Patently-O Bits and Bytes

  • Free Podcast: Professer Meurer (BU) discusses his book: Patent Failure and takes “a hard look at the American patent system and why many innovators consider this system and the institutions created to protect patents complete failures.”
  • Fashion Law: Boston globe article on fashion law and profile of Professor Suk (who wants to creat a new law protecting fashion). Suk’s point of view differs from Professors Sprigman and Raustiala who argue that piracy & knock-offs are good for the fashion industry.
  • I’m considering the following query: Is it possible to move from an invention-date-focused regime (FTI) to one that is filing-date-focused (FTF) in a way that is “validity neutral?”

10 thoughts on “Patently-O Bits and Bytes

  1. 10

    Is it possible to move from an invention-date-focused regime (FTI) to one that is filing-date-focused (FTF) in a way that is “validity neutral?”

    I do not believe so, no. In my experience as a trial attorney, the dishonesty of my clients, and my opponents clients, was rampant. I did not trust the integrity of many of my opposing counsel, either.

    It is far too easy for someone inside a development organization to take an idea and file a patent application. One must have a belief that there has been a fraudulent claim of invention, before challenging one’s opponent to prove their history of development.

    In contrast, first-to-invent automatically invites such a challenge. By its nature, such a system automatically imposes a risk on those who would steal someone else’s invention. It is not easy to craft a fictional history that will stand up to close scrutiny.

    I believe, without additional proof, that risk also significantly reduces dishonest filings.

    AllParadox

  2. 9

    Wow, ProBusiness, someone else that understands what has happened over the last 25 with the rise of the patent system.

    That is exactly what has happened. We are on a fast track to 3rd world country status and dismantling the patent system is just one more giant leap down the hill.

    Follow the money…

  3. 8

    “The argument against “trolls” is an argument against the fundamental justification for the patent system in our Constitution.”

    Thank you Ned for a compellingly simple thesis against the “troll” label.

    What I don’t understand is that if the Corporate giants win out in the deconstruction ambit, what will happen when their offerings become stale and there is no real incentive for small companies to form, invent the next big thing, and be gobbled up. Will big corporations re-establish in-house R&D operations? Now, for the time being at least, corporate R&D has been (quite effectively) “outsourced” to the market by way of a strong patent system and solid obviousness tests like TSM and a vigorous start-up acquisition program. Find the players who are on to something, rise above the noise floor, and gobble them up. The others can wither and die without the corporation having spent a dime. NPEs can come in and mop up any legitimate residue.

  4. 7

    Paul Morinville, re: Prof. Meurer. Indeed. Prof. Meurer and anyone who actually believes in what he says are bigots. The patents a licensing entity promotes are typically the patents of failed startups or individual inventors who approach the licensing entity for their services. The whole point is to reward the original inventors for their inventions which are now be used by others without compensation. Labeling these people with horrific labels is disgusting — the whole point of the patent system is to reward inventors, not to protect products and businesses etc.

    The argument against “trolls” is an argument against the fundamental justification for the patent system in our Constitution.

  5. 6

    Professer Meurer tells the same old story about patent trolls, especially in software. His populist argument omits reality.

    He reasons that patent trolls buy patents so they can wait for the market to infringe and then extract royalties from unsuspecting victims. He feels that this drives a “tax” on innovation. He also equates it to cyber squatting.

    I submit that this scenario is simply not possible in the vast majority of cases, especially in software.

    Software is arguably the fastest market in terms of technology product life cycle. Time from the inception of the idea to its implementation is measured in months.

    The glaring reality Professer Meurer does not understand is that it takes at least six years to get a patent. During that time the PTO publishes the application to the public. Somehow the new invention gets incorporated into software products and often becomes widely adopted in a matter of months.

    By the time the patent is allowed (six years later) the market is mature and saturated with infringing products usually produced by largest and richest of software companies.

    Investors don’t put their money in companies that intend to compete in a mature market with technology that is already mainstream, so building a company based on the invention is no longer an option for the inventor.

    The remaining options are to litigate personally, or to sell to a troll. Given the cost and effort of litigation, selling to a troll can be an acceptable outcome for some inventors and a measured reward for publicly disclosing the invention in the first place.

    Professer Meurer’s view is uninformed and conflicts with reality.

  6. 5

    Not sure how or whether this phenomenon works in the fashion world.

    Read Sprigman and Raustiala’s essay “The Piracy Paradox: Innovation and Intellectual Property in Fashion Design”. In short, it explains how the lack of (practical) intellectual property protection on fashion designs has caused the fashion industry to continually innovate.

  7. 4

    Re your question “I’m considering the following query: Is it possible to move from an invention-date-focused regime (FTI) to one that is filing-date-focused (FTF) in a way that is “validity neutral?” ”

    I do not see how, entirely, because 102(g) can provide in some rare cases a prior invention invalidity defense even for someone who has never filed at all, but was sufficiently working from before the others filing date until later launch a product. Or, someone who filed later and won one the few inteferences in which a junior applicant actually wins on prior invention rather than some other issue.

  8. 1

    “Professors Sprigman and Raustiala who argue that piracy & knock-offs are good for the fashion industry”

    Famously, Microsoft Word, was simultaneously the most widely pirated and the best selling software product – ever.

    Not sure how or whether this phenomenon works in the fashion world.

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