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Interesting 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..

by netcan 8y ago

Interesting 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 ago
I'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 ago
  Ok, 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 ago
    How 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 ago
I 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.
- patentatt 8y ago
  This I agree with. The asymmetry is exploited by bad actors for far too long. But consider the alternatives. If we make it $250k to file a patent, then we'd all be here complaining that only the rich can afford to acquire patents. And that would kind of suck. And on the other end, most of the cost involved is in paying patent attorneys to make your case for you. What do we do about that? I'm not against the idea of having a dedicated class of highly trained and specialized people to argue these very important matters, right? It kind of comes back to a general argument about the fee structure of American litigation. Perhaps a fee-shifting arrangement where if a patent owner has a patent invalidated they have to pay the other side's fees? But being so unpredictable would still provide a barrier to entry to challenge patents. Should we have a government contingent of patent attorneys available to assist in patent validity challenges? Kind of like a public defender of sorts. Who would decide who gets their help? Who would pay for it? Is that public good (of ridding the system of bad patents) worth that cost? Interesting things to ponder.
patentatt 8y ago
That's why there exist a variety of post-grant procedures to challenge the validity of issued patents. The examination system is a filter that balances cost with error rate, timeliness, accessibility, etc. A 'flawless' examination would be so expensive and lengthy as to be inaccessible to a vast majority of people, and we'd be here complaining about that. The worst examples of bad software patents are largely behind us now, as they were a product of an era of rapid technological change and a dearth of qualified examiners in the mid to late 1990s and early 2000s. Many of those have been defeated in litigation or are starting to fall out of their 20 year windows of exclusivity. And while this case may be frustrating for us to read, do keep in mind the ground truth of what has transpired. A person has completed a bureaucratic process with a government entity and received a piece of paper. Nobody has been sued by this patent (that we know of from this blog post) and the patent owner has not profited a dime (again, as we know of from the blog post. At this stage it seems premature to get all up in arms about it.

by netcan 8y ago

BlackFly 8y ago

I'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 ago
Ok, 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 ago
  How 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 ago

I 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.

patentatt 8y ago
This I agree with. The asymmetry is exploited by bad actors for far too long. But consider the alternatives. If we make it $250k to file a patent, then we'd all be here complaining that only the rich can afford to acquire patents. And that would kind of suck. And on the other end, most of the cost involved is in paying patent attorneys to make your case for you. What do we do about that? I'm not against the idea of having a dedicated class of highly trained and specialized people to argue these very important matters, right? It kind of comes back to a general argument about the fee structure of American litigation. Perhaps a fee-shifting arrangement where if a patent owner has a patent invalidated they have to pay the other side's fees? But being so unpredictable would still provide a barrier to entry to challenge patents. Should we have a government contingent of patent attorneys available to assist in patent validity challenges? Kind of like a public defender of sorts. Who would decide who gets their help? Who would pay for it? Is that public good (of ridding the system of bad patents) worth that cost? Interesting things to ponder.

patentatt 8y ago

That's why there exist a variety of post-grant procedures to challenge the validity of issued patents. The examination system is a filter that balances cost with error rate, timeliness, accessibility, etc. A 'flawless' examination would be so expensive and lengthy as to be inaccessible to a vast majority of people, and we'd be here complaining about that. The worst examples of bad software patents are largely behind us now, as they were a product of an era of rapid technological change and a dearth of qualified examiners in the mid to late 1990s and early 2000s. Many of those have been defeated in litigation or are starting to fall out of their 20 year windows of exclusivity. And while this case may be frustrating for us to read, do keep in mind the ground truth of what has transpired. A person has completed a bureaucratic process with a government entity and received a piece of paper. Nobody has been sued by this patent (that we know of from this blog post) and the patent owner has not profited a dime (again, as we know of from the blog post. At this stage it seems premature to get all up in arms about it.