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When Patents Attack...


alwaysinvert
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Patent Agent here--I will readily admit that the patent process has issues, but a lot of this article isn't described right and doesn't reflect what is actually going on.

 

For example, the term "patent troll" used to have a particular meaning, e.g., a company that uses a set of invalid patents to extort money from people who cannot afford to take the patent to court to invalidate it.  This is clearly very bad.  However, at this point, "patent troll" is meant for anyone who sues people, but doesn't implement the idea (as is pretty much every one of the "patent trolls" in this article), which I object to.  If patents exist, and they represent intellectual property, then the owner should have the right to sell them to monetize his assets (e.g., if he cannot enforce the patents).  If they are valid, then they should be enforceable by the new owner.  Now, if they aren't valid, then they should be re-examined or invalidated in court.  If they are valid, then people should really stop complaining about it, or shift the argument from so-called "patent trolls" to changing the bar for validity.  That being said, obviousness is extremely hard to determine in hindsight.  If the idea is really good, it will almost always seem obvious to everyone after they are using it.  (e.g., "of course automatic windshields are obvious once you are given manual windshield wipers" even though it took many years for that to emerge).

 

Additionally, the discussion of the patent they were talking about ignored the claims.  The claims are what defines the patent, not the description.  I can write a patent application that seems to be describing what's already been done, but if there is just a single paragraph in the description that describes a new idea, and that idea is novel, and the claims are directed to that idea, then the rest of the description doesn't matter--only that paragraph and the claims will really matter.

 

Building on that, the analysis of a patent based on word matching is complete bs (or at least mostly bs).  The patent has to be analyzed by prior art searches directed towards the content of the claim--that's really the only good way to do it...

 

 

Anyway, I usually don't bother talking about patents on the Internet, since the Internet despises them and it almost always results in a flame war, but I figure this forum may appreciate the other side of the argument, for balance's sake.  That being said, I won't be participating in a flame conversation here, should one emerge.

 

 

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Patent Agent here--I will readily admit that the patent process has issues, but a lot of this article isn't described right and doesn't reflect what is actually going on.

 

For example, the term "patent troll" used to have a particular meaning, e.g., a company that uses a set of invalid patents to extort money from people who cannot afford to take the patent to court to invalidate it.  This is clearly very bad.  However, at this point, "patent troll" is meant for anyone who sues people, but doesn't implement the idea (as is pretty much every one of the "patent trolls" in this article), which I object to.  If patents exist, and they represent intellectual property, then the owner should have the right to sell them to monetize his assets (e.g., if he cannot enforce the patents).  If they are valid, then they should be enforceable by the new owner.  Now, if they aren't valid, then they should be re-examined or invalidated in court.  If they are valid, then people should really stop complaining about it, or shift the argument from so-called "patent trolls" to changing the bar for validity.  That being said, obviousness is extremely hard to determine in hindsight.  If the idea is really good, it will almost always seem obvious to everyone after they are using it.  (e.g., "of course automatic windshields are obvious once you are given manual windshield wipers" even though it took many years for that to emerge).

 

Additionally, the discussion of the patent they were talking about ignored the claims.  The claims are what defines the patent, not the description.  I can write a patent application that seems to be describing what's already been done, but if there is just a single paragraph in the description that describes a new idea, and that idea is novel, and the claims are directed to that idea, then the rest of the description doesn't matter--only that paragraph and the claims will really matter.

 

Building on that, the analysis of a patent based on word matching is complete bs (or at least mostly bs).  The patent has to be analyzed by prior art searches directed towards the content of the claim--that's really the only good way to do it...

 

 

Anyway, I usually don't bother talking about patents on the Internet, since the Internet despises them and it almost always results in a flame war, but I figure this forum may appreciate the other side of the argument, for balance's sake.  That being said, I won't be participating in a flame conversation here, should one emerge.

I don't think many economically minded people are against patents per se, it has been a great vehicle for achieving growth in the Western world.

 

As usual I don't think it's much use going after individuals or companies for behaving 'immorally', when they are incentivized to do so. Rather the regulatory bodies should do something to prevent the rent-seeking behiaviour, because it's a huge drag on the economy. For example, the amount of patents issued in the US seems out of whack, so maybe the bar for what's patentable should be raised, if only to minimize litigation and let companies get on with their business. 

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For example, the amount of patents issued in the US seems out of whack, so maybe the bar for what's patentable should be raised, if only to minimize litigation and let companies get on with their business.

 

I agree, it is likely that the bar should be raised, particularly on "incremental" inventions/modifications.  That being said, I do prosecute cases in both the US and abroad, and we typically get the cases allowed in all jurisdictions, though the Europeans have a slightly different manner of judging cases (e.g., software and signals are in, and moreover claims have to pass the "inventive step" bar).  It could be that we generally have higher quality clients/patents coming through our firm though.

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I myself have a few patents under my name and deal with competitor's patent's daily. Here are my takes on it:

-They are a usefull system that does give the time for a company to payback it's investment.

-The patent system was started in the 19th century, back then the life cycle of a product was 30-50 years. Therefore, the 20Y protection made sense.

-Today the life cycle of a product is 5-7 years.  Why are we still with a 20Y patent duration? The patent system did not evolved.

-The patent system does not discriminate the initial investment. If the patented product is a medical drug that cost 200M to develop it makes more sense to give 20Y protection than if it's an idea that needed about 1000$ investment.

-Patents examiners are ill equipped to evaluate patents, they cannot be expert of everything in a big field like electronics. Claims before being valid should be publicly debated. Right now it's the other way around the claim is considered valid and someone else has the task to invalidate it.

 

BeerBaron

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That being said, obviousness is extremely hard to determine in hindsight.  If the idea is really good, it will almost always seem obvious to everyone after they are using it.  (e.g., "of course automatic windshields are obvious once you are given manual windshield wipers" even though it took many years for that to emerge).

 

This is the core problem -- obviousness is being grossly underestimated particularly when it comes to software.  If you express a problem to 10 of developers, typically only a few solutions will arise.  Yet it's typically easy to patent these solutions.  It's very common for two people to come up with the same solution independently.  That's why the system is broken.

 

That said, I wouldn't expect someone who makes his living from this attribute to buy into this argument, but rather say that almost everything is non-obvious.

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