Exactly. Determining whether a reference is "cumulative" to previously-cited art is too great of an unknown and the consequences of the applicant making that determination incorrectly are too great. The risk of having the patent found un-enforceable is huge, and it's most simply mitigated by citing the reference.
Long IDSs are the logical result of Rule 56 in its current form. It comes down to the balance between the public's interest in the applicant's full disclosure with the applicant's interest in not having his patent found un-enforceable when he didn't really do anything malicious. Right now, the balance on this matter is tipped more in favor of the public, and less in favor of patentees. Recall that a patent can be found un-enforceable for inequitable conduct even if a withheld reference does not defeat patentability. The question is merely whether it's something the examiner would have found "material" to patentability.
Well, the patent grab claim is unlikely. All but one of the US patents listed in the photographed flyer have been abandoned according to the US Patent office (failure to pay maintenance fees). Looks like they don't have much in the way of patent rights now, and they probably won't have much more in ten years time if they can't come up with the cash to pay maintenance fees now. Caveat Investor...
What the parent describes is a concept commonly called the "poor man's patent," and it doesn't work nearly as well as legend would suggest.
If you want to protect the functional aspects of your idea (i.e. things within the realm of patents) rather than just the way you expressed it in code (copyright only protects the form of expression, not the how-it-works aspects), then look up "Statutory Invention Registrations" with the US Patent and Trademark Office. They're relatively inexpensive and will act as prior art to anyone subsequently trying to patent exactly the same thing. There are also commercial services that provide similar services for creating so-called "defensive publications."
I don't think the GP is saying they shouldn't be able to use the courts, I think it's more about the way they go about it. For one thing, plaintiffs have an obligation to be reasonably certain that they have identified the right parties before filing suit, and to proceed appropriately when/if they learn that they have identified the wrong individual. In the case mentioned (as I understand it, IANAL), Ms. Andersen is alleging that they put minimal effort into ensuring they had identified the right defendant and that they pursued a case against a wrongly-accused individual long after learning that she was not guilty of the accused acts.
Maybe no legal binding, but enough people complaining can tend to cause Congress or the PTO to create legal or procedural solutions that may only exacerbate the real problems. The USPTO is clearly (and understandably) frustrated by the volume of prior art that applicants submit, but the consequences to the applicants of not submitting that art are too high for the applicants to leave anything out of their disclosures. I don't know what the perfect solution is (although I suspect it has something to do with altering the disclosure requirement and/or its consequences), but articles and summaries like this don't exactly help the problem, since they fail to address or even acknowledge the fundamental reasons behind the actions being criticized.
Curiously, the European Patent Office (among others) does not even have a disclosure requirement. Applicants and their attorneys are not required to tell the EPO about prior art they know of. The EPO just relies on the abilities of its examiners to do good searches.
Patent applicants and their attorneys are under a legal obligation to cite ANY documents that a Patent Examiner may consider "material" to tbe patentability of the invention. If the applicant fails to cite anything that the Examiner might have found material, the patent can be held invalid by a court. But if they cite "too much," people complain that they're "burying" the patent office. Damned if you do, and damned if you don't.
It's economically impossible to create a system that grants monopolies to encourage risk and investment; the maximum value is gained when you obtain the monopoly while not risking or investing.
I'm not sure I understand how your conclusion follows from your premise. The maximum benefit of most things occurs when one doesn't play by the same rules as everyone else, but that doesn't mean the system is broken. A few people obtaining substantial benefit with minimal investment is hardly evidence of rampant abuse. How does that imply a broken system? Keep in mind that the patent office issues upwards of 200,000 patents per year, and the handful of examples cited by the GP and others are nothing more than anecdotal. Also consider the fact that the entities that are cited as examples of the "broken" system typically hold hundreds, if not thousands of patents each, so you would have to factor in the invested cost of obtaining all of those patents, since one generally can't predict which one will be a hit.
Also, the number of patents granted by the patent office hardly erodes "everyone elses economic resources" quite as quickly as you suggest. By the patent office's own estimates, only around five to ten percent of the patents it grants actually cover existing products. If you've seen numbers that suggest otherwise, I'd be interested to see them.
The fact that the costs to the consumer are "hidden and unaccounted for" seems like more of a problem with the accounting and disclosure requirements of the companies passing those costs through to consumers than it does with the patent office's rules. How would you propose to correct this?
Doesn't it encourage the second inventor to develop an even better widget that doesn't infringe the patent of the first?
The incentive presented by a patent is: if you spend the time to develop something truly new and valuable, you can have an exclusive right to profit from that development. How does the mere possibility that someone else might simultaneously invent and get a patent on the same development remove the incentive to create in the first place?
I have yet to see a solid and convincing argument to support the whole "patents hinder innovation" notion. All I've seen is people complaining about anecdotal cases where patents caused a problem for someone, and then people jumping to the conclusion that "patents hinder innovation." Has anyone ever actually demonstrated that people are less likely to innovate as a direct result of the existence of a patent?
Slashdot Mirror
Exactly. Determining whether a reference is "cumulative" to previously-cited art is too great of an unknown and the consequences of the applicant making that determination incorrectly are too great. The risk of having the patent found un-enforceable is huge, and it's most simply mitigated by citing the reference.
Long IDSs are the logical result of Rule 56 in its current form. It comes down to the balance between the public's interest in the applicant's full disclosure with the applicant's interest in not having his patent found un-enforceable when he didn't really do anything malicious. Right now, the balance on this matter is tipped more in favor of the public, and less in favor of patentees. Recall that a patent can be found un-enforceable for inequitable conduct even if a withheld reference does not defeat patentability. The question is merely whether it's something the examiner would have found "material" to patentability.
Well, the patent grab claim is unlikely. All but one of the US patents listed in the photographed flyer have been abandoned according to the US Patent office (failure to pay maintenance fees). Looks like they don't have much in the way of patent rights now, and they probably won't have much more in ten years time if they can't come up with the cash to pay maintenance fees now. Caveat Investor...
What the parent describes is a concept commonly called the "poor man's patent," and it doesn't work nearly as well as legend would suggest.
If you want to protect the functional aspects of your idea (i.e. things within the realm of patents) rather than just the way you expressed it in code (copyright only protects the form of expression, not the how-it-works aspects), then look up "Statutory Invention Registrations" with the US Patent and Trademark Office. They're relatively inexpensive and will act as prior art to anyone subsequently trying to patent exactly the same thing. There are also commercial services that provide similar services for creating so-called "defensive publications."
I don't think the GP is saying they shouldn't be able to use the courts, I think it's more about the way they go about it. For one thing, plaintiffs have an obligation to be reasonably certain that they have identified the right parties before filing suit, and to proceed appropriately when/if they learn that they have identified the wrong individual. In the case mentioned (as I understand it, IANAL), Ms. Andersen is alleging that they put minimal effort into ensuring they had identified the right defendant and that they pursued a case against a wrongly-accused individual long after learning that she was not guilty of the accused acts.
Maybe no legal binding, but enough people complaining can tend to cause Congress or the PTO to create legal or procedural solutions that may only exacerbate the real problems. The USPTO is clearly (and understandably) frustrated by the volume of prior art that applicants submit, but the consequences to the applicants of not submitting that art are too high for the applicants to leave anything out of their disclosures. I don't know what the perfect solution is (although I suspect it has something to do with altering the disclosure requirement and/or its consequences), but articles and summaries like this don't exactly help the problem, since they fail to address or even acknowledge the fundamental reasons behind the actions being criticized.
Curiously, the European Patent Office (among others) does not even have a disclosure requirement. Applicants and their attorneys are not required to tell the EPO about prior art they know of. The EPO just relies on the abilities of its examiners to do good searches.
Patent applicants and their attorneys are under a legal obligation to cite ANY documents that a Patent Examiner may consider "material" to tbe patentability of the invention. If the applicant fails to cite anything that the Examiner might have found material, the patent can be held invalid by a court. But if they cite "too much," people complain that they're "burying" the patent office. Damned if you do, and damned if you don't.
may disagree. Apparently, the US constitution doesn't affirmatively grant the rights we thought we had...
Well, the announcement was quite successful at driving Apple's stock price to a record high. Perhaps its just a matter of perspective.
It's economically impossible to create a system that grants monopolies to encourage risk and investment; the maximum value is gained when you obtain the monopoly while not risking or investing.
I'm not sure I understand how your conclusion follows from your premise. The maximum benefit of most things occurs when one doesn't play by the same rules as everyone else, but that doesn't mean the system is broken. A few people obtaining substantial benefit with minimal investment is hardly evidence of rampant abuse. How does that imply a broken system? Keep in mind that the patent office issues upwards of 200,000 patents per year, and the handful of examples cited by the GP and others are nothing more than anecdotal. Also consider the fact that the entities that are cited as examples of the "broken" system typically hold hundreds, if not thousands of patents each, so you would have to factor in the invested cost of obtaining all of those patents, since one generally can't predict which one will be a hit.
Also, the number of patents granted by the patent office hardly erodes "everyone elses economic resources" quite as quickly as you suggest. By the patent office's own estimates, only around five to ten percent of the patents it grants actually cover existing products. If you've seen numbers that suggest otherwise, I'd be interested to see them.
The fact that the costs to the consumer are "hidden and unaccounted for" seems like more of a problem with the accounting and disclosure requirements of the companies passing those costs through to consumers than it does with the patent office's rules. How would you propose to correct this?
Doesn't it encourage the second inventor to develop an even better widget that doesn't infringe the patent of the first?
The incentive presented by a patent is: if you spend the time to develop something truly new and valuable, you can have an exclusive right to profit from that development. How does the mere possibility that someone else might simultaneously invent and get a patent on the same development remove the incentive to create in the first place?
I have yet to see a solid and convincing argument to support the whole "patents hinder innovation" notion. All I've seen is people complaining about anecdotal cases where patents caused a problem for someone, and then people jumping to the conclusion that "patents hinder innovation." Has anyone ever actually demonstrated that people are less likely to innovate as a direct result of the existence of a patent?