Patent 'Death Squad' System Upheld by US Supreme Court (bloomberg.com)

The U.S. Supreme Court upheld an administrative review system that has helped Google, Apple and other companies invalidate hundreds of issued patents. From a report: The justices, voting 7-2, said Tuesday a U.S. Patent and Trademark Office review board that critics call a patent "death squad" wasn't unconstitutionally wielding powers that belong to the courts. Silicon Valley companies have used the system as a less-expensive way to ward off demands for royalties, particularly from patent owners derided as "trolls" because they don't use their patents to make products. Drugmakers and independent inventors complain that it unfairly upends what they thought were established property rights. "It came down to this: Is the patent office fixing its own mistakes or is the government taking property?" said Wayne Stacy, a patent lawyer with Baker Botts. "They came down on the side of the patent office fixing its own mistakes." The ruling caused shares to drop in companies whose main source of revenue -- their patents -- are under threat from challenges. VirnetX, which is trying to protect almost $1 billion in damages it won against Apple, dropped as much as 12 percent. The patent office has said its patents are invalid in a case currently before an appeals court.

Comments

Anyway

[Impy the Impiuos Imp]

If the patent shouldn't have been granted, then it isn't a taking of property because it was never properly instantiated as IP.

Maybe this addendum to the patent office operation is a bad idea, but that's a different issue. Write to your Congressman.

Here are some ideas;

1. If it is done without computers, migrating a process to computers is not patentable.

2. If it is done locally on a computer, distributing pieces over a network (internal to the computer or external, esp. over the Internet) is not patentable.

3. Doing something already being done, but now "Over the Internet!", is not patentable.

4. Creating a virtual machine similar to a real one is not patentable.

Re:Anyway

[Anonymous Coward]

I would add that naturally occurring substances, DNA sequences, genes, etc are not patentable.

Re:Anyway

[JaredOfEuropa]

The device that generates the smell can be patented, since it's more than just "migrating a process to a computer", it involves a new process. However, once such a device is created (or in the true spirit of patent trolling: before the device is created), you should not be able to patent the use of that device "over the internet", e.g. in an online game played on a server.

Re:Anyway

[SeattleLawGuy]

If the patent shouldn't have been granted, then it isn't a taking of property because it was never properly instantiated as IP.

Actually, it was instantiated as IP (translating between law and Computerese), which is what makes it more important to fix the mistake. The patent office may reject basically by default, but it still grants (especially after a decent response to their rejection) plenty of things that a smart person who is skilled in the art would consider obvious. People sometimes need a way to challenge a patent that doesn't result in ridiculously expensive and drawn out litigation.

Re:Anyway

[HornWumpus]

Before spending $10kUS (average cost to get a patent) the APPLICANT should consider if it's a smart way to spend money.

Spending money on shysters has no guaranteed ROI. Don't expect a god damn lawyer to tell you: 'I'll take your money, but it will be for nothing'. Rather the opposite, like asking your barber if you need a haircut, answer is always yes.

Getting the patent gets you a right to take it to court. Not a guarantee the patent is valid.

Invalidating a patent is no more taking a property than losing a appeal. Yes, you've spent money, but nobody ever told you it was the end of the process.

Re: Anyway

[Immerman]

Agreed. You pay to apply - there's no guarantee you'll be awarded the patent, and you don't pay any more if you are. Nor do you get a refund if it isn't.

Now, if you bought such a patent from someone else then you have paid for it. But perhaps you should have done more research to make sure it was a VALID patent first, instead of assuming that the patent office is infallible, or at least that any challengers would face such an expensive legal process that they'd rather let you fleece them than go through it. If you don't like it, take it up with whoever you bought the patent from.

Re:Anyway

[Waffle Iron]

Regardless of whether the patent was "properly instantiated as IP", whatever that means, the applicant has forfeited property, including fees paid and trade secrets revealed.

By the same token, if a patent is issued inappropriately, then everybody else other than the applicant forfeits their right to use concepts that ought to be in the public domain.

The government has "taken" that right from all of them, and that needs to be rectified.

I bet this whole problem would rapidly disappear if we made patent examiners personally liable for the damages caused by these types of mistakes.

They might as well...

[ckatko]

They might as well be saying, "We hide our taxes outside the USA [abusing the system], so closing the tax loophole will negatively affect us!"

Not a single tear.

Darn...

[sconeu]

I was hoping the Patent "Death Squad" actually hunted down patent trolls...

Re:Darn...

[geekmux]

I was hoping the Patent "Death Squad" actually hunted down patent trolls...

Certainly would make for a nice reality show, wouldn't it...

Re:ELI5

[king neckbeard]

A new process made it easier to invalidate patents by creating a process for the USPTO double check their homework when given money and evidence by a third party. Patent holders, particular trolls, cried like little babies about that, saying that the USPTO is stealing their property. The court ruled that it was never their property, because it was just double checking their homework.

Re:some tweaks to the system

[Pinky's Brain]

Just end patents, much easier.

Patents are government issued monopoly...

[CraigCruden]

Patents themselves are a government-issued monopoly to protect the companies from having to compete with others using the results of research without remuneration. It is an invention to try to encourage companies into research and costly development - with the promise that they will have a monopoly for a period of time.

What the government issues, they can revoke if they believe that it was issued in error.

Re:ELI5

[OrangeTide]

In many circumstances the Federal government enjoys sovereign immunity. It it very difficult to bring a lawsuit against the government as it has to meet some pretty narrow requirements.

Re:some tweaks to the system

[alvinrod]

Most of those are just arbitrary rules, on top of being horribly ambiguous or needlessly punitive. The second is a good idea and it would be useful to use those bad patents as training for clerks to help them spot similarly bad patents and nip them in the bud.

Re:Will Google, Apple, et al lose patents, too?

[Xtifr]

This makes it easier for anyone to invalidate a patent, since there are now two methods for doing so: the traditional and expensive method (through the courts) and the new method (asking the PTO to reconsider their grant).

Basically, all that's happened is that the PTO is now allowed to admit they make mistakes. It doesn't require the courts to decide that they've made one.

No, it's fine.

[Anonymous Coward]

The patent should not be on the chemical produced (it exists in mature), but in the mehtod used to create it. If someone comes up with a better method (via whatever metric you want), then it will benefit the inventor. And if the process can be carried out by anyone with a still, then why do you deserve a monopoly?

The homily is "build a better moustrap" niot "patent the idea of catching rodents or other small pests for later disposal".