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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.'"
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?
Moot.
Such questions are hard, bad, and pointless. Even if we could do so, there is no real value in coming up with the exact number we should use for making an arbitrary distinction about an invention's obviousness. It's bad because as well as implying all kinds of things, it frames the debate in a useless way. We want to encourage invention, not enrich lawyers.
We can change the system so that answers to questions like that are not important.
Intellectual Property is a monopolistic, selfish, and defective concept. It is "tyranny over the mind of man"
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"