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A New Species of Patent Troll
Geoffrey.landis writes "According to the Wall Street Journal, there's a new species of patent troll out there. These new trolls sue companies that sell products with an expired patent number on them. That's right, it's against the law to sell a product that's marked with an expired patent number. The potential fine? $500. Per violation. And some of the companies have patent numbers on old plastic molds that have made literally billions of copies. Using whistle-blower laws, 'anyone can file a claim on behalf of the government, and plaintiffs must split any fine award evenly with it.' You've been warned."
Who's the troll?
The company that invented the product, got their rightful patent, but their patent rights expired as they should, and is still using old packaging/molds/etc. that display the patent number and are now falsely claiming protection they don't have...
OR...
The lawyer who finds out about this violation of the law, and gets a finder's fee of $250 per product in violation distributed, and raises $250 per product in money for the government who definitely could use some help collecting this fine.
False patent claims can FUD a business away... but we also hate most lawyers here. Editors, please define which side to hate in all arguments. We /. commentators will crash if you execute Story.Comment without the required argument variable "$side".
Why is this a problem? So what if the patent is expired, it still EXISTS. In fact, the patent numbers are helpful because it leads you right to the source that tells you whether its expired or not, and indirectly, how long you have to wait before you can cash in by making a cheap knockoff.
Yep... sell 2 million items with an incorrect patent and you're $1,000,000,000 in debt. Wonder if somebody could catch the business doing that?
their patent rights expired as they should, and is still using old packaging/molds/etc. that display the patent number and are now falsely claiming protection they don't have...
Most of these companies are undoubtedly committing these violations unknowingly, but GP does have a point that the law exists for a reason: otherwise people could go on falsely claiming patent protection indefinitely. Don't why the gov't has to split the money with random third parties, though, that's just asking for abuse.
Dislike the Electoral College? Lobby your state to join the National Popular Vote Interstate Compact.
They should simply pay $250 one time. Quickly you would see these "well intentioned" lawyers disappear.
I wonder if the wording was changed. "This product is protected by patents ######### until they expire"
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They should simply pay $250 one time. Quickly you would see these "well intentioned" lawyers disappear.
That sort of fine means nothing to someone who makes MILLIONS of packages for their products and it may well lead to then knowingly using old patent information to both ward off other potential competitors - and in the worst case, pay a one off $250 fine. The whole concept of the $250 PER OFFENCE (meaning per item showing the false patent information) was to ensure that once it expired, you did no longer actually use it - opening the avenue for competition.
These "well intentioned" lawyers as you so callously put it are in fact doing what the patent offices/government should be doing to encourage diverse competition.
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You could start by reading the Summary where it clearly states that the Troll is the company suing the holder of the expired patent.
We know who's suing whom. The question is whether it's fair to call the plaintiffs "trolls" when what they're doing is nothing like the type of behavior that usually gets called "patent trolling." GPP seems to believe, and I agree, that it's not trolling at all, but in fact providing a useful service to help prevent abuse of the patent system.
The correlation between ignorance of statistics and using "correlation is not causation" as an argument is close to 1.
Bullshit.
/seriously/ interested in a product would simply look at it and give up. The company would certainly look up the patent to try to "get around it" and see that it had expired.
If a company was really interested in making a product, they'd check the relevant patent numbers online (which is pretty easy to do) and see that they had expired. No company that is
Stop making up scenarios that make no sense.
Taxation is legalized theft, no more, no less.
That's cool... I think i'm going to go to a few stores and see if I can find any products made by BP that have ancient expired patent numbers stamped on them.
If an expired patent is stamped on a gas pump that pertains to a patent on the fuel formulation, does that count as a separate violation for every gallon of fuel sold? (Evil Grin)
Stop making up scenarios that make no sense.
I am making a simplistic scenario.
/. are frothing at the mouth when companies use false DMCA takedown notices but apparently have no such anger directed at other companies using false patent information, we even defend them because of the "evil lawyers"?.
Why is it that we here at
Hypocrisy. You can't have your cake and eat it with this argument.
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Why not make a label saying the patent number and the expiration date of said patent? Then there is no misinformation, all of the benefits of patent marking, and no need to remake molds. Everybody wins
This is my signature. There are many like it, but this one is mine.
Stop making up scenarios that make no sense.
Why is it that we here at /. are frothing at the mouth when companies use false DMCA takedown notices but apparently have no such anger directed at other companies using false patent information
Because the first causes real damage in practice, whereas the second causes none.
Nobody cares about a company's lying if it causes no actual harm.
We live, as we dream -- alone....
This is a silly question.
An IP troll is someone who leverages the power of IP law as a means to turn a profit. IP laws are intended to protect creativity in Arts and foster ingenuity in Science and Engineering. The ideal is to protect and nurture those who seek the betterment of all Humanity through the enrichment of our culture or expansion of our knowledge. Anyone who profits from patents and copyrights solely as a consequence of the laws that back the IP and not because of their own creativity and ingenuity of the creation itself is a parasitic troll engaging in abuse of tort.
The road to tyranny has always been paved with claims of necessity.
Not greedy, lazy. Most companies don't realize just how inexpensive it can be to get old molds modified.
Depending on whether the patent number is a boss or not determines how easily it can be corrected. In some cases, a skilled machinist can remove the patent markings from the mold with nothing more than a file and a polishing stone set. And yet, most mold shops buy their molds from someone else and don't have the skilled person to do the work.
It's a conundrum to be sure. Companies need to stop marking products as patented when the patent expires, but what these "trolls" are doing isn't socially beneficial.
You can't legislate goodness. Let each to his own destiny, by will of his freely made choices.
All these suggestions of "print an expiration" miss one thing: utility patents in the US require maintenance payments, so the expiration date is not set in stone; if a company were to produce goods marked with the latest possible expiration date, then through malice, neglect, or simply a change in business plans, fails to pay a maintenance fee? Now you have products explicitly stating an expiration date some years after the patent has gone out of force.
Why is it that we here at /. are frothing at the mouth when companies use false DMCA takedown notices but apparently have no such anger directed at other companies using false patent information, we even defend them because of the "evil lawyers"?
Filing a false DMCA takedown notice is intentionally committing perjury. In order to avoid committing such a crime, you only have to do nothing.
Selling a product that's marked as being covered by a patent that expired a month ago is probably just a retail store selling existing stock. In order to avoid committing a crime, the manufacturer would have to recall every store's stock on the day the patent expires and destroy every piece, potentially costing a large amount of money and wasting a large amount of resources.
If a manufacturer continues to produce items marked with patents that expired 5 years earlier, then sure, they should be fined, since it's pretty reasonable to check the production lines once per year, but going after them the day after the patent expires would be ridiculous.
A very simple solution is a sticker with all the patents. Since a bunch of stickers are usually applied to some product anyways, it's trivial to apply another sticker with the current patents that are still valid. Those that aren't valid anymore are either inked out, or a new set of stickers are commissioned (cheap).
The question is, though, at what point does it it count to be invalid? If I made a product, and it sits on a shelf for 5 years before it sells, at which point the patent expired, am I infringing? The patents in question were valid when it was manufactured, just it sat in some warehouse for an extended period of time (my warehouse, retailer warehouse, etc). Or what happens if it's the day before the patent expires? Technically it's still patented, but it won't be tomorrow...
And how, exactly, are you going to know that it has no current patents without looking anything up?
I have in front of me a DVD case from Amaray (I used it in another comment) that has the patent # in it. I can look that up. Oh hey, it's still valid.
I also have in front of me a wheeled cutter. It says "patent pending". Well I bought that about 2 years ago.. does that have an active patent? I have no idea. I guess I'll have to pay a patent lawyer to figure that out for me.
I also have in front of me a small solar calculator. It doesn't have any patent markings that I can see. Odds are it is, or was, patented... but I see no markings. So can I just duplicate it and go to market with it? Well, I can, but the patent holder (if there is one, with an active patent), upon finding out about my copy, would happily sue the heck out of me. So I'd still have to hire a patent lawyer.
So no.. I can't just copy the functionality and market it without looking anything up.
Having the markings on there is a -good thing-... not just for the patent holders, but also for everybody who's thinking about copying the invention, as they do not need to go through the time and money to figure out what immediate patents apply.
The law in question should be changed to take into account progress made in information retrieval. It no longer requires sending somebody by horse to a remote patent office, having them dig through mounds of paperwork, and return 2 months later, which most certainly -could- "stifle competition".
( above scenario based on an assumption - the law in question isn't cited, so I have no idea when it was actually instated. )
Hey, live by the patent, die by the patent. You could always just not patent, not put the number, etc, but you want the force of the US government behind you. Well, then, you need to obey the rules. This is but one cost of that force, and it's still small compared to the cost to society.
Why not? "A foolish consistency is the hobgoblin of little minds," according to Emerson. Life is not a computer program. It is not necessarily important to get identical output when given the same sets of input, much less only similar sets of input.
Why is it wrong to denounce people who claim to own your work when they know they do not, who remove it from the public consumption you have decided for it and threaten to cost you thousands of dollars in legal fees to defend your own property? Why is it wrong to be unconcerned when a product has an expired patent number that hurts no one and may actually be a public benefit in that it allows you to look up the patent information, see it is expired and duplicate it if you so desire--an outcome that seems perfectly in line with the original vision of patents?
A product unmarked with patent information is not protected by patent (probably--is it a legal requirement to display patent numbers? I'm not sure). If you want to duplicate it, you're left to reverse engineer it. Displaying an expired number allows them to look the patent up and see exactly how it works. Which do you find a greater public benefit? How do you see an illegal or erroneous DMCA takedown as a public benefit of any kind, by any stretch of the imagination?
Both things are technically illegal; no one disputes that. One is best-case beneficial and worst-case indifferent, the other is best-case disruptive (they take it down, you put it back up and nothing more comes of it) and worst-case outright harmful (they take it down and, despite being in the right you leave it down for fear of the consequences of fighting). We're supposed to be ashamed to treat them differently? Because you say so? No, I don't think so.
I don't find it hypocritical at all but if it is, I'm perfectly content to be so on this one.
Note that the law only specifies that the penalty is a maximum of $500 per violation, with the government getting half and the relator (a member of the general public suing on behalf of the government) getting the other half.
It's not really clear whether a "violation" is per product or per some larger unit of production. It's also not clear what the appropriate damages are for these cases. The courts have wide discretion to assign damages between the maximum of $500 per violation and an infinitesimal amount of money per violation. So, if the court says so, some company that manufactures a billion units of a product could end up paying out a billionth of a dollar each for a grand total of a dollar.
There are very few of these laws - called "qui tam" laws - on the federal books in the US. The most commonly seen one is the False Claims Act, an old old law meant to allow private citizens to sue government contractors on behalf of the government when those contractors perpetrate fraud on the government, with the relator getting a small portion of any damages awarded to the government.
Is it really a problem though? A patent on a product just lists a number. You have to look up that number to see what the actual protection is, and there you will see quite easily if it is expired.
Falsely listing copyright would be a big thing because it covers all aspects of the product. But patents just apply to one technical aspect that you have to look up anyway.
The ______ Agenda
Except the laws on validity periods could change during the lifetime of a product.
Confucius say, "Find worm in apple - bad. Find half a worm - worse."
Expiry dates on food are there for a reason; it goes off, and when it goes off it's bad to eat.
This is not true of ethernet crimpers, the first thing that came to hand with a patent number on it. They'll still be good in twenty years time.
Also, expiry dates are not molded on, for reasons that even you can probably work out. Hence the comparison is totally invalid.
Nope, it's just common sense: if it ain't broke, why replace it? That's just wasteful.
What if there wasn't room? What if the validity period changes in the meantime? What if it wasn't foreseen that the product would be in production for so long? What if this dumb law was passed after the tooling up had been done?
You seem to like telling other people how to spend their money. What are you, some kind of communist?
Confucius say, "Find worm in apple - bad. Find half a worm - worse."
> It make it easy for other people to do a full check by just looking up the number that's stamped on the side of the product.
That's the thing. It does nothing of the sort. I still need to do a _full_ check as there is no guarantee that this list is exhaustive. I gain _nothing_ from this list while the manufacturer gains a chilling effect. Thus, both the time limit and the extra work in removing the stale numbers is more than justified.