. Only in the 9th Circuit could something like this be perpetrated.

Re:Wow, That's Weak

[Anonymous Coward]

>Only in the 9th Circuit could something like this be perpetrated.

Uh, maybe it's in the 9th circuit because this is where the action is in the techy world.

Re:Wow, That's Weak

[PopeRatzo]

Only in the 9th Circuit could something like this be perpetrated.

Excuse me, Biff, but you've got to start getting your opinions from somewhere besides Right-Wing Radio. I'm surprised you didn't show what a Rush Baby you are by calling it the "Ninth Circus".

Americans should thank God that there are still some judges on the Bench who refer to the Law and the Constitution instead of Scripture when developing opinions. There is a certain type of corporate nimrod who believes that there's nothing more important than the steady growth of profits. Strange how those steady profits almost always seem to flow upward, avoiding completely the people who actually work for a living. And chances are this "MikeyTheK" isn't even a player who's benefiting from owning stock or is getting a taste of corporate profits. For some, it's enough to polish the plums for the rich and powerful in the hope that they might get thrown a pit. These desperate lickspittles cheer on the bosses and authoritarians praying that they'll get a job using a cattle prod on the workers, but in the end, they too are cut up for chum. Just ask Scooter Libby.

Now it's Friday night, so let me finish my vodka/cranberry juice in peace and save your pro-corporate barking for your masters, 'cause they might pat you on the head. I certainly won't.

Re:Please find Madeleine

[Anonymous Coward]

I don't think goatse man needs my help.

Shows How Broken the Patent System Is

[Anonymous Coward]

Part of the purported advantage of the patent system is to give companies in a market a chance to break into the market despite the existence of established (probably larger) companies. Without protecting the new company's innovative products from rapid duplication by established competitors the barrier to market entry would be huge.

Yet clearly Netflix is the smaller company in the video rental market. Thanks to their patented innovation they successfully broke into this market. Only now they are being sued be the established company (Blockhuckster) in an anticompetitive bid to retake the bits of the market it lost (thanks to shitty pricing and lack of innovation IMHO).

This clearly demonstrates that the patent system is not serving its purpose here. And given the additional problems it creates, it seems the patent system only creates problems and does not solve any.

Re:Please find Madeleine

[Hatta]

But did they ever find Waldo?

Re:Please find Madeleine

[celardore]

I found Waldo. Again, and again, and again. I hear most the neighbourhood "found" him as well. What a dork, who goes to the beach in a hat and sweater anyways. He deserved it.

identifying prior art

[snooo53]

The problem with these types of prior art is that you have to prove that it is obvious how a person who is skilled in the art could implement ALL the aspects of the invention that Amazon or whomever is claiming. Yeah, the idea of "one-click to buy" is pretty basic, but the steps they lay out in their claims are more involved:

A method of placing an order for an item comprising: under control of a client system, displaying information identifying the item; and in response to only a single action being performed, sending a request to order the item along with an identifier of a purchaser of the item to a server system; under control of a single-action ordering component of the server system, receiving the request; retrieving additional information previously stored for the purchaser identified by the identifier in the received request; and generating an order to purchase the requested item for the purchaser identified by the identifier in the received request using the retrieved additional information; and fulfilling the generated order to complete purchase of the item whereby the item is ordered without using a shopping cart ordering model.

The way you described the game doesn't teach how to do the client-server part of the claims and proving that it's obvious an engineer skilled in the art could just throw together a system like that from seeing what you descibed is a LOT harder.

A good example: say I invent a warp drive or a phaser or what have you. The fact that it's been shown on Star Trek for the last 40 years doesn't count as prior art because from watching the show it's not obvious how to construct one. But if I tried to patent say a LCARS-style layout of buttons, then you might have a good argument for unpatentability since those layouts are shown all the time.

Re:identifying prior art

[nexuspal]

"The way you described the game doesn't teach how to do the client-server part of the claims and proving that it's obvious an engineer skilled in the art could just throw together a system like that from seeing what you descibed is a LOT harder. "
A LOT harder to code? You're talking about a cookie that is created soon after login with a unique identifier which is used to identify the person when they click on the button (then the server side code that places the order and sends out a confirmation email). I could whip up a one click ordering system in a day... Hardly novel by any standard, and much easier than you think...

Re:identifying prior art

[GooberToo]

A method of placing an order for an item comprising: under control of a client system, displaying information identifying the item; and in response to only a single action being performed, sending a request to order the item along with an identifier of a purchaser of the item to a server system; under control of a single-action ordering component of the server system, receiving the request; retrieving additional information previously stored for the purchaser identified by the identifier in the received request; and generating an order to purchase the requested item for the purchaser identified by the identifier in the received request using the retrieved additional information; and fulfilling the generated order to complete purchase of the item whereby the item is ordered without using a shopping cart ordering model.

It's called cookies. The fact that they could implement it without a custom browser proves prior art. After all, this exact type of transaction (remote key allows for local association of customer's data; server's perspective) was the inspiration for cookies. In other words, the prior art is anyone that ever wrote a web page that used cookies. Everything else from that point is obvious.

Re:identifying prior art

[snooo53]

I meant a lot harder to prove in court. What I'm getting at is that to be able to point to the video game and call it prior art the video game has to demonstrate a server receiving the request, using it to process the order etc... I doubt they would show that sort of information in a video game. Maybe you could say, ok, it is implied that those things happen behind the scenes. But once you get into ambiguities like that you run into trouble, at least as far as proving it in court, since it requires more of a leap than if the video game had shown all those steps.

You're not completely out of luck...you could still use it as one of many examples to be combined as prior art, but proving that each of your prior art references logically go together like pieces in a puzzle, and that they each anticipate that they can be combined, and cover every single word in the claim language is the sticky part.

Re:identifying prior art

[snooo53]

It's easy to say "look! prior art", but what I'm getting at is to prove it in court it takes a lot more of an argument, since the video game example doesn't specifically show combining all those aspects together.

So essentially you have the uphill battle of showing me as a judge or jury something that proves that the idea of a single click to order something has been published before, all the aspects of the client-server communication have been published before, and that those documents have hinted that they could be combined. Essentially you have to show it should be unpatentable because it has been anticipated these could be combined to make a one click ordering system. Take a look at 35 USC 102 (the best kind of reference) vs. 35 USC 103 (a lot harder to prove in court)

I think it's awesome that people are interested in finding prior art for patents like this... But you have to be careful when doing so that you can demonstrate every single phrase in the claim language of the patent you're trying to kill is covered in your references. In the case of the video game, since it presumably doesn't show all the intermediary steps, you have to demonstrate quite a bit more to be able to use it effectively as prior art, and there are probably better examples out there... it's just a matter of finding them.

Re:identifying prior art

[BillyBlaze]

Well the patent doesn't tell you how to do the client-server part either. All it says is that client and server code is needed (duh), and that if you actually do figure out how to write it, you're SOL, because the government granted Amazon a monopoly on it.

In other words, in practice, software patents really only protect the obvious part. Any idiot could look at one-click shopping and think, "I bet the browser is displaying it, and sending a request to the server with an identifier, etc." In contrast to physical objects, for software, the block diagram is self-evident, but useless, because the hard part is what's inside the boxes. You don't disclose the hard part in software patents.

I'd be far less opposed to software patents if they required a working implementation, as source code, that would be made public. Then they would actually succeed at their goal of bringing the knowledge out into the open, and they would automatically become less broad. Of course in that case they would be just like copyright, but with a requirement for public release and government storage of source code, so we ought to just ditch them in favor of copyright. Or we could take a shortcut, and instead of reforming software patents, abolish them, leaving copyright in force.

Re:identifying prior art

[BillyBlaze]

Yes, showing that something is prior art is difficult and expensive. Which is a huge problem: There's no incentive for the inventor to find prior art, as it would limit his patent. There's no incentive for the USPTO to find prior art, as it makes them less "productive" (fewer patents / dollar). Which means that the burden of proof is on every programmer. We all must be able to prove in court at any time that any of the probably thousands of patents we unknowingly violate are invalid due to prior art. Do we really want to give U.S. programmers such a heavy burden? If this keeps up, we'll need more insurance than doctors.

Re:identifying prior art

[snooo53]

The cost of fighting a "bad" patent is an issue. Searching for arguable prior art takes time and typically $$, fighting a court battle takes $$$$$, and the alternative reexam typically ends up producing a stronger patent. And you are definitely right in that the USPTO really has no incentive to spend the time necessary to do a thorough job, since a questionable patent that anyone actually cared about will probably get taken to court anyway...why waste their money and time when someone else will?

I would however argue that there is an incentive for the inventor to search for prior art to make their patent more solid in a potential court battle (since it's not terribly hard to find prior art for a lot of patents), but it is also true that the more general the claims, the easier it will be to accuse someone of infringement... definitely a balancing act there. I suppose that's why a lot of companies tell their employees not to worry about the legal issues, just invent the product. But it is definitely harder to be a one-man operation and have the money/time/expertise/willingness to stand up to a large patent holder accusing them of infringment.

Re:identifying prior art

[snooo53]

That's a very good point! At what layer of abstraction does it start (or stop) being obvious to a "person skilled in the art"? So they are essentially saying writing the code to implement the client or server part is obvious, but what isn't obvious is putting them together to make a one-click system.

Although I might agree with you about any idiot being able to reverse engineer it, the USPTO has to deal with the 20/20 hindsight problem...there's a lot of novel ideas out there that make perfect sense in retrospect. So unless there is some sort of proof that it's been thought of before, what else can they do but grant it?

As far as having a working implementation, you've essentially identified the problem of 'patent trolls' who patent the idea but don't actually do anything with it other than sell it. But the argument there is that well, some things take time to create and market, and that's essentially why there's a patent system; to give the small guy a chance to create his or her idea and sell it without fear of a larger company with more resources outmaneuvering them in the market.

Re:identifying prior art

[Ciggy]

So re-instate the demand for a working model that the Patent Office used to require. If "people" want software patents, then the "device" is software and so a software implementation (including source code) should be provided as a working model which would then be available for anyone querying the patent to view.

The "storage" for software patent working models won't be the problem that the storage of a [physical] working model requires (which caused the cessation of said need) as I'm sure a modern Hard disk could store many software patent source codes.

Creating working models with software is probably much easier than with physical inventions, therefore I can see no reason not to demand a working implementation.

Try voting in Canada.

[Mahjub Sa'aden]

While you Americans may vote in incumbents a lot (for whatever reason), don't be too quick to want what we have in Canada, where people rarely vote for anyone, instead opting to vote against them. Neither extreme leads, I think, to particularly informed voting.

Re:Try voting in Canada.

[Anonymous Coward]

Voting against candidates is a long-running tradition in the US as well.

Re:Try voting in Canada.

[stinerman]

We tend to vote against people here as well.

As far as Canada goes, at least you have 4 parties at the national level. I'd be happy as a clam if we had anything approaching the NDP here in the states. In your terms, we have a battle between the Conservative Party (Democrats) and the Christian Heritage Party (Republicans).

And yes, I'm aware that the Democrats are not conservatives. I'm just aware that the Canadian Conservative party is about as liberal as mainstream Democrats.

Re:Does that make this lawyer...

[Biff Stu]

Only if he patents his legal strategy.

YES!

[Mahjub Sa'aden]

So if I understand you correctly, software patents should be treated like soft wax sculptures that don't last very long, but hardware patents are more like durable cast iron hammers. That means we can melt software patents into candles, using them for lighting and ending the energy crisis, while we can use hardware patents to pound legal textbooks into pulpwood to burn for heat, ending the energy crisis. Both end up solving the energy crisis, so shouldn't we treat them the same?

Have you considered running for Congress? Because you are ready to make laws!

Article has no concept of antitrust law

[hellfire]

However, if that patent is obtained fraudulently, then I can see a pretty compelling claim that you've abused antitrust law.

I continue to be amazed at how technology people are so astonishly bad with understanding Anti-trust law.

Patents grant you a type of monopoly over the technology you are using, but they do not automatically grant you a monopoly over the marketspace you are in. Therefore you are not in violation of anti-trust laws if you lose a patent. You simply lose the ability to sue someone if they come along and copy your technology. How can you be abusing power you no longer have?

Is netflix in hot water over abusing patent laws? You betcha, but anti-trust laws are not their problem.

Re:Article has no concept of antitrust law

[BillyBlaze]

Those patents which wholly define the market that you're in do in fact grant a monopoly over the entire market you're in. If I got a patent on "a method for offsetting the cost of bread manufacture, by locating a plurality of interested humans, conveying the bread to the aforementioned humans, receiving from each in return a token or tokens of generally recognized value, and entreating the owners of bread manufacturing equipment and supplies and bread manufacturing laborers to transfer their ownership to, or perform their labor on behalf of, some legally recognized entity in return for pluralities of the aforementioned tokens." then I would have a de jure monopoly on bread manufacture. The same applies if I get a patent for online video rental. And in the case of Netflix, they probably have a de facto monopoly as well.

MOD PARENT UP

[cronius]

(No, I am not endorsing patents on algorithms. RSA shouldn't have been patentable. It's just shortened patent periods is not a reasonable compromise, and far from 'Insightful') I agree completely. Programming is math, and patenting math is meaningless and definitely does not help the progression of science. Saying that patent laws should be rewritten as a "compromise" does not make the original idea of software patents any better.

Re:MOD PARENT UP

[Rakishi]

Programming is math, and patenting math is meaningless and definitely does not help the progression of science.

What isn't math then? I can describe almost anything as a set of formulas, even complex machines are just self-computing "programs" made out of physical material.

Re:MOD PARENT UP

[Anonymous Coward]

Much better to have a period of exclusivity than to have a breakthrough not be published/disclosed and have it lost - take a look at some of the solutions that come fifty or more years after a problem has been posed, if it is to the advantage of the solver to not publish the solution, we risk losing the results for likely another 25-50 years and even then could re-lose the results. My understanding is that some of the metallurgical techniques from ancient times are still not matched today, we don't want a similar, though smaller scale dark age to occur because we have incentivized holding results and algorithms closely (in the mind of the creator and deliberately undocumented source code that could be lost to hard drive crashes).

Re:MOD PARENT UP

[cronius]

That's a fair point, and it makes you wonder why patents exist at all. Personally I'd like to see patents disappear all together, I can't really see how celebrating those who do things out of greed is supposed to be good for society. The argument is that "if it weren't for patents, people wouldn't invest so much time and energy into science, and thus the progression of science would hurt." So they're saying that no one is willing to take a risc if they're not guaranteed to get their investment back? Yeah right, doing R&D never guarantees that anyway, so that's a pretty poor argument. What's left is people that will only put out the effort if they have a chance of getting rich in return, these are the people society is putting its money on. I think science would progress faster if no one we're allowed to use a spesific implementation exclusively. With e.g. copyright you're still allowed to write and publish the same text as your neighbour as long you can prove you didn't *copy* that specific text (ie no prior knowledge of your neighbours text). With patents, you simply own the implementation, final. Copyright, trademarks, trade secrets, fine. Patents? Can't see it helping.

Re:MOD PARENT UP

[cronius]

Times have changed, we live in the information age now. I can't see how sitting on a specific idea is going to be the best use of it for the solver. If I get a great idea for e.g. a new product, I can contact a mayor international corporation and have them mass produce my product and sell it all over the world (if it's that good). Hardly the situation in ancient times, were the best option was to not tell anyone your secrets in order to create a small local monopoly for your services (which you alone performed).

I agree that the original incentive for patents was noble, but they simply do not fit into todays fast moving society. Well it does if you want to maximize profits for an indivdual or (more likely) some big corporation. But if the goal is the progression of science, the idea of patents are, pardon the pun, "ancient."

Re:MOD PARENT UP

[GreyPoopon]

I'm sorry, but you have very very little understanding of human nature.

I can't really see how celebrating those who do things out of greed is supposed to be good for society.

The bulk of society is motivated by "what they can get" out of something. Even those who would claim that what they are doing is for spiritual reasons are motivated by the expectation that they'll get something in return in the afterlife. Hoping people will do things out of good for the society is what communism is all about. Unfortunately, the last few decades of experimentation in communism have made it clear that those who would govern society in this manner are motived entire by... you guess it... greed.

The argument is that "if it weren't for patents, people wouldn't invest so much time and energy into science, and thus the progression of science would hurt." So they're saying that no one is willing to take a risc if they're not guaranteed to get their investment back? Yeah right, doing R&D never guarantees that anyway, so that's a pretty poor argument.

R&D costs money and time. There's no way to get around that. The hope is not that each and every R&D project will return a profit. It's that if you have 10 R&D projects, maybe 9 of them will lose money and 1 of them will be a huge winner. It's a very strong argument.

What's left is people that will only put out the effort if they have a chance of getting rich in return, these are the people society is putting its money on.

Yes, that's exactly right. These are the individuals most motivated to not only come up with the ideas, but find a way to bring them to market.

I think science would progress faster if no one we're allowed to use a spesific implementation exclusively.

Ah, now here's something. This touches on part of the patent problem. If patents were by definition more narrowly focused, it would do a great job of curbing the tendency to use some obscure barely even related patent to beat your competitor into submission. Add to that severe restrictions on what is actually patentable and reasonable expiration times and you have a workable system.

Re:MOD PARENT UP

[cronius]

The bulk of society is motivated by "what they can get" out of something. Even those who would claim that what they are doing is for spiritual reasons are motivated by the expectation that they'll get something in return in the afterlife. Hoping people will do things out of good for the society is what communism is all about. Unfortunately, the last few decades of experimentation in communism have made it clear that those who would govern society in this manner are motived entire by... you guess it... greed. Well I wasn't trying to defend communism, guess my point of view didn't come out well.

What I meant to say was that if people/corporations would be allowed to "steal" from each other (meaning patents weren't there to protect you), that would lead to greater progression of science and technology than with patent protection.

I'm not saying money should not be a factor of motivation for people, by all means. I'm just saying that we don't need the patent system, or more specifically: Science doesn't need the patent system. Not only does it not need it, it would be better off without it.

R&D costs money and time. There's no way to get around that. The hope is not that each and every R&D project will return a profit. It's that if you have 10 R&D projects, maybe 9 of them will lose money and 1 of them will be a huge winner. It's a very strong argument. Yes, but you don't need patents for something to be a huge winner. You don't need patents to make a huge profit from a breakthrough. You do need patents if you wan't to create a monopoly and maximize your profits, but if that's all patents bring to the table, I really can't see the point. Corporations are still eager to innovate, profits are profits. They just don't get the monopoly they do now.

What bugs me about patents is the difference from copyright law: With copyright law two people can accidentally own the copyright on two identical creative works, as long as they are created independently of each other (meaning they didn't copy off each other), and as long as they can actually prove they didn't copy off each other. With patents, you are simply granted a monopoly, final. Doesn't matter if someone came up with the same thing without copying off your work, the monopoly is there, end of story. I just can't see what that is supposed to be good for.

Its the inventor who must be unaware of prior art

[MarriedGeek]

I've filed several patents, so I can speak knowledgeable here. The company is not the primary person in the patent application, it is merely the assignee of the patent rights. It is the inventor(s) who must swear that they were not aware of infringing prior art.

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[account_deleted]

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Thank you.

[Anonymous McCartneyf]

Thanks for clarifying, and for reminding me of certain facts.
I'd like to believe that a "class" could actually win a class-action lawsuit. You'd think that, after "people who bought Sony CDs vs. Sony & its rootkits," I'd know better.
And a patent that the holder is using is better, or less bad, than a patent that's just being sat on.

MS anyone?

[Garabito]

Netflix then used these fraudulently obtained patents to scare others out of the market, in violation of antitrust law

Which is exactly what Microsoft is doing with their 'Open Source Software infringes our (most bogus) patents' FUD. And MSFT has already been found guilty of abusing its monopoly. I really hope Netflix to lose this lawsuit in order to make a precedent, so MS shall be more careful of using their patents to keep its monopoly status.

Eureka!

[jadin]

I wonder if they'd issue me a patent for a new patent system.

I think this is too cheesy to be funny. Funny like the current patent system! I'm here all week.

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[account_deleted]

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A typo

[Anonymous Coward]

Please, s/Fradulently/Fraudulently/
 
// Artem S. Tashkinov

Netflix Customer Standards are Poo Too

[AUDIOMIND]

From it being impossible to locate a customer service contact, to extremely poor customer service, to endless formed responses to perpetual problems, to mismanaged ques, to throttling ques, to fraudulently shipping movies days after they've received previous ones, to consistently shifting blame from themselves to USPS because of S/H problems ON THEIR END.......there should be a class action against their extremely poor customer service and deceptive practices.

It's been done once, but obviously they haven't learned their lesson.