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It's very interesting that everyone appears to unanimously agree that Johnson is not a patent troll, but it's hard to figure out exactly why. People said it's

It's very interesting that everyone appears to unanimously agree that Johnson is not a patent troll, but it's hard to figure out exactly why. People said it's because he made a legitimate product. From what I can see, Johnson Research and Development Co. never shipped a single Super Soaker -- 100% of their revenue is from licensing. People said it's because he had a licensing agreement first. What if Larami had refused to sign a licensing agreement with him in the first place, ripped off his design, and he'd had to resort to a suit to get paid? People said that it's because Hasbro explicitly used his design as a starting point. What if they invented their own water guns after seeing his prototype at a trade show, and then thumbed their nose at him? What if they "independently" invented their own water gun without seeing his? If you're telling me that there's a difference between these two cases, then you're saying that the courts need to determine intent and foreknowledge. What if someone from Hasbro was at the trade show where he exhibited, but just claimed not to have seen his booth? What if he had approached Hasbro for a license, and they claimed that their internal team was not aware of those discussions? People said it's because he is the original inventor. What if he'd despaired of ever beating Hasbro in court and licensed his patent to Acacia so that they could go after Hasbro? Finally, people are saying that the problem is that the inventions of patent trolls are "obvious". Is putting a battery-powered pump in a water gun a non-obvious invention worthy of patent protection? Batteries, pumps and water guns all existed before this -- what's the innovation here?

ScottBurson 13y ago
Is putting a battery-powered pump in a water gun a non-obvious invention worthy of patent protection? Batteries, pumps and water guns all existed before this -- what's the innovation here? This is an excellent question. Let me offer a possible answer. It seems to me that the very fact that batteries, pumps, and water guns had all existed for some time, and yet nobody until Johnson thought to put them together, in itself constitutes evidence that the idea was nonobvious. It seems to me that a lot of the problem patents we have seen in recent years involve relatively new technologies. For example, once we had low-cost scanners, and once file transmission by email became common, scan-to-email was an obvious idea. But it wasn't so obvious that one of the first people to think of it (almost certainly not the very first) wasn't able to obtain a patent on it. Therein, I think, lies the problem: when a new technology shows up, the PTO simply has no way to know what applications of it count as obvious -- it hasn't been around long enough for the obvious ones to have been thought of already. Under such circumstances the PTO should be very careful about granting patents. I think a reasonable guideline would be that once a new technology begins to be widely used, the PTO should assume that any idea that simply combines the new technology with existing techniques, or applies it to well-known problems in a straightforward way, is obvious. This would have ruled out all the "X, but on the Internet" patents we have seen go by. As I have written previously, a deeper problem with our system is this. A patent is a trade: we give the inventor a time-limited monopoly in exchange for disclosure of the invention. But there's no one unambiguously charged with making sure we got a good deal: that the value of the disclosure outweighs the cost of the monopoly. While this is technically the PTO's responsibility, its management and incentive structures aren't set up with this goal paramount. This pushes the problem to the courts; but the courts tend to defer to the PTO's judgment. So really, there's nobody minding the store.

ScottBurson 13y ago

Is putting a battery-powered pump in a water gun a non-obvious invention worthy of patent protection? Batteries, pumps and water guns all existed before this -- what's the innovation here? This is an excellent question. Let me offer a possible answer. It seems to me that the very fact that batteries, pumps, and water guns had all existed for some time, and yet nobody until Johnson thought to put them together, in itself constitutes evidence that the idea was nonobvious. It seems to me that a lot of the problem patents we have seen in recent years involve relatively new technologies. For example, once we had low-cost scanners, and once file transmission by email became common, scan-to-email was an obvious idea. But it wasn't so obvious that one of the first people to think of it (almost certainly not the very first) wasn't able to obtain a patent on it. Therein, I think, lies the problem: when a new technology shows up, the PTO simply has no way to know what applications of it count as obvious -- it hasn't been around long enough for the obvious ones to have been thought of already. Under such circumstances the PTO should be very careful about granting patents. I think a reasonable guideline would be that once a new technology begins to be widely used, the PTO should assume that any idea that simply combines the new technology with existing techniques, or applies it to well-known problems in a straightforward way, is obvious. This would have ruled out all the "X, but on the Internet" patents we have seen go by. As I have written previously, a deeper problem with our system is this. A patent is a trade: we give the inventor a time-limited monopoly in exchange for disclosure of the invention. But there's no one unambiguously charged with making sure we got a good deal: that the value of the disclosure outweighs the cost of the monopoly. While this is technically the PTO's responsibility, its management and incentive structures aren't set up with this goal paramount. This pushes the problem to the courts; but the courts tend to defer to the PTO's judgment. So really, there's nobody minding the store.