
Supreme Court Rejects Attempt to Expand Patent Liability, but Limits Defenses - CapitalistCartr
https://www.eff.org/deeplinks/2015/05/supreme-court-rejects-attempt-expand-patent-liability-limits-defenses
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jimrandomh
The most important text in this Supreme Court ruling is this:

    
    
        > District courts have the authority and responsibility to ensure that frivolous
        > cases—brought by companies using patents as a sword to go after defendants for
        > money—are dissuaded, though no issue of frivolity has been raised here.
        > Safeguards — including, e.g., sanctioning attorneys for bringing such suits, see
        > Fed. Rule Civ. Proc. 11 — combined with the avenues that accused inducers have
        > to obtain rulings on the validity of patents, militate in favor of maintaining
        > the separation between infringement and validity expressed in the Patent Act.
        > Pp. 13–14
    

In the past, the district courts have failed utterly to fulfill this
responsibility, and I question whether they have the de facto authority. The
cited Rules of Civil Procedure -
[https://www.law.cornell.edu/rules/frcp/rule_11](https://www.law.cornell.edu/rules/frcp/rule_11)
\- are not a sufficient tool for the courts to fulfill this responsibility
with. While this ruling makes it clear that they must do _something_ , it
seems as though it obligates them to invent new legal theories.

~~~
monochromatic
The most important text in the opinion is dicta?

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dsg42
Like in most Supreme Court cases?

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PythonicAlpha
Very sad, that there is still no courage, to effectively limit weak patents.

Weak patents are a hindrance to innovations. In a better world, the patent
offices should care for that -- but because they earn money from issuing them,
standards have been continuously reduced in the past decades. It also looks
better in the "innovation news" of the past year, when more patents can be
listed ... but it is just eye-washing.

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higherpurpose
First everyone at the top needs give up on the idea that patents = innovation,
therefore more patents = more innovation. I remember until 2-3 years ago even
Obama basically said the same thing in his speech, when he passed that new
legislation that gives the patent to whoever files for it first. I don't know
if he still believes that now, but many still do in the government.

If anything, more patents = increased ability to restrict competitors from
coming into the market or doing more rent-seeking = _less_ innovation.

~~~
PythonicAlpha
We have the same thing in Germany. The problem is not, that the politicians
are to ignorant or adhere to wrong believes, but for example our chancellor
first met with the big corporation bosses -- and they told her, what
"innovation" is in their opinion. And of course, the big corporations have a
total different view of innovation than others.

It is like asking the dinosaurs, who the most fittest species on earth is.

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guelo
Why was the government involved in this case and on the side of patent trolls?

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sectro
In general the government is interested in anything that increases the
government's power. Stronger patents make them a more powerful tool.

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drzaiusapelord
This is a fairly bad ruling. Patents should be thought of as invalid by
default, especially considering the rubber stamp methodology used by the
USPTO. None of this is addressing how trivial it is to get trivial patents,
then use them for monetary gain against those who actually build things.

70 year olds making tech policy is just scary. This is a major boon to "troll"
companies and probably sets back any reform movement several years if not
decades.

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monochromatic
The USPTO is far from perfect, and examiners make bad calls sometimes... but
it is by no means trivial to get a trivial patent issued. And the idea of a
presumption of invalidity (as opposed to, say, no presumption one way or the
other) is so ludicrous that it doesn't bear response.

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lisper
> it is by no means trivial to get a trivial patent issued

Actually, it's pretty easy. Here's how you do it:

1\. File the application.

2\. Wait for it to be rejected. The rejection will have a point-by-point
explanation of why the patent was rejected. (i.e. the patent office is
required by law to do your homework for you.)

3\. Tweak the application so that the objections raised by the examiner are no
longer valid, and re-file.

4\. Repeat as necessary.

I have personally used this method successfully three times, and it only took
two iterations all three times. The third time I used it on an intentionally
bogus patent
([http://www.google.com/patents/US20030133714](http://www.google.com/patents/US20030133714))
just to see if it would work. It did.

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monochromatic
Like I said, examiners do make mistakes sometimes. For what it's worth though,
your claims look pretty lengthy.

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lisper
> examiners do make mistakes sometimes

That is true, but it misses the point. Apart from the occasional honest
mistake, there is a system of perverse incentives that results in the reliable
and predictable issuing of bogus patents even when examiners do their jobs
well.

> your claims look pretty lengthy.

You must not have read many patents. I have one independent claim and six
dependent claims, each with a single minor tweak on the independent claim.
That's well below average.

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rhino369
You've got one lengthy means plus function independent claim. That is
typically a poor claim. Means plus function severely limit claims despite
sounding very broad.

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lisper
Yes, of course it's a poor claim. The whole patent is bogus. That's the whole
point.

~~~
rhino369
I mean poor in terms of how good it is to assert against someone. You can
easily get a really narrow useless patent, but that doesn't cause any
problems.

~~~
lisper
That's true. But you can also get a really broad bogus patent. I happened not
to do that, but many others have, and that _does_ cause problems.

The point is just that the actual bar for getting a patent -- any patent -- is
very low if you know how to play the game.

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aaronvonbaron
I deal with patents day in, day out. With millions of patents issued and many
more examined, there is bound to be some real stinkers. Whether or not a
patent is allowed depends on the examiner assigned to the case, the art unit
(technology category), the prior art patents the examiner finds (they define
the outer limits of the patent claims), the skill of the attorney/agent, the
name of the company seeking a patent, and, of course, the amount of money
thrown at the examination.

Some examiner are push-overs. Some examiners are impressed with the assignee
name (Google, Apple, and such), and may be more likely to allow. Some
examiners seem to take pleasure in rejecting the application, even if they
cannot find appropriate prior art.

There is variability in the quality of examination. However, there are methods
to correct mistakes at the Patent Office. I am often involved with post-grant
review procedures to invalidate issued patents. If a patent is truly overly-
broad, then it should be possible to find prior art somewhere in the world
that can be used to invalidate the patent.

The presumption that a patent is valid only applies in court. There is no
presumption during reexamination or an inter partes review process. In fact,
it is very difficult to defend a patent in post grant review. The patent owner
is very likely to lose its patent or find it severely weakened.

Also, someone here has pointed out an example or two of terrible patents. Even
though issued, these patents could be near useless, because the claims are
extremely narrow and are easily designed around, if anyone cares to even do
this. Most of these patents are like bees without stingers - still buzzing and
spinning around, but harmless and soon to die.

One more thing, it irritates me when people in the software world say the
patent system is broken and should be abolished, when they may just be looking
at it from just a software point of view. There are many true innovations in
every field, and at least a few copycats that are waiting for a product to hit
big, so they can create a duplicate completing product. Look at the X-Hose
getting knocked-off by PocketHose. There should be some protection for those
who have created something novel.

You can argue that some people would create innovations without the patent
system, which is true; but there are many more who would not bother without
the prospect of patent protection. One more benefit of the patent system is
that, in exchange for a patent, the applicant must fully disclose how to make
and use the invention. Instead of sitting in some notebook or Word file, the
information is shared. The maintenance fee system (where a patent owner must
pay a fee at 3.5, 7.5, and 11.5 years to keep its patent in force) weeds out
many patents, as the owner decides that it is no longer worth the money to
keep it alive.

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dylanjermiah
"Look at the X-Hose getting knocked-off by PocketHose. There should be some
protection for those who have created something novel. You can argue that some
people would create innovations without the patent system, which is true; but
there are many more who would not bother without the prospect of patent
protection. One more benefit of the patent system is that, in exchange for a
patent, the applicant must fully disclose how to make and use the invention.
Instead of sitting in some notebook or Word file, the information is shared.
The maintenance fee system (where a patent owner must pay a fee at 3.5, 7.5,
and 11.5 years to keep its patent in force) weeds out many patents, as the
owner decides that it is no longer worth the money to keep it alive."

Insightful, I'm hesitant to agree that people will be dissuaded by having to
compete, and will therefore not innovate. I think people should produce what
they please and others should choose to purchase whichever product they seem
superior. Without any coercion.

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aaronvonbaron
A patent is not a monopoly in the pure sense, meaning there is no consumer
choice and the consumer must buy what is patented at the asking price. It is
quite the opposite in most situations. The competition between companies is
fierce. Several companies may have competing similar products, each with their
own patents.

I help companies look at patents and find ways to design around the claims or
just invalidate them. You would be surprised how often we succeed.

Look at cell phones, there are numerous patents on cell phones, apps,
communication technologies, and so on. Yet, there is no lack of choice. We are
buried in choice.

Also, I advise my clients to think of every way their invention can be made,
including the terrible ways. Many times, the competing, non-patented product
will be inferior to the patented product, yet not infringing the claims. The
inferior product may just have better marketing. The consumer is usually not
an expert in the field and must rely on advertising claims and dubious good
reviews.

It is my opinion that patents create constant disruption and competition,
which is healthy for the market; and ultimately provides better choice for the
consumer. Perfect designs, like paper clips, enjoy 20 years of protection,
then eventually become commodities. While imperfect designs will be exploited
by the competition, with design-arounds and improvements. And there are very
few perfect designs.

Finally, I mainly work with small companies that wish to compete against large
companies. They do not wish to be the free R & D lab for the larger company. A
patent may allow a small company to compete against the overwhelming resources
of a large company; hopefully creating jobs and wealth at the same time. It is
still a very hard path that few can navigate. Patents are just one tool to
make business a little easier.

