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Crowdfunding Backer Patented My Project
- donquichotte 8y agoLooks like somebody in the patent office hasn't done their job, the prior art list is overwhelming.
- mrob 8y agoThe patent office's real job is approving patents. The examination part is an unfortunate necessity, but only so far as it maintains the fiction that the patent system is benefiting society.
- patentatt 8y agoWell, to some extent this is true and in some ways totally inaccurate. There is a push in the Examination corps to assist inventors in efficiently identifying the patentable subject matter in their application and assisting the applicant in getting a patent on that subject matter. Buuuut, at the same time, the easiest thing in the world for an Examiner to do is to issue a rejection. Nobody ever got egg on their face for issuing a rejection (if there is a tenable grounds for it). But it is quite embarrassing to be the examiner who allows a facially silly patent (like the swinging on a swing patent, or the stick patent, for example). And, from the Examiner's perspective, they can get more counts (a measure of productivity) by issuing rejections and prolonging examination. So, in the end, the real goal of an Examiner is to get the good ones allowed and reject the bad ones (surprise surprise). It's just a very fact-dependent, laborious, and subjective process. So that sometimes you or I may disagree with some cherry-picked results from thousands of Examiners working nonstop, is not terribly surprising. To suggest that the entire system is broken because of this is extremely naive.
- patentatt 8y agoI count 12 references listed on the front page of the patent, that's not overwhelming. The examiner did not consider the two additional references submitted in the 03/28/2016 IDS because they were submitted the day before the patent was published - long after the Examiner's job was completed and with probably too little time to put a printer rush in (to prevent the patent from being issued). Because of the precarious timing, the Examiner did their job correctly, and the filing attorney technically did their job too by submitting the IDS. It's up to a reexamination or contentious proceeding to resolve the patentability issue now. Due to the odd timing, it may be something that the Director (of the USPTO) could sua sponte order a reexam on, which they have the power to do, should they be so inclined.
- dugmartin 8y agoIf the patent examiner only has 12 hours to examine prior art as the article states why aren't they just replaced with a random number generator?
- gowld 8y agoLike peer review in the academic sciences, they just check that it is properly formatted documented that confirms their pre-existing biases.
- patentatt 8y agoThat's simply not true. Just because there are examples of examination being imperfect doesn't mean that all Examiners are doing is confirming biases. Also, Examiners don't care about formatting at all.
- patentatt 8y agoHow much time would be appropriate? What do you base it on? What information do you have that the USPTO doesn't have? Propose a real alternative.
- netcan 8y agoInteresting read. A lot of these come back to the problem of defining a patent: There is no way to determine, in a patent office, in the real world, at scale... if patents are actually novel and/or trivial. It's possible to disprove a novelty claim in some cases (like this one), but that's it. We need major reform, globally. The pharmaceutical/medical patent system needs to be separate to the software patent system, for example. This case is really a great example. Patents enables intellectual theft, it doesn't prevent it.
- BlackFly 8y agoI've always found the fact that independent discovery wasn't a defense to patent infringement to be an obvious indication that patents are more about setting up a protectionist market than about protecting inventors.
- deleted 8y ago[deleted]
- patentatt 8y agoOk, so every accused infringer alleges independent discovery. How do you prove or disprove that fact on either side? I think therein lies the reason why this whole line of argumentation is set aside, even if it is logically appealing.
- BlackFly 8y agoHow does the police go about proving that it was not self defense? The police have an even higher burden, needing to meet a standard of no reasonable doubt. Instead civil cases require a balance of probabilities. So, no the difficulty in proving intent is not the reason.
- guitarbill 8y agoI tend to agree, but unlikely will get there, too much money involved. Another solution could be to fix/use the asymmetry of being granted a patent and invalidating a patent. Right now it seems getting a patent is much easier than invalidating it. There have been steps to sort this, e.g. inter partes review (IPR). I'd like it to reversed, i.e. invalidating should be much easier than being granted a patent.
- hiccuphippo 8y ago> examiners for the most part seem to only look at existing patents [...] So if your work isn’t in one of these patent databases—examiners usually use the USPTO patent archive or google patents—it’s very possible your work won’t be discovered by the examiner. Would it be feasible to build an "unpatented" database where people could submit the inventions they don't want patented and have the USPTO look at it in their research? Maybe a patent version of what copyleft is to copyright?
- antidesitter 8y agohttps://en.wikipedia.org/wiki/Patentleft https://en.wikipedia.org/wiki/Patentleft
- esalman 8y agoI don't understand why the patent examiner wouldn't look into something like Google Scholar for prior art. This is the "unpatented database" where people submit inventions all the time- journal articles, preprints etc.
- epmaybe 8y agoIf I understand correctly, the us patent system is "first to file" rather than "first to invent". There's a 1yr grace period from when an inventor publicly discloses an invention (say, in an academic journal) to when they must file a patent application. See this link for more details: https://techcrunch.com/2013/02/16/first-to-file-a-primer/ https://techcrunch.com/2013/02/16/first-to-file-a-primer/
- patentatt 8y agoExaminers do absolutely use NPL (non-patent literature) sources such as an including Google Scholar. Just because this one examiner in this case didn't include any record in the file wrapper also doesn't mean that they didn't conduct a search there themselves. But the evidence we're talking about here may not have even come up in a Google Scholar search as it appears it is only on a crowd funding page.
- patentatt 8y ago
- apacheCamel 8y agoThat is incredibly upsetting but was very fascinating to read about. The author handled the situation extremely well after seeing (what seems to be) a major part of their life be "intellectually" taken away from them. Even though they may own the patent, the patent troll will never take away the dedication, work and love poured into this passion project. It definitely should make anyone question the current patent process.
- ithinkinstereo 8y agoI suppose the silver lining is that this patent is essentially worthless for the intellectual thief Jill Mackay. Given all the prior art, I'm guessing it would be hard to enforce, but I can definitely see Jill pulling some patent troll moves in the future. The real stinker in this whole story is how Jill Mackay had the balls to try to sell the patent back to Jie for $5MM. Totally shameful and by a fellow "artist" no less.
- alistairSH 8y agoWhat a scumbag (Jill MacKay, not Jie Qi).
- x13 8y agothis Jill MacKay? https://docs.wixstatic.com/ugd/dc954b_8c3843e07bea451a8723ab884ecb8a6d.pdf https://docs.wixstatic.com/ugd/dc954b_8c3843e07bea451a8723ab...
- alistairSH 8y agoNo idea. Jill MacKay was the name of the "idea thief" in the linked blog entry.
- TeMPOraL 8y agoIt's this one, according to screenshots.
- TeMPOraL 8y agoThe plot thickens. This document suggests an overall impressive persona. So why would she do something so evil as this?
- atentaten 8y agoProfessional achievements != personal integrity.
- jimboyoungblood 8y agoyes
- danso 8y agoThis one: https://www.kickstarter.com/profile/jillmackay/about https://www.kickstarter.com/profile/jillmackay/about > Jill MacKay is an accomplished designer, author and artist. Her name is synonymous with innovation and she is known for her genuine enthusiasm, love of nature and boundless spirit. Combined with over thirty years of creative work experience, Jill is one of the most skilled and sought after designers in the creative industries today. Jill licenses her product lines to national chains, manufacturers and television retailers. Jill is perhaps best known for having been the jewelry designer for the daytime drama The Guiding Light, and for her work on Paramount Studio’s Star Trek: The Next Generation. She truly believes in the power of the arts to change lives, help solve social issues, heal hearts and build communities. Jill is also known as an art in education (AIE) specialist and for helping to develop the concept of Community Artist through her work with national arts organizations.
- 75dvtwin 8y agoVery disheartening. Thank you to the author Jie Qi (MIT) What can be done on individual level, at the engineering level, as well as voters in US or European Union, to make sure that the economic theft of this type does not thrive ? (and I am sure there are many 'Jill MacKay' characters in other countries, not just US) The current patent system in US at least -- had been converted into a form of legalized racketeering. With its own ecosystem of 'enforcers', 'masterminds', 'spies on the ground', etc. Also just as in protection from racketeers it pays to have 'wealthy' and 'powerful' backers for your business (with whom you must share a portion of your equity... ).
- patentatt 8y agoI think legalized racketeering is a hard case to make out from this set of facts. The patent owner here has not received a dime, from what we know from this blog post, for this patent. It may be frustrating to see, but so far seems that the 'system' has not allowed any profiteering here.
- ultim8k 8y agoRead the patent. => Find where he lives. => Order a chainsaw. :p Now seriously. Sew them. Hunt them down legally and shame them online for the rest of their life.
- Konnstann 8y agoSue?
- manigandham 8y agoThat won't solve anything and is not good advice. We don't need more online mob justice, and this blog post does a good job of documenting the issue as public history.
- manigandham 8y agoIt's ridiculous that it costs $300-600k to attempt to dispute a patent. The whole patent process needs a major revamp, and that's before considering how bad it is for software and intangible products.
- patentatt 8y agoAnd that's for an IPR, which is the cheap route to invalidation! A similar proceeding in district court would be an order of magnitude higher, and that was much more common before the introduction of IPRs and the PTAB in 2012. Now, the author is not exactly correct in that the IPR is the only route forward to invalidate a patent. Some other options include ex partes reexam and protest, which may have the potential to be a lower-cost option. In any event, having pertinent (according to the author) prior art cited in an IDS in the file wrapper could neuter a patent anyways, as any attempt to enforce or transfer it would be severely hampered by its presence. Even any attorney who would take a case to enforce it could potentially have ethics issues in taking the case if they believed the cited art to be invalidating. And no one would buy a patent with such a cloud over it, until all cited art is addressed in a contentious proceeding or in examination it's probably not going to be sold.
- foreigner 8y agoIf they're anything like domain name squatters they'll now wait until you're worth more, and then try to make you pay to license the patent. The fee they demand will be slightly less than it would cost you to fight them and repudiate the patent. You'll be in a quandary: pay more to fight for justice, or save money and let the terrorists win. Patent trolls are professionals, they know exactly what they're doing.
- andjd 8y agoFormer lawyer here: One of the key takeaways from this is that even if you don't want to exclude other people from using and building on your invention, you should still patent it. It's much cheaper to file the patent--you don't even need to hire a lawyer to do it--than it is to fight off someone else. But I also agree with the other comments here that if patent examiners need to do a more through search for prior art than just examining other existing patents, especially in domains where there are open-source communities. That would involve a modest increase in cost to the government, much or all of which could be covered by increasing the patent filing fees, and be a huge economic benefit for companies large and small that get harassed by dubious patents.
- patentatt 8y agoThe problem seems to be how to measure such an effort. It's easy to list a few classes and subclasses (of the patent database) and say that you've searched through those entirely, but the whole internet? What documentation would be sufficient to convey that the Examiner had searched thoroughly enough? Examiners are already urged to search NPL (non-patent literature) sources, but it seems too amorphous to establish standards for what sources need to be searched and how thoroughly. And the tooling isn't there either. Natural language search engines aren't precise enough for a real search for information (don't want the googles guessing what you 'really' meant to search for). When I was an examiner, for what it's worth, I always searched at least IEEE, CiteSeerX, and Dialog databases, but I'm not sure that a KickStarter campaign would have come up in any of those databases either.
- danso 8y agoThe shamelessness of some people: > What really twisted me inside was to see her emphasize how her stickers are “made in the USA.” Here’s the irony of the situation: Chinese American immigrant student (that’s me!) from MIT goes to Shenzhen, China to create an educational toolkit. But the output of such work is patented by an American businesswoman from Colorado who promotes the “USA” origin of the work.
- univalent 8y agoThis is such revolting behavior. Props to the author for their calm and perseverance. I'm in a rage just from reading the article.
- kevin_b_er 8y agoIntellectual "Property" no longer is to promote progress of science and useful arts, it is a form of rent seeking. If the patent no longer promotes science and useful arts, then the 1st amendment applies and I view patents and copyright as unconstitutional in their current form. Patents inhibit the progress of science and copyright has no limit.
- patentatt 8y agoThis is a legally dubious argument. Consider that the patent system is one of the only tools which puts all parties on an even playing field. Surely, deep coffers convey great advantage to large players, but that power is not absolute. Solid prior art will ultimately limit or destroy value in a patent regardless of who owns it. It is essentially a meritocratic system, even if distorted by money. Without a patent system, it's a fully autocratic world in which money rules over all, and large players will use their market dominance to steal all innovation. It's a worse situation, any way you cut it. Any unfairness or inequality you can identify currently would only be exacerbated by removing patent protection. So, I support your cause for more egalitarianism and meritocracy, but I think doing away with patents will only make it worse, not better.