

New Breed of Patent Claim Bedevils Product Makers - grellas
http://online.wsj.com/article/SB10001424052748703467004575463843289453872.html?KEYWORDS=new+breed+of+patent+claim

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hristov
As a patent lawyer I feel that have to chime in here. I have read the
discussions thus far and I think most people are missing one important issue.
Determining whether a patent is expired is not actually that easy. The patent
office and various databases that list patents do not say whether a patent is
expired or not.

The 20 years from filing rule for patent term seems deceptively easy. But
there are many caveats. First, the rule is relatively new and there are still
many patents out there that are subject to a different older rule. Second,
there are various ways that the term of a patent can be modified, such as term
extensions and terminal disclaimers.

So, if you want to absolutely certain whether a patent is expired or not you
must either hire a patent attorney or spend a lot of time trying to learn
patent law and patent practice by yourself.

As a patent attorney I should not complain, I suppose, but I think the law
referenced in the article makes sense. False patent markings do discourage
competition, and it is not actually that easy for the ordinary potential
competitor to determine if a patent is valid or not. Although, the penalty of
500 per item may be a bit excessive.

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Alex3917
The thing that really bothers me is future-dated copyrights. For example,
buying a textbook and the copyright date on the title page is 2012. How is
that not illegal?

edit: If I were just to scan them and host them all online would I be doing
anything that could be considered infringement? Because as I read it, what
they are saying is that this textbook is considered public domain for another
two years.

~~~
patio11
Your reading is incorrect. In the United States (and most other signatories to
the international copyright treaty whose name escapes me at 1 AM), copyright
attaches automatically to any creative expression. Works in general default to
copyright, not to the public domain.

The copyright notice, symbol, and date are advisory only, not magical runes
with exotic legal effects. (Registration of copyrights gives you extra
bonuses, but it isn't necessary to invoke copyright protection.)

Yes, taking them and hosting them would be infringement. So would republishing
this comment, which has no date or copyright symbol but is copyrighted by
virtue of existing. The usual rules about fair comment, etc, apply, and courts
would hold that I've certainly given PG et al implied license to retain and
display the comment as a consequence of writing it here.

I am not a lawyer, but I'm not wrong, either.

~~~
Alex3917
I realize that the copyright date is only advisory, but if you're future-
dating your work then what should that be seen as advising? Since future-
dating your work is essentially stealing from the public domain, I think that
any future-dated works should be legally seen as advising that anyone is free
to copy and redistribute that work until the future date. That seems like fair
compensation to me.

~~~
randallsquared
_Since future-dating your work is essentially stealing from the public domain
[...]_

I think you're under the impression that copyrights expire at some point,
which isn't really the case any more in the US for corporate-owned copyrights,
right?

~~~
Alex3917
Regardless, when I purchase a textbook I am buying the right to copy and
redistribute that textbook after X date. By future-dating the work the
publisher is taking away something that I have paid for, which seems like it
shouldn't be legal.

~~~
randallsquared
Since Congress can and has retroactively changed the length of copyright
repeatedly, I don't think that there's any presumption that you are buying a
right to copy after a given time, or at all. Since I'm against copyright in
the first place, this argument about textbook copyright is rather academic to
me. So to speak.

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Groxx
Super-summary: companies are getting sued for putting expired patent numbers
on their products. Previously, for a maximum of $500; last december, a ruling
allowed up to $500 _per offense_ (with potential(?) speculation that this
implies _per individual item produced_ ). And for some reason this includes
retailers, not just producers, though I don't understand how.

I'll count this a good thing, though $500 per item on the shelf is excessive.
As long as those patent numbers are on a product, people won't be as likely to
do anything similar for fear of patent violation.

If the retailers are also held accountable, I feel sorry for them. That's a
redonkulous amount of fact-checking they'd have to do, especially since some
patent numbers are _inside_ the items, on the motor housing.

~~~
Qz
Where did it say retailers were responsible also?

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Groxx
> _Raymond E. Stauffer was shopping at a New Jersey mall when he noticed
> something peculiar about the bow ties on display at Brooks Brothers: They
> were labeled with old patent numbers.

Mr. Stauffer, who calls himself a "sharp-dressed man," also happens to be a
patent lawyer. He sued Brooks Brothers Inc. in federal court, claiming it
broke the law by marking its adjustable bow ties with patents that expired in
the 1950s.

He figured the retailer would have to pay a nominal amount for violating a law
that bars companies from marking products with erroneous patent numbers._

Opening paragraphs, among mentioning other retailers elsewhere (though those
seemed to be referring to those retailers' own products).

~~~
Qz
I think its just a misleading choice of words. Article writers will often
substitute a descriptive word for a proper name to avoid being overly
repetitive - "the retailer" was probably just a reference to Brooks Brothers.

~~~
Groxx
Most definitely a possibility. I thought it seemed a bit strange, in any case.

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dctoedt
Let's not get over-excited here. The WSJ article didn't seem to pick up on a
June 2010 appellate holding: Someone suing for false patent marking must prove
that the patent owner had _a specific intent to deceive the public_ with the
false marking. See
[http://www.townsend.com/Resources/legalupdates/Pequignot_Sol...](http://www.townsend.com/Resources/legalupdates/Pequignot_Solo_Cup)

~~~
Natsu
True, but a separate ruling says that they have to rule on the merits of the
case and that they can't just dismiss for lack of standing as one court
attempted to do (something that would've slammed the door shut to these
cases).

[http://www.cafc.uscourts.gov/images/stories/opinions-
orders/...](http://www.cafc.uscourts.gov/images/stories/opinions-
orders/09-1428-1430-1453.pdf)

In other words, they have to actually prove this at trial, which can be
expensive, even if they have a fairly low bar to prove that they meant no
harm.

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joshu
It's 2010. Checking to see if a patent is still valid is trivial.

What happens to old stock or whatever? Do retailers have to pull things from
the shelves when their patents expire?

Better yet, you could have a product code, that could lead to a web page that
has the list of patents (and potentially other information; recalls etc?) on
it.

~~~
rdl
That would actually be a decent application for StickyBits on UPC codes for
popular products.

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chopsueyar
Nice to see the patent system is working.

If corporations want their patents to be protected, patents must be protected.
Selling an item with an expired patent number is akin to fraud, and undermines
the patent system at large.

Congress to the rescue!

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geuis
There's just something about this story that left a bad taste in my mouth and
turned my stomach. This is a quintissential example of lawyers behaving like
scum. I'm not saying that companies shouldn't keep their patents updated. I
_am_ saying that it's greedy, sue-happy lawyers going around essentially
trying to wring free money from companies. These people are simply the latest
iteration of patent trolls, only with a slightly different shade of scaly
green skin.

~~~
sophacles
How is this not an appropriate application of the patent system? The placing
of patent numbers on products causes many people to not create imitations,
clones and whatnot. If the patents are expired, there is no protection, so the
placement of the patent number is an act of intimidation.

When the patent numbers are removed, people can start imitating, introducing
competition in the market, and even commodifying things. Basically all the
things patents prevent. This allows for increased overall market efficiency.

Since the patent system is in place, perhaps instead of feeling sorry for the
poor companies being sued for abusing the patent system, maybe you should try
to appreciate that some people will do this. Maybe they are scum, maybe not --
do you actually know anyone who does it? Most likely some are just looking for
a quick buck. Some are doing it because it needs to be done. Some may be doing
it because it is exciting new lawyering. How is this any different in terms of
motives than a random sample of tech startups (replace lawyering with
tech...).

Related: Do the people who launch suits to get patents invalidated make you
sick also? Do you call them "just another form of patent troll"?

~~~
adovenmuehle
Perhaps it's an act of intimidation, more than likely it was placed on the
product years in the past and it would cost the company a lot of money to take
the patent number off.

Also, if I'm looking to make a competing product, and I see a patent number on
a similar product, would it not make sense for me to check if the patent is
still in effect? I'm not just going to see a patent number and say to myself,
"oh shoot, they already got it, guess that's the end of that."

And from a consumer perspective, do I really care if there is a patent for
this product or not?

My compromise would be to say the company would be required to have the patent
numbers taken off and perhaps a fine to the USPTO, but why should this lawyer
get money?

~~~
drgath
From the article:

"The law on false patent markings is similar to whistle-blower laws. Anyone
can file a claim on behalf of the government, and plaintiffs must split any
fine award evenly with it. "

Blame the system, not the person.

~~~
notahacker
"The system" allows people to do many kind of unethical, greedy or just plain
irritating things. It's still their choice to do so.

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vermontdevil
Another example of a useful law that's on the books and have not been enforced
by any government agency.

Imagine how many laws out there are like this?

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ratsbane
I remember reading a paper about marking with respect to software patents -
since marking is required in order to enforce software patents, if a patent
holder fails to cite patent numbers on applications that use the patent, there
are limitations the enforcement of that patent. This would mean, for example,
that for Amazon to fully enforce the One Click patent they would have to note
"Pat." or somesuch on the web page.

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ggchappell
I think the real solution here is that whenever you claim patent protection,
you also include the expiration date of the patent.

This eliminates the problem old left-over stock marked with expired patents.
It also eliminates the problem of forgetting.

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russell
>>> To keep them valid, companies must pay maintenance fees every four years.

I wonder how many patents are invalid because of neglect.

~~~
DougBTX
The fees are higher than I expected: [http://www.the-business-of-
patents.com/patent-maintenance-fe...](http://www.the-business-of-
patents.com/patent-maintenance-fees.html)

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Yaa101
Who would have guessed that the general public will be gaming the same system
that has been gamed for years by the corporations? ;-)

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davidu
This is the definition of irony. Patents coming back to bite you for having
them!

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ahi
This is why there are lawyer jokes.

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npongratz
Live by the patent, die by the patent.

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rmk
Lawyers are scum, but sometimes they are useful, even if by accident or as a
side-effect :)

