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> But so many people have to jump through the process just as a defensive act so they have a sliver of reassurance that using the novel thing they came up with

> But so many people have to jump through the process just as a defensive act so they have a sliver of reassurance that using the novel thing they came up with will not lead to immediate cease-and-desist injunctions from IP-fortified competitors. Having a patent is not a defense to an allegation of infringement and if that's what your legal counsel told you, then you should seek new counsel.

querk44 2y ago
The point is that patents are commonly used as a defensive tool, and any good counsel would tell you such. While having a patent is not a defense to an infringement allegation, patents can act as a deterrent to others suing you. The idea is that having your own patents discourages competitors from bringing suit because they will fear that you will turn around and counter-sue them for infringement of your patents. This, of course, does not however address the problem of non-practicing entities.
- freejazz 2y ago
  I'm not sure why you make the assumption that in a patent infringement suit, either parties both have the same practice, or one of them is a NPE. There's no basis for such an assumption. I'm a patent litigator and this doesn't match my experience at all. It is true for very large companies with broad business practices that could be susceptible to a large IP portfolio from a similarly-sized competitor, but to talk of it like it is a practical defense is unrealistic and reflective of a lack of understanding of how patents are usually asserted. It's something for a GC to keep in mind, but isn't really relevant to what would be common advice to anyone running a business that wasn't one the largest in the world.
kiba 2y ago
It's just a way to get a seat at the negotiation table. If they sue you, you could potentially countersue them for patent infringement. Yes, it's all a bunch of bullshit, but that is what you get when you have a flawed notion of how inventing works.
- freejazz 2y ago
  > It's just a way to get a seat at the negotiation table. It's not needed at all. Valid prior art is a defense to patent infringement because it outright invalidates their patent. Full stop. That's the best leverage out there. It's better than being able to prove non-infringement, because the patent remains in that scenario. So when you have good prior art and they threaten to sue, you say "okay, I'll invalidate your patent in a motion to dismiss". If you want to countersue, now you risk your patent being invalidated and still being found liable for infringement. > If they sue you, you could potentially countersue them for patent infringement. Maybe? It depends on the patent and their practice. Just because someone accuses you of infringing doesn't mean their practice infringes your patent. It doesn't even follow at all, actually. >Yes, it's all a bunch of bullshit, but that is what you get when you have a flawed notion of how inventing works. I disagree and I'm not going to take your word for it considering that everything wrong I've pointed out about your posts. It is ironic that you use the phrase "flawed notion."
  - kiba 2y ago
    It's not needed at all. Valid prior art is a defense to patent infringement because it outright invalidates their patent. Full stop. That's the best leverage out there. It's better than being able to prove non-infringement, because the patent remains in that scenario. So when you have good prior art and they threaten to sue, you say "okay, I'll invalidate your patent in a motion to dismiss". If you want to countersue, now you risk your patent being invalidated and still being found liable for infringement. The patent is beside the point of the business of inventing and bringing products to market. It's a legal weapon, not a tool to encourage commerce. Maybe? It depends on the patent and their practice. Just because someone accuses you of infringing doesn't mean their practice infringes your patent. It doesn't even follow at all, actually. It's not about protecting your inventions. It's a legal weapon.
    - freejazz 2y ago
      >The patent is beside the point of the business of inventing and bringing products to market. It's a legal weapon, not a tool to encourage commerce. I'm not sure how this is responsive to my comment, which was directed at correcting your misconceptions about how patents work and are used. I think some people would disagree that it doesn't encourage commerce. Were it not for patents, many inventions would be trapped under trade secrets and would never have been disclosed to the public at all. It's also an odd point to make to me as I never suggested that a patent was a "tool to encourage commerce." >It's not about protecting your inventions. It's a legal weapon. Yes, a patent is a legal tool. You were the one that suggested owning a patent was a defensive tool, which I explained to you is not really true, most especially in the context you provided of countersuing.

querk44 2y ago

The point is that patents are commonly used as a defensive tool, and any good counsel would tell you such. While having a patent is not a defense to an infringement allegation, patents can act as a deterrent to others suing you. The idea is that having your own patents discourages competitors from bringing suit because they will fear that you will turn around and counter-sue them for infringement of your patents. This, of course, does not however address the problem of non-practicing entities.

freejazz 2y ago
I'm not sure why you make the assumption that in a patent infringement suit, either parties both have the same practice, or one of them is a NPE. There's no basis for such an assumption. I'm a patent litigator and this doesn't match my experience at all. It is true for very large companies with broad business practices that could be susceptible to a large IP portfolio from a similarly-sized competitor, but to talk of it like it is a practical defense is unrealistic and reflective of a lack of understanding of how patents are usually asserted. It's something for a GC to keep in mind, but isn't really relevant to what would be common advice to anyone running a business that wasn't one the largest in the world.

kiba 2y ago

It's just a way to get a seat at the negotiation table. If they sue you, you could potentially countersue them for patent infringement. Yes, it's all a bunch of bullshit, but that is what you get when you have a flawed notion of how inventing works.

freejazz 2y ago
> It's just a way to get a seat at the negotiation table. It's not needed at all. Valid prior art is a defense to patent infringement because it outright invalidates their patent. Full stop. That's the best leverage out there. It's better than being able to prove non-infringement, because the patent remains in that scenario. So when you have good prior art and they threaten to sue, you say "okay, I'll invalidate your patent in a motion to dismiss". If you want to countersue, now you risk your patent being invalidated and still being found liable for infringement. > If they sue you, you could potentially countersue them for patent infringement. Maybe? It depends on the patent and their practice. Just because someone accuses you of infringing doesn't mean their practice infringes your patent. It doesn't even follow at all, actually. >Yes, it's all a bunch of bullshit, but that is what you get when you have a flawed notion of how inventing works. I disagree and I'm not going to take your word for it considering that everything wrong I've pointed out about your posts. It is ironic that you use the phrase "flawed notion."
- kiba 2y ago
  It's not needed at all. Valid prior art is a defense to patent infringement because it outright invalidates their patent. Full stop. That's the best leverage out there. It's better than being able to prove non-infringement, because the patent remains in that scenario. So when you have good prior art and they threaten to sue, you say "okay, I'll invalidate your patent in a motion to dismiss". If you want to countersue, now you risk your patent being invalidated and still being found liable for infringement. The patent is beside the point of the business of inventing and bringing products to market. It's a legal weapon, not a tool to encourage commerce. Maybe? It depends on the patent and their practice. Just because someone accuses you of infringing doesn't mean their practice infringes your patent. It doesn't even follow at all, actually. It's not about protecting your inventions. It's a legal weapon.
  - freejazz 2y ago
    >The patent is beside the point of the business of inventing and bringing products to market. It's a legal weapon, not a tool to encourage commerce. I'm not sure how this is responsive to my comment, which was directed at correcting your misconceptions about how patents work and are used. I think some people would disagree that it doesn't encourage commerce. Were it not for patents, many inventions would be trapped under trade secrets and would never have been disclosed to the public at all. It's also an odd point to make to me as I never suggested that a patent was a "tool to encourage commerce." >It's not about protecting your inventions. It's a legal weapon. Yes, a patent is a legal tool. You were the one that suggested owning a patent was a defensive tool, which I explained to you is not really true, most especially in the context you provided of countersuing.