It could be interesring to know what can be the base cost of patent lawsuits and how much bigger it can become. How much normal (just infringement) penalty cost? and how much would it cost to a looser if there is stealing of inventions. Is it legally consider crime by local police.
IRT Ogemaniac's fee structure, this may be throwing the baby out with the bath water. There are generally some battles with the USPTO examiners where, even if a patent has properly been searched and claims carefully written, the examiner's training in several groups says "only grant very specific claims". This was the case with the solid state laser patent that took 40 years for the courts to finally force the USPTO to grant the general patent to the inventor thereof. A lot of people don't have the time or money to undergo such a fignt, and a provision where the USPTO could garner yet more fees if being unreasonable seems problematic.
I could not agree more with your frustration at the now common playing card game many companies have adopted with patents, and where there patent agents and attorneys are instructed to not do good searches but just to go general in claims. The patents are then used in court cases to show how many of each others' patents are being violated by their competitor, regardless of patent validity. I believe strongly that the simple answer here is to stop someone from abusing a patent that should not have been granted, or should have been much narrowed, but not stop good patents from encouraging innovation.
There is a lot more discussion to be had here, but not enough time or space.
Things are never so simple. The last sentence of that quote from Jefferson, which is dropped by everyone that sites it on the Internet, is: "Society may given an exclusive right to the profts arising from them, as an encouragement to men to purse ideas which may produce utility, but this claim may or may not be done, according to the will and convenience of society, without claim or complaint from anybody." Jefferson was a member of the first US patent board. The above portion of the quote highlights the conflict Jefferson felt regarding patent law in that it has the potential to stimulate innovation and allow information to disseminate, but also secures monopoly profits for a select few at the expense of the public in general.
It might also be overly simplistic to paint the Age of Enlightenment as a golden age of free IP. Patent law predates the United States, and extends well into the Enlightenment. England used patent law during the Renaissance as a tool for international trade-- Artisans from the continent where encouraged to bring technology to England through an offer of limited monopoly over commercialization of that technology. In essence, the Patent Law was used to encourage a continental brain drain in favor of England.
Franklin Stove Tech Inc. puts this message on their website: We at Franklin Stove Tech want to foster innovation. To put our money where our mouth is we have posted the schematics for our product on our website in English and Chinese. Do you invest the money you are saving for your child's college education in Franklin Stove Tech?
That's an interesting idea, having the applicant pay extra for each claim that must be dropped or modified. It could go a long way toward discouraging the usual practice of patent attorneys trying to write the claims as broadly as possible, trying to claim far more than the inventor feels comfortable with.
I've always wished that USPTO would charge patent applicants for any claims that need to be dropped or modified during the application process. For example, if you want to get your patent approved, the cost goes up $1000 for each claim you have to drop along the way and $500 for each that you have to modify. This would cause applicants to write their claims narrowly and defensibly in the first place, rather than claiming the universe with the hopes that USPTO will feel good about merely whittling this down to a galaxy or ten.
It is very annoying when your competitors put out a patent that is obviously in conflict with prior art and obviousness, but for several years, all you can do is guess as to what USPTO will cut it down to. This stifles all sorts of research in the claimed "universe" due to uncertainty.
One of the classic tricks of patent trolling is to shotgun a broad industry with patent infringement notices, and anyone who answers in a manner that will stop the troll in his tracks is quietly "let off the hook". Those who do not answer in such a manner are prosecuted. This is the key to trolldom, that those who can invalidate the trolled patent or key claims are quietly set aside while the same patent or key claims are used to bludgeon others.
The solution to this is several.
One solution would be to pass a law allowing the courts to invalidate entire patents when one patent claim that can be demonstrated to have been known to be invalid prior to the lawsuit is used in any lawsuit, or the prosecuting party can be found to have obscured or not provided evidence of his knowledge of other prior art that would invalidate one or more of the claims cited in the case. Further, the very fact that such knowledge demonstrably existed should be grounds for prosecution by the Feds for Sherman Anti-Trust or similar laws. Further, there should be a triple-damages-plus-triple-costs-to-the-defendant clause when such evidence is unearthed during a civil trial.
Another solution would be to legally require the entity sending a patent infringement letter to pay USPTO fees for one re-examination based upon evidence provided of invalidating information whenever provided by any party receiving a letter of infringement. This would encourge the entire system to become more honest, since shotgunning an industry could get pretty expensive if everyone has some evidence that could invalidate claims.
me3 wrote: The founding fathers choose a punitive patent system that made America today.
I'll let Thomas Jefferson and Benjamin Franklin speak for themselves. First Jefferson:
If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of everyone, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density at any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property.
And now Benjamin Franklin, who invented many things including his eponymous stove but did not care for patents:
As we enjoy great advantages from the inventions of others, we should be glad of an opportunity to serve others by any invention of ours; and this we should do freely and generously.
Of course, this was the tail end of the Age of Enlightenment, when scholars recognized that human knowledge is a continuum of building upon previous knowledge, and the idea of someone claiming ownership of an idea was patently ridiculous.
Law is about evidence. What is "frivolous" depends on the strength of initial evidence. A frivolous case cannot pass the threshold set forth by law. There are a lot of misconceptions out there in this field, like patent count etc. If you care, as I think you should, then read some real documents.
To start, you can read Tela Innovation vs. TSMC here
It seems reasonable, and even efficient, to make losers pay the court costs as a main tenant of patent reform. Such reform is coming--in one way or another. It makes sense for it to include a provision making the cost and time spent in court part of the issue to disincentivize frivolous suits.
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