This bill contains a major blow to patent trolls. The new joinder rules make it much harder to sue multiple defendants in one suit. Companies like Lodsys that want to sue dozens of companies will have to do it in dozens of separate suits.
This hurts them in three ways:
1. Their litigation costs will go way up.
2. Defendants will be much more successful in getting venue changes to a forum of their choice, instead of being force to defend where the troll files. (When there were multiple defendants in one suit, carefully chosen by the troll to be from all over the country, it was hard for a defendant to get a venue change to their home turf because the court would want to keep all the cases together for judicial efficiency, and there would be no district that would be better for all the defendants). This further drives up the costs to the troll because now they will not only be litigating dozens of suits, they will be scatted are over the country.
3. They have a much greater chance of losing their patent. Each trial provides an opportunity for a judge or jury to decide on any number of grounds that the patent is invalid. Once a patent is ruled invalid, that's it for that patent.
Toss in the new rules making it easier to challenge a patent, and the new rules that increase the scope of prior art, and this is overall a pretty good bill from a programmer's point of view.
Woah, wait a second. Small inventors are not filing suits against dozen of defendants in carefully chosen jurisdictions. Often, they'll just target the top few companies breaching the patent. They aren't looking to make a living on patent settlements, they're looking to make a living on the technology they invented.
Are you seriously defending the billions that the patent system costs our economic system with the idea that it protects "dozens" of individuals and small businesses?
Seriously, if you stack up the number of patent lawsuits and license fees extorted by IBM, TI, Microsoft, and others against small tech firms, the damage to small business by the patent system is overwhelmingly larger than the benefit some small businesses might gain from it.
His point is merely that the logic does not evenly apply to patent trolls and small inventors. He is saying nothing about the overall benefits of the patent system.
The point is not that the patent system is wholly sane, but that it is made somewhat more sane by a careful imposition of legal costs that by and large affect only patent trolls.
Small inventors are not filing suits against dozen of defendants in carefully chosen jurisdictions. Often, they'll just target the top few companies breaching the patent. They aren't looking to make a living on patent settlements, they're looking to make a living on the technology they invented.
Why not? Simply because small inventors have to pay retail price for their lawyers, whereas the patent trolls typically are (or have regular full time) lawyers. There's nothing inherent in the "small-inventor-ness" of the plaintiff that makes them file suit in certain patterns.
Therefore, a small inventor may get a better deal either selling the patent to the manufacturing company or making good on the threat to sell it to a trolling firm who will aggressively seek to ruin them. Better that than waste their life savings on legal expenses that will likely drag on for years.
I'm very concerned no one in the tech press have pointed at that the biggest technology companies are in the stages forming a cartel. Small companies are now locked out of the handheld mobile device market unless they can raise and pay millions of dollars in licenses and fees. The future looks sad.
Many people seem to be in disbelief about this but the purpose of a patent is to give the holder a monopoly on the "invention", at least in the sense that the patent can be used to prevent anyone else from doing anything productive with it.
I'm having trouble putting your two statements together into a coherent whole. You say that making life more difficult for patent trolls will make it harder for smaller shops,but then go on to advocate abolishing patents, which does not strike me as terribly friendly to the smaller inventor.
A. I advocate abolishing patents. Some type of temporary protection would need to be provided for the very rare exceptional case of the development of new drugs. I can think of very very few, if any, cases where 21st century patents have actually contributed to "progress in the useful arts". Instead, they are universally a drag on people who actually produce things of value.
B. People may point to an exception case here and there, but the proverbial small inventor with a patent is a thousand times more likely to have his life savings eaten up by lawyers than to actually get paid for a useful invention. I don't think an improved patent system is actually going to help the small inventor.
C. This particular law looks to me like it further enhances large companies' ability to kill off smaller competition.
Anyone that wants to actually ship a product is aided by removing the fear of patent lawsuits.
If someone wants to sit around and think up ideas, and earn license money from those ideas, well then they need patents. Producing products is just different than thinking up ideas and filing broad patents and suing people that actually produce products.
Essentially - Creating products and selling them in an open marketplace is easier and fairer for the Entrepreneur than obtaining and defending patients is.
I quite dislike that this bill places greater onus to locate prior art onto the public rather than the patent filer. I'm not sure how that protects the mythical small inventor.
I mostly dislike that there is no move to make patents only defensive. Patent awards should be limited to only the cost of direct interference with the patent holder's business.
That would be the most sensible given the intended purpose of patents of defending an inventor in return for publishing the discovery.
Suing a business that has nothing to do with your own because it employs a similar solution logically is destructive to the economy, since their success does nothing to harm your own success. Patents should be limited to protect you against competitors who are in a zero-sum game for the same market.
You're supposed to cite prior art in the patent application and describe how your patent is novel compared to that prior art. Now, as I understand, there will be a process after the patent is granted for the public to invalidate a patent.
However, knowing how the PTO works, I believe they will simply shift more responsibility onto the public review phase in order to avoid work. They are 700,000 filings behind, after all.
If you know of relevant prior art, you're supposed to disclose it. There's no requirement to go do a search, and there's also no requirement to compare your work to the prior art. People do it sometimes, because it might help the examiner understand the novel points, and because it's considered good style. But there's no requirement to do anything more than simply disclose the prior art references you happen to be aware of.
So you think that inventors who don't practice shouldn't be compensated.
No, they should not. If you don't practice then you, and the public in general, are losing nothing from your inability to sue people who are actually making things happen. If you don't practice then you have no expectation of being compensated for your work other than hoping that someone else steps on your patent and trolling them. If your patent actually has value then you should be forced to take the risk to demonstrate that fact by putting the invention into practice -- you do not need to be successful at the practice, but you should be forced to at least make the effort.
> If you don't practice then you, and the public in general, are losing nothing from your inability to sue people who are actually making things happen.
I don't work for free, so I'm not gong to bother to disclose if I'm not compensated.
> If you don't practice then you have no expectation of being compensated for your work other than hoping that someone else steps on your patent and trolling them.
Wrong. In the current world, I can file and approach folks who might benefit, offering to license.
In your world, I can't disclose without risking them saying "great idea, thanks".
And no, no one signs NDAs with individual inventors, so that's a non-starter.
> If your patent actually has value then you should be forced to take the risk to demonstrate that fact by putting the invention into practice
The existing patent thicket around processors means that there's no way for me to practice. Plus there's the "invest millions of dollars" part (getting to tape-out is at least $1M, tape-out adds another $1M, and I still haven't done product support or any of the other things required to actually practice).
The value of my invention has nothing to do with whether I can do other things (design register files, etc) so it's unclear why my compensation should depend on doing said other things.
The motivation for you to patent is that someone else can file before you even if you invented it first. That's new in the United States and common in other jurisdictions.
You make money by licensing your inventions to companies that have means to create a product. You can use trade secrets and copyright to protect your invention. You don't need patents. However, in the defensive patent world, you should still get one in case they steal your idea.
What you'd be prevented from doing is creating an expansive definition of a market. That's not crazy talk. In the case of the Lodsys patents, Novell has filed that for prosecution history estoppel, which my reading of Groklaw might be because the original patents were filed with caveats they would only apply to a restricted market (probably set-top pay-per-view TV boxes).
I think this constraint on patents should be explicit and part of the law. i.e. a Pharmaceutical patent should declare it is for the pharmaceutical industry; if material engineering could use the same organic compound, that is sufficiently novel and non-predatory of the original patent holder. However, it's unclear in the current law whether or not the new use could pass.
> You make money by licensing your inventions to companies that have means to create a product.
That's assuming that I have something to license. Abolishing patents or requiring me to practice means that I don't.
> You can use trade secrets and copyright to protect your invention.
Neither one applies to processor features.
For example, I invented a new way to do branch prediction. Copyright would apply to any documents that I produce or to the mask that someone used to implement that feature, but a new processor, by definition, wouldn't use that same mask or even a portion thereof.
As to copyright, a processor company can implement without copying any document (and even if someone did copy, the damages are at most $250k if I can prove it, which is going to be expensive). They merely need to read whatever description I provide.
For similar reasons, trade secret is a non-starter. (You have to disclose many processor features to make them useful.)
> What you'd be prevented from doing is creating an expansive definition of a market.
Except that I'm not trying to do that. I'm trying to be compensated for inventing a new way to do branch prediction (for example).
I don't know. I think everyone has to figure out how to make a buck in this world, and inventors that don't produce any products anyone wants should be (in a fair world) out of luck.
Ethically, I think you have to do more than just file paperwork and leverage the government to extract money from others. It might be legal to tax people producing products, but it isn't moral or ethical.
Besides, it isn't the inventors (generally) who troll. The patents are sold to lawyers (like Intellectual Ventures) that troll, and they are the inventors on very few of the patents they take to court.
Maybe actual inventors can sue even if they don't have a product? I see no advantage in this, but I doubt this group is big enough to matter either.
> I think everyone has to figure out how to make a buck in this world, and inventors that don't produce any products anyone wants
Who said I didn't produce products no one wanted? Folks like my inventions and are willing to pay for them. However, those inventions aren't complete products.
> The patents are sold to lawyers (like Intellectual Ventures) that troll, and they are the inventors on very few of the patents they take to court.
That's because many inventors don't have enough money to go that route.
They'd much rather do it themselves (if only because IV takes a huge cut), but that is often out of the question.
> Maybe actual inventors can sue even if they don't have a product?
And how do you suggest that they do that?
I'm completely serious. I've done the lawyer dance a couple of times and didn't see any way to do what you're suggesting.
Details please. (You do know what you're talking about, right?)
Is there any way in which first-to-file is better for innovators ? With the new law, if you invent something and someone else can patent it 5 years later, that person can sue you (the inventor).
If you invent it an keep it secret, then yes, someone else might patent it later. However, the same was true under the old law. (And assuming you were using your invention, say as part of an internal process, you'd have a defense of prior user rights under both laws).
If you invent and do not keep it a secret, then that person five years later (under both the old and new law) would be out of luck as your invention would be prior art.
Right. Because the patent office would never allow a patent on toast.
Patent number: 6080436
Filing date: Jun 14, 1999
Issue date: Jun 27, 2000
What is claimed is:
1. A method of refreshing bread products, comprising:
a) placing a bread product in an oven having at least one heating element,
b) setting the temperature of the heating elements between 2500 F. and 4500 F., and
c) ceasing exposure of the bread product to the at least one heating element after a period of 3 sec. to 90 sec.
2. The method of claim 1 including the step of exposing the bread product to electromagnetic radiation in the wavelength range between 1.2 and 3.4 microns.
3. The method of claim 1 including the step of selecting said bread products from rolls, muffin, buns and bagels.
Yeah, the patent office fails to find prior art all the time. But the OP wasn't saying any different. He was only pointing out that the first to file change doesn't affect prior art.
Patents are not given as prizes for the act of invention -- they are given for prizes for the act of sharing your invention with the rest of the world.
Also, so long as you can prove prior art, the patent is worthless.
Court isn't the only route to patent invalidation. When a plaintiff sues a defendant for patent infringement, there are usually two defenses brought up: "I'm not infringing on your patent" and "even if I were, your patent is invalid." Prevailing on the latter defense begets invalidation.
Third parties can also file ex parte or inter partes reexamination request, through which the third party can ask the USPTO to reexamine the patent to verify the patentability of the claimed subject matter. The fee for requesting an ex parte proceeding is $2520, and after filing the request, the third party no longer actively participates in the proceedings. Third parties filing an inter partes request, after paying the $8800 fee, may continue to participate in the proceedings.
So typically what are the total out-of-pocket fees for filing these requests including the bill from competent lawyer?
How likely are they to succeed in invalidating an issued patent?
If done poorly, couldn't they have the potential to actually reinforce a lousy patent?
Is this "cheap" course of action actually available if you're already being sued over some bogus patent you didn't know existed (or didn't choose to pay for the reexamination) in advance?
Not a prize. More like a fair trade where government offers their powers of enforcement to guarantee your monopoly and you offer a detailed explanation of your invention so that everyone else can use it freely after the patent expires.
Of course, the release of details requirement is moot when the products being patented can be easily reverse engineered by a third party. Especially so when the patent application itself is extremely vague.
I am sorry, for my question might sound shallow for those who know law deeper than me, but I want to clarify something.
Lets say I invented something and never patented it, but was using it in my business for some period of time, and then someone patents my invention. Can he/she still sue me, provided I give proofs I've been using that invention even before he/she patented it?
I don't think that's quite right. As I understand the law (and IANAL), you could still get their patent invalidated for lack of novelty — you just couldn't claim the patent yourself in that case.
Prior art still invalidates patents in first-to-file systems.
First to file only means that, if you filed for a patent on some thing after someone else who also filed to patent it, you definitely don't get the patent (in a first-to-invent system, whichever of you can show the oldest documentation of invention gets the patent).
Under a first to file system, you still have to be an inventor. If you're trying to patent something that you copied from someone else, you're not an inventor.
And even if you didn't derive your work from theirs, you still have a problem with prior art.
You run that risk with the previous system. That has not changed. The first-to-file rule change only applies when the USPTO needs to resolve a conflict between two similar patents that are applied for around the same time.
The patent system has never protected inventors that do not attempt to patent their invention.
It's first to file, right? I've heard there's no requirement for any implementation details or intent to manufacture; you can just come up with an idea, patent it, and wait for others to make it and sue them for royalties.
Intent to manufacture, no. Implementation details, yes. Your disclosure has to enable a person of ordinary skill in the art to make your invention. If you don't know how your teleporter works, you can't get a patent on it.
AH! Ok. That is a crucial distinction I hadn't known was the case. It's important this be made clear, since I've seen several discussions implying "no details" was the case.
P.S. To Whom It May Concern,
It is objectively unfair for my OP to be downvoted. It was a legitimate question.
Yeah, I've seen lots of unfortunate confusion based on the "first-to-file" vs. "first-to-invent" distinction. Just doing my part as a patent attorney to clear it up when I notice it!
I'm a former law student who never quite got around to finishing my last class, and has kept up somewhat so tries to answer questions here and on Reddit until actual attorneys jump in. Some of my answers have been voted way up, so there is some danger people might actually listen to them.
Great to see an actual patent attorney around so that if I get something wrong there's a chance it will get caught.
This hurts them in three ways:
1. Their litigation costs will go way up.
2. Defendants will be much more successful in getting venue changes to a forum of their choice, instead of being force to defend where the troll files. (When there were multiple defendants in one suit, carefully chosen by the troll to be from all over the country, it was hard for a defendant to get a venue change to their home turf because the court would want to keep all the cases together for judicial efficiency, and there would be no district that would be better for all the defendants). This further drives up the costs to the troll because now they will not only be litigating dozens of suits, they will be scatted are over the country.
3. They have a much greater chance of losing their patent. Each trial provides an opportunity for a judge or jury to decide on any number of grounds that the patent is invalid. Once a patent is ruled invalid, that's it for that patent.
There's a good post elaborating on those points from Red Hat's senior patent counsel here: http://opensource.com/law/11/9/new-patent-reform-law-could-r...
Toss in the new rules making it easier to challenge a patent, and the new rules that increase the scope of prior art, and this is overall a pretty good bill from a programmer's point of view.