Need for Patent Reform?

Won’t it be interesting if the internet telephone industry is decimated through the assertion patent rights held by the largest telephone companies? How does this reflect on patent reform issues? Are there any examples industries being destroyed (or companies crippled) based on patent troll activity/

80 thoughts on “Need for Patent Reform?

  1. “and it is through contracts directed to pressing government needs that the costs can be adsorbed on a shared basis between the government and its contractors.”

    And by Government I mean taxes and by taxes I mean taxpayers and by taxpayers I mean the communal pooling of resources to be diverted from individuals and directed to the greater, longterm good and by the communal pooling of resources to be diverted from individuals and directed to the greater, longterm good, I mean Socialism.

    I love it when free market junkies and capitalists have to come face to face with their dependency on the principles they hate the most- a shared burden leading to shared benefit.

    Taxpayers paid for all the R and D that Verizon depends on so they can patent a the use of a database in a certain way and sue Vonage out of existence over it.

    Let’s just say it- Verizon and their ilk are non-value producing leeches on a system built by the blood sweat tears and genius of individuals who were paid a tiny tiny fraction of Verizon’s CEO’s compensation (compensation for … what exactly?) and funded by the public for the public good.

    Sell me another ring tone. Verizon and all these patents are an infection on the body politic.

  2. Mr. Slonecker, good to hear from you and you are, as always, estute in your observations. However I have one question:

    I thought Al Gore invented the Internet???

  3. Mr. CaveMan,

    “With all due respect, the internet telephone industry would not be around if not for the technology provided by companies such as Verizon.”

    Trips down memory lane are always an enlightening experience. In this case I would modify your above quote to read “…and the wireless telephone industry would not be around if not for the technology provided by companies performing research, development and manufacturing under contracts with the US Government (principally the DOD[including DARPA], NASA and the DOE). Fortunately almost all of those companies, with the exception of Hughes, haven’t a clue what patents are and thus are largely ignorant that Title 35 even exists.”

    A significant part of the internet was spawned from a program overseen by DARPA, and a significant part of mobile wireless communication was spawned from programs with the US Army directed to battlefield communications (Martin Marietta, Hughes, Raytheon, etc.). In my experience the R&D costs are phohibitively high, and it is through contracts directed to pressing government needs that the costs can be adsorbed on a shared basis between the government and its contractors.

    One need only review the technical papers on file with the DTIC and the NTIS to understand what I mean.

  4. Still further, a review of the Verizon (Bell Atlantic) patents at issue, reveals that the technology of the patents at issue is oriented toward that which would be ordinarily used by a telco like Verizon. Under various theories of estoppel, laches, waiver, and the like, failure to enforce the patents to core Verizon technology could present issues down the road for them. Also, it appears that these days, corporate officers have a new standard of care in addressing potential infringement and other enforcement activities (see, e.g. link to jurisnotes.com)

    Thus, the Vonage case is more about protecting territory that Verizon is already involved in and likely to sell equipment in than to harassing Vonage or “decimating the internet telephone industry.” With all due respect, the internet telephone industry would not be around if not for the technology provided by companies such as Verizon.

  5. Also, when I say “still settling dust,” I meant a decade and a half or so later (lest anyone get the impression that I am some kind of geezer). However, I will freely admit to being older and wiser than Mooney.

  6. Being a former telephony geek that used to make products for the AT&T plug compatible market, I can tell you that the telco had very little interest in pursuing patent enforcement against us. There may have been reasons such as the still settling dust from the 1984 consent decree forcing the service providers out of the equipment market, but it also seems like there are plenty of technical barriers and quality barriers that the telcos can erect to prevent small entrants. I can tell you the VoIP is still not trivial from a technical standpoint, and, heck, the subscribers still have to pay the telcos one way or another (who do you think is providing the broadband backbone?). Suing your customers for infringement is not good business practice…

  7. Jon, is that you again?

    And let me guess, you think you know more than what everyone else was taught, right? Kind of a “special knowledge”, a special gift that you’ve been given, eh?

  8. “No, because the limited monopoly is what you get for the disclosure, whether you want to practice or not.”

    [translation: "because that's what you get under the law"] +
    [I was taught the law] =
    “because that’s what I was taught”

  9. “But…(assuming a valid patent, of course). The “trolls” thought of the invention first. If a larger company independently “invents” the same thing 13 months later, they should pay.”

    “Why? Because you say so? Because that’s what you were taught?”

    No, because the limited monopoly is what you get for the disclosure, whether you want to practice or not.

  10. One can opt for non-publication of their patent app. if desired. I have 3 patent apps. on file for novel consumer utility products-it was a real thought- provoking decision to get thru the advantage vs disadvantage of that issue- since my inventions can be reverse engineered, I finally opted for publication-all three will be in the database for all to see in 2008.I better get my patents, or someone else will be introducing my invention into the market-how’s that for promoting the progress? Nice guy, huh?

  11. “it’s tough enough to get an infringer to take a license and pay a reasonable royalty.”

    You are working from the assumption that there IS an infringement. Many times the “independent inventor” believes the patent covers more than it really does. Should a corporation just agree to a license every time someone says they have a patent? Or should the corporation do its own due dilligence and determine if there is a valid infringement claim?

  12. Isn’t it pretty obvious that Vonage’s real deficit here was that it brought no new patented technology to the game? If Vonage had actually had some important original contribution to the market, which in effect was basic to the success of that market, and had patented it, it would presumably be able to sue Verizon for patent infringement itself insofar as Verizon had entered that market itself, or planned to do so — and what else would be the point of an injunction otherwise?

    In fact, small innovators in an emerging market should always have that sort of power over the market in virtue of its own patents, insofar as it has basic and necessary innovations in that market. The commonly understood and practiced policy of Mutually Assured Destruction guarantees such a player a place at the table. For a small player, an assured place in a very large emerging market is a major win, and greatly worth any initial investment.

    That’s the way the game is played in our more complex world, for those who know how to navigate it.

    If, instead, you remove patents from the picture, the small innovator may be left with NO place at the table, and NOTHING in reward for its great innovative work, and perhaps considerable investment. How and why would this be a better outcome for the economy in general?

  13. Mr. McDonald, it’s tough enough to get an infringer to take a license and pay a reasonable royalty. If the patent holder doesn’t have the threat of a permanent injunction (i.e., the “right to exclude” that is the essence of the patent), there’s a pretty strong incentive for the infringer to tell the patent holder to “take a hike”, isn’t there?

  14. “Should not the historically contrasting interpretation of these two protections come to bear?”

    For policy, sure. But for Constitutionality, I wouldn’t think so.

  15. Dear “Anonymous”,

    You point is well taken — I hadn’t thought of that — although I do recall that basic tenet of copyright law.

    Should not the historically contrasting interpretation of these two protections come to bear? That is, you cannot copy from a copyright, period, versus “close only counts in horseshoes,” not when it comes to who invents first?

  16. JAOI wrote “That radical change in ‘policy’ to which you refer would require Constitutional Amendment.”

    Then consider it a policy discussion as to whether the Constitution should be amended.

    (You should know that you’d be wasting your money to file a lawsuit challenging Congress’s ability to parse out rights between non-practicing vs. practicing patentees or between copyists vs. independent conceivers. Especially for the latter, since independent creators are insulated under copyright law passed under same clause of the Constitution that patent law is.)

  17. Dear “Anonymous”,

    “Get with the thread.”

    With all due respect, please read footnote above (posted at 10:27 Sep 27, 2007, today).

    That radical change in “policy” to which you refer would require Constitutional Amendment.

  18. “Would any of you care to show us where ‘practicing’ or ‘non-practicing’ is articulated anywhere in patent law?”

    Get with the thread. We’re discussing patent policy generally and to what extent, if any, practicing and non-practicing should be “articulated” in patent law. No one is saying that such distinctions are presently articulated in statutory patent law, but caselaw (specifically the injunction cases) surely has and will continue to consider whether a patentee practices the invention.

  19. Would any of you care to show us where “practicing” or “non-practicing” is articulated anywhere in patent law?
    Those of you who attribute legitimacy to the term “troll” are acquiescing to the notion that squatters rights should apply to patents.

  20. “I equate ‘troll’ with ‘non-practicing patent holder seeking to derive income solely from patent enforcement’.”

    I guess the folks at MIT’s licensing arm are (if I can say it) tr… ttr… Ttru…. (oh, heck, you win)*

    … as is anyone who invents an improvement to an automobile that doesn’t work for a car company? What are you trying to do to American ingenuity? Is the cure you suggest really proportional to the ill? Or will you remove an arm to amputate a finger tip? (I’ve had to deal with real Ttro, trus, you know a number of times in my career, my clients have never been permanently harmed or shut down, your definition fits Lemelson but is far too overbroad and can hurt the public at large.)

    *as I understand it, NTP did just as much research and prototyping for their patented endeavors, and even tried to bring their products to market

  21. And the moral of the story? – as i posted on the old thread – monopolies and cartels stifle innovation – not patents. The irony here is that if you wanted more competition and innovation – you would give the stronger rights (right to injunction) to the challenger usually the smaller co and not the entrenched co. To the detriment of both competition and innovation, unfortunately, scotus has it exactly wrong.

  22. “Is that you, Jon?”

    No. There are at least two people who find the term “troll” convenient, intuitive shorthand for at least some non-practicing patentees. Although, to be honest, the term “troll” doesn’t neatly apply to all non-practicing patentees and shouldn’t be used as such.

  23. Just so you know, I don’t equate “troll” with “independent inventor”.

    I equate “troll” with “non-practicing patent holder seeking to derive income solely from patent enforcement”.

    It is true that some independent inventors fall within my definition of troll, but not all. Those independent inventors who built businesses on creating and selling products or services from their inventions are not trolls.

    On the other hand, corporations that are formed to do nothing more that buy patents and sue for royalties without offering goods or services, as well as individual inventors who do the same are my definition of trolls. I do not include universities in my definition of troll, since they cannot provide the goods/services and plow back their royalties into further research or education.

  24. It may hurt people’s feelings, but “troll” is a helluva lot easier to say than “non-practicing patentee suing for damages from independently conceived products.” Although, it’s probably best not to use that term because they can attack the use of the term, rather than focusing on the real issue: whether society benefits from their “services.” (Just like it’s easier to rip on the “General Betray Us” ad instead of trying to justify the Iraq War policy.)

  25. The “patent troll” issue is a red herring. Opponents usually become demonized by name calling when a lot is at stake. We need to drop the labels and work to fix the system for the benefit of all Americans.

  26. The VoIP guys can have free reign once the PSTN guy’s patents expire, 20 years from filing.

    The policy is working as designed to achieve its objectives. The problem is how people implement policy.

    The hidden story is USPTO examination delays, because USPTO delay works to the advantage of the established technology firms.

    I propose Congress shorten the 20 year term by a couple of years and the USPTO make the same couple year pendency shortening.

    Consider that about 5 of the 20 years are consumed by the slow USPTO examination in this technology. Years just sitting on a shelf/hardrive waiting for a backlogged Examiner to first read them. Examination backlog is the unseen problem. The new rules might shorten examination time, but not backlog. If the average pendency was truly lower, then Congress could reduce the 20 year shorter term and let new technologies break free sooner. This is how PTO delays work to the advantage of the established old technology firms.

    You see what is happening here is beltway bureaucracy is being leveraged by the established firms. In a perfect world there would be no beltway bureaucracy, but history has universally proven that bureaucracy seldom subsides on its own. The fees paid by applicants are ridiculous and long spent by the agency years before any examination happens. A lawyer would be required to keep these fees in a trust fund, but a bureaucracy need not. We need to make some noise about backlog.

  27. Dear real anonymous,

    A further thought about Max: On top of my other complaints about Max, I believe Max is intellectually corrupt. He figures devious ways to make it sound like my JAOI views and his views are in lock step, and they are not.

    When I criticize Max, as I often do, I quote him verbatim and express my opinion forthrightly. I don’t color the truth in devious ways. I am a straight shooter — what you see is what you get.

    Far more often than not, I am constrained to strongly disagree with Max’s (most-often subtle and devious) anti-American agenda and his anti-American patent system views. I refuse to take Max’s foisting his foreign propaganda on my favorite blog lying down.

  28. Dear Mr. McDonald,

    Please do not use the pejorative term “tr*ll,” which, I for one, find as offensive as some four letter words.

    A “self-employed inventor” is just that and no more. I’m sure you would find it offensive if some of your clients started using pejorative terms whenever referring to lawyers in general. You write:

    “When a troll sues and asks for an injunction to shut down an industry the troll doesn’t really want to shut down the industry, it wants an overvalued payout. The troll is producing nothing of value to society except the piece of paper with a gold seal and red ribbon.”

    First of all, with all due respect, thousands of American companies were started by self-employed inventors, companies that today represent the very backbone of American industry — THOUSANDS.

    Second of all, if an industry leader doesn’t voluntarily take a reasonable license when a self-employed inventor offers one, then that self-employed inventor deserves an “overvalued payment” related either to willful infringement and or punitive damages and or the threat of an injunction (please see footnote) when and if his patent is found to be valid and infringed after the horrendous ordeal of a patent infringement trial.

    Intellectual property rights, and those who create them, deserve respect, more respect than you apparently are willing to give, as evidenced, e.g., by your inflammatory insistence on the use of a pejorative term for a self-employed inventor.

    <>
    Footnote:
    The controlling United States Patent laws under our Constitution and our Constitution itself are clear, unmistakable and unambiguous regarding “the exclusive Right” and “THE RIGHT TO EXCLUDE OTHERS”, to wit:

    The Constitution, Article I, Section 8: “The Congress shall have Power …
    Clause 8: To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;”

    The “gold seal and red ribbon” cover of United States patent make this Grant to ALL inventors and or their assigns:
    Therefore, this United States Patent Grants to the person(s) having title to this patent THE RIGHT TO EXCLUDE OTHERS FROM MAKING, USING, OFFERING FOR SALE, or selling the invention throughout the United States of America or importing the invention into the United States of America for the term set forth below, subject to the payment of maintenance fees as provided by law.” (emphasis added)

    Yours Truly,
    Just an ordinary standup Constitutional philosopher(TM)
    a/k/a

  29. “So, patent enforcement is bad when it’s by “trolls” and it’s good (or at least okay) when it’s by former Ma Bell companies. One of these days I’d like to hear a principled justification for this difference.”

    When a troll sues and asks for an injunction to shut down an industry the troll doesn’t really want to shut down the industry, it wants an overvalued payout. The troll is producing nothing of value to society except the piece of paper with a gold seal and red ribbon.

    When a competitor sues and asks for a injunction it is seeking to protect the dollars in investment it has made to provide the goods/services itself, adding value to society.

    Recently, the courts have finally realized this and put back some balance into the system.

  30. Jon says, “But simply saying ‘they should pay’ is meaningless.”

    Why am I no longer surprised when people with agendas think applying and being in subject to the law is meaningless?

    Jon says, “Why? Because you say so?”

    No, Jon, because the law says so. Or is that not reason enough for you? (Check yourself here.)

    I dread the day when the checks and balances of our government are overrun by politicians who “work the system” for patent reform to achieve the private agendas of their contributors or of their own concoctions. That day we will surely be able to say, “Good night, America.”

  31. Notice how unlike in the NTP v. RIM case (Blackberry), Verizon v. Vonage has not generated any significant talk about a broken patent system. I guess as long as you’re a company that makes stuff or provides services to lots of people, then it’s okay to enforce your patents in court. The bad people (“trolls”) are the ones who engage in the very same litigation conduct, but they don’t make things or provide services.

    So, patent enforcement is bad when it’s by “trolls” and it’s good (or at least okay) when it’s by former Ma Bell companies. One of these days I’d like to hear a principled justification for this difference.

  32. “Actually, he seems to be arguing for the abolition of the “exclusive right” granted to inventors by the Constitution as implemented by Congress though the patent system.”

    Sounds like you’re talking about another Jon I know.

    JAOI – understood.

  33. “Let’s be clear, what you are, in fact, advocating is a loophole (i.e., if a user did not rely upon the disclosure in the patent, then the user should be able to practice the claimed invention) that essentially swallows the rule. Anybody and everybody who is accused of infringing a patent will now be able to argue that they conceived of the invention independently or at least never viewed the disclosure of the patentee.”

    Actually, he seems to be arguing for the abolition of the “exclusive right” granted to inventors by the Constitution as implemented by Congress though the patent system.

    In my experience, most scientists and engineers in inventive fields are quite familiar with patents and how to read them (I deal mostly with biological and pharmaceutical matters). The patents aren’t particularly legalistic in those areas either. Electrical may be a different story, however.

    I’m actually a little confused as to what people’s policy proposals are. I see a suggestion for either making the patent system like the copyright system and requiring proof of copying. That’ll happen shortly after Hell freezes over, and it’s an astonishingly bad idea regardless — it would greatly reduce the value of patents and the incentives business have to seek patent protection and conduct research. Patent infringement would become essentially impossible to prove and patents impossible to enforce. It’s hard enough proving infringement sometimes.

    I also see a proposal for a kind of intervening right for investment during intervening 18 months between application and publication. But that doesn’t seem particularly useful given the often long lead times between publication and issuance of a patent — a rational actor should have plenty of time to modify is affairs (unless the patent claims are significantly different than those in the published application).

    Someone also suggested that in fast-moving fields (or all fields) publication should be accelerated. That’s also a nonstarter (It would required signficant treaty action). But its also not necessary, in part due to the lead time from publication to issuance. If its truly a marginal invention, the world will have passed it by the the time of issuane. By the same token, if it is a significant advance, it will not have been surplanted in that time.

  34. As important as what a person’s opinion is, as expressed in his comment(s), is the (subtle) agenda he means to advance.

    I don’t like Max’s agenda — it is a little too slick for me and too anti the things I stand for.

  35. Lionel, agreed. Reason. almost 100% of patent applications are written with USA in mind, because up to now the US market has been worth more than any other, and the US patent the most intimidatory property. Take USA out of the equation, and the legalese would drop precipitously.

    Just: my one finger typing sometimes produces errors, like “USa”. No insult intended, I assure you.

  36. Hey JAOI, could you please let us in on it? I thought Max was agreeing with you. (Or has someone hijacked your pen-name?)

    (Max, obviously I don’t understand the USa vernacular either.)

  37. Max,

    Applications in the US do not contain any more legalese the EPO applications. I have read enough of both to know that many from both sides of the Atlantic are badly written. The claims may be slightly more complex in the US.

    It would be easier if the US treated multiple dependent claims the same way the EPO did.

  38. Just: because writing in US Vernacular is not a condition of entry to this blog, and not used by other contributers. If you would feel more secure if the blog were to be closed to entry for aliens, suggest you have a word with Dennis.

  39. “Disclosures are written in legalese…”

    Say what? Claims are sometimes written in legalese (I haven’t used “said” in 15 years).

    Good disclosures are written “in such full, clear, concise, and exact terms as to enable *any person skilled in the art* to which it pertains, or with which it is most nearly connected, to make and use the same.”

  40. Pseudoanon: it’s not THAT hard to devise a workable patent system. Europe worked out in the 1960’s how to manage the 18 month black hole, in a way that delivers fair scope of protection for inventors with reasonable legal certainty for the public. When it comes to writing a new code of patent law for USA, however, I guess the “Not Invented Here” syndrome might be a problem. Also, disclosures in Europe are NOT written in legalese, and outcomes don’t depend on “magic words”. Your problems in that regard go back to the common law problem of “Binding Precedent” laid down by non-specialist patent judges.

  41. There’s a difference of views here, between those who think the 18 month publication encourages readers to infringe, and those who think it might deter folks from infringing. Consider the reader who is mulling over whether to invest 100 million of his own dollars into building a plant to make a new product. Imagine it’s your money and that the WO doc has claims that read on to your contemplated plant. Seeing the WO would deter you from sinking your 100 mill, (rather than encourage you to build your factory), no? In my field, medical devices, it is my daily experience that clients do not freeze on a design for a new product that is clearly within the scope of a valid claim of a WO document. Thus, the WO is effective to keep trespassers off the grass. The new growth industry for the USa will be so-called “watching searches” to monitor the flow of 18 month publications of new patent applications in specific technical subject matter class headings of interest.

  42. The big problems with the ‘disclosure = purpose of the patent system theory’ appears to be 1.) Disclosures are written in legalese and rarely helpful to those ‘skilled in the art’, or at least so many are that its often not worth the time to sort through them all (some fields being big exceptions) 2.) Disclosures aren’t published for 18 months after filing, by which time the ‘disclosure’ may no longer be inventive to any serious player in the field (particuarly for fast moving fields).

    The solution to 1.) seems difficult, in that it requires the Court to be far more willing to invalidate patents on lack of enablement and ambiguity issues, which would probably be hard on independent inventors who forget the ‘magic words’, while not preventing those that are deliberatly obtuse.

    The solution to 2.) is somewhat easier. Either publish the applications within a shorter period of time (i.e. within three months) (although this would probably just lead to more provisions, and to conflicts with internationaly filed applications)or allow an independent invention defence, but only allow it for those alleged infringers who can demonstrate that they substantialy developed the product during the 18 months of pre-publication. Leave the burden on the alleged infringer, as afterall, they would have the evidence of product development in any event.

  43. I have to agree with JaOI(TM): disclosure soon after filing at the Patent Office is a mechanism for promoting the progress, but so too is a limited monopoly with a scope commensurate with the inventor’s contribution to the public of a new, useful and non-obvious contribution to technology, that is enabled by the inventor in his(her application, across the scope of the claimed contribution, in the application as filed. It’s not rocket science, just what common law England and civil law Germany agreed between them, back in the 1960’s. As Europe is now finding, and USA is now finding, it’s post-issue disputes that test the “patent system”. The currently successful model for resolving patent disputes is common law UK, in civil law Europe. Litigation in a common law country is hugely more expensive, intrinsically, than in a civil law country. Yet England is THE jurisdiction of choice, when it comes to litigating a European patent. USA could do worse than to examine how the “patent system” currently runs, in common law UK. Can’t myself see how, in a properly functioning patent system, a troll-owned patent can “destroy” an industry. If a “troll” (or garage inventor) really does have a ground-breaking contribution, with claims that will withstand validity attacks on a set of “preponderance of evidence” scales, one of the main players will get early into bed with that inventor (and make him rich). It’s not the troll, but legal uncertainty, over whether the claim is valid or not, infringed or not, that is fuelling the “system is broke” headlines. It doesn’t need to be that way. Look how the English patents judges run the show. Get some of that for yourselves.

  44. **********
    Yes, everyone knows that. The question is whether that is a good idea. I propose tentatively that it is not. Disclosure in the form of an application is generally not looked at by anyone, and permitting patentees to enjoin and/or get a royalty from others who in fact have not used that disclosure strikes me as a far greater drain on the “progress of science and useful arts” than is the theoretical benefit of “disclosure.”
    **********

    Let’s be clear, what you are, in fact, advocating is a loophole (i.e., if a user did not rely upon the disclosure in the patent, then the user should be able to practice the claimed invention) that essentially swallows the rule. Anybody and everybody who is accused of infringing a patent will now be able to argue that they conceived of the invention independently or at least never viewed the disclosure of the patentee.

    The patentee will then be forced to find some connection between someone reading their disclosure and the eventual practicing of their claimed invention. This sounds like great fun for litigators, but I imagine very few patents would ever be successfully litigated. As such, what you are essentially suggesting is that we disband the patent system altogether since if patents cannot be enforced, then why have them?

    There is a concept called constructive notice, which I believe someone alluded to before in this thread. Just like you cannot say tell a judge in criminal court that you didn’t know that “such and such” was illegal (you have constructive notice of the law), you should not be able to be willfully ignorant of what is being disclosed/claimed in patents.

  45. Dear EG,

    “And before Congress (and others) use that pejorative term (thank you “just an ordinary inventor”), patent troll, which was applied to NTP in the BlackBerry case, they need to remember that NTP, the patentee, was the “small U.S. outfit” and that the infringer in that case, RIM, was a Canadian (not U.S.) company. Need I say more?”

    You are most welcome — Thank You.

    To borrow a Kermit the Frog’s Sesame Street song: “It’s not easy being green.”

  46. “”… and if that disclosure is never read, how does that particular disclosure benefit the public?”

    The disclosure is almost certainly read at least by patent examiners who may use the disclosure to initially reject future patent applications causing the future patent applications to be amended to be more limited- thus expanding the scope of use when the original patent expires.”

    They’re also read by many folks abroad, including China, India, Japan, South Korea, etc., who love to get knowledge of American innovation for absolutely nothing, and then have us import the resulting products they make from it(thus contributing to our trade deficit).

    And now Congress (or at least the House so far) wants to hand that competitive advantage away to our foreign competition, as well as offshoring jobs in the IP field, (including searching by the Swedish Office of PCTs because the PTO can’t get it’s act in gear to handle what they’re supposed to do). When is Congress is going to wake up to the fact that punishing the “meritorious many” (many of which are individuals and small businesses for which patents are their only hope to compete) for the “egregious few” (those, like Lemeulson, who may abuse the patent system but for whom the Federal Circuit provides avenues for redress that even the PTO has used). In fact, Congress needs to recognize that what the PTO hierarchy plans to do in terms of “making the prosecution process more efficient” is nothing more than saying we can’t hire enough qualified Examiners who reside in the U.S. (that’s what John Doll basically said).

    And before Congress (and others) use that pejorative term (thank you “just an ordinary inventor”), patent troll, which was applied to NTP in the BlackBerry case, they need to remember that NTP, the patentee, was the “small U.S. outfit” and that the infringer in that case, RIM, was a Canadian (not U.S.) company. Need I say more?

  47. “”… and if that disclosure is never read, how does that particular disclosure benefit the public?”

    The disclosure is almost certainly read at least by patent examiners who may use the disclosure to initially reject future patent applications causing the future patent applications to be amended to be more limited- thus expanding the scope of use when the original patent expires.”

    They’re also read by many folks abroad, including China, India, Japan, South Korea, etc., who love to get knowledge of American innovation for absolutely nothing, and then have us import the resulting products they make from it(thus contributing to our trade deficit).

    And now Congress (or at least the House so far) wants to hand that competitive advantage away to our foreign competition, as well as offshoring jobs in the IP field, (including searching by the Swedish Office of PCTs because the PTO can’t get it’s act in gear to handle what they’re supposed to do). When is Congress is going to wake up to the fact that punishing the “meritorious many” (many of which are individuals and small businesses for which patents are their only hope to compete) for the “egregious few” (those, like Lemeulson, who may abuse the patent system but for whom the Federal Circuit provides avenues for redress that even the PTO has used). In fact, Congress needs to recognize that what the PTO hierarchy plans to do in terms of “making the prosecution process more efficient” is nothing more than saying we can’t hire enough qualified Examiners who reside in the U.S. (that’s what John Doll basically said).

    And before Congress (and others) use that pejorative term (thank you “just an ordinary inventor”), patent troll, which was applied to NTP in the BlackBerry case, they need to remember that NTP, the patentee, was the “small U.S. outfit” and that the infringer in that case, RIM, was a Canadian (not U.S.) company. Need I say more?

  48. “”… and if that disclosure is never read, how does that particular disclosure benefit the public?”

    The disclosure is almost certainly read at least by patent examiners who may use the disclosure to initially reject future patent applications causing the future patent applications to be amended to be more limited- thus expanding the scope of use when the original patent expires.”

    They’re also read by many folks abroad, including China, India, Japan, South Korea, etc., who love to get knowledge of American innovation for absolutely nothing, and then have us import the resulting products they make from it(thus contributing to our trade deficit).

    And now Congress (or at least the House so far) wants to hand that competitive advantage away to our foreign competition, as well as offshoring jobs in the IP field, (including searching by the Swedish Office of PCTs because the PTO can’t get it’s act in gear to handle what they’re supposed to do). When is Congress is going to wake up to the fact that punishing the “meritorious many” (many of which are individuals and small businesses for which patents are their only hope to compete) for the “egregious few” (those, like Lemeulson, who may abuse the patent system but for whom the Federal Circuit provides avenues for redress that even the PTO has used). In fact, Congress needs to recognize that what the PTO hierarchy plans to do in terms of “making the prosecution process more efficient” is nothing more than saying we can’t hire enough qualified Examiners who reside in the U.S. (that’s what John Doll basically said).

    And before Congress (and others) use that pejorative term (thank you “just an ordinary inventor”), patent troll, which was applied to NTP in the BlackBerry case, they need to remember that NTP, the patentee, was the “small U.S. outfit” and that the infringer in that case, RIM, was a Canadian (not U.S.) company. Need I say more?

  49. “Give me a break — anyone familiar with the practice of the PTO over the last 20 years knows that (with the exception of some very, very recent changes), you can pretty much get a ham sandwhich [sic] patented if you are clever enough.”

    How very, very recent, Jon?

    7,226,629: Microwaveable grilled cheese and meat sandwiches and method of preparation (June 5, 2007)

    “As used herein ‘meat’ refers to any type of deli meat. In a very important aspect, the deli meat is ham.”

  50. “The disclosure is almost certainly read at least by patent examiners who may use the disclosure to initially reject future patent applications causing the future patent applications to be amended to be more limited- thus expanding the scope of use when the original patent expires.”

    You really believe that theory. Give me a break — anyone familiar with the practice of the PTO over the last 20 years knows that (with the exception of some very, very recent changes), you can pretty much get a ham sandwhich patented if you are clever enough.

    Defenders of the current system rely solely on theory and abstract mumbo-jumbo. Let’s see some actual facts to justify the extraordinary toll the patent system takes on this economy. The Vonage example is perfect of what is going wrong — big companies can kill an innovative entreprenuerial company into oblivion without any proof whatsoever that that that new company every copied patented technology of the big companies.

  51. “Patents have a finite term (everyone seems to forget that); we exchange permanent disclosure now (well, on publication or patenting) for a limited-term right to exclude over a supposedly clear claim scope. The patent right to exclude is essentially a bounty for the earliest possible disclosure — remember that an inventor has the option of keeping the invention as trade secret or even doing nothing at all with it.”

    Yes, everyone knows that. The question is whether that is a good idea. I propose tentatively that it is not. Disclosure in the form of an application is generally not looked at by anyone, and permitting patentees to enjoin and/or get a royalty from others who in fact have not used that disclosure strikes me as a far greater drain on the “progress of science and useful arts” than is the theoretical benefit of “disclosure.”

    The problem is is that these arguments re disclosure simply beg the question. Just because you can articulate what the argument is for the current system does not make that argument correct. It is a cost/benefit analysis. As noted, I think the costs of the current system greatly outweigh the benefits. You may disagree. YOu need to explain why without simply parroting the well-known and well-articulated argument in favor of the current system which requires people who independently conceive of certain devices, methods, etc. to pay someone for the use of those devices, methods simply because some one came up with the idea earlier and without proof that the earlier inventor had any influence whatsoever on the later one.

  52. “However, imagine being the patent holder and trying to prove they looked at your patent and therefore copied your idea. Good luck with that one.”

    Not a problem in copyright law. Using copyright law as a model, all you would have to show to get past MSJ would be some evidence of reasonable access — where publication with the PTO is not alone sufficient proof of that. Of course, if a patentee actually commercializes its invention, access will usually be a given. Thus, there is a clear incentive to actually use your invention.

  53. It is, of course, a trade-off.

    After publication, the information is there for all the world to see if they care to look — it’s like constructive notice. If some third-party doesn’t look, it’s their own fault. The point is that the information was available and they could have looked. It’s also very difficult to establish that someone didn’t see a patent or published application.

    In the real world, in many fields, scientists and engineers pay very close attention to the patent literature. This is particularly true in the chemical and biological arts.

    There is a lag between application and publication (18 months), but the theory is that it is better to have to information on the way to publication than create some intervening right. We like to encourage people to participate in the patent system (with the its resultant disclosure).

    Finally, if the “independent” inventor filed a patent application it likely would have ended up in an interference where the first to invent could have been resolved.

  54. “… and if that disclosure is never read, how does that particular disclosure benefit the public?”

    The disclosure is almost certainly read at least by patent examiners who may use the disclosure to initially reject future patent applications causing the future patent applications to be amended to be more limited- thus expanding the scope of use when the original patent expires.

  55. The whole idea of allowing people to use an invention if they independently came up with it may have merit.

    However, imagine being the patent holder and trying to prove they looked at your patent and therefore copied your idea. Good luck with that one.

    So what then? Don’t publish patents then you say? Well then we go back to the system of trade secrets. Trade secrets may be difficult to police or lead to inventions never being available to for the public, except through a single provider.

    A case can be made that the patent system is much more workable.

    I think ultimately, patent reform is about concentrating more power in America’s corporations. The growing corporate mess is what is leading to the downfall of America. The Corporation is dead; long live the corporation.

  56. “The patent right to exclude is essentially a bounty for the earliest possible disclosure[.]”

    … and if that disclosure is never read, how does that particular disclosure benefit the public?

  57. Dear anonymous,

    “I believe his comment is directed to the fact that most of the competitors come up with their ideas independently of the patent trolls so a patent troll’s disclosure did not necessarily further the public domain.”

    With all due respect, you are still missing the point. If big business competitors come up with their ideas independently of the SELF-EMPLOYED INVENTORS, then they ought to patent their work.

  58. You still miss the point. Patents have a finite term (everyone seems to forget that); we exchange permanent disclosure now (well, on publication or patenting) for a limited-term right to exclude over a supposedly clear claim scope. The patent right to exclude is essentially a bounty for the earliest possible disclosure — remember that an inventor has the option of keeping the invention as trade secret or even doing nothing at all with it.

    Parties have notice of these claims as well as the theoretical ability to design around or license the patent. A patentee has the right to exploit his patent right essentially however he likes — he can practice the invention and exclude others, or he can grant exclusive or nonexclusive licenses, or some combination. We let the patentees and the market decide what the invention is worth — most patents are worth less than the cost of prosecuting them and their maintenance fees.

    Even if there is a later, independent conception, the later inventor is not required to disclose the method of making, using, etc. equivalent to Section 112, paragraph 1 even if he commercially exploits the invention.

  59. Dear Jon,

    “No — please read the Constitution. Patents are about “promot[ing] the progress of science and useful arts.”

    Silly me; I thought the means to doing so WAS disclosure. What do you think the means to doing so are?

  60. No — please read the Constitution. Patents are about “promot[ing] the progress of science and useful arts.” Disclosure is part of a statutory scheme Congress chose, which they apparently determined promoted “the progress of science and useful arts.” However, where patents are no longer achieving that goal, we should revisit the disclosure theory. We may conclude that the benefits of the current system outweigh the costs, but simply saying “Disclosure IS what patents are all about” does not prove anything — even if you used capital letters for every word and bolded and italicized “IS.”

    But, of course, the grant of patent is recognition that the inventor has a new, useful and non-obvious invention, so does not the disclosure of that thing promote the progress of science and the useful arts?

  61. I believe his comment is directed to the fact that most of the competitors come up with their ideas independently of the patent trolls so a patent troll’s disclosure did not necessarily further the public domain.

  62. Dear anonymous,

    May I respectfully request that you stop using the term “troll” and replace it with “self-employed inventor”? “Troll” is imaginary fairy-tail talk and is pejorative.

    Our American democracy and free-enterprise economy was built in large part on independent innovation. Many, many of today’s giant corporations were started by self employed inventors.

    A “self-employed inventor” should be highly regarded as a proud profession. It beats the heck out of working for a big business concern that gives you a 100 bucks bonus if you invent something spectacular. Big business rarely is guided by concern for We the People. Consider what the tobacco companies foisted on We the People, or Ford with its exploding gas tanks.

  63. “Disclosure IS what patents are all about!”

    No — please read the Constitution. Patents are about “promot[ing] the progress of science and useful arts.” Disclosure is part of a statutory scheme Congress chose, which they apparently determined promoted “the progress of science and useful arts.” However, where patents are no longer achieving that goal, we should revisit the disclosure theory. We may conclude that the benefits of the current system outweigh the costs, but simply saying “Disclosure IS what patents are all about” does not prove anything — even if you used capital letters for every word and bolded and italicized “IS.”

  64. I believe his comment is directed to the fact that most of the competitors come up with their ideas independently of the patent trolls so a patent troll’s disclosure did not necessarily further the public domain.

  65. “In the case where first conception that did not lead to commercialization (or any other further use or development), the public doesn’t benefit from that first conception.”

    I strongly agree — hence, my earlier comment. The only “public benefit” from a non-commercialized patent is the disclosure of the invention — but 99 percent of the time this is completely theoretical. Why not graft a copying requirement into patent law? Seems much more equitable to me.

  66. “With all due respect, you miss the point completely. Disclosure IS what patents are all about!”

    No point missed. Disclosure is the theory. But, where the theory breaks down (that is, in the cases where the disclosure isn’t used) then it’s harder to justify rewarding inventors for providing the public with no benefit.

    As policy, I believe it’s best to tolerate the non-practicing patentees in hopes that there will be more practicing patentees and, in the aggregate, the system promote the useful arts. However, it makes perfect sense for the public to look differently at non-practicing patentees seeking royalties for independently conceived products.

  67. “But…(assuming a valid patent, of course). The “trolls” thought of the invention first. If a larger company independently “invents” the same thing 13 months later, they should pay.”

    Why? Because you say so? Because that’s what you were taught? In copyright law, for example, that would not be the case — you have to show copying. Why should we penalize people who independently invent things? I know there are arguments for why, and those arguments won the day long ago with the US Congress. But simply saying “they should pay” is meaningless.

  68. In the case where first conception that did not lead to commercialization (or any other further use or development), the public doesn’t benefit from that first conception. In such circumstances, I have hard time seeing why a subsequent conceiver who independently commercializes the invention “should” have to pay, as a policy matter. (Of course, they must unless Congress creates an independent creation defense akin to copyright.)

  69. Dear anonymous,

    “Non-practicing patentees are not providing a service, other than providing a disclosure in their patent.”

    With all due respect, you miss the point completely. Disclosure IS what patents are all about!

  70. The sad part is that in many industries the large players resolve patent disputes simply by cross-licensing each other under their respective patents – effectively keeping out the smaller players who have little or nothing to trade. Often, the smaller players only hope is to enforce a patent against one of the big players. But the current patent reform craze sweeping through every branch of government threatens to seriously impede that option.

    Heck, some companies have trouble keeping track of all their cross-licensing agreements and which ones cover what. If draconian patent reform is a certainty, then let’s include in there some reforms aimed at the anti-competitive nature of many cross-licensing arrangements.

  71. Following anonymous…

    But…(assuming a valid patent, of course). The “trolls” thought of the invention first. If a larger company independently “invents” the same thing 13 months later, they should pay.

    I think that is the problem with the practicing entity v. nonpracticing entity distinction.

    Also, as a practical matter, it clearly tips the scale away from the independent inventor.

  72. Practicing patentees have more incentive to seek injunctions (and higher probability of getting those injunctions) than non-practicing patentees (sometimes called trolls). So, if crippling competition is a problem, practicing patentees are more of a threat.

    That said, practicing patentees seem to be more accepted because they are at least providing their services to the public. Non-practicing patentees are not providing a service, other than providing a disclosure in their patent. But that disclosure, all too often, did not aid their licensees, who independently conceived of the inventions.

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