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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)
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?
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.
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!"
That tells me that the legal system is rather broken...
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.
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.
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.
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.
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"
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.
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.