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one_armed_bandit
The basic issue is the USPTO cannot hire those "skilled in the art" for most ...
Scott Elder
I once heard that in Belgium (maybe wrong country?) that the patent law was ...
What were they thinking: Patent trolls and restrictions
Brian Bailey
3/15/2013 11:10 AM EDT
Two things happened to me this week, both related to patents, which make my heart heavy. We have become such a litigious industry that it is and will probably continue to stifle innovation. Alternatively it could be a death knell to those who choose to adopt such protective practices.
First, let me talk about one of my favorite programs – Audacity. This is an audio editing package developed by a set of volunteers under the SourceForge banner. It is great and does everything I need in terms of audio editing and so much more. I recently downloaded a new version of the software and when I attempted to load in the audio from the recording device I have been using for interviews for many years, I got the following message “Audacity cannot open this type of file due to patent restrictions. You need to convert it to a supported audio format, such as WAV or AIFF”. The format in question is WMA. Yes – you can get a plugin that will do the dirty work for you, but it should not be necessary. I shall make sure that when I need to buy a new recorder that it is not using WMA.
The second thing was a news story that I reported in my weekly roundup.
Rambus has transferred a portfolio of patent assets covering display technologies to a subsidiary of Acacia Research Corporation, a patent licensing company. As part of this transaction, Rambus received an initial upfront payment and is expected to receive subsequent payments. Specific terms of the transaction are confidential.
Now, I can understand Rambus wanting to monetize their patent portfolio, especially in areas which are not their core competence, but Acacia Research Corporation is basically a patent troll. These are the very companies that we despised such a short time ago. The ridiculously high values that have been placed on patent portfolios recently shows that attempting to exclude your competitors may have become more important than innovation.
Does this help the companies in the long term? I don’t think so. If every company does it and every company then has to license patents, then all that has been accomplished is moving some income into the corporate legal departments. I know they need to justify their existence, but unfortunately, much of the money then goes into the hands of the lawyers and that money never comes back into the industry. It is a net drain from the industry. I do remember talking to some companies who boasted that their legal department was profitable!
Does this help consumers? Clearly not. It means that products do not contain the features we want some of the time or we will have to pay higher prices to support the lawyers.
The big problem here is the patent system itself. It is so cheap and easy to get crazy patents, as I have demonstrated many times in this column, and it is cheaper and easier a lot of the time for a company to just pay an unnecessary license fee rather than show the patent office that the patent should never have been issued in the first place. Unfortunately, doing this only means more money in the hands of the lawyers.
When will these companies start trying to fix the system rather than breaking it even further and when will they rely on their innovation rather than exclusionary tactics. The rate of innovation is so fast that a company that decides to rest on their laurels is probably already heading out of the leading spot in their respective industry.
What say you? Should the industry start developing tools to automate the work of lawyers – maybe CAL (Computer Aided Lawyer) and thus keep the money in the industry or should we develop more patents, as is being attempted at the moment, to stop patent trolls and to restrict what lawyers can do – and of course, who would license their litigation patents to a lawyer!Brian Bailey – keeping you entertained
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betajet
3/15/2013 6:31 PM EDT
For the latest on patent and copyright abuse, I always recommend groklaw.net. They have terrific background resources as well.
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sudo
3/18/2013 4:52 AM EDT
I share Brian's frustration but I just can't see the light at the end of the tunnel, yet. It's not just a US problem, either, becuase what happens there has very strong global influence.
The patent system was meant to help innovation but its purpose was forgotten along the way and now it's just a bad caricature of itself. It's ripe for reform. Ideally, it should bring benefits to the whole industry and society while not forgetting about the developer, of course.
What about some sort of global cooperation between countries?!
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Battar
3/18/2013 11:34 AM EDT
Obviously the USPTO needs to undergo a reform to prevent examiners from granting invalid patents in the first place. A change in the law could limit the rights of NPE's vis a vis original patent holders. It's also worth noting that a troll, unlike a practicing entity, has nothing to gain from fighting a patent in court, so will prefer to reach a settlement. Risking a court judgement not in their favour is a net loss.
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fcook
3/18/2013 1:08 PM EDT
It is easy to say that the patent system is broken and that NPE's are just a burden, but I am not seeing any 'solutions' that address the core problems.
The reality is that, in the long term, technology development takes time and effort invested by many skilled individuals -- and those skilled individuals need to be able to pay for their own living expenses. Corporations generally cannot continue to pay salaries unless they gather funds somehow. 'Practicing entities' gather funds by selling products that leverage lots of technology from multiple sources -- some internal and some external. 'Nonpracticing entities' are effectively 'malls' that don't personally produce goods, but facilitate 'producers' gathering desirable/required technology components.
As in the case with malls, some are better, more ethical, cheaper, more efficient than others. However I would not advocate that we abolish malls and only allow manufacturers to sell products -- which is the PE/NPE (patent troll) argument. I would also not advocate that we steal our clothes because we find that to be simpler and cheaper -- general position against patents. In general, I would argue against any store being allowed to charge for air and/or water. There are examples, though, where it makes sense to allow stores to even sell air (e.g. compressed air) and/or water (e.g. bottled water).
By all means, encourage people to contribute goods and technology that they have legally acquired/produced -- just don't expect and/or limit people to only giving things away.
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betajet
3/18/2013 2:06 PM EDT
This is not a question of stealing clothes. It's more a situation where you make your own clothes, and then receive a nasty letter from an NPE insisting that you pay them for using a technique that you discovered yourself without any knowledge whatsoever of the NPE's government-granted monopoly.
In a fair world, reinventing something would give you immunity from a lawsuit, or better yet be proof that the original patent is obvious and thus invalid, but that's not The Way of the World these days.
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BrianBailey
3/18/2013 2:23 PM EDT
This can be taken even further. The person making the clothes may have come up with the idea first, then receive the nasty letter after the USPT office has granted a patent to someone else and sues you. You now have to pay to defend yourself and strike down the patent that should not have been issued in the first place.
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Jon M. Kelley
3/21/2013 6:02 PM EDT
Very large corporations use that very same logic after you demonstrate a new patent to them and the concept filters around their various offices. At that point you need a rich uncle to even get them to a court.
I’ve never given a patent to a Troll for less than it cost me to get the idea patented, but I’ve been tempted. Usually if you can tell a Troll where your patent is being illegally used, you can get at least enough to cover your costs.
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Duane Benson
3/18/2013 2:14 PM EDT
I see the problem really as abuse of the system and inadequate resources. I doubt that there are very many government institutions that are not somehow broken. That's just a fact of life. Our best attempt to control that to date is the system of free elections.
The abuse of the system part is really disheartening and I certainly don't have an answer to that. We get that same kind of abuse with car title loan companies, for profit schools and a lode of other places.
I would think that technology would be able to help with the resources issue. Given how much of the world's knowledge-base is connected to the Internet, being able to electronically qualify or disqualify a patent application I can see automated validation as being very achievable. It would not surprise me at all if 90% of all patent applications could be managed automatically. If that were the case, a lot of resources would be freed up to deal with the difficult patents.
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BrianBailey
3/18/2013 2:27 PM EDT
It would be nice if the public could in effect be used. We have seen cases of this where the public is paid to find reasons why a patent should not be granted, uncover prior art etc. When a patent is published - make it open for external comment, review and challenge. Allow people to challenge the validity before it becomes a patent rather than after. Make sure that the patent search system is as good as it possibly can be and that it is easy to get copies of patents. That in my mind would be a good first step.
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fundamentals
3/18/2013 3:23 PM EDT
The patent system is broken because the Patent Office issues far too many obvious patents. There is an infinite variety of obvious patents, but the most common one goes as follows: I put "A" in system "B". Neither "A" nor "B" can be patented any more, they have been around for a while, possibly patented sometime in the past. But nobody put "A" in "B" before, so the company who does it first tries to patent it and almost always succeeds.
Most of these type of patents should be rejected because they are obvious to an "expert in the field of invention", which the criterion of obviousness is supposed to be judged by. Unfortunately the patent examiners are very rarely experts in any field of invention, so they approve patents almost automatically.
One way to solve this problem could be that the patent office should solicit opinions from a group of experts (who are not involved in the patent and who do not work for the same comany seeking to patent the idea) about the obviousness of the patent in question. Once that is done, I am quite sure that the number of patents issued will decrease by an order of magnitude. What is issued will be original and non-obvious. Obviously these type of patents should be enforced, and if they happened to be enforced by patent trolls, I'm OK with it.
What matters is not who owns the patent, but what the patent says, if anything at all. The problem is not in enforcing patents, but in enforcing patents which should have never been issued in the first place. Unfortunately, under the current system, going to court with the intent of invalidating a patent can be very very costly. The legal system (and the patent office) do not like to appear as fools for having issued a patent that should never have been issued. Because of that, they always weigh very heavily in favor of the patent holders and aginst challengers. The patent trolls know this very well and they take advantage of it.
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one_armed_bandit
3/21/2013 10:59 PM EDT
The basic issue is the USPTO cannot hire those "skilled in the art" for most fields, ie the examiners should, but cannot see what is *obvious*. This is especially true in the software/firmware field. It takes (my observation) about 12 years of schooling/practice to become "skilled in the art" of software. Firmware takes longer, sometimes, because of the restriction of resources (RAM, FLASH, etc).
The net effect is the flood of bad/silly/restricting patents. It's like going into a hardware store and patenting every nut, bolt, and washer in the store and everything that uses them. throw in "methods of applying chemicals to walls for the purpose of coloring and preserving surfaces" (ie paint and stains), and it becomes tragic to innovation.
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Larry M
3/18/2013 5:36 PM EDT
fundamentals wrote: " put "A" in system "B". Neither "A" nor "B" can be patented any more, they have been around for a while, possibly patented sometime in the past. But nobody put "A" in "B" before, so the company who does it first tries to patent it and almost always succeeds.
Most of these type of patents should be rejected because they are obvious to an "expert in the field of invention", which the criterion of obviousness is supposed to be judged by. Unfortunately the patent examiners are very rarely experts in any field of invention, so they approve patents almost automatically."
This is utter nonsense. You have described the exact basis for a patent application rejection under 35 USC 103.
And you didn't even get it right. It's not "expert in the field of invention." It's a "person having ordinary skill in the art." Not an expert.
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nannasin28
3/19/2013 3:24 AM EDT
I need to buy a new recorder that it is not using WMA. http://www.hqew.net
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Bellhop
3/20/2013 4:27 PM EDT
Wow! We didn't even get into submarine patents! Fortunately, that one got resolved. There's hope, at least.
I like to use open source file formats in my designs. It keeps us and the customer out of gray areas. The documentation is nice to have, too.
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BrianBailey
3/20/2013 8:18 PM EDT
Yes - I remember those and they were quite nasty. I am with you. While there are perfectly good open source formats, why would anyone choose to use a proprietary one?
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Scott Elder
3/21/2013 8:56 PM EDT
I once heard that in Belgium (maybe wrong country?) that the patent law was simply file for a patent and you've got one. The thinking is why spend all the money given that the award of a patent is non final. Meaning, if there is never a challenge, no problem. If there IS a challenge, then it will ALWAYS be subject to reexamination, legal challenges in court, etc. Nobody gets a letter, and says "GOSH! I guess your right. Where do I send the check?"
So why not reserve patent examining until there is a reason to examine (i.e. $$ involved)? Then the patent office has all kinds of prior art and arguments from everyone concerned with the validity. A fierce and rigorous examination will ensue because there are real dollars involved. Not dreams of wealth.
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