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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".
Forest Group, Inc. v. Bon Tool Co. in 2009 paved the way (rocket docket Eastern Texas, of course) for big fat jerkfaces to go nuts. The AP told citizens it's okay to sue, hell even on Slashdot I submitted an article way back in Feb of Activision's problems with an incorrectly marked patent and because of precedent on incorrect markings we found out in March that this could cost some companies trillions. Expired or wrongly marked could cost you $500 per item sold.
My work here is dung.
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.
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.
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The emerging case law on this kind of action is putting the damper on a lot of get-rich-quick schemes. First, the potential damages are up to $500 per violation. Courts are not handing down massive damage awards; quite the opposite, in fact. It's likely that most of these cases will end up with damages assessed at some fractions of a dollar or even fractions of a cent per violation. $500 per violation is a cap on damages, not a target.
Second, the courts are setting a fairly high bar for the 'intent to deceive the public' element of false marking. The majority of these cases are the result of typos or failing to retool an assembly line the moment a patent expires.
As others have noted, incorrect patent marking stifles innovation.
Letting the public enforce this is efficient. It reminds me of how certain forms of illegal stock trading were discouraged. Certain stockholders are not allowed to engage in something called "short swing trading". If they do, and are caught, they have to give all their profits from the trade to the company. The brilliant way Congress and the SEC came up with to enforce this was to make it so any shareholder can sue on behalf of the corporation. If the shareholder wins (and he always does, because the people who aren't allowed to do these trades are the same set of people that have to report all their trades to the SEC, and so their illegal short swing trades will quickly come to light), the illegal trader has to pay the shareholder's attorney fees. Finally, in the most brilliant part of all, the shareholder only has to be one at the time of filing the suit--not at the time of the illegal trade.
Net result: law firms get the SEC data, run programs to identify short swing traders, go out and buy one share of stock in the company, and sue.
To make it worse, profits are calculated in a way that is very unfavorable to the defendant. Suppose you bought stock at 100/share, later sold that all at 90/share, then later bought the same amount at 80/share, and then sold that at 70/share. You've had a net loss of 20/share, right? That's what you bank account reflects--but that's not how the court calculates it. The court finds the lowest you paid and the highest you sold for and matches them. Repeat until as much is matched as possible. So, the court would just look at that 90/share sale and the later 80/share purchase, and order you to pay 10/share to the company. The remaining 100/share purchase and 70/share sale are ignored. So in addition to losing in reality 20/share on your transactions, and having to pay plaintiff's attorney fees, you also have to pay 10/share to the company!
This has made short swing trading so scary that among those who have to report their trades it virtually stopped shortly after these rules went into effect.
I wonder if the wording was changed. "This product is protected by patents ######### until they expire"
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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.
I actually blame the company. Packaging should have an expiry date built-in at a minimum. It's not like this is difficult to do: there are expiry dates on all dairy foods, and for good reason. Society benefits when people don't eat or drink food that's past expiry on a regular basis. Similarly, society benefits when the expiry date of a patent monopoly is clearly marked.
Companies still using an old mold which doesn't have an expiry date is just greedy. They should have put the date in when they went to the trouble of putting the patent number in, or they should bear the cost of a new mold if they're still selling new products from it.
An expired patent number on a product has positive social benefit. If anything, we should require the manufacturer to continue affixing the patent number to the product for a period after the patent expires. This lets you know how to reproduce the product, which you now have the right to do.
I don't know about the rest of you, but whenever I see a patent number on something interesting, I think, "OK, I can look that up and see when it expires". If they aren't allowed to keep putting the number there, the answer will always be "sometime in the future" as opposed to "x number of years ago".
In other words, if they aren't allowed to put the expired number there, it'll be harder to get the good news.
For all intensive purposes, "whom" is no longer a word. That begs the question, "who cares"?
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.
Moved to http://soylentnews.org/. You are invited to join us too!
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
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An expired patent number on a product has positive social benefit. If anything, we should require the manufacturer to continue affixing the patent number to the product for a period after the patent expires. This lets you know how to reproduce the product, which you now have the right to do.
Yes. I think the law should be changed, so it's OK to affix an expired patent number, as long as you print the expiration by the number, for example "Pat No 1,234,567. Expires XX/YY/ZZ
Should not incur a fine, as long as the expiration date is included and truthful.
They aren't profiting from patents, they are profiting from abuse of patents, although you could argue that this abuse is generally small. There is some degree of public benefit from this and the only thing this discourages is improper patent labeling, which isn't really a good thing. This could make printing expiration dates the standard, which would actually be beneficial to the public.
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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.
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...
In the case of a mold used to make plastics, stamp metal, ect., its incredibly expensive for a company to get a new mold made. I used to work at a CNC shop as a lowly peon preparing and finishing parts for military contracts, movie cameras and manufacturing molds. The company I worked for routinely charged big bucks for molds simply because it takes a large amount of skilled and unskilled man hours to produce it. An engineer typically did the initial design in some sort of CAD or other program, then the CNC machines were programmed to prepare the part. Then the part typically went through several CNC machines before being finished. After this the part's measurements were rigorously checked to see if there were within specifications. Then little turds like myself (I was a freshman in college) de-burred the sharp edges, put it through various chemical baths and polished the shit out of it before cleaning it one final time. The aforementioned is still a simplification of the process. Generally manufacturing molds were ordered only once. Suppose a patent expires. If a manufacturer chooses to have the patent number included in the mold at the get go, then they need to either modify the mold without decreasing the functionality of their product or they need to get a whole new mold made. A lot of times a company may only have one mold for a particular part, so the cost of any mistake in modification is large since it may mean totally replacing the mold. The point is that the company is not doing anything inherently wrong in using the mold to produce a product that they have been selling under a patent they either owned or licensed if the patent expired. It still references a patent number that can be looked up online to determine if its expired or not if someone chooses to spend the time. My point is ethical considerations need to be taken into account in enforcing this law, because the lawyers are only looking to score some cash at someone else's expense. To be unfair and use a logical fallacy, "Do you think this law is unjust or do you hate small businesses?".
That brings me to an interesting point, / . is just "the ramblings of socially-inept, technology-literate news-mongers".
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.
TFA mentions 50 years, about 49 years and 364 days short of your "day after". Additionally, the law is on the manufacture of goods with incorrect patent labels, not the sale, so it doesn't matter how long it was in the store. What matters is if you are still making them.
ASCII stupid question, get a stupid ANSI
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.
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When I hear words and phrases like "simple", "trivial" and "a small matter of" it's usually a good indication that these minor trifles will be done (or paid for) by someone other than the writer.
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