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> District courts have the authority and responsibility Foreigner here. Interpreting that bit literally makes me think that district courts, having the respon

> District courts have the authority and responsibility Foreigner here. Interpreting that bit literally makes me think that district courts, having the responsibility, can be held responsible for not fulfilling their responsibility. Is this correct, or is the above just waffly moral wording? If it is correct, what would be the means and path of holding a district court responsible?

lisper 11y ago
It's waffly moral wording. It will have no effect. The problem is that issued patents are presumed to be valid, and hence prosecuting those patents is presumptively non-frivolous, even if they are later determined to be invalid. And it has to be that way, otherwise there would be no point in having a patent office at all. The problem really is not with the courts, it's with the patent office, which is issuing a flood of bogus patents. And they're doing that because there is no disincentive for them to issue bogus patents, while there is a significant disincentive for them to reject a bogus patent: the application can, at very little cost, pester the patent examiner until they cave in. I have personally tested this theory by obtaining a patent on a device that violates the laws of physics (http://www.google.com/patents/US20030133714 http://www.google.com/patents/US20030133714). I did this just as a lark so that I could have a personal data point to show just how broken the system is. But I didn't aim high (or low) enough. This patent: https://www.google.com/patents/US6368227 https://www.google.com/patents/US6368227 really should have been the one that embarrassed the PTO into real reform, but it didn't.
- Mithaldu 11y ago
  Very impressive response that more than answered my question and throws up questions like "Why is the patent office not being sued for gross negligence of duty?" Thanks for being so detailed.
  - ScottBurson 11y ago
    The system just hasn't been set up with the idea that it's important to protect the public against bad patents. I don't know if a lawsuit of the kind you suggest could possibly succeed. What I think is more likely is that Congress will eventually absorb the idea that a counterbalance of some kind is necessary. My own proposal is that bringing an infringement case should require the plaintiff to provide objective evidence that the invention is nonobvious. This evidence could be along the lines of what are called the "Graham factors" [0]: commercial success; long-felt but unsolved needs; and failure of others to solve the same problem. This evidence could be challenged by the defendant and would be weighed by the court. This would weaken the presumption that an issued patent is valid; but not, in my opinion, to the point of making the patent valueless. [0] http://en.wikipedia.org/wiki/Graham_v._John_Deere_Co.#The_Patent_Act_of_1952 http://en.wikipedia.org/wiki/Graham_v._John_Deere_Co.#The_Pa...
  - olefoo 11y ago
    You probably can't sue the patent office since it is a part of the federal government and enjoys sovereign immunity.
- brownbat 11y ago
  Wow, the swing patent is hilarious, but what I can't figure out is why it is so commonly cited. https://www.google.com/patents/US8697853 https://www.google.com/patents/US8697853 CTRL+f: swing
rhino369 11y ago
The Supreme Court can't punish the lower courts but it can overturn them and write opinions that bash them. That is very embarrassing to a judge and they try to avoid it. No judge likes getting overturned. But that language won't really make a huge difference. Most cases going to court aren't totally frivolous. The frivolous patent trolls avoid court like the plague because they will lose and their patents will be invalidated. Instead they just extort small payments instead of going to court. Some people like NewEgg and Adam Carolla are fighting them, but most just hand over the money.

lisper 11y ago

It's waffly moral wording. It will have no effect. The problem is that issued patents are presumed to be valid, and hence prosecuting those patents is presumptively non-frivolous, even if they are later determined to be invalid. And it has to be that way, otherwise there would be no point in having a patent office at all. The problem really is not with the courts, it's with the patent office, which is issuing a flood of bogus patents. And they're doing that because there is no disincentive for them to issue bogus patents, while there is a significant disincentive for them to reject a bogus patent: the application can, at very little cost, pester the patent examiner until they cave in. I have personally tested this theory by obtaining a patent on a device that violates the laws of physics (http://www.google.com/patents/US20030133714 http://www.google.com/patents/US20030133714). I did this just as a lark so that I could have a personal data point to show just how broken the system is. But I didn't aim high (or low) enough. This patent: https://www.google.com/patents/US6368227 https://www.google.com/patents/US6368227 really should have been the one that embarrassed the PTO into real reform, but it didn't.

Mithaldu 11y ago
Very impressive response that more than answered my question and throws up questions like "Why is the patent office not being sued for gross negligence of duty?" Thanks for being so detailed.
- ScottBurson 11y ago
  The system just hasn't been set up with the idea that it's important to protect the public against bad patents. I don't know if a lawsuit of the kind you suggest could possibly succeed. What I think is more likely is that Congress will eventually absorb the idea that a counterbalance of some kind is necessary. My own proposal is that bringing an infringement case should require the plaintiff to provide objective evidence that the invention is nonobvious. This evidence could be along the lines of what are called the "Graham factors" [0]: commercial success; long-felt but unsolved needs; and failure of others to solve the same problem. This evidence could be challenged by the defendant and would be weighed by the court. This would weaken the presumption that an issued patent is valid; but not, in my opinion, to the point of making the patent valueless. [0] http://en.wikipedia.org/wiki/Graham_v._John_Deere_Co.#The_Patent_Act_of_1952 http://en.wikipedia.org/wiki/Graham_v._John_Deere_Co.#The_Pa...
- olefoo 11y ago
  You probably can't sue the patent office since it is a part of the federal government and enjoys sovereign immunity.
brownbat 11y ago
Wow, the swing patent is hilarious, but what I can't figure out is why it is so commonly cited. https://www.google.com/patents/US8697853 https://www.google.com/patents/US8697853 CTRL+f: swing

rhino369 11y ago

The Supreme Court can't punish the lower courts but it can overturn them and write opinions that bash them. That is very embarrassing to a judge and they try to avoid it. No judge likes getting overturned. But that language won't really make a huge difference. Most cases going to court aren't totally frivolous. The frivolous patent trolls avoid court like the plague because they will lose and their patents will be invalidated. Instead they just extort small payments instead of going to court. Some people like NewEgg and Adam Carolla are fighting them, but most just hand over the money.