5 ms·

I think the best way to neutralize bogus patent claims would be to sue the patent office, and the involved examiners themselves, once a patent is found to be in

I think the best way to neutralize bogus patent claims would be to sue the patent office, and the involved examiners themselves, once a patent is found to be invalid (it shouldn’t have been granted in the first place). Why? Because it shouldn’t be someone else’s burden (time, cost) to have to clean up the mess they created (not to mention the waste in public money with court proceedings). But, as usual, government employees/agencies have “sovereign immunity”, which means they can get away with doing a bad job any other type of private employee would get fired for, without repercussions.

XMPPwocky 6y ago
'But, as usual, government employees/agencies have “sovereign immunity”, which means they can get away with doing a bad job any other type of private employee would get fired for, without repercussions.' It's not too clear what you mean by this. Patent examiners can get fired, right? Or are they elected/appointed for life in your country's system?
- deleted 6y ago
  [deleted]
- sebastien_b 6y ago
  They're immune from being sued in the way I described - so they can essentially cause (monetary) harm to someone else (in this case, the victim of a patent troll), even if inadvertent, and it can be proven that the work they (the PTO et al.) did is invalid (patent gets invalidated), but still get off scott free while the victim ends up with all the costs of cleaning up the mess the PTO created. Yes, they can get 'fired' - I was simply meaning that they can screw up a patent application so badly (letting it be accepted when it should not) without repercussions, where that type of screwup would get non-government employees fired (probably for lesser screwups, too).
  - minitoar 6y ago
    I’d imagine they’re not completely immune, eg if you can demonstrate criminal intent the immunity probably doesn’t apply.
    - appleflaxen 6y ago
      insight 10 relevance 0
      - minitoar 6y ago
        Thanks for the response. Care to elaborate?
        Dylan16807 6y ago
        They're saying that there is nothing even resembling criminal intent in this sort of patent problem, so your statement is true but not related to the problem at hand.
        0_gravitas 6y ago
        would have been preferable if they put it in better terms, i feel like the quality of comments on hn have been getting lower and lower and there fewer and fewer calling them out/flagging them when they're there
    - NautilusWave 6y ago
      Qualified immunity is a mess; to sue a government worker for something they did on the job, a court would have had to of previously found, in a different case, that said something was unconstitutional, IIRC.
      - sebastien_b 6y ago
        "Qualified immunity" - thank you, that's what I meant to write, not 'sovereign immunity'.
  - pbhjpbhj 6y ago
    Patents being invalidated doesn't mean the work done was invalid. A public disclosure, for example, that there was no practical way for an examiner to be aware of, could invalidate a patent. Unless omniscience is part of the job requirements you're going to be sorely disappointed. Examiners don't make applications, applicants do. Very expensive lawyers do their best to get those patent applications granted. Sometimes the lawyers/applicant know that the final product is invalid but seek it anyway .. so someone harmed can seek restitution from the courts. The PTO try to stop mess, they don't screw up applications, they tear down applications; they unfortunately can't practically be 100% effective in that. I'm sure they could do better, buy you appear to require them to be perfect? Again, these comments are my own. I work in IP, but not in USA and not with USPTO.
    - sebastien_b 6y ago
      > The PTO try to stop mess, they don't screw up applications, they tear down applications; Well they don't "tear down" enough of them to prevent the useless patent trolling that other companies and the taxpayers are burdened with to clean up.
neilwilson 6y ago
Is there no concept of misfeasance, malfeasance? Surely missing shot well is "inattention" at best?
strombofulous 6y ago
Literally nobody would work a job where you could sued for making a mistake like this, especially when there is an entire industry based on actively trying to get you to make a mistake
- davidhyde 6y ago
  Sure, it’s unorthodox to sue the employees of a company but why can’t the company itself be sued. Why does the patent office have immunity from being sued?
  - bonoboTP 6y ago
    How about suing the court, whose decision gets overturned on appealing, for having caused all that extra work?
- TwoBit 6y ago
  Sounds like our current American problem with police officer immunity.
  - defenseofriots 6y ago
    Don't worry, in Portland now there's also rioter immunity
Beldin 6y ago
This is not specific to government. Hardly ever is an employee held personally accountable for e.g. a data breach impacting customers.
ClumsyPilot 6y ago
I can think of many private organisations that cause far more damage in a week that the patent office could in a lifetime. Most of them can't be sued for their "honest mistakes".
deleted 6y ago
[deleted]
pbhjpbhj 6y ago
The problem AISI lies with the US court system. If you have evidence of prior use, readily available in the public domain then the party suing for infringement is clearly acting unlawfully (or is negligent having not done due diligence). The judge should make a full award of costs and a high award of damages against the plaintiff for persuing a clearly frivolous lawsuit .. AIUI instead the plaintiff only pays their own costs, the defendant gets lumbered with their costs(?), and the judge sends the plaintiff off to try again. Examiners at the USPTO, and other offices, are there as a filter to the courts. They just stop the courts being overwhelmed with useless, anticipated, nonsense. There are something like 300M patent documents available in databases, and patents are anticipated by any public disclosure. So you're asking that patent examiners check against every extant publication in the World, on penalty of losing their job? The examiner is like a programmer-tester, they'll catch a lot of errors, but if you scrap test/review programmers everytime a piece of software with a bug gets to a customer your costs of production will be higher than anyone would pay and your output will be near zero. You need a pragmatic approach that balances an efficient USPTO with an active and effective court system. These views are entirely my own and do not relate to my employer.

XMPPwocky 6y ago

'But, as usual, government employees/agencies have “sovereign immunity”, which means they can get away with doing a bad job any other type of private employee would get fired for, without repercussions.' It's not too clear what you mean by this. Patent examiners can get fired, right? Or are they elected/appointed for life in your country's system?

deleted 6y ago
[deleted]
sebastien_b 6y ago
They're immune from being sued in the way I described - so they can essentially cause (monetary) harm to someone else (in this case, the victim of a patent troll), even if inadvertent, and it can be proven that the work they (the PTO et al.) did is invalid (patent gets invalidated), but still get off scott free while the victim ends up with all the costs of cleaning up the mess the PTO created. Yes, they can get 'fired' - I was simply meaning that they can screw up a patent application so badly (letting it be accepted when it should not) without repercussions, where that type of screwup would get non-government employees fired (probably for lesser screwups, too).
- minitoar 6y ago
  I’d imagine they’re not completely immune, eg if you can demonstrate criminal intent the immunity probably doesn’t apply.
  - appleflaxen 6y ago
    insight 10 relevance 0
    - minitoar 6y ago
      Thanks for the response. Care to elaborate?
      - Dylan16807 6y ago
        They're saying that there is nothing even resembling criminal intent in this sort of patent problem, so your statement is true but not related to the problem at hand.
        0_gravitas 6y ago
        would have been preferable if they put it in better terms, i feel like the quality of comments on hn have been getting lower and lower and there fewer and fewer calling them out/flagging them when they're there
  - NautilusWave 6y ago
    Qualified immunity is a mess; to sue a government worker for something they did on the job, a court would have had to of previously found, in a different case, that said something was unconstitutional, IIRC.
    - sebastien_b 6y ago
      "Qualified immunity" - thank you, that's what I meant to write, not 'sovereign immunity'.
- pbhjpbhj 6y ago
  Patents being invalidated doesn't mean the work done was invalid. A public disclosure, for example, that there was no practical way for an examiner to be aware of, could invalidate a patent. Unless omniscience is part of the job requirements you're going to be sorely disappointed. Examiners don't make applications, applicants do. Very expensive lawyers do their best to get those patent applications granted. Sometimes the lawyers/applicant know that the final product is invalid but seek it anyway .. so someone harmed can seek restitution from the courts. The PTO try to stop mess, they don't screw up applications, they tear down applications; they unfortunately can't practically be 100% effective in that. I'm sure they could do better, buy you appear to require them to be perfect? Again, these comments are my own. I work in IP, but not in USA and not with USPTO.
  - sebastien_b 6y ago
    > The PTO try to stop mess, they don't screw up applications, they tear down applications; Well they don't "tear down" enough of them to prevent the useless patent trolling that other companies and the taxpayers are burdened with to clean up.

neilwilson 6y ago

Is there no concept of misfeasance, malfeasance? Surely missing shot well is "inattention" at best?

strombofulous 6y ago

Literally nobody would work a job where you could sued for making a mistake like this, especially when there is an entire industry based on actively trying to get you to make a mistake

davidhyde 6y ago
Sure, it’s unorthodox to sue the employees of a company but why can’t the company itself be sued. Why does the patent office have immunity from being sued?
- bonoboTP 6y ago
  How about suing the court, whose decision gets overturned on appealing, for having caused all that extra work?
TwoBit 6y ago
Sounds like our current American problem with police officer immunity.
- defenseofriots 6y ago
  Don't worry, in Portland now there's also rioter immunity

Beldin 6y ago

This is not specific to government. Hardly ever is an employee held personally accountable for e.g. a data breach impacting customers.

ClumsyPilot 6y ago

I can think of many private organisations that cause far more damage in a week that the patent office could in a lifetime. Most of them can't be sued for their "honest mistakes".

deleted 6y ago

[deleted]

pbhjpbhj 6y ago

The problem AISI lies with the US court system. If you have evidence of prior use, readily available in the public domain then the party suing for infringement is clearly acting unlawfully (or is negligent having not done due diligence). The judge should make a full award of costs and a high award of damages against the plaintiff for persuing a clearly frivolous lawsuit .. AIUI instead the plaintiff only pays their own costs, the defendant gets lumbered with their costs(?), and the judge sends the plaintiff off to try again. Examiners at the USPTO, and other offices, are there as a filter to the courts. They just stop the courts being overwhelmed with useless, anticipated, nonsense. There are something like 300M patent documents available in databases, and patents are anticipated by any public disclosure. So you're asking that patent examiners check against every extant publication in the World, on penalty of losing their job? The examiner is like a programmer-tester, they'll catch a lot of errors, but if you scrap test/review programmers everytime a piece of software with a bug gets to a customer your costs of production will be higher than anyone would pay and your output will be near zero. You need a pragmatic approach that balances an efficient USPTO with an active and effective court system. These views are entirely my own and do not relate to my employer.