8 ms·
How is this a patent troll? Nikola isn’t a non-practicing entity. They have their own competing product. Was the Apple-Samsung patent litigation “patent trolli
by monochromatic 8y ago
How is this a patent troll? Nikola isn’t a non-practicing entity. They have their own competing product.
Was the Apple-Samsung patent litigation “patent trolling?”
- _r_o_y_ 8y agoI'm with you I don't understand why people are so quick to call a company a "patent troll" diluting the meaning.
- mental1896 8y agoThis is either an opinion or PR piece. It's one-sided right off the bat and continually reminds the reader that this company is very obviously bad.
- globuous 8y agoThat's what I thought, but towards the end of the article, the author explains himself. With supporting research which I appreciated: > But now I cannot get behind them at all after such a clear case of patent trolling. > [...] > A wrap windshield on a truck? That has been around for years before Nikola Motors or Tesla Semi: > [picture of MAN truck with similar design] > Those types of concepts, like a mid-entry door and wrap windshield, *have been around for decades really and the fact that Nikola would patent them and sue anyone who decides to use similar ideas sounds just like patent trolling to me. > [picture that looks like its from the 90s showing a truck with wrapped windshield]
- ams6110 8y agoSo with all that prior art, why were the patents granted? Whose responsibility is it to demonstrate novelty? Does the patent office do research for prior art? Or are producers of similar products supposed to constantly review and monitor patent applications and challenge them?
- diminoten 8y agoBecause examiners are not incentivized toward accuracy, but volume. An examiner is in no way held to account for an overly broad patent grant, or at least wasn't when my father explained/ranted about it to me a few years ago (he's an IP attorney). Things could have changed since we last spoke about it, though.
- the_watcher 8y agoBogus patents like this are granted constantly. Prior art usually only comes up when there's alleged infringement, when it's used to invalidate the patent.
- Bartweiss 8y ago35 U.S.C. § 102 sets the standards for patentability. Interestingly, the relevant standards are simply statements about the condition of the world: unless— (1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention Patent applicants are expected to conduct prior art reviews and attempt to determine novelty, but this is done defensively - for the purposes of not wasting money on an obvious failure, or to head off anticipated claims of prior art by justifying the novel feature. Meanwhile the patent office is expected to search for prior art and issue a rejection if found. To aid in this, there are also mechanisms for interested outsiders to contact the USPTO with evidence for rejecting a patent. Finally, someone who finds themselves infringing on a patent can file for review of the patent - this is the intended mechanism to ensure that people don't have to constantly watch for all patent applications which might harm them. In practice, the USPTO is fairly good at rejecting things which have already been patented, or are obvious to a layman. But they often miss domain-specific developments which are either obvious to professionals (many software patents) or entered the market without being patented (apparently, this mid-door design). The ex parte re-examination system seems to have been gaining some teeth lately, but isn't sufficiently reliable to prevent patent trolling.
- monochromatic 8y ago> Patent applicants are expected to conduct prior art reviews and attempt to determine novelty, but this is done defensively - for the purposes of not wasting money on an obvious failure, or to head off anticipated claims of prior art by justifying the novel feature. If that’s true, patent applicants fail to meet expectations 90+% of the time.
- DannyBee 8y agoThese are design patents, not utility patents. It's not a patent on all wrapped windshields, it's a patent on windshields that look like nikola's. The fact that someone somewhere made wrapped windshields once is irrelevant here (but would not be in utility patents) To use a slightly crappy analogy, it's like patenting your ui, not your algorithm.
- dragonwriter 8y ago> To use a slightly crappy analogy, it's like patenting your ui, not your algorithm. To use a less crappy analogy, it's like the patents on smartphone case shape and layout that were at issue in Apple-Samsung.
- DannyBee 8y agoYeah, i tried to avoid that one because people did the same thing there ("rounded corner phones existed before!"), but ¯\_(ツ)_/¯
- Bartweiss 8y agoI'm not sure what the origin of "patent troll" is, but common sources (e.g. Wikipedia) certainly don't say it's limited to non-practicing entities. Patent trolling is an attempt to secure patents for the purposes of making money via lawsuits or licenses far in excess of the patent's actual value, using the threat of legal costs or hefty infringement penalties. This is particularly true when the patented trait is incidental, over-general, or simply granted in error. So where does Nikola Motors fall? - They use the patented techniques, and those features are not clearly incidental to the product. But... - Their suit claims 'damages' which are a large fraction of their company's lifetime revenue, and presumably an order of magnitude above their lifetime profits. - A quick check of the side door patent shows that extremely similar products predate the D816,004 patent by quite a lot. The line between "already exists" and "is not a non-obvious advance on what exists" is sometimes fuzzy, but it's not clear why this patent was granted. So yes - it's a suit conducted to make money in its own right rather than prevent use, claiming unrealistic damages for a dubious patent. By most usage, that makes it patent trolling even if you make products as well.
- LukeShu 8y ago> Their suit claims 'damages' which are a large fraction of ... They have 6.3 billion revenue worth of pre-orders on the Nikola One. > A quick check of the side door patent ... "is not a non-obvious advance on what exists" It is a design patent, which covers non-functional ornamental design. Think of it as more similar to a trademark than to a regular patent. It doesn't have to be an advance on what exists, it just has to be aesthetically distinctive.
- Bartweiss 8y ago> They have 6.3 billion revenue worth of pre-orders on the Nikola One. Yes, and their suit seeks $2 billion in damages - a large fraction of their lifetime revenue. > It doesn't have to be an advance on what exists, it just has to be aesthetically distinctive. Good point, my discussion of non-obvious was mistaken, and this probably does justify the wraparound window - it's not the first but it's a distinctive look. I'm still not clear on how the side door patent was granted, since it appears basically identical to designs in production many years ago, but it's not clearly unjustified.
- ceejayoz 8y agoThe article includes this image, which shows all three patented elements, along with a bunch of 1980s/90s hair and typography: https://electrek.files.wordpress.com/2018/05/7d9a939bf5c3281eab2a373efa5833af.jpg https://electrek.files.wordpress.com/2018/05/7d9a939bf5c3281... Seems to clearly indicate these patents should be invalidated.
- larrik 8y agoThat's true, but that's not the definition of a "patent troll". Patent trolls very specifically make all of their money with patent lawsuits and settlements. Nikola Motors is a real company making real products, however misguided this lawsuit is.
- ceejayoz 8y agoI'd be inclined to include "targets competitors with blatantly invalid patents" under the definition of "patent troll", personally.
- mikeash 8y agoWikipedia defines it as, “In international law and business, patent trolling or patent hoarding is a categorical or pejorative term applied to a person or company that attempts to enforce patent rights against accused infringers far beyond the patent's actual value or contribution to the prior art....” It goes on to say that patent trolls often don’t make products using the patents, but this is not always the case. That definition seems a lot better than one limited to a non-practicing entity.
- Purest 8y ago"Specially designed for two-men or husband and wife teams" I just wish someone would design a truck that two women could drive as a team. That would be a truly revolutionary design! /s
- jbob2000 8y agoLook at the pictures. They look about as similar as a Ford does to a Dodge. The grill, headlamps, body panels, windshield, hell, even the length of the truck is completely different between the two trucks. A truck is a truck, you can't patent the form factor of a truck.
- ctz 8y ago> you can't patent the form factor of a truck Is there a specific part of design patent law you're referring to? A special case for trucks?
- jeffreyrogers 8y agoYou can actually. It's called a design patent. It's different than a utility patent because it's supposed to be non-functional. I haven't looked at the patents to see if they're design or utility patents though.
- wrboyce 8y agoYou could have read the article, though… The third paragraph is: > In the complaint, Nikola alleges that Tesla’s electric truck design infringes on a series of 3 specific design patents that they recently obtained for the design of a few features of their Nikola One truck unveiled in 2016 – a year before Tesla unveiled its own electric truck.
- jeffreyrogers 8y agoThanks, I skimmed it and looked at the pictures but didn't see that.
- dragonwriter 8y ago> A truck is a truck, you can't patent the form factor of a truck. Yes, you can patent non-functional design elements of any product.
- jacquesm 8y agoIt doesn't matter if they are a practicing entity or not: they are still clearly using their patents in a trolling fashion. After all: (1) who had ever heard of 'Nikola' before this, (2) these patents are too dumb for words, (3) good luck showing $2B in damages and (if any) and (4) if you really believe that Nikola is now associated with Tesla because of battery fires then you're silly. These people are patent trolls pure and simple, that they do other stuff besides doesn't really matter. Oh, and these patents shouldn't have been granted in the first place, they are design patents, and the design is right along the lines of other futuristic looking trucks that still look like trucks.
- ams6110 8y ago> It doesn't matter if they are a practicing entity or not Yes it does, the key characteristic of patent "trolling" is that the patent owner is not practicing. I had heard of Nikola before this, because they have been featured on this site, and in other news outlets catering to EV-enthusiasts. Many patents seem to me to be dumb, or for completely non-novel, obvious things ("one click ordering", etc), but the patent office granted them, so they are valid. Agree they probably can't show $2B in damages, and on the fire confusion. But in any lawsuit you start off asking for way more than you'll settle for.
- toomuchtodo 8y agoI assume they’re going to settle for $0, as Tesla will litigate until Nikola exhausts their runway.
- busterarm 8y agoPart of patent trolling is the filing of obviously bogus patents like these to begin with.
- kevin_thibedeau 8y agoThese are design patents. They can't be bogus if they are sufficiently original. The Tesla design looks pretty damn similar to the Nikola.
- loceng 8y agoAerodynamics are aerodynamics, I'd argue it's an attempt to patent part of well-known physics. Likewise, Tesla already has full windshield design in their other vehicles, and it's logical they'd extend that to other vehicles in their fleet of offerings. On a side note, I don't know what patents Nikola has. They obviously don't have the brand recognition of Tesla and Elon Musk, and so they're clearly scared. I feel for them, however with the laws of economies of scale, in this day and age you aren't creating to support a whole ecosystem you won't be able to compete as efficiently. Another side note, patents although seem to have some benefit, however it's arguable that they are holding back innovation and a higher quality of life for everyone - potentially suffocating innovation while extracting excess value from everyone, and funnelling money to those who already have the most money to invest to begin with. It's obviously a difficult subject to navigate as we don't have an alternate system to compare to, well, except perhaps in part the ignoring of patents in China allowed their economy to boom.
- mtgx 8y agoLarge companies can troll/abuse their patents against others, too. I mean just look at the sum they're asking for. $2 billion? Based on what is that value determined? Tesla hasn't even officially launched its trucks yet, nor has Nikola. Due to the ridiculousness of the lawsuit alone I consider this "trolling". Also there is plenty of prior art. That's also one of the main reasons why car companies don't sue each other - it would be very stupid on their part to do so.
- manicdee 8y agoFrom my reading the supposed damages are Tesla getting thousands of preorders, with each preorder for a Tesla being exactly one lost sale for Nikola purely because the buyers want a truck with a particular windscreen design.
- ZeroGravitas 8y agoWould you say that a company can become a "patent troll" by your strict definition after trying and failing to market an actual product? Are you sure that this lawsuit doesn't signal them giving up and looking for other ways to recoup their investments?
- dragonwriter 8y ago> Are you sure that this lawsuit doesn't signal them giving up and looking for other ways to recoup their investments? They've got billions of dollars worth of preorders; there's no sign they've either had trouble marketing a product or given up on it.
- manicdee 8y agoThey have no physical product and are still trading in dreams. Tesla has a functioning prototype. Which company is the practising entity?
- SantaBarbarian 8y agoIt's clearly not the proper use of "patent troll". This is just the Tesla Branch Elonians extending their "the world is against our religion" into bizarre heights of delusion. Nikola got patents granted. They are a real truck manufacturer, with real customers (including Budweiser's parent who just signed on. Big.), and don't remotely fit into the "patent troll" category. After a while you just get tired of the All-Tesla-All-the-Time crowd complaining that other people are coming to the market-- probably with better management and more focus.