
Crowdfunding Backer Patented My Project - Sujan
https://patentpandas.org/stories/crowdfunding-backer-patented-my-project
======
apacheCamel
That is incredibly upsetting but was very fascinating to read about. The
author handled the situation extremely well after seeing (what seems to be) a
major part of their life be "intellectually" taken away from them. Even though
they may own the patent, the patent troll will never take away the dedication,
work and love poured into this passion project. It definitely should make
anyone question the current patent process.

~~~
ithinkinstereo
I suppose the silver lining is that this patent is essentially worthless for
the intellectual thief Jill Mackay. Given all the prior art, I'm guessing it
would be hard to enforce, but I can definitely see Jill pulling some patent
troll moves in the future.

The real stinker in this whole story is how Jill Mackay had the balls to try
to sell the patent back to Jie for $5MM. Totally shameful and by a fellow
"artist" no less.

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hiccuphippo
> examiners for the most part seem to only look at existing patents [...] So
> if your work isn’t in one of these patent databases—examiners usually use
> the USPTO patent archive or google patents—it’s very possible your work
> won’t be discovered by the examiner.

Would it be feasible to build an "unpatented" database where people could
submit the inventions they don't want patented and have the USPTO look at it
in their research?

Maybe a patent version of what copyleft is to copyright?

~~~
esalman
I don't understand why the patent examiner wouldn't look into something like
Google Scholar for prior art. This is the "unpatented database" where people
submit inventions all the time- journal articles, preprints etc.

~~~
epmaybe
If I understand correctly, the us patent system is "first to file" rather than
"first to invent". There's a 1yr grace period from when an inventor publicly
discloses an invention (say, in an academic journal) to when they must file a
patent application. See this link for more details:

[https://techcrunch.com/2013/02/16/first-to-file-a-
primer/](https://techcrunch.com/2013/02/16/first-to-file-a-primer/)

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netcan
Interesting read.

A lot of these come back to the problem of defining a patent: There is no way
to determine, in a patent office, in the real world, at scale... if patents
are actually novel and/or trivial.

It's possible to disprove a novelty claim in some cases (like this one), but
that's it.

We need major reform, globally. The pharmaceutical/medical patent system needs
to be separate to the software patent system, for example.

This case is really a great example. Patents enables intellectual theft, it
doesn't prevent it.

~~~
BlackFly
I've always found the fact that independent discovery wasn't a defense to
patent infringement to be an obvious indication that patents are more about
setting up a protectionist market than about protecting inventors.

~~~
patentatt
Ok, so every accused infringer alleges independent discovery. How do you prove
or disprove that fact on either side? I think therein lies the reason why this
whole line of argumentation is set aside, even if it is logically appealing.

~~~
BlackFly
How does the police go about proving that it was not self defense? The police
have an even higher burden, needing to meet a standard of no reasonable doubt.
Instead civil cases require a balance of probabilities.

So, no the difficulty in proving intent is not the reason.

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75dvtwin
Very disheartening.

Thank you to the author Jie Qi (MIT)

What can be done on individual level, at the engineering level, as well as
voters in US or European Union, to make sure that the economic theft of this
type does not thrive ?

(and I am sure there are many 'Jill MacKay' characters in other countries, not
just US)

The current patent system in US at least -- had been converted into a form of
legalized racketeering.

With its own ecosystem of 'enforcers', 'masterminds', 'spies on the ground',
etc.

Also just as in protection from racketeers it pays to have 'wealthy' and
'powerful' backers for your business (with whom you must share a portion of
your equity... ).

~~~
patentatt
I think legalized racketeering is a hard case to make out from this set of
facts. The patent owner here has not received a dime, from what we know from
this blog post, for this patent. It may be frustrating to see, but so far
seems that the 'system' has not allowed any profiteering here.

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andjd
Former lawyer here:

One of the key takeaways from this is that even if you don't want to exclude
other people from using and building on your invention, you should still
patent it. It's much cheaper to file the patent--you don't even need to hire a
lawyer to do it--than it is to fight off someone else.

But I also agree with the other comments here that if patent examiners need to
do a more through search for prior art than just examining other existing
patents, especially in domains where there are open-source communities. That
would involve a modest increase in cost to the government, much or all of
which could be covered by increasing the patent filing fees, and be a huge
economic benefit for companies large and small that get harassed by dubious
patents.

~~~
patentatt
The problem seems to be how to measure such an effort. It's easy to list a few
classes and subclasses (of the patent database) and say that you've searched
through those entirely, but the whole internet? What documentation would be
sufficient to convey that the Examiner had searched thoroughly enough?
Examiners are already urged to search NPL (non-patent literature) sources, but
it seems too amorphous to establish standards for what sources need to be
searched and how thoroughly. And the tooling isn't there either. Natural
language search engines aren't precise enough for a real search for
information (don't want the googles guessing what you 'really' meant to search
for). When I was an examiner, for what it's worth, I always searched at least
IEEE, CiteSeerX, and Dialog databases, but I'm not sure that a KickStarter
campaign would have come up in any of those databases either.

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manigandham
It's ridiculous that it costs $300-600k to attempt to dispute a patent. The
whole patent process needs a major revamp, and that's before considering how
bad it is for software and intangible products.

~~~
patentatt
And that's for an IPR, which is the cheap route to invalidation! A similar
proceeding in district court would be an order of magnitude higher, and that
was much more common before the introduction of IPRs and the PTAB in 2012.

Now, the author is not exactly correct in that the IPR is the only route
forward to invalidate a patent. Some other options include ex partes reexam
and protest, which may have the potential to be a lower-cost option.

In any event, having pertinent (according to the author) prior art cited in an
IDS in the file wrapper could neuter a patent anyways, as any attempt to
enforce or transfer it would be severely hampered by its presence. Even any
attorney who would take a case to enforce it could potentially have ethics
issues in taking the case if they believed the cited art to be invalidating.
And no one would buy a patent with such a cloud over it, until all cited art
is addressed in a contentious proceeding or in examination it's probably not
going to be sold.

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kevin_b_er
Intellectual "Property" no longer is to promote progress of science and useful
arts, it is a form of rent seeking. If the patent no longer promotes science
and useful arts, then the 1st amendment applies and I view patents and
copyright as unconstitutional in their current form. Patents inhibit the
progress of science and copyright has no limit.

~~~
patentatt
This is a legally dubious argument. Consider that the patent system is one of
the only tools which puts all parties on an even playing field. Surely, deep
coffers convey great advantage to large players, but that power is not
absolute. Solid prior art will ultimately limit or destroy value in a patent
regardless of who owns it. It is essentially a meritocratic system, even if
distorted by money. Without a patent system, it's a fully autocratic world in
which money rules over all, and large players will use their market dominance
to steal all innovation. It's a worse situation, any way you cut it. Any
unfairness or inequality you can identify currently would only be exacerbated
by removing patent protection. So, I support your cause for more
egalitarianism and meritocracy, but I think doing away with patents will only
make it worse, not better.

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foreigner
If they're anything like domain name squatters they'll now wait until you're
worth more, and then try to make you pay to license the patent. The fee they
demand will be slightly less than it would cost you to fight them and
repudiate the patent. You'll be in a quandary: pay more to fight for justice,
or save money and let the terrorists win. Patent trolls are professionals,
they know exactly what they're doing.

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danso
The shamelessness of some people:

> _What really twisted me inside was to see her emphasize how her stickers are
> “made in the USA.” Here’s the irony of the situation: Chinese American
> immigrant student (that’s me!) from MIT goes to Shenzhen, China to create an
> educational toolkit. But the output of such work is patented by an American
> businesswoman from Colorado who promotes the “USA” origin of the work._

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donquichotte
Looks like somebody in the patent office hasn't done their job, the prior art
list is overwhelming.

~~~
mrob
The patent office's real job is approving patents. The examination part is an
unfortunate necessity, but only so far as it maintains the fiction that the
patent system is benefiting society.

~~~
patentatt
Well, to some extent this is true and in some ways totally inaccurate. There
is a push in the Examination corps to assist inventors in efficiently
identifying the patentable subject matter in their application and assisting
the applicant in getting a patent on that subject matter. Buuuut, at the same
time, the easiest thing in the world for an Examiner to do is to issue a
rejection. Nobody ever got egg on their face for issuing a rejection (if there
is a tenable grounds for it). But it is quite embarrassing to be the examiner
who allows a facially silly patent (like the swinging on a swing patent, or
the stick patent, for example). And, from the Examiner's perspective, they can
get more counts (a measure of productivity) by issuing rejections and
prolonging examination. So, in the end, the real goal of an Examiner is to get
the good ones allowed and reject the bad ones (surprise surprise). It's just a
very fact-dependent, laborious, and subjective process. So that sometimes you
or I may disagree with some cherry-picked results from thousands of Examiners
working nonstop, is not terribly surprising. To suggest that the entire system
is broken because of this is extremely naive.

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dugmartin
If the patent examiner only has 12 hours to examine prior art as the article
states why aren't they just replaced with a random number generator?

~~~
gowld
Like peer review in the academic sciences, they just check that it is properly
formatted documented that confirms their pre-existing biases.

~~~
patentatt
That's simply not true. Just because there are examples of examination being
imperfect doesn't mean that all Examiners are doing is confirming biases.
Also, Examiners don't care about formatting at all.

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univalent
This is such revolting behavior. Props to the author for their calm and
perseverance. I'm in a rage just from reading the article.

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alistairSH
What a scumbag (Jill MacKay, not Jie Qi).

~~~
x13
this Jill MacKay?

[https://docs.wixstatic.com/ugd/dc954b_8c3843e07bea451a8723ab...](https://docs.wixstatic.com/ugd/dc954b_8c3843e07bea451a8723ab884ecb8a6d.pdf)

~~~
alistairSH
No idea. Jill MacKay was the name of the "idea thief" in the linked blog
entry.

~~~
TeMPOraL
It's this one, according to screenshots.

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ultim8k
Read the patent. => Find where he lives. => Order a chainsaw. :p

Now seriously. Sew them. Hunt them down legally and shame them online for the
rest of their life.

~~~
manigandham
That won't solve anything and is not good advice. We don't need more online
mob justice, and this blog post does a good job of documenting the issue as
public history.

