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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
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.
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?