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New Breed of Patent Claim Bedevils Product Makers

37 points by grellas 16y ago

vermontdevil 16y ago
Another example of a useful law that's on the books and have not been enforced by any government agency. Imagine how many laws out there are like this?
davidu 16y ago
This is the definition of irony. Patents coming back to bite you for having them!
Groxx 16y ago
Super-summary: companies are getting sued for putting expired patent numbers on their products. Previously, for a maximum of $500; last december, a ruling allowed up to $500 per offense (with potential(?) speculation that this implies per individual item produced). And for some reason this includes retailers, not just producers, though I don't understand how. I'll count this a good thing, though $500 per item on the shelf is excessive. As long as those patent numbers are on a product, people won't be as likely to do anything similar for fear of patent violation. If the retailers are also held accountable, I feel sorry for them. That's a redonkulous amount of fact-checking they'd have to do, especially since some patent numbers are inside the items, on the motor housing.
- Qz 16y ago
  Where did it say retailers were responsible also?
  - rjett 16y ago
    I assumed since Walmart stores was named as a defendant that other retailers could be named as well. As far as I know, Walmart doesn't do any manufacturing, even with their Great Value brand (citation needed).
    - sophacles 16y ago
      What would be most reasonable is "brand owner". Not manufacturer or retailer (unless they are the same as brand owner). The owner of the brand is the one who sends the designs for manufacture, including the patent number labels. The manufacturer just executes on that.
  - Groxx 16y ago
    >Raymond E. Stauffer was shopping at a New Jersey mall when he noticed something peculiar about the bow ties on display at Brooks Brothers: They were labeled with old patent numbers. Mr. Stauffer, who calls himself a "sharp-dressed man," also happens to be a patent lawyer. He sued Brooks Brothers Inc. in federal court, claiming it broke the law by marking its adjustable bow ties with patents that expired in the 1950s. He figured the retailer would have to pay a nominal amount for violating a law that bars companies from marking products with erroneous patent numbers. Opening paragraphs, among mentioning other retailers elsewhere (though those seemed to be referring to those retailers' own products).
    - Qz 16y ago
      I think its just a misleading choice of words. Article writers will often substitute a descriptive word for a proper name to avoid being overly repetitive - "the retailer" was probably just a reference to Brooks Brothers.
      - Groxx 16y ago
        Most definitely a possibility. I thought it seemed a bit strange, in any case.
- DougBTX 16y ago
  As long as those patent numbers are on a product, people won't be as likely to do anything similar for fear of patent violation. I don't buy that. At the very least you'll want to look up the title of the patent before getting scared off, which is an easy google request. And those patent documents all have issuing dates - if the data is 50 years ago, why worry? What really gets me about the article are the claims about misleading customers. Unless I'm mistaken, customers don't care about patents. The numbers are only there so that if there is an infringement case, the patent owners can get more cash. The chilling effects of patents still stand, as you can never know if some product you think you just invented is covered, even a little bit, by some obscure patent. And they are all obscure, because it triples your damages if there is evidence you've read the relevant patents. But now I'm just ranting. At least these guys have a product to write the patent number on.
- notahacker 16y ago
  Anyone seriously considering "doing something similar" is going to look into exactly what the patent covers, where, and for how long. There are plenty of databases to search for that information and plenty of professionals to help them do so. At worst, an expired patent might be considered inaccurate advertising that fools a few consumers into thinking a product won't have any generic alternatives available. Not sure it's a $500 per violation level of misleading though... I'm not really sure how anyone other than the lawyers attempting to extort money (and representing only themselves) benefits in any way. The companies that suffer the most will be those that have genuinely tried to protect innovative product designs they've actually implemented, rather than those with secret arsenals of vague and broad business process patents that are mainly conceived as an excuse to sue the successful.
ahi 16y ago
This is why there are lawyer jokes.
Alex3917 16y ago
The thing that really bothers me is future-dated copyrights. For example, buying a textbook and the copyright date on the title page is 2012. How is that not illegal? edit: If I were just to scan them and host them all online would I be doing anything that could be considered infringement? Because as I read it, what they are saying is that this textbook is considered public domain for another two years.
- patio11 16y ago
  Your reading is incorrect. In the United States (and most other signatories to the international copyright treaty whose name escapes me at 1 AM), copyright attaches automatically to any creative expression. Works in general default to copyright, not to the public domain. The copyright notice, symbol, and date are advisory only, not magical runes with exotic legal effects. (Registration of copyrights gives you extra bonuses, but it isn't necessary to invoke copyright protection.) Yes, taking them and hosting them would be infringement. So would republishing this comment, which has no date or copyright symbol but is copyrighted by virtue of existing. The usual rules about fair comment, etc, apply, and courts would hold that I've certainly given PG et al implied license to retain and display the comment as a consequence of writing it here. I am not a lawyer, but I'm not wrong, either.
  - Alex3917 16y ago
    I realize that the copyright date is only advisory, but if you're future-dating your work then what should that be seen as advising? Since future-dating your work is essentially stealing from the public domain, I think that any future-dated works should be legally seen as advising that anyone is free to copy and redistribute that work until the future date. That seems like fair compensation to me.
    - randallsquared 16y ago
      Since future-dating your work is essentially stealing from the public domain [...] I think you're under the impression that copyrights expire at some point, which isn't really the case any more in the US for corporate-owned copyrights, right?
deleted 16y ago
[deleted]
ratsbane 16y ago
I remember reading a paper about marking with respect to software patents - since marking is required in order to enforce software patents, if a patent holder fails to cite patent numbers on applications that use the patent, there are limitations the enforcement of that patent. This would mean, for example, that for Amazon to fully enforce the One Click patent they would have to note "Pat." or somesuch on the web page.
chopsueyar 16y ago
Nice to see the patent system is working. If corporations want their patents to be protected, patents must be protected. Selling an item with an expired patent number is akin to fraud, and undermines the patent system at large. Congress to the rescue!
geuis 16y ago
There's just something about this story that left a bad taste in my mouth and turned my stomach. This is a quintissential example of lawyers behaving like scum. I'm not saying that companies shouldn't keep their patents updated. I am saying that it's greedy, sue-happy lawyers going around essentially trying to wring free money from companies. These people are simply the latest iteration of patent trolls, only with a slightly different shade of scaly green skin.
- adovenmuehle 16y ago
  I completely agree. What really irks me is when Mr. Stauffer claims he's doing "a service to the United States". Seems more like a service to his wallet.
- sophacles 16y ago
  How is this not an appropriate application of the patent system? The placing of patent numbers on products causes many people to not create imitations, clones and whatnot. If the patents are expired, there is no protection, so the placement of the patent number is an act of intimidation. When the patent numbers are removed, people can start imitating, introducing competition in the market, and even commodifying things. Basically all the things patents prevent. This allows for increased overall market efficiency. Since the patent system is in place, perhaps instead of feeling sorry for the poor companies being sued for abusing the patent system, maybe you should try to appreciate that some people will do this. Maybe they are scum, maybe not -- do you actually know anyone who does it? Most likely some are just looking for a quick buck. Some are doing it because it needs to be done. Some may be doing it because it is exciting new lawyering. How is this any different in terms of motives than a random sample of tech startups (replace lawyering with tech...). Related: Do the people who launch suits to get patents invalidated make you sick also? Do you call them "just another form of patent troll"?
  - adovenmuehle 16y ago
    Perhaps it's an act of intimidation, more than likely it was placed on the product years in the past and it would cost the company a lot of money to take the patent number off. Also, if I'm looking to make a competing product, and I see a patent number on a similar product, would it not make sense for me to check if the patent is still in effect? I'm not just going to see a patent number and say to myself, "oh shoot, they already got it, guess that's the end of that." And from a consumer perspective, do I really care if there is a patent for this product or not? My compromise would be to say the company would be required to have the patent numbers taken off and perhaps a fine to the USPTO, but why should this lawyer get money?
russell 16y ago
>>> To keep them valid, companies must pay maintenance fees every four years. I wonder how many patents are invalid because of neglect.
- DougBTX 16y ago
  The fees are higher than I expected: http://www.the-business-of-patents.com/patent-maintenance-fees.html http://www.the-business-of-patents.com/patent-maintenance-fe...
- kljensen 16y ago
  About 1,000 per week miss their fees. (In contrast 2k+ are granted each week.)
npongratz 16y ago
Live by the patent, die by the patent.
dctoedt 16y ago
Let's not get over-excited here. The WSJ article didn't seem to pick up on a June 2010 appellate holding: Someone suing for false patent marking must prove that the patent owner had a specific intent to deceive the public with the false marking. See http://www.townsend.com/Resources/legalupdates/Pequignot_Solo_Cup http://www.townsend.com/Resources/legalupdates/Pequignot_Sol...
- Natsu 16y ago
  True, but a separate ruling says that they have to rule on the merits of the case and that they can't just dismiss for lack of standing as one court attempted to do (something that would've slammed the door shut to these cases). http://www.cafc.uscourts.gov/images/stories/opinions-orders/09-1428-1430-1453.pdf http://www.cafc.uscourts.gov/images/stories/opinions-orders/... In other words, they have to actually prove this at trial, which can be expensive, even if they have a fairly low bar to prove that they meant no harm.
joshu 16y ago
It's 2010. Checking to see if a patent is still valid is trivial. What happens to old stock or whatever? Do retailers have to pull things from the shelves when their patents expire? Better yet, you could have a product code, that could lead to a web page that has the list of patents (and potentially other information; recalls etc?) on it.
- rdl 16y ago
  That would actually be a decent application for StickyBits on UPC codes for popular products.
ggchappell 16y ago
I think the real solution here is that whenever you claim patent protection, you also include the expiration date of the patent. This eliminates the problem old left-over stock marked with expired patents. It also eliminates the problem of forgetting.
rmk 16y ago
Lawyers are scum, but sometimes they are useful, even if by accident or as a side-effect :)
hristov 16y ago
As a patent lawyer I feel that have to chime in here. I have read the discussions thus far and I think most people are missing one important issue. Determining whether a patent is expired is not actually that easy. The patent office and various databases that list patents do not say whether a patent is expired or not. The 20 years from filing rule for patent term seems deceptively easy. But there are many caveats. First, the rule is relatively new and there are still many patents out there that are subject to a different older rule. Second, there are various ways that the term of a patent can be modified, such as term extensions and terminal disclaimers. So, if you want to absolutely certain whether a patent is expired or not you must either hire a patent attorney or spend a lot of time trying to learn patent law and patent practice by yourself. As a patent attorney I should not complain, I suppose, but I think the law referenced in the article makes sense. False patent markings do discourage competition, and it is not actually that easy for the ordinary potential competitor to determine if a patent is valid or not. Although, the penalty of 500 per item may be a bit excessive.
Yaa101 16y ago
Who would have guessed that the general public will be gaming the same system that has been gamed for years by the corporations? ;-)

37 points by grellas 16y ago

Another example of a useful law that's on the books and have not been enforced by any government agency. Imagine how many laws out there are like this?

davidu 16y ago

This is the definition of irony. Patents coming back to bite you for having them!

Groxx 16y ago

Super-summary: companies are getting sued for putting expired patent numbers on their products. Previously, for a maximum of $500; last december, a ruling allowed up to $500 per offense (with potential(?) speculation that this implies per individual item produced). And for some reason this includes retailers, not just producers, though I don't understand how. I'll count this a good thing, though $500 per item on the shelf is excessive. As long as those patent numbers are on a product, people won't be as likely to do anything similar for fear of patent violation. If the retailers are also held accountable, I feel sorry for them. That's a redonkulous amount of fact-checking they'd have to do, especially since some patent numbers are inside the items, on the motor housing.

Qz 16y ago
Where did it say retailers were responsible also?
- rjett 16y ago
  I assumed since Walmart stores was named as a defendant that other retailers could be named as well. As far as I know, Walmart doesn't do any manufacturing, even with their Great Value brand (citation needed).
  - sophacles 16y ago
    What would be most reasonable is "brand owner". Not manufacturer or retailer (unless they are the same as brand owner). The owner of the brand is the one who sends the designs for manufacture, including the patent number labels. The manufacturer just executes on that.
- Groxx 16y ago
  >Raymond E. Stauffer was shopping at a New Jersey mall when he noticed something peculiar about the bow ties on display at Brooks Brothers: They were labeled with old patent numbers. Mr. Stauffer, who calls himself a "sharp-dressed man," also happens to be a patent lawyer. He sued Brooks Brothers Inc. in federal court, claiming it broke the law by marking its adjustable bow ties with patents that expired in the 1950s. He figured the retailer would have to pay a nominal amount for violating a law that bars companies from marking products with erroneous patent numbers. Opening paragraphs, among mentioning other retailers elsewhere (though those seemed to be referring to those retailers' own products).
  - Qz 16y ago
    I think its just a misleading choice of words. Article writers will often substitute a descriptive word for a proper name to avoid being overly repetitive - "the retailer" was probably just a reference to Brooks Brothers.
    - Groxx 16y ago
      Most definitely a possibility. I thought it seemed a bit strange, in any case.
DougBTX 16y ago
As long as those patent numbers are on a product, people won't be as likely to do anything similar for fear of patent violation. I don't buy that. At the very least you'll want to look up the title of the patent before getting scared off, which is an easy google request. And those patent documents all have issuing dates - if the data is 50 years ago, why worry? What really gets me about the article are the claims about misleading customers. Unless I'm mistaken, customers don't care about patents. The numbers are only there so that if there is an infringement case, the patent owners can get more cash. The chilling effects of patents still stand, as you can never know if some product you think you just invented is covered, even a little bit, by some obscure patent. And they are all obscure, because it triples your damages if there is evidence you've read the relevant patents. But now I'm just ranting. At least these guys have a product to write the patent number on.
notahacker 16y ago
Anyone seriously considering "doing something similar" is going to look into exactly what the patent covers, where, and for how long. There are plenty of databases to search for that information and plenty of professionals to help them do so. At worst, an expired patent might be considered inaccurate advertising that fools a few consumers into thinking a product won't have any generic alternatives available. Not sure it's a $500 per violation level of misleading though... I'm not really sure how anyone other than the lawyers attempting to extort money (and representing only themselves) benefits in any way. The companies that suffer the most will be those that have genuinely tried to protect innovative product designs they've actually implemented, rather than those with secret arsenals of vague and broad business process patents that are mainly conceived as an excuse to sue the successful.

ahi 16y ago

This is why there are lawyer jokes.

Alex3917 16y ago

The thing that really bothers me is future-dated copyrights. For example, buying a textbook and the copyright date on the title page is 2012. How is that not illegal? edit: If I were just to scan them and host them all online would I be doing anything that could be considered infringement? Because as I read it, what they are saying is that this textbook is considered public domain for another two years.

patio11 16y ago
Your reading is incorrect. In the United States (and most other signatories to the international copyright treaty whose name escapes me at 1 AM), copyright attaches automatically to any creative expression. Works in general default to copyright, not to the public domain. The copyright notice, symbol, and date are advisory only, not magical runes with exotic legal effects. (Registration of copyrights gives you extra bonuses, but it isn't necessary to invoke copyright protection.) Yes, taking them and hosting them would be infringement. So would republishing this comment, which has no date or copyright symbol but is copyrighted by virtue of existing. The usual rules about fair comment, etc, apply, and courts would hold that I've certainly given PG et al implied license to retain and display the comment as a consequence of writing it here. I am not a lawyer, but I'm not wrong, either.
- Alex3917 16y ago
  I realize that the copyright date is only advisory, but if you're future-dating your work then what should that be seen as advising? Since future-dating your work is essentially stealing from the public domain, I think that any future-dated works should be legally seen as advising that anyone is free to copy and redistribute that work until the future date. That seems like fair compensation to me.
  - randallsquared 16y ago
    Since future-dating your work is essentially stealing from the public domain [...] I think you're under the impression that copyrights expire at some point, which isn't really the case any more in the US for corporate-owned copyrights, right?

deleted 16y ago

[deleted]

ratsbane 16y ago

I remember reading a paper about marking with respect to software patents - since marking is required in order to enforce software patents, if a patent holder fails to cite patent numbers on applications that use the patent, there are limitations the enforcement of that patent. This would mean, for example, that for Amazon to fully enforce the One Click patent they would have to note "Pat." or somesuch on the web page.

chopsueyar 16y ago

Nice to see the patent system is working. If corporations want their patents to be protected, patents must be protected. Selling an item with an expired patent number is akin to fraud, and undermines the patent system at large. Congress to the rescue!

geuis 16y ago

There's just something about this story that left a bad taste in my mouth and turned my stomach. This is a quintissential example of lawyers behaving like scum. I'm not saying that companies shouldn't keep their patents updated. I am saying that it's greedy, sue-happy lawyers going around essentially trying to wring free money from companies. These people are simply the latest iteration of patent trolls, only with a slightly different shade of scaly green skin.

adovenmuehle 16y ago
I completely agree. What really irks me is when Mr. Stauffer claims he's doing "a service to the United States". Seems more like a service to his wallet.
sophacles 16y ago
How is this not an appropriate application of the patent system? The placing of patent numbers on products causes many people to not create imitations, clones and whatnot. If the patents are expired, there is no protection, so the placement of the patent number is an act of intimidation. When the patent numbers are removed, people can start imitating, introducing competition in the market, and even commodifying things. Basically all the things patents prevent. This allows for increased overall market efficiency. Since the patent system is in place, perhaps instead of feeling sorry for the poor companies being sued for abusing the patent system, maybe you should try to appreciate that some people will do this. Maybe they are scum, maybe not -- do you actually know anyone who does it? Most likely some are just looking for a quick buck. Some are doing it because it needs to be done. Some may be doing it because it is exciting new lawyering. How is this any different in terms of motives than a random sample of tech startups (replace lawyering with tech...). Related: Do the people who launch suits to get patents invalidated make you sick also? Do you call them "just another form of patent troll"?
- adovenmuehle 16y ago
  Perhaps it's an act of intimidation, more than likely it was placed on the product years in the past and it would cost the company a lot of money to take the patent number off. Also, if I'm looking to make a competing product, and I see a patent number on a similar product, would it not make sense for me to check if the patent is still in effect? I'm not just going to see a patent number and say to myself, "oh shoot, they already got it, guess that's the end of that." And from a consumer perspective, do I really care if there is a patent for this product or not? My compromise would be to say the company would be required to have the patent numbers taken off and perhaps a fine to the USPTO, but why should this lawyer get money?

russell 16y ago

>>> To keep them valid, companies must pay maintenance fees every four years. I wonder how many patents are invalid because of neglect.

DougBTX 16y ago
The fees are higher than I expected: http://www.the-business-of-patents.com/patent-maintenance-fees.html http://www.the-business-of-patents.com/patent-maintenance-fe...
kljensen 16y ago
About 1,000 per week miss their fees. (In contrast 2k+ are granted each week.)

npongratz 16y ago

Live by the patent, die by the patent.

dctoedt 16y ago

Let's not get over-excited here. The WSJ article didn't seem to pick up on a June 2010 appellate holding: Someone suing for false patent marking must prove that the patent owner had a specific intent to deceive the public with the false marking. See http://www.townsend.com/Resources/legalupdates/Pequignot_Solo_Cup http://www.townsend.com/Resources/legalupdates/Pequignot_Sol...

Natsu 16y ago
True, but a separate ruling says that they have to rule on the merits of the case and that they can't just dismiss for lack of standing as one court attempted to do (something that would've slammed the door shut to these cases). http://www.cafc.uscourts.gov/images/stories/opinions-orders/09-1428-1430-1453.pdf http://www.cafc.uscourts.gov/images/stories/opinions-orders/... In other words, they have to actually prove this at trial, which can be expensive, even if they have a fairly low bar to prove that they meant no harm.

joshu 16y ago

It's 2010. Checking to see if a patent is still valid is trivial. What happens to old stock or whatever? Do retailers have to pull things from the shelves when their patents expire? Better yet, you could have a product code, that could lead to a web page that has the list of patents (and potentially other information; recalls etc?) on it.

rdl 16y ago
That would actually be a decent application for StickyBits on UPC codes for popular products.

ggchappell 16y ago

I think the real solution here is that whenever you claim patent protection, you also include the expiration date of the patent. This eliminates the problem old left-over stock marked with expired patents. It also eliminates the problem of forgetting.

rmk 16y ago

Lawyers are scum, but sometimes they are useful, even if by accident or as a side-effect :)

hristov 16y ago

As a patent lawyer I feel that have to chime in here. I have read the discussions thus far and I think most people are missing one important issue. Determining whether a patent is expired is not actually that easy. The patent office and various databases that list patents do not say whether a patent is expired or not. The 20 years from filing rule for patent term seems deceptively easy. But there are many caveats. First, the rule is relatively new and there are still many patents out there that are subject to a different older rule. Second, there are various ways that the term of a patent can be modified, such as term extensions and terminal disclaimers. So, if you want to absolutely certain whether a patent is expired or not you must either hire a patent attorney or spend a lot of time trying to learn patent law and patent practice by yourself. As a patent attorney I should not complain, I suppose, but I think the law referenced in the article makes sense. False patent markings do discourage competition, and it is not actually that easy for the ordinary potential competitor to determine if a patent is valid or not. Although, the penalty of 500 per item may be a bit excessive.

Yaa101 16y ago

Who would have guessed that the general public will be gaming the same system that has been gamed for years by the corporations? ;-)