5 ms·

Here's the real question though: does knowing that there exists prior art to a certain patent in question at all change the need to go through a painfully lengt

Here's the real question though: does knowing that there exists prior art to a certain patent in question at all change the need to go through a painfully lengthy and exorbitantly expensive legal process to prove that one's innocent? Or does this still require a company to be as well capitalized as Newegg in order to be able to withstand a patent attack, and thus doesn't really matter for the majority of us?

josaka 12y ago
Even with dead on prior art, you're still out of pocket $500k to $1.5 million in legal fees before you can kill the patent in court, which is why cost-of-litigation settlements are common. Newer procedures (begun last year) are killing patents at the USPTO with a high success rate for in the range of $100k to 300k.
- jimiwen 12y ago
  hi josaka, yeh i think the new procedures (IPR, CBM) relatively increases prior art research emphasis. Do you think high success rate has a pre-selected bias? i.e. stakeholders only apply higher confidence oppositions to the USPTO?
Kliment 12y ago
When a patent application is in its larval stage, 6 months after initial publication, at least in the US it can be murdered by prior art submitted by anyone, online, for free. A number of open source hardware and software communities I try to keep up with are now under direct threat of patents, and a centralized place where we could get a simple listing of patent app link, time until vulnerability period is over, and possibly a forum to discuss possible directions of prior art and coordinate submission would be extremely helpful. That way, it's possible to eradicate the assheaded attempts to restrict ideas before they become enforceable by law. For an already issued patent, I understand it's worth trying to put the trial on hold while it gets re-examined. A reexamination is generally much cheaper than a patent trial.
- jimiwen 12y ago
  In the AIA 2011, there are some new post-grant opposition procedure that speeds up and reduce the legal cost such as PGR, IPR, CBM. Although opposition application is about $30k USD plus some paper work. This is not super cheap, but it is still a lot cheaper than going through discovery and superstar trial lawyers by litigating, which would be in the millions $$.
  - jacquesm 12y ago
    The problem here is that the parties that are going to get hit with those patents probably don't even exist yet. Your typical patent troll buys patents that have value, the filing was done in bulk in the past, then by the time the state of the art has progressed for a bit (much more than half a year) they look over their portfolio and decide which patents can be harvested. Some patents trolls will buy up selected patents that have been filed by others. So the opposition applications will likely not be done because you'd have to oppose a whole ton of patents more or less on principle without knowing whether or not those patents would ever be used to litigate. The patent office should get better at doing its job and should not simply approve the vast majority of what goes past their desks without doing actual work, and should make the filer pay a stiff fine if they miss disclosing prior art should the patent be refused or overturned. Not that that is ever going to happen, but the current system favours the applicant way too much.
    - jimiwen 12y ago
      Although courts/ITC might not grant a stay depending on IPR, CBM etc., there have been some cases if the litigation hasnt gone too far, a stay could/have been granted in some of cases. Would this tip the scales towards the defendant slightly, given that the specific patents would be known?

josaka 12y ago

Even with dead on prior art, you're still out of pocket $500k to $1.5 million in legal fees before you can kill the patent in court, which is why cost-of-litigation settlements are common. Newer procedures (begun last year) are killing patents at the USPTO with a high success rate for in the range of $100k to 300k.

jimiwen 12y ago
hi josaka, yeh i think the new procedures (IPR, CBM) relatively increases prior art research emphasis. Do you think high success rate has a pre-selected bias? i.e. stakeholders only apply higher confidence oppositions to the USPTO?

Kliment 12y ago

When a patent application is in its larval stage, 6 months after initial publication, at least in the US it can be murdered by prior art submitted by anyone, online, for free. A number of open source hardware and software communities I try to keep up with are now under direct threat of patents, and a centralized place where we could get a simple listing of patent app link, time until vulnerability period is over, and possibly a forum to discuss possible directions of prior art and coordinate submission would be extremely helpful. That way, it's possible to eradicate the assheaded attempts to restrict ideas before they become enforceable by law. For an already issued patent, I understand it's worth trying to put the trial on hold while it gets re-examined. A reexamination is generally much cheaper than a patent trial.

jimiwen 12y ago
In the AIA 2011, there are some new post-grant opposition procedure that speeds up and reduce the legal cost such as PGR, IPR, CBM. Although opposition application is about $30k USD plus some paper work. This is not super cheap, but it is still a lot cheaper than going through discovery and superstar trial lawyers by litigating, which would be in the millions $$.
- jacquesm 12y ago
  The problem here is that the parties that are going to get hit with those patents probably don't even exist yet. Your typical patent troll buys patents that have value, the filing was done in bulk in the past, then by the time the state of the art has progressed for a bit (much more than half a year) they look over their portfolio and decide which patents can be harvested. Some patents trolls will buy up selected patents that have been filed by others. So the opposition applications will likely not be done because you'd have to oppose a whole ton of patents more or less on principle without knowing whether or not those patents would ever be used to litigate. The patent office should get better at doing its job and should not simply approve the vast majority of what goes past their desks without doing actual work, and should make the filer pay a stiff fine if they miss disclosing prior art should the patent be refused or overturned. Not that that is ever going to happen, but the current system favours the applicant way too much.
  - jimiwen 12y ago
    Although courts/ITC might not grant a stay depending on IPR, CBM etc., there have been some cases if the litigation hasnt gone too far, a stay could/have been granted in some of cases. Would this tip the scales towards the defendant slightly, given that the specific patents would be known?