7 ms·

This just helps illustrate the absurdity of the US patent system. Samsung and Apple have already been at this for over a year and a half (longer if you count th

by fpgeek 14y ago

This just helps illustrate the absurdity of the US patent system. Samsung and Apple have already been at this for over a year and a half (longer if you count their pre-lawsuit discussions). Now, after we've been through lawsuit filings, discovery, back-and-forth over injunctions and a trial and gotten a verdict... The patent office turns around and says: "On second thought, we shouldn't have issued that patent in the first place.", which itself will be reexamined and appealed and ... adding onto the existing pile of appeals. I happen to think that the patent office's invalidation is correct, but even if you don't... this is no way to run a railroad. Successful reexaminations should be a rare, exceptional case in a properly functioning patent system. Instead, we have case after case turning on them (Oracle v Google, the Lodys reexamination requests, ...). Here's a radical idea: Maybe the patent office should work harder to not grant patents it is likely to invalidate later.

beedogs 14y ago
> The USPTO does not receive any funding from general taxation sources. Rather, the agency is fully funded by the fees paid by patent applicants and patent owners. This is probably a big part of why the USPTO sucks. If they had the resources to hire dozens and dozens of industry experts, and pay them aggressively competitive wages, they could probably fix most of the problems most of us have with the system as a whole.
- dodo53 14y ago
  This is why I like the idea (from someone around here I think) that patent owners should state a value of the patent when filing, and fees should be a percent of that value. Then value of patent limits maximum damage for infringement. So the amount of damages that can be sued for depends on the amount of funded attention at USPTO on checking the patent is valid (and patent owners could have the option of increasing stated value later, in which case extra fees would be used to revalidate patent). But I guess the whole culture that the number of patents = amount of innovation in economy = success of USPTO would have to be battled.
  - jonknee 14y ago
    That also completely screws the little guy, which is one of the big reasons the USPTO is said to exist.
    - jerf 14y ago
      We're talking in the context of a court case involving two enormous multinational corporations going at it for over a year and a half with probably another half-year to go, minimum. The "little guy" can't even afford to sit in the bleachers of this fight. If some "little guy" actually had filed these patents he'd have been bankrupt a year ago. There's probably a patent regime that actually would protect "the little guy" but it's long past time to let the USPTO wear that fig leaf over the current system. (Which is to say, I'm not saying you're wrong, I'm more saying, your point is inapplicable. And that's a shame.)
      - rayiner 14y ago
        I don't think there is any basis for your assertion that patents don't protect the little guy. I worked for two small companies that had, used, and licensed patents on their key technologies. These technologies took us millions of dollars and years to develop, and were our way of competing with companies that could out-manufacture us, but not beat us at the R&D game.
      - jonknee 14y ago
        If you had to pay up front on the "value" of the idea, a little guy (be it a solo person or small company) could never file a truly novel patent. That would be even worse than the system now where you could patent it but not afford to litigate (but you would be able to sell it or if it's a great case find someone to take it on contingency).
        dodo53 14y ago
        In my mind, the little guy would patent with a small declared value - so on the downside they wouldn't be able to litigate for large amounts. But they would have a defensive patent, and that patent would also have value for larger acquiring companies because if they believed in the validity of the patent they could apply for revaluing at higher price (at which point there would be extra funding to make sure it is valid).
- Symmetry 14y ago
  Or we could just let them keep all the money they collect in fees, and let them set the fees at a level that would let them afford to do a good job.
  - reitzensteinm 14y ago
    No, that won't work - the USPTO is already a profit center, so why aren't they doing a better job right now? Being paid more to approve more patents is a perverse incentive so egregious it's incredible the system was setup like it was. No matter what the fees are, decreasing the percentage of patents granted will effectively cut the budget of the agency. Even upper management that is sympathetic to the cause of increasing patent quality is going to find raising standards very painful. Their budget needs to be completely decoupled from their revenue.
    - AnthonyMouse 14y ago
      Nah, they're just doing it wrong. Let it work like this: You file a patent application, you pay all the fees you'll ever pay to the patent office, up front. No refunds if your patent is not approved, and the number of appeals/filings/whatever is limited to prevent large corporations from throwing lawyers at denials until they're approved. Then they have an incentive for more applications, but little perverse incentive to approve them. Of course, if they get a reputation for denying spurious claims then they won't get as many applications from spurious applicants, but that's true regardless of their funding source -- you can't produce a sensible budget without considering the number of applications they're expected to process. If the PTO's goal is budget maximization then they'll want to maximize the number of applications, which means providing incentives (in the form of low standards for patentability) for applicants to file more applications. You can't really fix that without creating some powerful incentives for not approving bad patents, like fining the head of the PTO $100K personally for every patent the PTO approved and the courts have to invalidate.
- eternalban 14y ago
  I have suggested this before and will do so again: Just like ROTC, Department of Education can create an Engineering Corps that allows tech students that receive government loans to pay back their debt in form of service.
  - AnthonyMouse 14y ago
    I'm generally all for anything that involves government paying for college, but I don't think you're solving the problem in this case. The problem is that good engineers are expensive. Median base pay is what, about $90-100K? Which the patent office isn't willing to pay. What you're saying is, de facto, that they should pay examiners more -- enough to be competitive with that -- in the form of student loan repayment. But then where does the money come from, and if it's available then why not reduce turnover by just paying examiners that much whether they have student loans or not?
    - eternalban 14y ago
      I'm not talking about employment. It is the 21st century for God's sake, and we have the internet. )) For example, USPTO can setup a review system in cooperation with the top tier schools. Students can serve their country while they are earning their degree. The patent system can be made more reasonable if we address the problem of bogus patents issued by an overwhelmed USPTO. This would be a step in the right direction. All that said, if tech heads aren't willing to serve their country, even for a one lousy year, they really should stop complaining about the broken services.
      - esrauch 14y ago
        Except one of the claims that I've seen about the US patent examiners is that US patent examiners are likely to leave after only a few years, whereas the EU patent examiners are far more likely to be lifers. Bringing in a ton more people with no experience would only make that much worse.
- 001sky 14y ago
  This is rediculous if true. Clearly, patents are important public policy. They should be funded as such, and if need be, taxes from profits of patent-holding companies should be dedicated to the USPTO. Taxes from fees (1) dont scale; and (2) are orders of magnitude off the economic impact, so any distortion from bad decisions is also.
pi18n 14y ago
I'd love to see some sort of punitive damages if a patent you sued over gets invalidated. At a minimum, Apple should need to compensate a portion of Samsung's legal fees.
- chucknelson 14y ago
  I don't think that makes sense. It's not Apple's fault that the US patent office granted the patent. Just because they changed their minds doesn't mean Apple is responsible. If anything, the US patent office should compensate both Samsung and Apple for essentially wasted legal fees.
  - sanxiyn 14y ago
    I am not sure about legal fees, but at the very least, I think it's only fair for US patent office to refund patent fees for invalidated patents. Won't happen though.
  - vlasta2 14y ago
    Disagree, it actually may make sense. The office is overwhelmed with patents and does not have the resources or people that are experts in that particular field. The author of the patent is supposed to be the world's best expert in their field (they are claiming to have crossed the boundary of known things with their patent, aren't they?) and it should be far easier for them actually check if there is prior art or the patented thing is actually not obvious to anyone, who is explained the problem that it is supposed to solve. Many low quality patents are filled and there is no risk in filling them. There should be a risk and a penalty for misusing the system.
    - pi18n 14y ago
      This is my thinking. The guys pursuing these patent cases typically are well aware that their patents are not non-obvious, and quite often aren't even novel. Lodsys is my typical whipping boy; if they weren't shocked that "click for upgrade" got through the patent office, it's only due to their familiarity with patent trolling. They should suffer damages for using a ridiculous patent in the first place, and they should pay the court costs for the defendants. I'd like there to be an "invalidation with prejudice" that would allow this, if the court decides that the patent is outrageously improper. I think that would both discourage trolling and encourage defending against obviously invalid patents. Otherwise, it's almost always better (economically) to suffer the extortion than to try and fight it.
narcissus 14y ago
Unfortunately I just don't see the motivation for them to not issue patents... maybe Samsung should sue them for essentially giving Apple the ammunition to put them through the year or so. I presume that that's not possible, but still, maybe it would give their collective heads a shake.
RexRollman 14y ago
If nothing else, delay all court proceedings until any contested patents have been reviewed.
getsaf 14y ago
"Successful reexaminations should be a rare, exceptional case in a properly functioning patent system." Unfortunately some 70% of reexaminations are confirmed to have some sort of issues. This is very shaky ground to be used to routinely afford millions/billions in damages and effectively "lock up" ideas that are obvious or unpatentable. edit: add source http://ptolitigationcenter.com/essentials/common-questions/#a08 http://ptolitigationcenter.com/essentials/common-questions/#...
hristov 14y ago
Perhaps you are right but it is much better to have the reexamination process than not to have it. There were too many computer programming patents too easily granted in the nineties and the 00s. That is a fact it already happened so saying "it would be better if this hadnt happened" is completely pointless now. It is a good thing that a reexamination process exists to address bad patents when they are the focus of an expensive lawsuit.

by fpgeek 14y ago

beedogs 14y ago

> The USPTO does not receive any funding from general taxation sources. Rather, the agency is fully funded by the fees paid by patent applicants and patent owners. This is probably a big part of why the USPTO sucks. If they had the resources to hire dozens and dozens of industry experts, and pay them aggressively competitive wages, they could probably fix most of the problems most of us have with the system as a whole.

dodo53 14y ago
This is why I like the idea (from someone around here I think) that patent owners should state a value of the patent when filing, and fees should be a percent of that value. Then value of patent limits maximum damage for infringement. So the amount of damages that can be sued for depends on the amount of funded attention at USPTO on checking the patent is valid (and patent owners could have the option of increasing stated value later, in which case extra fees would be used to revalidate patent). But I guess the whole culture that the number of patents = amount of innovation in economy = success of USPTO would have to be battled.
- jonknee 14y ago
  That also completely screws the little guy, which is one of the big reasons the USPTO is said to exist.
  - jerf 14y ago
    We're talking in the context of a court case involving two enormous multinational corporations going at it for over a year and a half with probably another half-year to go, minimum. The "little guy" can't even afford to sit in the bleachers of this fight. If some "little guy" actually had filed these patents he'd have been bankrupt a year ago. There's probably a patent regime that actually would protect "the little guy" but it's long past time to let the USPTO wear that fig leaf over the current system. (Which is to say, I'm not saying you're wrong, I'm more saying, your point is inapplicable. And that's a shame.)
    - rayiner 14y ago
      I don't think there is any basis for your assertion that patents don't protect the little guy. I worked for two small companies that had, used, and licensed patents on their key technologies. These technologies took us millions of dollars and years to develop, and were our way of competing with companies that could out-manufacture us, but not beat us at the R&D game.
    - jonknee 14y ago
      If you had to pay up front on the "value" of the idea, a little guy (be it a solo person or small company) could never file a truly novel patent. That would be even worse than the system now where you could patent it but not afford to litigate (but you would be able to sell it or if it's a great case find someone to take it on contingency).
      - dodo53 14y ago
        In my mind, the little guy would patent with a small declared value - so on the downside they wouldn't be able to litigate for large amounts. But they would have a defensive patent, and that patent would also have value for larger acquiring companies because if they believed in the validity of the patent they could apply for revaluing at higher price (at which point there would be extra funding to make sure it is valid).
Symmetry 14y ago
Or we could just let them keep all the money they collect in fees, and let them set the fees at a level that would let them afford to do a good job.
- reitzensteinm 14y ago
  No, that won't work - the USPTO is already a profit center, so why aren't they doing a better job right now? Being paid more to approve more patents is a perverse incentive so egregious it's incredible the system was setup like it was. No matter what the fees are, decreasing the percentage of patents granted will effectively cut the budget of the agency. Even upper management that is sympathetic to the cause of increasing patent quality is going to find raising standards very painful. Their budget needs to be completely decoupled from their revenue.
  - AnthonyMouse 14y ago
    Nah, they're just doing it wrong. Let it work like this: You file a patent application, you pay all the fees you'll ever pay to the patent office, up front. No refunds if your patent is not approved, and the number of appeals/filings/whatever is limited to prevent large corporations from throwing lawyers at denials until they're approved. Then they have an incentive for more applications, but little perverse incentive to approve them. Of course, if they get a reputation for denying spurious claims then they won't get as many applications from spurious applicants, but that's true regardless of their funding source -- you can't produce a sensible budget without considering the number of applications they're expected to process. If the PTO's goal is budget maximization then they'll want to maximize the number of applications, which means providing incentives (in the form of low standards for patentability) for applicants to file more applications. You can't really fix that without creating some powerful incentives for not approving bad patents, like fining the head of the PTO $100K personally for every patent the PTO approved and the courts have to invalidate.
eternalban 14y ago
I have suggested this before and will do so again: Just like ROTC, Department of Education can create an Engineering Corps that allows tech students that receive government loans to pay back their debt in form of service.
- AnthonyMouse 14y ago
  I'm generally all for anything that involves government paying for college, but I don't think you're solving the problem in this case. The problem is that good engineers are expensive. Median base pay is what, about $90-100K? Which the patent office isn't willing to pay. What you're saying is, de facto, that they should pay examiners more -- enough to be competitive with that -- in the form of student loan repayment. But then where does the money come from, and if it's available then why not reduce turnover by just paying examiners that much whether they have student loans or not?
  - eternalban 14y ago
    I'm not talking about employment. It is the 21st century for God's sake, and we have the internet. )) For example, USPTO can setup a review system in cooperation with the top tier schools. Students can serve their country while they are earning their degree. The patent system can be made more reasonable if we address the problem of bogus patents issued by an overwhelmed USPTO. This would be a step in the right direction. All that said, if tech heads aren't willing to serve their country, even for a one lousy year, they really should stop complaining about the broken services.
    - esrauch 14y ago
      Except one of the claims that I've seen about the US patent examiners is that US patent examiners are likely to leave after only a few years, whereas the EU patent examiners are far more likely to be lifers. Bringing in a ton more people with no experience would only make that much worse.
001sky 14y ago
This is rediculous if true. Clearly, patents are important public policy. They should be funded as such, and if need be, taxes from profits of patent-holding companies should be dedicated to the USPTO. Taxes from fees (1) dont scale; and (2) are orders of magnitude off the economic impact, so any distortion from bad decisions is also.

pi18n 14y ago

I'd love to see some sort of punitive damages if a patent you sued over gets invalidated. At a minimum, Apple should need to compensate a portion of Samsung's legal fees.

chucknelson 14y ago
I don't think that makes sense. It's not Apple's fault that the US patent office granted the patent. Just because they changed their minds doesn't mean Apple is responsible. If anything, the US patent office should compensate both Samsung and Apple for essentially wasted legal fees.
- sanxiyn 14y ago
  I am not sure about legal fees, but at the very least, I think it's only fair for US patent office to refund patent fees for invalidated patents. Won't happen though.
- vlasta2 14y ago
  Disagree, it actually may make sense. The office is overwhelmed with patents and does not have the resources or people that are experts in that particular field. The author of the patent is supposed to be the world's best expert in their field (they are claiming to have crossed the boundary of known things with their patent, aren't they?) and it should be far easier for them actually check if there is prior art or the patented thing is actually not obvious to anyone, who is explained the problem that it is supposed to solve. Many low quality patents are filled and there is no risk in filling them. There should be a risk and a penalty for misusing the system.
  - pi18n 14y ago
    This is my thinking. The guys pursuing these patent cases typically are well aware that their patents are not non-obvious, and quite often aren't even novel. Lodsys is my typical whipping boy; if they weren't shocked that "click for upgrade" got through the patent office, it's only due to their familiarity with patent trolling. They should suffer damages for using a ridiculous patent in the first place, and they should pay the court costs for the defendants. I'd like there to be an "invalidation with prejudice" that would allow this, if the court decides that the patent is outrageously improper. I think that would both discourage trolling and encourage defending against obviously invalid patents. Otherwise, it's almost always better (economically) to suffer the extortion than to try and fight it.

narcissus 14y ago

Unfortunately I just don't see the motivation for them to not issue patents... maybe Samsung should sue them for essentially giving Apple the ammunition to put them through the year or so. I presume that that's not possible, but still, maybe it would give their collective heads a shake.

RexRollman 14y ago

If nothing else, delay all court proceedings until any contested patents have been reviewed.

getsaf 14y ago

"Successful reexaminations should be a rare, exceptional case in a properly functioning patent system." Unfortunately some 70% of reexaminations are confirmed to have some sort of issues. This is very shaky ground to be used to routinely afford millions/billions in damages and effectively "lock up" ideas that are obvious or unpatentable. edit: add source http://ptolitigationcenter.com/essentials/common-questions/#a08 http://ptolitigationcenter.com/essentials/common-questions/#...

hristov 14y ago

Perhaps you are right but it is much better to have the reexamination process than not to have it. There were too many computer programming patents too easily granted in the nineties and the 00s. That is a fact it already happened so saying "it would be better if this hadnt happened" is completely pointless now. It is a good thing that a reexamination process exists to address bad patents when they are the focus of an expensive lawsuit.