Startups often take at least that long to get going, whereas established companies already have the funding and infrastructure in place to move products to market. If the patent term is too short then patents have no value for startups but retain value for established companies.
And what about patents for things like pharmaceuticals and other products that have long regulatory lead times? What if the patent covers a technology that needs a breakthrough in another area in order to be commercially viable?
Abolish UI/Gesture and all software patents
First, come up with a definition of "software patent" that is neither overinclusive nor underinclusive, unambiguous, and cannot easily be gamed. Oh, and if you're going to abolish all of the existing software patents then you'll have to pay the patent owners reasonable compensation under the Fifth Amendment.
Abolish lifeform and seed patents.
This seems like a bit of a non sequitur. Anyway, you have the same Fifth Amendment problem.
So what if the Campaign for Liberty is about more than this issue? If you agree that the TSA needs to be ended, then work with the Campaign for Liberty to end the TSA and refuse to have anything more to do with them.
I agree with you on that point, but part of the summary is an appeal for donations to the C4L. Those donations will support a broad range of activities, not just working to end the TSA. I'm sure there are quite a few people who would be happy to sign the anti-TSA petition but would be wary of donating money to a group that works against them on other issues.
I'm not taking a position for or against them, but it is evident that quite a few people disagree with those positions yet also oppose the TSA and its tactics. The summary does not make it clear the Campaign for Liberty has a much broader mission than dismantling the TSA, and I wanted to correct that omission.
Bear in mind that the Campaign for Liberty is about a lot more than opposing the TSA, some of which some people may not find all that palatable (e.g. free market fundamentalism, scrapping the Federal Reserve, dismantling most of the federal government, withdrawing from most international organizations).
After reading the claims on the USPTO site it boggles the mind that such a patent could be granted in 2009. As a game developer myself, i can guarantee that every single thing mentioned in that patent has been done *at least* 10 years prior - probably more like 15 or 20
The patents in question date back to at least 1996. Anyway, if it's that easy to find prior art then the case should be a slam dunk.
the prior art considered is mostly limited to existing patents
The Patent Office's access to computer science-related prior art documents other than patents that are older than 1996 is not very good compared to the patent and patent application databases.
It does not help that the Patent Office fought tooth and nail against the patentability of software, thus finding itself completely unprepared to properly examine software patents once they were allowed. That continues to this day, with computer science and electrical engineering being some of the weakest technology areas in the examining corps. It also doesn't help that examiner retention is abysmal. The vast majority of examiners have less than three years of experience, since they tend to either burn out, return to industry, or become patent attorneys.
The short-term solution is to eliminate the presumption of validity. Longer-term solutions include tightening the enablement and written description requirements, increasing the Patent Office's budget by raising fees, and opening satellite offices near technology hubs like Silicon Valley and Seattle.
I find it *fucking offensive* that parasites like this can try to claim ownership over what is (for the most part) an extremely open, patent free, and innovative industry
Does it offend you that some people like to enforce property rights in their homes even though some people choose to live in communes?
Anyway, patent free? Check your hardware sometime. I guarantee that the device you posted that comment from is covered by thousands of patents, as is every gaming device on the market. As are the major operating systems on the market and many of the frameworks used to make games (e.g. DirectX). As are many related technologies like the servers that run XBox Live and the PSN. And lots of major players (e.g. Microsoft) own patents and applications related to video games. Here's one from Microsoft on spectating in multiplayer games.
Open? The commercial gaming industry is quite closed, actually, with very few games being open source, and many publishers quite fiercely protecting their IP. Lawsuits over clones and copycats are as old as the industry itself.
Patents don't affect games qua games much (e.g. a patent on a side-scrolling platformer) because copyright is free, instantaneous, international, broader in scope, and provides better remedies (e.g. statutory damages, criminal enforcement).
Ever been to GDC? Each year, hundreds of developers from competing companies will share the tips and tricks used in their latest technology, with no expectation of financial compensation. I have *never* heard a game developer complain that someone else was using their "invention" - much more likely they'd be flattered.
Don't confuse programmers with the video game business. A developer may be flattered if someone copies his or her code in violation of copyright. The business that employs the programmer may feel very differently. The same is true of other creative industries such as film (e.g. a director's response versus the movie studio's).
There is plenty of prior art to invalidate these patents, but in our glorious patent system it will cost millions to do so.
Requesting an ex parte reexamination costs $2,520, plus a fairly modest amount for a patent attorney to put together the request. The Patent Office takes it from there, and any litigation is typically stayed pending the result. Worlds' patent portfolio appears to be pretty small, only five patents, so all five could be thrown into reexam for not a lot of money. For a more hands-on approach there's inter partes reexamination, though it is a bit more expensive, but still cheaper than litigation. Litigation is not the only way to address a potentially invalid patent, depending on the defenses one plans to raise (i.e. not all possible defenses are available in reexamination).
The law regarding venue has shifted in the past few years and it is now much harder to stay in the Eastern District of Texas, especially if both the plaintiff and defendant have only a nominal presence there (e.g. their products are sold there via the internet or they have a couple of retail outlets). In re Volkswagen of Am., Inc., 545 F.3d 304 (5th Cir. 2008); also see In re TS Tech. USA Corp., 551 F.3d 1315 (Fed. Cir. 2008); In re Genentech, Inc., 566 F.3d 1338 (Fed. Cir. 2009); In re Hoffmann-La Roche Inc., 587 F.3d 1333 (Fed. Cir. 2009); In re Nintendo Co., 589 F.3d 1194 (Fed. Cir. 2009); In re Zimmer Holdings, Inc., 609 F.3d 1378 (Fed. Cir. 2010); In re Acer Am. Corp., 626 F.3d 1252 (Fed. Cir. 2010); In re Microsoft Corp., 630 F.3d 1361 (Fed. Cir. 2011).
Anyway, the Eastern District of Texas's reputation as a pro-patentee district is a little undeserved. The statistics on that aren't super strong. For example, here are the patentee win rates among various popular districts, taken from Andrei Iancu and Jay Chung, Real Reasons the Eastern District of Texas Draws Patent Cases—Beyond Lore and Anecdote, 14 SMU Sci. & Tech. L. Rev. 299 (2011).
District Jury Trial Win Rate E.D. Virginia 79% M.D. Florida 77% N.D. Illinois 74% E.D. Texas 73% C.D. California 73% W.D. Wisconsin 71% N.D. California 66% D. Minnesota 65% D. New Jersey 64% D.Delaware 61% S.D. New York 53%
(NB: That's the jury trial win rate; less than 3% of patent cases end with a jury verdict, so don't think these stats show that patentees win patent cases left and right.)
As you can see, the Eastern District of Texas is only a little above the average there. Its affirmance rate at the Federal Circuit is similarly middle-of-the-pack, and it's also not the fastest district by a long shot, with an average time to jury verdict of almost 29 months, compared to Eastern Virginia and Western Wisconsin with 12 and 13 month pendencies, respectively.
There is a six year limitation on damages that functions similar to a statute of limitations. 35 U.S.C. 286. The defenses of laches and waiver are also potentially available if a patent owner sits on their rights after becoming aware of possible infringement.
The company's earliest patents go back to at least 1996 and possibly earlier. You also have to remember that many patents are the result of continuations or divisionals and can thus claim the benefit of the filing date of the parent application. The other patents that I looked at seem to derive from the same early filing. You can't just look at the filing date of the application, you have to go up the chain.
And AFAIK the loser now has to pay the costs of the proceedings.
As a general rule this is not correct in the United States. Fee-shifting is possible in "exceptional" patent cases, but it's not very common. Even then it tends to be awarded in cases of willful patent infringement rather than in cases where the patent is invalid or uninfringed.
Due to selection bias, such numbers say very little. If a case would be obviously won - in either direction - then it will most likely be settled instead of going to court.
"Would be obviously won" applies to very few pre-litigation patent disputes. One look at the reversal rates at the Federal Circuit would be enough to tell you that, to say nothing of the uncertainty created by Supreme Court decisions, Federal Circuit en banc cases, and the America Invents Act.
Anyway, are you suggesting that NPEs have caused a significant increase in out-of-court patent disputes all involving either obviously strong or obviously weak patents? If the patents are that obviously weak, then what's the problem? And if the patents are so obviously strong that the defendants don't bother going to court, then it sounds like there's not a problem with NPEs abusing weak patents.
And if there had been such an enormous swell in the number of out-of-court patent disputes one would expect significant spillover into the courts because of close cases. Remember that an alleged infringer can easily drag the patentee into court via a declaratory judgment action. In fact, it is almost impossible to discuss a license agreement without triggering declaratory judgment jurisdiction. So it's not like the NPEs have complete control over whether a dispute ends up in court; far from it, in fact.
"Winning" means that a patent is found valid, enforceable, and infringed. NPEs can lose not just because a patent is invalid but also because it was simply uninfringed. Fee-shifting could apply in either case, of course. Without more detailed statistics it's impossible to say whether the PTO is "rubber stamping" too many invalid patents.
Furthermore, "rubber stamping" is a pretty big overstatement. The PTO might not be doing a very good job of examination, but it's clearly not rubber stamping patent applications. The vast majority of patent applications receive at least one Office Action (i.e. a list of rejections that must be overcome before a patent can issue).
If there is indeed a serious problem with the PTO, then the answer is to eliminate or reduce the presumption of validity, which would make it easier to prove invalidity. In the long run the answer is to take steps to improve examiner retention: the vast majority of examiners have less than three years of experience, almost none have more than ten, and the PTO has trouble getting enough qualified examiners with computer science backgrounds. Opening an office on the west coast would probably go a long way toward fixing that.
Because of patent trolls, more politely called mass patent aggregators, patent litigation has in part increased by more than 230% over the past 20 years
The number of patent cases has increased almost exactly in lock step with the number of patents granted (see page 8). The growth rate for litigation since 1991 is 4.9%, whereas the rate for patents granted is 4.5%. There is not a lot of evidence that there are more patent cases because of non-practicing entities. For example, litigation rates have been relatively flat since about 2003, despite numerous patent aggregators only coming into existence in that timeframe (see page 8 again).
NPEs also tend to lose cases more often than practicing entities (see above, page 24 and 32). NPEs win about 23% of the time overall, and PEs win about 39%. When NPEs do win the awards are higher, but that's to be expected. The primary value of litigation for an NPE is to get money, either as a damage award or as a license agreement. The primary value of litigation for a practicing entity is to exclude a competitor. Damages are nice, but the real point is the injunction.
That loss rate is a good example of why more fee-shifting (i.e. loser pays the other side's attorney's fees) in patent cases would be beneficial in eliminating frivolous, "shakedown," and otherwise questionable patent suits brought by NPEs.
But prior art is irrelevant unless you can afford a couple of good attorneys who bill at $500 / hour, and are willing to devote months if not years of your life to a legal battle.
Patent attorneys, even good ones, do not universally bill $500/hour. There are perfectly competent patent attorneys who bill half or even a quarter of that. But moreover, litigation is not the only route to invalidating a patent. If appropriate prior art is found (e.g. patents and printed publications), reexamination at the Patent Office costs far less than litigation, often results in invalidation or substantial narrowing of the patent, and any co-pending litigation is typically stayed during reexamination.
Is it worth $100,000, or even $1,000,000, to invalidate the plaintiff's patent? You can win the battle but lose the war when your small business goes bankrupt from the legal costs.
That's one reason I favor greater use of fee-shifting in patent cases (i.e. patentee pays the other side's attorney's fees if the patent is invalidated). But who's to say that the patentee would get an injunction in this case? Since they don't make an iPad app it's quite possible that the court would only award a reasonable royalty or perhaps lost profits. That means the app will have to be more expensive but it doesn't mean it would be removed from the market. Similarly, the defendant many be able to settle for a reasonable royalty without incurring significant litigation costs. The author of the article assumes that the result will be the end of the app, but this is not necessarily true.
Is the NIF approach even plausibly capable of generating electricity in a useful way, or is it purely a research platform / smokescreen for nuclear weapons research?
The patent is publicly available. There's a link right in the summary. The application was confidential, but it was confidential for less time (7 months) than patent applications are by default (18 months) before it was granted. Damages for patent infringement can include time during which the application was pending, but only if the infringer has notice of the application. Since the application was confidential, that doesn't apply here.
It's pretty much a patent on software. Software for controlling a vehicle, but software nonetheless. Claim 15, for example:
An article of manufacture including a tangible non-transitory computer-readable storage medium having computer-readable instructions encoded thereon, the instructions comprising: instructions for detecting a landing strip with a first sensor responsive to a vehicle stopping; instructions for detecting a reference indicator with a second sensor, responsive to the first sensor detecting the landing strip; instructions for identifying reference data associated with the detected reference indicator, wherein the reference data comprises an internet address; instructions for wirelessly retrieving the autonomous vehicle instruction based on at least the reference data; instructions for switching a vehicle to autonomous operation mode; and, instructions for performing the autonomous vehicle instruction.
This claim format is known as a Beauregard claim. Such claims have long been used as one of several ways of claiming software-implemented inventions, though their long-term viability is somewhat suspect (hence all the "tangible non-transitory" hedging language). The other claims are to a method (also basically software) and to a vehicle running the software on a control module (since Google didn't invent the car, that's basically another software claim).
What Google did was make a request for confidentiality under 35 U.S.C. 122(b)(2)(B). Normally patents are kept confidential for 18 months after filing, whereupon they are published by the Patent Office. A 122(b)(2)(B) request keeps the application confidential so long as the applicant doesn't file in another country or make a Patent Cooperation Treaty filing that requires publication at 18 months. Essentially it's confidentiality at the expense of not being able to go international. In this case, it wouldn't have made a difference because the patent issued about 7 months after filing. Even without the 122(b)(2)(B) request the application would not have been published before the patent issued.
Apparently you don't understand how summary judgment works. Summary judgment will not be granted if there is a genuine dispute as to a material fact (i.e. a fact that could affect the outcome of the case). The purpose of summary judgment is to resolve issues of law that would not be given to the jury, or to save the time and effort of a trial if the facts are undisputed. Whether the claims are patent eligible under 101 is an issue of law that would not be submitted to the jury in any case.
Apple can now argue that the patent has already made it through two reviews by patent examiners and that further evaluation is unnecessary.
That's not the standard under which reexamination is made. Reexamination requires a "substantial new question of patentability." As long as a substantial new question is raised, it doesn't matter how many times it's been examined in the past.
Further, a reissue is not a reexamination. Examination is only made with regard to the amendments, not to the patent as a whole.
Apple filed the reissue application in order to amend the claims. It appears that some small, slightly narrowing tweaks were made to add references to "beacons." The reissue does not affect the term of the patent. Check out 35 U.S.C. 251 for more details. Notably, if anyone did anything that would infringe the reissued claims but didn't infringe the original claims, then they can continue doing so. This can even apply to taking substantial preparation towards something that would infringe. In other words, a reissue is not retroactive, per 35 U.S.C. 252. This is a protection against broadening reissue. In this case, though, it looks like the amendments narrowed the claims rather than broaden them.
That is not accurate, at least not since the KSR decision, which held that "A person of ordinary skill is also a person of ordinary creativity, not an automaton."
You do realize that that patent cites as prior art numerous patents describing linked lists and other data structures, right? The patent doesn't claim a plain, CS101 linked list. The idea is a linked list with two pointers per node such that the pointers describe two different sequences (e.g. in a list of customer records, one set of pointers traverses the list according to last name and the other according to first name).
but you also don't ignore prior art just because it isn't exactly the same as the patented idea. Yeah, you show someone who's skilled in that area a piece of prior art and ask them, "in your opinion, is this an obvious modification of this prior art?"
That's pretty much precisely what the KSR decision says.
Hell, you want something less subjective? Maybe you give them a specific enough description of the problem they need to solve, and see if they come up with the same solution on their own. If so, it's obvious.
That would be rife with hindsight bias unless you have a time machine.
Within the article, the contention is that the prior art corpus is basically already-issued patents. Art that has not been patented is largely not checked.
No, the PTO has access to lots of non-patent databases (e.g. scientific journals). Rejections based on non-patent literature are very common, including in software. They should probably be more common, and the examiners need both better search tools and more time to perform their searches, but it is not the case that examiners only consider patents and patent applications.
Slashdot Mirror
- Limit all patents to 5 years
Startups often take at least that long to get going, whereas established companies already have the funding and infrastructure in place to move products to market. If the patent term is too short then patents have no value for startups but retain value for established companies.
And what about patents for things like pharmaceuticals and other products that have long regulatory lead times? What if the patent covers a technology that needs a breakthrough in another area in order to be commercially viable?
Abolish UI/Gesture and all software patents
First, come up with a definition of "software patent" that is neither overinclusive nor underinclusive, unambiguous, and cannot easily be gamed. Oh, and if you're going to abolish all of the existing software patents then you'll have to pay the patent owners reasonable compensation under the Fifth Amendment.
Abolish lifeform and seed patents.
This seems like a bit of a non sequitur. Anyway, you have the same Fifth Amendment problem.
So what if the Campaign for Liberty is about more than this issue? If you agree that the TSA needs to be ended, then work with the Campaign for Liberty to end the TSA and refuse to have anything more to do with them.
I agree with you on that point, but part of the summary is an appeal for donations to the C4L. Those donations will support a broad range of activities, not just working to end the TSA. I'm sure there are quite a few people who would be happy to sign the anti-TSA petition but would be wary of donating money to a group that works against them on other issues.
I'm not taking a position for or against them, but it is evident that quite a few people disagree with those positions yet also oppose the TSA and its tactics. The summary does not make it clear the Campaign for Liberty has a much broader mission than dismantling the TSA, and I wanted to correct that omission.
Bear in mind that the Campaign for Liberty is about a lot more than opposing the TSA, some of which some people may not find all that palatable (e.g. free market fundamentalism, scrapping the Federal Reserve, dismantling most of the federal government, withdrawing from most international organizations).
After reading the claims on the USPTO site it boggles the mind that such a patent could be granted in 2009. As a game developer myself, i can guarantee that every single thing mentioned in that patent has been done *at least* 10 years prior - probably more like 15 or 20
The patents in question date back to at least 1996. Anyway, if it's that easy to find prior art then the case should be a slam dunk.
the prior art considered is mostly limited to existing patents
The Patent Office's access to computer science-related prior art documents other than patents that are older than 1996 is not very good compared to the patent and patent application databases.
It does not help that the Patent Office fought tooth and nail against the patentability of software, thus finding itself completely unprepared to properly examine software patents once they were allowed. That continues to this day, with computer science and electrical engineering being some of the weakest technology areas in the examining corps. It also doesn't help that examiner retention is abysmal. The vast majority of examiners have less than three years of experience, since they tend to either burn out, return to industry, or become patent attorneys.
The short-term solution is to eliminate the presumption of validity. Longer-term solutions include tightening the enablement and written description requirements, increasing the Patent Office's budget by raising fees, and opening satellite offices near technology hubs like Silicon Valley and Seattle.
I find it *fucking offensive* that parasites like this can try to claim ownership over what is (for the most part) an extremely open, patent free, and innovative industry
Does it offend you that some people like to enforce property rights in their homes even though some people choose to live in communes?
Anyway, patent free? Check your hardware sometime. I guarantee that the device you posted that comment from is covered by thousands of patents, as is every gaming device on the market. As are the major operating systems on the market and many of the frameworks used to make games (e.g. DirectX). As are many related technologies like the servers that run XBox Live and the PSN. And lots of major players (e.g. Microsoft) own patents and applications related to video games. Here's one from Microsoft on spectating in multiplayer games.
Open? The commercial gaming industry is quite closed, actually, with very few games being open source, and many publishers quite fiercely protecting their IP. Lawsuits over clones and copycats are as old as the industry itself.
Patents don't affect games qua games much (e.g. a patent on a side-scrolling platformer) because copyright is free, instantaneous, international, broader in scope, and provides better remedies (e.g. statutory damages, criminal enforcement).
Ever been to GDC? Each year, hundreds of developers from competing companies will share the tips and tricks used in their latest technology, with no expectation of financial compensation. I have *never* heard a game developer complain that someone else was using their "invention" - much more likely they'd be flattered.
Don't confuse programmers with the video game business. A developer may be flattered if someone copies his or her code in violation of copyright. The business that employs the programmer may feel very differently. The same is true of other creative industries such as film (e.g. a director's response versus the movie studio's).
There is plenty of prior art to invalidate these patents, but in our glorious patent system it will cost millions to do so.
Requesting an ex parte reexamination costs $2,520, plus a fairly modest amount for a patent attorney to put together the request. The Patent Office takes it from there, and any litigation is typically stayed pending the result. Worlds' patent portfolio appears to be pretty small, only five patents, so all five could be thrown into reexam for not a lot of money. For a more hands-on approach there's inter partes reexamination, though it is a bit more expensive, but still cheaper than litigation. Litigation is not the only way to address a potentially invalid patent, depending on the defenses one plans to raise (i.e. not all possible defenses are available in reexamination).
The law regarding venue has shifted in the past few years and it is now much harder to stay in the Eastern District of Texas, especially if both the plaintiff and defendant have only a nominal presence there (e.g. their products are sold there via the internet or they have a couple of retail outlets). In re Volkswagen of Am., Inc., 545 F.3d 304 (5th Cir. 2008); also see In re TS Tech. USA Corp., 551 F.3d 1315 (Fed. Cir. 2008); In re Genentech, Inc., 566 F.3d 1338 (Fed. Cir. 2009); In re Hoffmann-La Roche Inc., 587 F.3d 1333 (Fed. Cir. 2009); In re Nintendo Co., 589 F.3d 1194 (Fed. Cir. 2009); In re Zimmer Holdings, Inc., 609 F.3d 1378 (Fed. Cir. 2010); In re Acer Am. Corp., 626 F.3d 1252 (Fed. Cir. 2010); In re Microsoft Corp., 630 F.3d 1361 (Fed. Cir. 2011).
Anyway, the Eastern District of Texas's reputation as a pro-patentee district is a little undeserved. The statistics on that aren't super strong. For example, here are the patentee win rates among various popular districts, taken from Andrei Iancu and Jay Chung, Real Reasons the Eastern District of Texas Draws Patent Cases—Beyond Lore and Anecdote, 14 SMU Sci. & Tech. L. Rev. 299 (2011).
District Jury Trial Win Rate
E.D. Virginia 79%
M.D. Florida 77%
N.D. Illinois 74%
E.D. Texas 73%
C.D. California 73%
W.D. Wisconsin 71%
N.D. California 66%
D. Minnesota 65%
D. New Jersey 64%
D.Delaware 61%
S.D. New York 53%
(NB: That's the jury trial win rate; less than 3% of patent cases end with a jury verdict, so don't think these stats show that patentees win patent cases left and right.)
As you can see, the Eastern District of Texas is only a little above the average there. Its affirmance rate at the Federal Circuit is similarly middle-of-the-pack, and it's also not the fastest district by a long shot, with an average time to jury verdict of almost 29 months, compared to Eastern Virginia and Western Wisconsin with 12 and 13 month pendencies, respectively.
There is a six year limitation on damages that functions similar to a statute of limitations. 35 U.S.C. 286. The defenses of laches and waiver are also potentially available if a patent owner sits on their rights after becoming aware of possible infringement.
The company's earliest patents go back to at least 1996 and possibly earlier. You also have to remember that many patents are the result of continuations or divisionals and can thus claim the benefit of the filing date of the parent application. The other patents that I looked at seem to derive from the same early filing. You can't just look at the filing date of the application, you have to go up the chain.
And AFAIK the loser now has to pay the costs of the proceedings.
As a general rule this is not correct in the United States. Fee-shifting is possible in "exceptional" patent cases, but it's not very common. Even then it tends to be awarded in cases of willful patent infringement rather than in cases where the patent is invalid or uninfringed.
Due to selection bias, such numbers say very little. If a case would be obviously won - in either direction - then it will most likely be settled instead of going to court.
"Would be obviously won" applies to very few pre-litigation patent disputes. One look at the reversal rates at the Federal Circuit would be enough to tell you that, to say nothing of the uncertainty created by Supreme Court decisions, Federal Circuit en banc cases, and the America Invents Act.
Anyway, are you suggesting that NPEs have caused a significant increase in out-of-court patent disputes all involving either obviously strong or obviously weak patents? If the patents are that obviously weak, then what's the problem? And if the patents are so obviously strong that the defendants don't bother going to court, then it sounds like there's not a problem with NPEs abusing weak patents.
And if there had been such an enormous swell in the number of out-of-court patent disputes one would expect significant spillover into the courts because of close cases. Remember that an alleged infringer can easily drag the patentee into court via a declaratory judgment action. In fact, it is almost impossible to discuss a license agreement without triggering declaratory judgment jurisdiction. So it's not like the NPEs have complete control over whether a dispute ends up in court; far from it, in fact.
"Winning" means that a patent is found valid, enforceable, and infringed. NPEs can lose not just because a patent is invalid but also because it was simply uninfringed. Fee-shifting could apply in either case, of course. Without more detailed statistics it's impossible to say whether the PTO is "rubber stamping" too many invalid patents.
Furthermore, "rubber stamping" is a pretty big overstatement. The PTO might not be doing a very good job of examination, but it's clearly not rubber stamping patent applications. The vast majority of patent applications receive at least one Office Action (i.e. a list of rejections that must be overcome before a patent can issue).
If there is indeed a serious problem with the PTO, then the answer is to eliminate or reduce the presumption of validity, which would make it easier to prove invalidity. In the long run the answer is to take steps to improve examiner retention: the vast majority of examiners have less than three years of experience, almost none have more than ten, and the PTO has trouble getting enough qualified examiners with computer science backgrounds. Opening an office on the west coast would probably go a long way toward fixing that.
Because of patent trolls, more politely called mass patent aggregators, patent litigation has in part increased by more than 230% over the past 20 years
The number of patent cases has increased almost exactly in lock step with the number of patents granted (see page 8). The growth rate for litigation since 1991 is 4.9%, whereas the rate for patents granted is 4.5%. There is not a lot of evidence that there are more patent cases because of non-practicing entities. For example, litigation rates have been relatively flat since about 2003, despite numerous patent aggregators only coming into existence in that timeframe (see page 8 again).
NPEs also tend to lose cases more often than practicing entities (see above, page 24 and 32). NPEs win about 23% of the time overall, and PEs win about 39%. When NPEs do win the awards are higher, but that's to be expected. The primary value of litigation for an NPE is to get money, either as a damage award or as a license agreement. The primary value of litigation for a practicing entity is to exclude a competitor. Damages are nice, but the real point is the injunction.
That loss rate is a good example of why more fee-shifting (i.e. loser pays the other side's attorney's fees) in patent cases would be beneficial in eliminating frivolous, "shakedown," and otherwise questionable patent suits brought by NPEs.
But prior art is irrelevant unless you can afford a couple of good attorneys who bill at $500 / hour, and are willing to devote months if not years of your life to a legal battle.
Patent attorneys, even good ones, do not universally bill $500/hour. There are perfectly competent patent attorneys who bill half or even a quarter of that. But moreover, litigation is not the only route to invalidating a patent. If appropriate prior art is found (e.g. patents and printed publications), reexamination at the Patent Office costs far less than litigation, often results in invalidation or substantial narrowing of the patent, and any co-pending litigation is typically stayed during reexamination.
Is it worth $100,000, or even $1,000,000, to invalidate the plaintiff's patent? You can win the battle but lose the war when your small business goes bankrupt from the legal costs.
That's one reason I favor greater use of fee-shifting in patent cases (i.e. patentee pays the other side's attorney's fees if the patent is invalidated). But who's to say that the patentee would get an injunction in this case? Since they don't make an iPad app it's quite possible that the court would only award a reasonable royalty or perhaps lost profits. That means the app will have to be more expensive but it doesn't mean it would be removed from the market. Similarly, the defendant many be able to settle for a reasonable royalty without incurring significant litigation costs. The author of the article assumes that the result will be the end of the app, but this is not necessarily true.
Is the NIF approach even plausibly capable of generating electricity in a useful way, or is it purely a research platform / smokescreen for nuclear weapons research?
The patent is publicly available. There's a link right in the summary. The application was confidential, but it was confidential for less time (7 months) than patent applications are by default (18 months) before it was granted. Damages for patent infringement can include time during which the application was pending, but only if the infringer has notice of the application. Since the application was confidential, that doesn't apply here.
It's pretty much a patent on software. Software for controlling a vehicle, but software nonetheless. Claim 15, for example:
An article of manufacture including a tangible non-transitory computer-readable storage medium having computer-readable instructions encoded thereon, the instructions comprising: instructions for detecting a landing strip with a first sensor responsive to a vehicle stopping; instructions for detecting a reference indicator with a second sensor, responsive to the first sensor detecting the landing strip; instructions for identifying reference data associated with the detected reference indicator, wherein the reference data comprises an internet address; instructions for wirelessly retrieving the autonomous vehicle instruction based on at least the reference data; instructions for switching a vehicle to autonomous operation mode; and, instructions for performing the autonomous vehicle instruction.
This claim format is known as a Beauregard claim. Such claims have long been used as one of several ways of claiming software-implemented inventions, though their long-term viability is somewhat suspect (hence all the "tangible non-transitory" hedging language). The other claims are to a method (also basically software) and to a vehicle running the software on a control module (since Google didn't invent the car, that's basically another software claim).
What Google did was make a request for confidentiality under 35 U.S.C. 122(b)(2)(B). Normally patents are kept confidential for 18 months after filing, whereupon they are published by the Patent Office. A 122(b)(2)(B) request keeps the application confidential so long as the applicant doesn't file in another country or make a Patent Cooperation Treaty filing that requires publication at 18 months. Essentially it's confidentiality at the expense of not being able to go international. In this case, it wouldn't have made a difference because the patent issued about 7 months after filing. Even without the 122(b)(2)(B) request the application would not have been published before the patent issued.
Apparently you don't understand how summary judgment works. Summary judgment will not be granted if there is a genuine dispute as to a material fact (i.e. a fact that could affect the outcome of the case). The purpose of summary judgment is to resolve issues of law that would not be given to the jury, or to save the time and effort of a trial if the facts are undisputed. Whether the claims are patent eligible under 101 is an issue of law that would not be submitted to the jury in any case.
The Monsanto cases typically involved farmers who intentionally harvested and planted GMO seeds, not accidental pollination. The most famous such case occurred in Canada, by the way, not the US.
Apple can now argue that the patent has already made it through two reviews by patent examiners and that further evaluation is unnecessary.
That's not the standard under which reexamination is made. Reexamination requires a "substantial new question of patentability." As long as a substantial new question is raised, it doesn't matter how many times it's been examined in the past.
Further, a reissue is not a reexamination. Examination is only made with regard to the amendments, not to the patent as a whole.
Why reissue it?
Apple filed the reissue application in order to amend the claims. It appears that some small, slightly narrowing tweaks were made to add references to "beacons." The reissue does not affect the term of the patent. Check out 35 U.S.C. 251 for more details. Notably, if anyone did anything that would infringe the reissued claims but didn't infringe the original claims, then they can continue doing so. This can even apply to taking substantial preparation towards something that would infringe. In other words, a reissue is not retroactive, per 35 U.S.C. 252. This is a protection against broadening reissue. In this case, though, it looks like the amendments narrowed the claims rather than broaden them.
but with no inventiveness of his own
That is not accurate, at least not since the KSR decision, which held that "A person of ordinary skill is also a person of ordinary creativity, not an automaton."
You do realize that that patent cites as prior art numerous patents describing linked lists and other data structures, right? The patent doesn't claim a plain, CS101 linked list. The idea is a linked list with two pointers per node such that the pointers describe two different sequences (e.g. in a list of customer records, one set of pointers traverses the list according to last name and the other according to first name).
but you also don't ignore prior art just because it isn't exactly the same as the patented idea. Yeah, you show someone who's skilled in that area a piece of prior art and ask them, "in your opinion, is this an obvious modification of this prior art?"
That's pretty much precisely what the KSR decision says.
Hell, you want something less subjective? Maybe you give them a specific enough description of the problem they need to solve, and see if they come up with the same solution on their own. If so, it's obvious.
That would be rife with hindsight bias unless you have a time machine.
Within the article, the contention is that the prior art corpus is basically already-issued patents. Art that has not been patented is largely not checked.
No, the PTO has access to lots of non-patent databases (e.g. scientific journals). Rejections based on non-patent literature are very common, including in software. They should probably be more common, and the examiners need both better search tools and more time to perform their searches, but it is not the case that examiners only consider patents and patent applications.