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Evaluating Patent Troll Myths
An anonymous reader writes "In a guest post on the Patently-O blog, Villanova University professor Michael Risch summarizes his detailed study into the methods and efficacy of patent trolls. He writes, 'It turns out that most of what I thought about trolls — good or bad — was wrong.... Perhaps the biggest surprise in the study was the provenance of patents. I thought most patents came from failed startups. While such patents were represented (about 14% of initial assignees were defunct), most came from companies still in business in 2010. Indeed, more than a third of the initial assignees were publicly traded, a subsidiary of a public company, or venture capital recipients. Only 21% were patent assertion entities at the time the patent issued, and many of those were inventor owned companies (like Katz) rather than acquisition entities (like Acacia). ... Another area of surprise was patent quality. While trolls almost never won their cases if they went to judgment (only three cases led to an infringement finding on the merits), the percentage of patents invalidated on the merits was lower than I expected.'"
Very few patents are for actual original innovations that warrant a 21 year monopoly. Let me give you an example .. the concept of a magnetic breakaway safety mechanism for power cords was invented in the 1990's for deep fryers (though it may actually have a longer history than that). In the early 2000s, Apple got a patent for the same concept when applied to electronic devices. Now surely does Apple deserve a 21 year monopoly for copying an idea that someone else came up with .. just because they added the word "electronics devices" ?
OK, now there's that .. now here is something scarier .. the America Invents Act .. which is very shortly due to become law (its in the reconciliation process). The new law redefines what an inventor is (in order to get around the US Constitution which says only inventors can have patents) .. by defining inventor to be anyong who independently comes up with an idea. So that means that if you come with an idea before me, and can even prove it .. say you posted in online (somewhere which doesn't count as printed publication) .. I can still get the patent for your idea .. as long as I 1) File for the and pay the patent fee first and 2) state that I came up with the idea independently (though after you).
Not only that think about all the stuff out there that has not been patented .. for example .. In computer science .. the Bubble sort (to be honest I am not sure if it's patented .. but there are other algorithms out there of equal value that haven't) .. today maybe many apps on mobile phones may be implementing bubble sort in mobile phones applications .. but nobody got the patent on it .. I can file for a patent on "using the bubble sort patent in a mobile phone app" .. similarly I can go through all the computer science books and start patenting all the various algorithms by appending "on a mobile device" to it. The pay off will be huge and it will all be legal. Heck maybe I can patent the Bubble sort itself .. by claiming that I independently came up with it!
Of course, I sound ridiculous right ? How could they really be making such a dumb law? And why (it's to take away the burden from the patent office for having to google for prior art because a lot of patents were being overturned in lawsuits when it turned out that a simple google search would have brought up prior art .. thus humiliating the patent office).
Anyway .. dont believe me .. read it and weep:
http://en.wikipedia.org/wiki/America_Invents_Act
I wouldn't call the results of this study so surprising as the Slashdot story describes. The biggest and most destructive patent exploitations that I remember were all done by big and formerly respectable companies, from Unisys and the Santa Cruz Operation in the old days to Apple today. Of course most of the patents were just stupid - I mean gif? Linux? Rectangle? Come on! Don't even remind me the "click" or "exclusive or" patents. But the harm to the industry is big in my opinion and the much more important conclusion that can be drawn from this research is not who is doing the harm, but to whom the harm is done, and for what reason. We have to answer one question: Do the patent system still stimulate innovation? Because if it doesn't then it is useless and should remain a relict of the past that may have been needed at some point but would never be used again, like slavery.
Karma: Positive (probably because of superiour intellect)
Of course; most that are confronted with a lawsuit would rather pay the racketeer.
My karma is not a Chameleon.
I've recently come across an interesting initiative against patent trolls, the onda protection fund: http://www.ondatechnology.org/protection-fund.html I've read the info and it seems that it could thrive if people pay attention to it
You also have a system where all parties assume that the status quo is fine and that some other part of the system will clean up after them.
The courts assume that the PTO is acting in good faith. The PTO assumes that the courts will clean up their crap.
No one seems to be minding the store.
A Pirate and a Puritan look the same on a balance sheet.
say you posted in online (somewhere which doesn't count as printed publication)
This appears to be the key to the whole change. If a work is made available for download and gets downloaded, then it's certainly "distribution of copies to the general public with the consent of the author" at least under copyright law. I'd like to see a reliable citation stating that publication of a work under copyright law does not constitute publication of the machine or process described in the work under patent law.
Heck maybe I can patent the Bubble sort itself .. by claiming that I independently came up with it!
As I understand it, a change to "first to file" doesn't change novelty or obviousness, only interference: who gets the patent if two people file an application at nearly the same time.
Anyway .. dont believe me .. read it and weep
Reexamination of an issued patent is expanded greatly, and the period for filing third-party prior art that might threaten a patent application's novelty has been extended from two to six months.
Let me give you an example .. the concept of a magnetic breakaway safety mechanism for power cords was invented in the 1990's for deep fryers (though it may actually have a longer history than that). In the early 2000s, Apple got a patent for the same concept when applied to electronic devices.
The key word here is "concept."
The patent is not for the idea.
The patent is for the device or the machine or the process.
The solution that works for the deep fryer is not necessarily the right solution or the best solution for every superficially similiar problem.
What you are referring to is the first-to-file system for patent priority. It is the norm for the rest of the world. America is the outlier and the AIA is meant to normalize our intellectual property laws with the rest of the (Western) world.
First-to-file makes sense when you consider the policy goals of a patent system, which is to encourage disclosure of new ideas in return for a (not so) limited monopoly. The current system of giving the patent to the first-to-invent encourages submarine patents and other ambush tactics. It also costs ridiculous amounts of money proving when something was patented. (You wouldn't believe how many inventors claim to have written the idea up on the back of a napkin that they wish they kept.)
Moving to first to file makes determining priority a lot easier. Who filed first? Let's check the USPTO website. Bang. So this system forces people to patent ideas as soon as possible after they invent it.
The AIA also (and very significantly) allows the USPTO to keep the revenue it generates on fees. Currently, the fees paid to the USPTO are taken by the government for general funds.That lowers the quality of patents issued because examiners are paid less, worked more, and encouraged to generate more fees by granting more patents and encouraging more applications.
Finally, the new law would make it easier for patents to be challenged by third parties in USPTO proceedings. For instance, Groklaw could submit prior art to knock out SCO's claims. That's a huge change.
These changes will make the patent system clearer and hopefully will increase the quality of the patents issued.
A NYC lawyer blogs. http://www.chuangblog.com/
The solution that works for the deep fryer is not necessarily the right solution or the best solution for every superficially similiar problem.
I think his point was that simple making minor changes to adapt something for a slightly different use case doesn't justify getting a 21 year monopoly.
Who is John Galt?
The solution that works for the deep fryer is not necessarily the right solution or the best solution for every superficially similiar problem.
But in this case it is, they've taken that idea and applied to another kind of appliance, how does that deserve patent protection?
Of course; most that are confronted with a lawsuit would rather pay the racketeer.
I think "would rather" is a bad phrase here. More like: most that are confronted with a lawsuit find very little choice between spending massive amounts of money on lawyers and suffering the distractions and stress associated with a lawsuit vs. paying off the racketeer.
Who is John Galt?
"The solution that works for the deep fryer is not necessarily the right solution or the best solution for every superficially similiar problem."
But it IS the same idea -- Apple's patent is broad so you can't even change the connector shape etc. They nicely got a broad patent on any electronic device that uses the concept of a magnetic breakaway power cord. You are telling me that Apple deserves a 21 year monopoly for being the first to apply the idea to protecting laptops instead of fryers? Nobody else would have thought of using a magnetic breakaway on laptops within 20 years (btw once you get that idea the implementation is obvious easy for anyone skilled in the art .. its just a connector with a magnet in it!).
It's nothing magical beyond what if you went up to any connector designer and said simply "hey I need a magnetic connector for my laptop power cord" .. it's something anyone can make.
"(You wouldn't believe how many inventors claim to have written the idea up on the back of a napkin that they wish they kept.)"
Actually the USPTO themselves said it was not that many. How can ambush tactics work, how would you know what the other guy invented until after he files a patent or publishes it? Patent interference should be dealt with simply .. if two people invented the idea before the idea was publicly disclosed, that means it's an obvious idea. Patent Denied to BOTH parties.
After idea publication, if someone claims they wrote an idea on a napkin before someone else, but can't prove the date .. Patent Denied .. thanks for the fee.
Of course what it means is that us poor fucks will "invent" stuff that seems obvious to us just farting around tinkering with stuff. Lets not even mention that most of us could not afford the thousands of dollars in fees and legal research required to file for every actual invention, much less every little obvious incremental advance these guys are going to get. The money will sniff them out and buy patents based on our inventions. And, then, should any of us get uppity and actually try to make money off of something we made, get ready for that big legal ass-whooping. Situation Normal, enjoy the continued brain-drain. Cheers!
What this also means is that whenever a new type of device comes out ... trolls can rush to the patent office to try to patent everything under the sun "when applied to a XYZ device" .. If someone invents a flying car .. the first person to rush to the patent office and file a patent for "GPS device in a flying car" will get the patent. "Door on flying car" ..patent granted. "Bubble sort algorithm used in a computer system in a flying car" .. patent granted.
Or even today they can scour the patent office for software patents and just apply the words "tablet device" or "mobile device" to it since many things don't have device specific patents even today. Hello riches.
It depends upon how different the implementation is. I could, for example, come up with two different implementations of the magnetic breakaway plug that are unlikely to violate Apple's patent. (The caveat being that they would be much more expensive to produce.)
Now I'm not saying that Apple deserves a 20 year monopoly on their implementation, but I do think it is overly easy to over generalize a patent into an idea then dismiss that patent on the merits of the idea rather than dismissing the patent on the merits of the patent. (By that I mean, ideas are more general than patents thus are easier to demonize.)
Very few patents are for actual original innovations that warrant a 21 year monopoly. Let me give you an example
No let *ME* give you an example. I bought an Aten UC-232A (which BTW gives me BSoD in Win7 when lots of data comes through) USB serial converter. It has patent D436924 attached to it. The claim, I kid you not is "The ornamental design for computer cord connector, as shown and described." Really?! They can spend money on patents for the molding shape of the connector but not on non-flaky drivers. .
...all of the lip stick and polish in the world will not change the fact that patent trolls are scum. (Unfortunately, the fault really lies with the patent system though.)
The so-called "invention" on the back of the napkin shouldn't be worth the paper it's drawn on. (An exception might be a circuit drawn with conductive ink and pasted components.) It should be the first working model that gets evaluated for a patent. Ideas should not be patent-worthy.
"The mind works quicker than you think!"
It depends upon how different the implementation is.
So in this case for example, what is the innovative part? What's the thing that should be protected?
No let *ME* give you an example. I bought an Aten UC-232A (which BTW gives me BSoD in Win7 when lots of data comes through) USB serial converter. It has patent D436924 attached to it. The claim, I kid you not is "The ornamental design for computer cord connector, as shown and described." Really?! They can spend money on patents for the molding shape of the connector but not on non-flaky drivers. .
You do realize that's a DESIGN patent, not a utility patent. There are significant differences between the two.
The problem with killing the idea entirely if two people happen to file close together is this:
Independent Inventor Guy invents the next "new big thing" in his industry. He files for patent. He then goes to Big Corporation to show his idea and get them to license his idea and market it. Big Corporation looks at the idea and thinks to itself "Wow, this truly is revolutionary!...... But the license fees are going to make it not profitable for us to incorporate into our product line". So Big Corporation tells Independent Inventory Guy, "Sorry, we don't see any future in your idea". Big Corporation then files for a patent on the same idea (perhaps even after conducting a little corporate espionage), thus causing the patent to become invalidated entirely. Big Corporation is now free to use Independent Inventor Guy's idea for free in its products.
That tells me that the legal system is rather broken...
Is there a possibility of extorting money on the basis of threatening to disclose prior art? Something along the lines of "nice patent you have there, would be a shame if I filed this prior art with the USPTO".
But it IS the same idea -- Apple's patent is broad so you can't even change the connector shape etc
Is it really? What's your source?
It's nothing magical beyond what if you went up to any connector designer and said simply "hey I need a magnetic connector for my laptop power cord" .. it's something anyone can make.
Same 2 questions...
For one thing, foreign countries don't recognize United States patents nor vice versa. Patents are not like copyrights, which automatically apply worldwide. For another, not everybody works in the same "art", or specialty. If only about 2,000 people are skilled in a given art, and two of them come up with substantially the same invention as a solution to the same problem, then perhaps the prior art did anticipate the solution.
Well, the innovative part is the breakaway plug to protect an electronic device. It's like this: I'm having trouble getting my shoes on in the morning. Man, I need a shoehorn. So I buy one, but I notice that it could be better if it were made of a material that has low resistance to cloth (my sock).
Hey, what if I made it out of teflon?
Shoehorn - patented
Teflon - lots of patents
shoehorn made out of teflon - priceless
Guess what, I get the patent because both prior patents did not use specify their usage in shoehorns.
This is one reason you read a patent and it is very vague. That way is covers the most topics. Or you'll read a patent and it'll list a million ways it can be used.
Just the way it it.
I do disagree with the way they want to change it though.
We show geeks how to get their dream girl at EyesOfOdessa.com
You tell me, if you come up with the wheel independently .. are you the inventor of it .. simply because nobody before you patented it?
Under a redefinition of inventor in parallel with author, then yes, I would be an inventor. Notice that I dropped "the inventor" in favor of "an inventor". Not all inventors would be entitled to a patent. Reinventors of something in published prior art, for example, would be ineligible on novelty grounds.
Very few patents are for actual original innovations that warrant a 21 year monopoly.
Wow, wrong fact right in the first sentence. All credibility: gone.
You don't get a 21 year monopoly, or even a "20 year monopoly" which is what you were probably thinking of. You get a monopoly that lasts between patent issuance and the end of a 20 year period starting from the earliest claimed priority date, plus any patent term adjustment (assuming the patent was filed after 1995; pre-1995 is a little different).
So you're wrong right out of the gate, then, yup, a bunch of anti-patent blathering. And modded up as informative. Good to see /. never changes.
The emacs religion: to be saved, control excess.
today maybe many apps on mobile phones may be implementing bubble sort in mobile phones applications .. but nobody got the patent on it .. I can file for a patent on "using the bubble sort patent in a mobile phone app" .. similarly I can go through all the computer science books and start patenting all the various algorithms by appending "on a mobile device" to it.
First, the pending bill doesn't eliminate the one-year statutory bar that exists in current law. That is, if there is anticipatory prior art that was published more than a year before your filing date, then you can't get a patent on your invention. It doesn't matter whether it was a patent, scientific paper, book, magazine article, or what have you, as long as it was published.
Second, even by just adding "on a mobile device" to your claims, you're not going to get a patent on a well-known concept. At this point, it's clear that cell phones or other mobile devices are just small computers, so generically performing any well-known CS technique on them is subject to a finding of obviousness.
And why (it's to take away the burden from the patent office for having to google for prior art because a lot of patents were being overturned in lawsuits when it turned out that a simple google search would have brought up prior art .. thus humiliating the patent office).
Not true in the least. The fact that you don't know what you're talking about should be a clue to that. Gain an actual understanding of the current and proposed laws before you cast around these sorts of accusations.
In what way is trying to license the idea before the patent has been granted not fraud?
What if the patent isn't granted on other grounds? In that case the "Inventor Guy" is just patent trolling with patents he doesn't have.
He can't do anything else but use the idea himself until the patent has been granted anyway.
Doh! Well, the HTML standard needs a FACEPLANT tag now, doesn't it? I am now schooled.
First off, that's not true .. all the inventor has to do is to show proof that he showed the corporation his invention (this is standard .. he'll have an NDA).
Anyway, under the new law .. the Big Corporation will not only get to use Independent Inventor Guy's invention for free but they would be able to prevent Independent Inventor Guy from even making and selling his OWN invention.
Well, the innovative part is the breakaway plug to protect an electronic device.
But breakaway magnetic plugs already existed to protect appliances so what's the invention? What is new that didn't exist before? The thing that deserves to be protected by patent law?
The only thing i can see is that they've used it on a laptop, that's not an invention.
Unless the patent is on something totally unrelated to what the industry is the Inventor Guy already lost their rights to the patent in favor of the company. It is very common that when you start work at a company you have to sign away the rights to anything patentable that you come up with while working there. You probably get to keep the snazy plack and your name is probably on the record, but you generally don't get the rights to it.
How long might a typical "patent term adjustment" last? And does Congress or the USPTO have the power to grant multiple successive "adjustments" in the same way that Congress has extended the copyright term?
Yup. For instance Acacia, one of the scummiest patent trolls, did not invent HTML or CDROMs. But they have a patent for "HTML on a CDROM". It was issued in 1994, so should still be valid. They have threatened to sue numerous companies, including mine. I didn't reply to their threatening letter, and got a more threatening letter a few weeks later. I didn't reply to that one either, and never heard from them again.
So if I invent something new that used a wheel I can get a 21 year monopoly on the wheel? how the hell does that work? ...confused.
Shoehorn - patented
Teflon - lots of patents
shoehorn made out of teflon - priceless
Guess what, I get the patent because both prior patents did not use specify their usage in shoehorns.
wow, your idea of the patent system is actually more fucked up than the patent system actually is. you can't just take an existing patented invention, make it out of something else and then patent that.
Is it really? What's your source?
It doesn't matter if he has nothing. What matters is that people believe the patent system covers ideas. Chilling Effects. This believe is so pervasive now that patents in effect do cover ideas. We have software patents and business method patents. Even if technically Apple has no grounds to stand on, they can still credibly threaten to sue, because they might win. Could a jury of average people make such a fine distinction as that between an idea and an implementation of an idea, with the lawyers doing their utmost to cast the issue in very different ways? Besides, they aren't really interested in a win, they'd rather it not actually go to trial at all. This is blackmail, not a serious and righteous reaction to a real injustice, and the punishment is not a loss in a court case which is of course uncertain, but the guarantee that a trial will cause expenses and delays no matter what the outcome.
Intellectual Property is a monopolistic, selfish, and defective concept. It is "tyranny over the mind of man"
Non practicing patent holders should be mandated to license their patent at a reasonable rate. *Like everywhere else in the world.*
Taking an idea and applying it to another industry IS patentable.
It may not stand a court challenge - it may be ruled "obvious", but this is how it works.
We show geeks how to get their dream girl at EyesOfOdessa.com
Fraud before USPTO, etc., etc.
A NYC lawyer blogs. http://www.chuangblog.com/
You can if the original patents specifically exclude the new material. If the original inventor thought that the material was important enough that no other material would do, the original material would be included in the patent claims. Going off the shoehorn example, the original patent would have to include some requirement that the shoehorn be made from, for example, polished wood, to meet some need for flexibility and friction. A flexible plastic shoehorn won't meet the requirements of such a claim, so it could be patented.
Since patents are public sources and assumed to be visible to everyone, it is likely to affect the test for obviousness, of course, so it's not very likely that you will get a patent on "X made from Y", but you can.
You do not have a moral or legal right to do absolutely anything you want.
Taking an idea and applying it to another industry IS patentable. It may not stand a court challenge - it may be ruled "obvious", but this is how it works.
Well that's my point, there doesn't actually appear to be any invention so such things shouldn't be patentable. I understand that's currently the way it is but i suppose that's how messed up the system is.
I agree - this is the most unsatisfying aspect of this study, in that most cases end with settlement and a non-disclosure agreement, meaning there is absolutely no data on how meritorious the claim was and how exploitative the settlement was. It seems quite obvious to me, (IANAL) that only relatively strong patent claims would actually result in litigation, and that most "troll-like" behavior would be in cases that are simultaneously weak but expensive enough to contest that a settlement is cheaper. Arguably, the prevalence of this behavior, which cannot be addressed in any way by this study, is at the heart of the patent troll debate.
from page 26 of TFA: "One important caveat is that most cases settle. Indeed, most of the cases studied here settled or were otherwise disposed of without a merits ruling. This can affect the findings in a couple of ways. First, it reduces the sample size. Second, it is unclear why cases settle. It may be that only the weakest patents are litigated because defendants refuse to pay. However, it could also be that the strongest patents are litigated because plaintiffs refuse to settle for a nuisance payment. Third, many cases are litigated to judgment because NPEs are asserting infringement where there is none."
He wouldn't be licensing a patented invention. He'd be licensing a "patent pending" invention, with the license likely continuing once the patent is granted.
You do not have a moral or legal right to do absolutely anything you want.
If I recall correctly, that was the same company that tried to sue my company for something like 25% to 50% of their gross income. The had a stack of patents which basically covered any transmission of digital audio and/or video. So effectively the patent covered telephones, cable TV, satellite TV, and of course all those pesky Internet companies. Just think, they could nail every Geocities site that had the damned dancing baby, or some crappy song embedded on their home page. Too bad they picked the wrong targets.
They hit the company I worked for. My company hit back, along with a bunch of other ones.
[looking around] Yup, it was them.
I wasn't following it too closely. Our lawyers got into it, teamed up with the lawyers for several other companies, and tore them a new one. I heard the occasional mention of it, but after the first week they were just a nuisance that would eventually be laughed out of court. I didn't follow it too closely. It was a few months later that they started making the news (like that Forbes story).
Serious? Seriousness is well above my pay grade.
Reading the actual MagSafe patent and the fryer patent, I find that it's not so much anything that didn't exist before, but rather the removal of an unnecessary feature (a heat-conducting probe) that separates the two inventions. Note that the fryer patent is the third item of prior art in the MagSafe patent.
You do not have a moral or legal right to do absolutely anything you want.
People can have great ideas and figure out how to implement them on paper but might not have the funds of a big corporation to create a working model. Thus those with deep pockets would be the only ones able to file for patents.
That very few patents are for actual inventions to the original inventors.
Which is patently obvious, and has even been shown to be comically obvious when people successfully patent the wheel.
Tell me, if they received a 20 year patent for something they didn't invent instead of 21, does that fix it? Or is it insignificant detail that does not affect the main point.
Tell me, does the 1995 subrule make it different? Or is it insignificant detail intended to portray you as an expert whose opinion should be deferred to without challenge?
Patents need to be fixed, it's beyond comedy now.
That tells me that the legal system is rather broken...
Not at all. The problem is ridiculous patents being approved combined with laws that assume patents are valid once approved and require a preponderance of evidence to invalidate along with having the outcomes determined by judges and juries that have no understanding of the technical complexities involved in most patents.
Who is John Galt?
That shoehorn example .. there is a simple way to test if your idea deserves a patent (20 year monopoly).
The patent judge should ponder these questions:
1. How long have shoehorns been around? decades?
2. How long has teflon been around? decades?
3. Also, has anyone previously thought of expressly making the shoehorn out of a material that reduces the slippage against socks? (you cannot get a patent by simply changing the material presumably unless there is a novel functional purpose of it)
If shoehorns and teflon have been around for a long time .. but nobody thought of putting them together .. then we can safely say your idea is novel & non-obvious. But if shoehorns or teflon were only invented a year or two ago .. then your idea is probably not that novel .. maybe it's like someone trying to patent the idea of GPS in flying cars right after the flying car gets invented.
LOL .. you couldn't point out a single error in my analysis so you went after a few pedantic and irrelevant details.
"You get a monopoly that lasts between patent issuance and the end of a 20 year period starting from the earliest claimed priority date." -- "earliest claimed priority date" --> I assume you mean filing date .. because that's what the law states --- so how is this different than a 20 year monopoly? And it can actually be 21 years .. because you have a year from the date you publish an idea to file the patent ... so the clock on when people are barred from making that idea (aka your monopoly) technically can start one year before you file the patent .. which then starts the 20 year clock.
His point doesn't depend on the intricacies of filing dates, so he used four words where you used forty and got it close enough. Your description is much more precise, but pounding it in as you did is inane.
As always, all IMO. Insert "I think" everywhere grammatically possible.
Newton and Leibnitz independently developed calculus, yet it was certainly not obvious. Simultaneous independent development != obvious. I know, I know: calculus is not patentable, not relevant, etc.
While true, Inventor Guy was not necessarily going to work for them, only sell them the tech.
The other day I noticed Microsoft had a patent on creating a table in a word precessing document using "keystrokes on a keyboard".
But thankfully I'm making a text editor and not a word processor, so I can still use a keyboard shortcut to create a table. Yes! The system works! Let me call my intellectual property attorneys!
(I'm to lazy to cite the number, but it was issued in 2010, so it patent number 8 million something if you want to look it up.)
Indeed - in the real world an ordinary engineer can modify an existing design quite a lot in order to better fit the intended use, without requiring any huge R&D expenditure. Regardless, the patent office is happy to grant patents to modifications of existing technology to new uses, as long as there is no publication that "anticipates" such a use.
The earliest claimed priority date may be the filing date, but if it claims priority to an earlier application, e.g., it being a continuation or a divisional, then no, it's not this patent application's filing date.
And while you currently have a year to file a patent application (in the US) you have no monopoly during that year or until the day before your patent issues. Anyone is free to copy your idea and do whatever they want until you have a patent. Without an issued patent, you have no enforceable rights and thus no monopoly.
I do this for a living. Clearly you don't.
As to your previous diatribe: *sigh* fine.
Very few patents are for actual original innovations that warrant a 21 year monopoly. Let me give you an example .. the concept of a magnetic breakaway safety mechanism for power cords was invented in the 1990's for deep fryers (though it may actually have a longer history than that). In the early 2000s, Apple got a patent for the same concept when applied to electronic devices. Now surely does Apple deserve a 21 year monopoly for copying an idea that someone else came up with .. just because they added the word "electronics devices" ?
OK, I need to see the claims (since that's what actually are what is determined to be patentable) and the prior art. You have glossed over both and it's entirely possible that what Apple has a patent on is significantly narrower and inventive over the broad concept of a magnetic breakaway. As of right now you are just waving your hands and spreading FUD.
OK, now there's that .. now here is something scarier .. the America Invents Act .. which is very shortly due to become law (its in the reconciliation process). The new law redefines what an inventor is (in order to get around the US Constitution which says only inventors can have patents)
1) The metes and bounds who can have a patent are not laid out in the Constitution, the Constitution merely allows Congress to grant an exclusive right to inventors and authors; 2) it's actually being done to bring the US into alignment with the rest of the world, not for some nefarious purpose.
I can still get the patent for your idea .. as long as I 1) File for the and pay the patent fee first and 2) state that I came up with the idea independently (though after you).
Not what it says at all and what you just said is actually NO different than the current system. Your patent application is STILL subject to what is out there as far as prior art. And if you know about someone else doing it, you have to tell the patent office AND you can't sign that declaration stating you came up with it. Falsely doing so makes your patent unenforceable.
but nobody got the patent on [bubble sort].. I can file for a patent on "using the bubble sort patent in a mobile phone app" .. similarly I can go through all the computer science books and start patenting all the various algorithms by appending "on a mobile device" to it.
No, in fact, you can't because as part of that you have to disclose every book you referenced and "on a mobile device" alone is not going to give your claim patentable weight. Furthermore, it's not patentable since it'd be obvious under Section 103 to combine the two well known technologies/ideas.
Of course, I sound ridiculous right ? How could they really be making such a dumb law? And why (it's to take away the burden from the patent office for having to google for prior art because a lot of patents were being overturned in lawsuits when it turned out that a simple google search would have brought up prior art .. thus humiliating the patent office).
This is just pure conjecture and FUD.
You were wrong on just about every point you made. I didn't respond to your rant because, as stated in Bill
The emacs religion: to be saved, control excess.
See above. Nothing he posted was correct or accurate. Hope my long-winded explanation helps.
The emacs religion: to be saved, control excess.
Most civil lawsuits settle. If the defendant's attorneys see that they're likely to lose, they usually propose settlement.
The AIA also (and very significantly) allows the USPTO to keep the revenue it generates on fees. Currently, the fees paid to the USPTO are taken by the government for general funds.That lowers the quality of patents issued because examiners are paid less, worked more, and encouraged to generate more fees by granting more patents and encouraging more applications.
This paragraph doesn't make sense to me. I think it says the current system lowers the quality, but I can't see how a change in where the fees go would change that. Currently if an examiner grants more patents it makes no difference to the funding for the USPTO, so how does it encourage more grants? If examiners were paid according to how many they examined (as could happen if the USPTO budget was determined by examination fees), wouldn't that encourage quick shoddy examinations?
I'm being very superficial, but the LOL and ellipses (...) don't help your case.
That's what weasel words are for: "Very few patents are for actual original innovations that warrant an up to 21 year monopoly." Experts can (hopefully) use them to prevent either the truth or their point from being obscured. The OP's technically flawed writing on such an emotionally charged issue that also revolves around a byzantine bureaucracy makes me not want to take their word as gospel truth.
To be clear, by "technically flawed writing" I meant the following little grammatical and general writing issues that individually aren't very important but which add up to a picture of sloppiness about detail: it's "21-year", not "21 year"; ellipses have three dots and not two; ellipses should not be used as a general replacement for commas, colons, semi-colons, and dashes; parenthetical asides should really be optional reading and they should be rare, rather than used at least once each paragraph, sometimes containing vital information; capitalization on "bubble sort" is inconsistent; ... I could go on.
You've done a great job of pointing out what the law says, but do you haven't shown a single iota that you know what it means.
You can correct my spelling all day but at the end of it you still haven't proven yourself to be a writer of any worth.
Why bother when so many other places - if people actually looked - have done it for me.
http://www.patentlyo.com/patent/2011/03/america-invents-act-first-to-invent-and-a-filing-date-focus.html
Here's your rod. Put some bait on line. Throw the line in the water. There, I just taught you to fish.
The emacs religion: to be saved, control excess.
If shoehorns and teflon have been around for a long time .. but nobody thought of putting them together .. then we can safely say your idea is novel & non-obvious.
Or that until recently, teflon was prohibitively expensive for a simple shoehorn. Diamond-tipped garden spades are obviously a good idea too. I probably won't bother patenting them though...
"I've got more toys than Teruhisa Kitahara."
And for the record, I googled America invents act and chose the patently-o link. They always have good summaries of patent law decisions, legislation, etc.
psxndc
Newton and Leibnitz independently developed calculus, yet it was certainly not obvious. Simultaneous independent development != obvious. I know, I know: calculus is not patentable, not relevant, etc.
There was even prior art.
Diamond-tipped garden spades are obviously a good idea too. I probably won't bother patenting them though...
I will, bwahaha
Now surely does Apple deserve a 21 year monopoly for copying an idea that someone else came up with .. just because they added the word "electronics devices" ?
Yes. Otherwise what you have is called an 'overly broad patent'. Didn't think about that, didja?
Unfortunately, the fault really lies with the patent system though.
But in this case it is, they've taken that idea and applied to another kind of appliance, how does that deserve patent protection?
If it didn't, then the company who made the mag-safe fryer would have a ridiculously broad patent.
"I like to lick butts!" by MobileTatsu-NJG (#32700246) (Score:5, Informative)
Well, in the specific case of this patent, there are quite a few things covered. For example, the plug that can be inserted in either orientation, and the way in which the device controls the charger. In fact, the real problem with this patent is how specific it is. You could very easily make a power connector that solves the same problems as Apple's MagSafe connector but didn't violate the patent. What you can't do, is produce one that's identical. This means that the patent can only be used to prevent interoperability. It can't be used to encourage people to license Apple's design because any other company could produce their own magnetic connector with a different pin-out for less than Apple would charge for a license. It can be used by Apple to restrict who can make charger products and devices that use Apple's chargers.
I am TheRaven on Soylent News
Sure! Car Tires that record information on where you drove, presented to Big Brother with HTML!
My first Journal Entry ever, in 8 years! http://slashdot.org/journal/365947/aphelion-scifi-fantasy-horror-poetry-webzine
What this also means is that whenever a new type of device comes out ... trolls can rush to the patent office to try to patent everything under the sun "when applied to a XYZ device" .. If someone invents a flying car .. the first person to rush to the patent office and file a patent for "GPS device in a flying car" will get the patent. "Door on flying car" ..patent granted. "Bubble sort algorithm used in a computer system in a flying car" .. patent granted.
Or even today they can scour the patent office for software patents and just apply the words "tablet device" or "mobile device" to it since many things don't have device specific patents even today. Hello riches.
Sorry, that's simply incorrect. Under 35 USC 103, a patent claim can be deemed obvious if it is a trivial combination of known items in the prior art. So, if "flying cars" exist and "GPS devices" exist, then "GPS device in a flying car" is obvious by definition. Same thing for "doors on a flying car" - doors are known - or scouring the patent office for software patents that lack the words "tablet device".
As such, contrary to popular Slashdot "wisdom", there are no "[known device] on the Internet!" or [known method] performed by a computer!" patents. The title of the patent, or the abstract may make it seem that way, but the claims always have [known method]+[known computer/internet]+[something entirely new and unknown], and it's that third bit that makes it patentable. In fact, your original assertion was that Apple got a patent on the exact same magnetic power safety mechanism that was in use on fryers, but "when applied to electronic devices." This is incorrect. If you go to the Apple patent and read the claims, there's quite a bit of detail there. And if you click on the cited references, you see a bunch of patents from the 70s on magnetic power connectors, including ones for deep fryers, that are different because they each lack one or more of the features in the claims.
Apple did not patent the concept of using a magnetic power connector. They patented a specific power connector, one that was new and a substantial improvement over those that existed.
Apple's patent is broad so you can't even change the connector shape etc. They nicely got a broad patent on any electronic device that uses the concept of a magnetic breakaway power cord.
Claim 1:
1. An apparatus for electrically connecting an electronic device to an electrical relation, comprising:
a first connector having a first magnetic element and having at least one first contact electrically connected to the electronic device; and
a second connector positionable adjacent the first connector, the second connector having a second magnetic element and having at least one second contact electrically connected to the electrical relation,
wherein the at least one first contact comprises a metallic contact extending from a first face of the first connector and biased relative to the first face,
wherein magnetic attraction between the first and second magnetic elements substantially maintains the first and second contacts in an electrically conductive relationship,
wherein the first and second connectors each comprise two axes of symmetry such that the first and second connectors couple together in only two orientations relative to one another, and
wherein the at least one first and second contacts of the first and second connectors each comprise a pair of first path contacts on the connector for establishing a first path of electrical communication between the device and the relation,
wherein the pairs of first path contacts form an electrically conductive relationship with one another regardless of which of the two orientations the connectors are magnetically coupled.
See that third wherein? You can change the connector shape so that the first connector and second connector don't have two axes of symmetry such that they couple in only two orientations, and you're clear of this patent. In fact, here's a patent from the 1970s, cited in the Apple patent, that only has 1 axis of symmetry. You could freely use that design without infringing the Apple patent.
Reading the actual MagSafe patent and the fryer patent, I find that it's not so much anything that didn't exist before, but rather the removal of an unnecessary feature (a heat-conducting probe) that separates the two inventions. Note that the fryer patent is the third item of prior art in the MagSafe patent.
Also note the two axes of symmetry allowing auto-alignment in the Apple patent.
That's a design patent, not a invention patent ... not the same thing at all. A design patent is just on how something looks.
It won't work.
A patent that attempts to stifle the actions of the incumbent status quo will ironically be suppressed.
I agree that making a shoehorn out of teflon wouldn't be covered by the original wood shoehorn patent, but wouldn't the teflon shoehorn become obvious once the wood shoehorn patent was filed?
"Patent pending means the patent has been filed but not yet granted. If anything in this case first-to-file would protect the little guy, the big corp can't say they invented the idea first but filed for it afterwards.
I take that as an argument that the concept of patents is flawed. If you allow people to patent minor modifications, you get a lot of trivial patents; if you don't, you get ridiculously broad patents.
Well, I think the point is that the improvements were obvious given common technical knowledge. Any engineer who sat down with the task of adapting a magnetic breakaway connector to that specific device, would easily come up with a solution by just applying common knowledge. The only reason nobody came up with and patented it before, is that there are so many different variations and each device requires a slightly different adaptation.
In this case, the patent is so ridiculously specific, it doesn't stop anyone from making similar breakaway connectors to their own electronic devices; the patent's only use is to stop third-party manufacturers from making compatible accessories.
You can't patent the idea of a mousetrap, but you can patent the implementations of new variations on the idea.
Am I the only one that read this paper?
The paper itself sets up some straw man arguments, really on both sides, then goes about collecting data that is really beside the point. Here are the questions it addresses:
A. Are Litigious NPEs a Recent Phenomenon? I say, who cares? And the author's definition of "recent" is just strange. The oldest troll is about 25 years old. Isn't that recent relative to patents themselves which have been around for a couple of hundred years more or less?
B. Are NPE Patents All Business Methods? Again, who cares? Software patents are worse, but any patent will do. The mix is interesting, but not part of the debate.
C. Are NPE Patents Low Quality? Let's say they are all high quality. A NPE (non practicing entity) is still sucking from the system without producing anything, no matter the quality of the patents.
D. Do NPE Patents Come From Nonproductive Endeavors? This is like asking if the knife that killed you was properly purchased from a store? Homemade? Stolen? Seems to me you are dead regardless. Likewise, Trolls are trolls regardless of where they got their weapons.
F. Do NPEs Really Wait for an Industry to Develop? The paper itself points out that Trolls will still be called trolls if they sue immediately upon receiving a patent or wait 10 years to sue. So what difference does it make? A. Do NPEs Promote Investment in Startups? A good question, but not answered here.
B. Are Small Companies Crushed by Larger Infringers? They determine that by and large they are not. But I question their logic, as they make this determination based on where patents used by trolls come from.
C. Do NPEs Provide Better Enforcement Avenues for Individuals? Key question not answered: Do individuals themselves *profit* via trolls? Obviously organizations with lawyers funded to sue will do a better job. But do any of these efforts benefit the individual inventor? Silence in this paper. They just answer the easy question, that lawyers are better at lawsuits that inventors. Duh.
All in all, I wasted my time reading this thing. Seriously, if you are going to address the "debate" then it should be defined properly, economically. Do patents help us innovate, or are they primarily a barrier to innovation? That is the debate. Picking the questions that you find that you can answer, then claiming that is the debate, this is rather silly.
Uh, no, it's considerably worse to have broad patents. If your patent is valid outside of the market you have gone into, then it's worth much much more than in its current limited state. Thay means way more effort by the Apples of the world to patent generic things and demand licensing.
As for trivial... I have to ask: If the mag-safe connector has been around so long, and the idea is so good everybody wants it, why did it take twenty years to finally turn up?
"I like to lick butts!" by MobileTatsu-NJG (#32700246) (Score:5, Informative)
Well, I think the point is that the improvements were obvious given common technical knowledge. Any engineer who sat down with the task of adapting a magnetic breakaway connector to that specific device, would easily come up with a solution by just applying common knowledge.
Not to be facetious, but do you have a citation for that? It's very easy to say, in hindsight, that an improvement was obvious, but the patent office isn't allowed to do that. They have to find publications and art that existed at the time of filing of the application that shows that the improvement was obvious given common technical knowledge at the time. Essentially, "obvious" is a conclusion that needs to be supported by evidence, and the evidence can't just be an opinion that it's obvious.
How could they really be making such a dumb law?
I know! I know! It's because politicians are involved, right?
Patent troll.: One who buys patent and uses them as an income source only. They normally sue those who can least afford to fight the law suits. Thats what a patent trolls is nothing more nothing less. At least in my book :}
Jack of all trades,master of none
But unfortunately, Apple having this patent is either being used as an excuse to drive sales of new laptops (to replace broken motherboards) or general patent fears.
So to make his first substantial claim incorrect or inaccurate, claim 1 of Apple's patent can't be what it appears to be. Reading the file wrapper I see that the USPTO rejected that claim so Apple cancelled it. Am I reading that right?
As always, all IMO. Insert "I think" everywhere grammatically possible.
No need for confusion. The answer is no. You may get a patent on something that uses a wheel, but the protection does not extend to the wheel by itself. I haven't reviewed the prior art, but Apple's patent requires the power plug be symmetric so it can be plugged in in exactly two different orientations and still work. The guy a few posts above should make a triangular one connectable in exactly three orientations and get a patent on that, since it's so damn easy and obvious.
First to file contradicts prior art. Would not prior art have to be invalidated because X filed a patent and didnt know about it being out 10 years ago. X gets the patent and then sees people using it. X sues.. how can X lose if its first to file?
I can program myself out of a Hello World Contest!!
If it didn't, then the company who made the mag-safe fryer would have a ridiculously broad patent.
Which would have well expired by now.
Or that until recently, teflon was prohibitively expensive for a simple shoehorn. Diamond-tipped garden spades are obviously a good idea too. I probably won't bother patenting them though...
You do realize the diamonds in diamond-tipped tools aren't the kind of diamonds you see in jewellery don't you? Mostly they are synthetic diamonds and aren't exactly expensive.
I'm not sure I understand your point. NOBODY would have been able to use it without licensing it until now. The way it has already played out, plenty of people (including Apple!) were never affected.
"I like to lick butts!" by MobileTatsu-NJG (#32700246) (Score:5, Informative)
But now we have a situation where what is effectively the same thing with no new invention is now locked up for another 20-odd years.
Ha ha ha. Pull the other one, it's got bells on.
No, we don't. We have that situation with laptop computers. Huge difference.
"I like to lick butts!" by MobileTatsu-NJG (#32700246) (Score:5, Informative)
Thank you for looking at the file history. Before I get to that, some details. This is an image of I could fine of a fryer system. There may be others: http://www.shunertrade.com/UploadImage/2011530175270.jpg
Looking at this, it appears that the magnet just holds it and the stubby tongs are what electricity is sent through. But I'll be the first to admit I'm not sure how that works.
Here is what apple can prevent other people from making, i.e., not the entire concept of magnetic connectors:
1. An apparatus for electrically connecting an electronic device to an electrical relation, comprising:
a first connector having a first magnetic element and having at least one first contact electrically connected to the electronic device;
[ok, the fryer connector could have this - this could be the plate on the fryer (the device) and let's say magnetic element is the metal plate (let's say it is magnetized for argument's sake) and contact is stub right]
and a second connector positionable adjacent the first connector, the second connector having a second magnetic element and having at least one second contact electrically connected to the electrical relation,
[the fryer may not have this - this is the wall chord (the relation) - the connector can be adjacent, the thin strips can be magnets, and the second contact can be the right hole]
wherein the at least one first contact comprises a metallic contact extending from a first face of the first connector and biased relative to the first face,
[this is backward from our example: instead of a plate, the metal strips would ned to be here]
wherein magnetic attraction between the first and second magnetic elements substantially maintains the first and second contacts in an electrically conductive relationship,
[the fryer has this]
wherein the first and second connectors each comprise two axes of symmetry such that the first and second connectors couple together in only two orientations relative to one another, and
[the fryer may have this - it seems that connector can be flipped around 180 - I may be misreading this]
wherein the at least one first and second contacts of the first and second connectors each comprise a pair of first path contacts on the connector for establishing a first path of electrical communication between the device and the relation,
[the fryer doesn't have this - the plug/hole does not comprise a "pair" of first path contacts]
wherein the pairs of first path contacts form an electrically conductive relationship with one another regardless of which of the two orientations the connectors are magnetically coupled.
[the fryer doesn't have this - because there is no pair that can conduct electricity regardless of orientation.]
I didn't see anywhere where they were forced to cancel claim 1. They amended it some, and it looks like what was added that got them over the prior art is the two axes of symmetry limitation, but they didn't cancel it (admittedly I just skimmed through the OAs and the Responses).
People can disagree on if apple should or should not have gotten a patent on this - I see it as both sufficiently different and narrow. Some people think you should only get patents on major breakthroughs. That's all subjective though.
Long story short, the OP was making sweeping generalizations about what Apple got a patent on (again, I am not surprised - weeping and gnashing of teeth is the norm here now).
The emacs religion: to be saved, control excess.
No, we don't. We have that situation with laptop computers. Huge difference.
The patent is specific to laptop computers?
Apparently not. They got an overly broad patent.
Fuckin Apple.
"I like to lick butts!" by MobileTatsu-NJG (#32700246) (Score:5, Informative)
True, calculus wasn't obvious in any conventional sort of the word. But the fact that it was discovered independently by two different people at roughly the same time, suggests that it was an idea "whose time had come", and that someone else would have discovered it even if Newton and Leibniz never existed.
Uh, no, it's considerably worse to have broad patents. If your patent is valid outside of the market you have gone into, then it's worth much much more than in its current limited state. Thay means way more effort by the Apples of the world to patent generic things and demand licensing.
I agree. My point is that it's bad to allow patents on trivial ideas too, so either way, you get a flawed system.
I have to ask: If the mag-safe connector has been around so long, and the idea is so good everybody wants it, why did it take twenty years to finally turn up?
I don't see anyone rushing to copy the idea. The patent is so specific any competitor who wants to use the idea can make some minor modifications if they want to use it in their own electronic product. The patent is only useful for preventing competitors to make accessories compatible with Apple's products, since the accessory would need a connector that looks just like Apple's.
The reason it took so long to came up with this specific design, is probably that there are so many possible connector designs, it takes too much time and money to patent all of them. Perhaps Apple should be granted a business method patent for "A method to prevent competing accessory products to a main product by patenting the interface between the main product and accessory product", but I think there's a lot of prior art. Inkjet printer manufacturers have been doing this for years to prevent compatible third-party ink refills from being sold.
If someone invents a flying car .. the first person to rush to the patent office and file a patent for "GPS device in a flying car" will get the patent. "Door on flying car" ..patent granted. "Bubble sort algorithm used in a computer system in a flying car" .. patent granted.
You left out "Wireless email in a flying car".
In general, it is safe and legal to kill your children. -- POSIX Programmer's Guide
I'm not saying the patent office did anything wrong. They have to follow the law as it's written. I think the bar is set too low to begin with, and it's the responsibility of the politicians (and ultimately, everyone) to change.
I'm not saying the patent office did anything wrong. They have to follow the law as it's written. I think the bar is set too low to begin with, and it's the responsibility of the politicians (and ultimately, everyone) to change.
Okay... The bar currently requires evidence... Are you suggesting a bar for obviousness that doesn't require evidence?
“Patent troll”
Call it what you will...patent hoarder, patent troll, non-practicing entity, etc. It all means one thing: “we’re using your invention and we’re not going to pay”. This is just dissembling by large infringers to kill any inventor support system. It is purely about legalizing theft.
Prior to eBay v Mercexchange, small entities had a viable chance at commercializing their inventions. If the defendant was found guilty, an injunction was most always issued. Then the inventor small entity could enjoy the exclusive use of his invention in commercializing it. Unfortunately, injunctions are often no longer available to small entity inventors because of the Supreme Court decision so we have no fair chance to compete with much larger entities who are now free to use our inventions. Essentially, large infringers now have your gun and all the bullets. Worse yet, inability to commercialize means those same small entities will not be hiring new employees to roll out their products and services. And now some of those same parties who killed injunctions for small entities and thus blocked their chance at commercializing now complain that small entity inventors are not commercializing. They created the problem and now they want to blame small entities for it. What dissembling! If you don’t like this state of affairs (your unemployment is running out), tell your Congress member. Then maybe we can get some sense back in the patent system with injunctions fully enforceable on all infringers by all inventors, large and small.
For the truth about trolls, please see http://truereform.piausa.org/default.html#pt.
No, I'm suggesting a higher bar for having a patent granted.
Oh god, my eyes, the burning the burning!
Seriously dude, don't post this toxic crap on slashdot, it's fucking rude. Reading even the slightest bit of patent text is a serious liability for anyone involved in genuine innovation, as many folks here are. Post a link if you must reference filthy santorum like this, and add a warning lest unsuspecting readers be injured by exposure to it. Thank the gods I had the good safety instinct to avert my eyes the moment I detected the imaginary property lawyer jibberish in your post.
Oh god, my eyes, the burning the burning!
Seriously dude, don't post this toxic crap on slashdot, it's fucking rude. Reading even the slightest bit of patent text is a serious liability for anyone involved in genuine innovation, as many folks here are. Post a link if you must reference filthy santorum like this, and add a warning lest unsuspecting readers be injured by exposure to it. Thank the gods I had the good safety instinct to avert my eyes the moment I detected the imaginary property lawyer jibberish in your post.
Thanks for adding so much to the discussion.
You're welcome. And thank you, for helping stifle software innovation in America.
While patent trolls may score fewer wins, the wins that they do score come with massive payoffs that are generally far greater than those earned by practicing entities. That's one source of support for an argument that the best way to beat trolls is to somehow reduce their incentive to sue by limiting the financial payday that patent litigation potentially provides. The Congress looks unlikely to do anything to significantly limit trolls, so it may be up to the courts to address this issue.