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(Wired)   The patent system is broken and it's stifling innovation   (wired.com) divider line 94
    More: Obvious, Santa Clara University, patent attorney, hard copy, innovations  
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3139 clicks; posted to Geek » on 13 Nov 2012 at 11:19 PM (1 year ago)   |  Favorite    |   share:  Share on Twitter share via Email Share on Facebook   more»



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2012-11-14 09:24:22 AM

derpy: Summoner101: How many more years of Mickey can Disney wrangle out of Congress?

all of them


*Stops typing identical message, sighs heavily, shakes fist*
 
2012-11-14 09:24:32 AM

Theaetetus: Teiritzamna: 1) The patent system has some serious problems, especially to do with the Pre-KSR, Post-Diehr glut of software/tech patents that were granted under a much weaker version of 103 Obviousness. There are some major patent thickets out there, and I don't know any practitioners who wouldn't say that the system - especially as it applies to the tech field - is being hampered by the tragedy of the anti-commons.

Part of the problem there was that the USPTO didn't consider CS to be a real degree for several years, so you had semiconductor physics EE guys trying to decipher image processing, for example.

Of course this sort of thing happens whenever there is a major emergent technology - it happened in cars, aeronautics and telephony - but in each of those cases the government stepped in and forced rights holders to coordinate into pools.

And similarly, back in the early days of automobiles, you had mechanical and materials science guys trying to decipher transmission timing.
If a field is truly new and innovative, then the Examiners at the USPTO will necessarily lag behind it in skill.


That too
 
2012-11-14 09:34:47 AM

Gunther: mephox: Brought to a stop, sort of, when a banker decided on moral grounds to fight

Damn, even the bankers are morally repulsed by patent trolls?

HotIgneous Intruder: Patent free world!
That way nobody makes any money except the corporations!

Yep, pointing out that the current system is broken means you want to get rid of patients altogether. You aren't constructing a ludicrous strawman there at all.


Erp. I was mocking the anti-patent derpers, derp.
Meter broken, yes?
 
2012-11-14 09:56:48 AM

Teiritzamna: nmemkha: I'm sure you resident Fark patent attorney shills will chime in soon. Then we can hear the informed truth from people who make their money off the current system.

First things first: I am an IP litigator.

Now i tend to represent clients who are trying to invalidate bad patents, as that is part of their business model, but given your statement i figure we should get that out of the way.

The reason "Fark patent attorney shills" tend to roll into these threads and start "fights" is that there tend to be two factors at work in any patent thread on Fark:

1) The patent system has some serious problems, especially to do with the Pre-KSR, Post-Diehr glut of software/tech patents that were granted under a much weaker version of 103 Obviousness. There are some major patent thickets out there, and I don't know any practitioners who wouldn't say that the system - especially as it applies to the tech field - is being hampered by the tragedy of the anti-commons. Of course this sort of thing happens whenever there is a major emergent technology - it happened in cars, aeronautics and telephony - but in each of those cases the government stepped in and forced rights holders to coordinate into pools.

2) Posters on Fark, however, tend to know about as much about law as the standard lawyer knows about cryptography or undersea botany. This leads to threads where a nebulous and misleading article about some new outrage (OMG the title of this patent says sandwich! They are patenting sandwiches now!!), which is translated into an even more misleading headline (its not news . . .) which leads to a patent law equivalent of a mob of people shouting "rabble rabble rabble." To lawyers, people arguing badly is like nails on a blackboard. Its like a dog whistle. Its like fat people in porn. We feel a desperate need to jump in and at least try to explain what the real issues are, so that at least the argument makes sense.

Or to say it with an analogy: Imagine your job involved ...


This is one of the issues though. High tech has gotten really high. DNA sequencing for one is beating even Moore's law for advancement, and even people specializing -in- the field are having problems keeping up with the march of progress. For people outside the field, this makes it near impossible to judge things based on obviousness, and combined with the length of patents, breeds a bad situation. If we're releasing next-gen sequencing that'll be protected for 14 years when the halflife of some of these sequencers is only maybe a year or two, it slows things by retarding the progress made on the stepping stones to the next thing. That's why software patents seem to be a big target. Software moves fast.

Take the Myriad Genetics case recently, where the judge ruled that the isolated gene was a manmade thing, and thus patentable. To anyone practiced in the art, this makes absolutely no sense. A PCR product, absent some incidental methylation cues in the natural form is indistinguishable from the exact same section of the genome. That's the reason its so useful. If a PCR product were different, it would be a really shiatty technology. Analagously, this is like saying that a tree is non-patentable (lets ignore the fact that cultivars -can- be registered), but a leaf from that tree is not.

So to take your analogy, and if you'd like to understand non-lawyer's POV, we've ALSO got people who are not practiced in our field interjecting their noses into our business and telling us what things are without really understanding half of it, or even giving half a fark about how it affects the field. That's what has most people in genetics pissed, and I'm guessing that's why software people are pissed too.
 
2012-11-14 09:57:40 AM

garron: I'm going to patent the process of filing a patent. Why not? That's as valid as most patents these days.


That's cool.

I am patenting, complaing about patents, utilizing an electronic device.
 
2012-11-14 10:08:22 AM

Kinek: So to take your analogy, and if you'd like to understand non-lawyer's POV, we've ALSO got people who are not practiced in our field interjecting their noses into our business and telling us what things are without really understanding half of it, or even giving half a fark about how it affects the field. That's what has most people in genetics pissed, and I'm guessing that's why software people are pissed too.


Except that patent lawyers with genetics backgrounds are the ones that draft and prosecute genetics related patents, and patent lawyers with software backgrounds are the ones that draft and prosecute software related patents. The whole idea that the lawyers are not practiced in the field is a misconception.
 
2012-11-14 10:12:27 AM
FTA cotton gin, Morse code, the Yale lock, the Xerox machine, the laser, and the Hula Hoop.

I find it hilarious that these are the shining examples of the patent system. Ironic.

The Cotton gin was so heavily pirated because southern judges realized what they had on their hands and refused to levy judgement on infringement because the gin was so VITALLY important to the industry.

The Xerox machine is one of the best examples of the rolling patent systems that there has been yet, and was so bad that it forced the FTC to file an antitrust lawsuit to limit what they could patent. See the Xerox Consent Decree.

The Laser wasn't even patented by its inventor because he thought that you had to have a working model in order. From Wikipedia:Gould's notes included possible applications for a laser, such as spectrometry, interferometry, radar, and nuclear fusion. He continued developing the idea, and filed a patent application in April 1959. The U.S. Patent Office denied his application, and awarded a patent to Bell Labs, in 1960. That provoked a twenty-eight-year lawsuit, featuring scientific prestige and money as the stakes. Gould won his first minor patent in 1977, yet it was not until 1987 that he won the first significant patent lawsuit victory, when a Federal judge ordered the U.S. Patent Office to issue patents to Gould for the optically pumped and the gas discharge laser devices. The question of just how to assign credit for inventing the laser remains unresolved by historians.

Behold. The prizes of the patent system. Ugly and misshapen.
 
2012-11-14 10:14:53 AM

Theaetetus: Kinek: So to take your analogy, and if you'd like to understand non-lawyer's POV, we've ALSO got people who are not practiced in our field interjecting their noses into our business and telling us what things are without really understanding half of it, or even giving half a fark about how it affects the field. That's what has most people in genetics pissed, and I'm guessing that's why software people are pissed too.

Except that patent lawyers with genetics backgrounds are the ones that draft and prosecute genetics related patents, and patent lawyers with software backgrounds are the ones that draft and prosecute software related patents. The whole idea that the lawyers are not practiced in the field is a misconception.


We've spoken about this before. I understand that lawyers that have a genetic background do that. But given how rapidly it changes, it's hard for people who even work in the field to keep up. Just because you understood the terminology working even five years ago means nothing now.
 
2012-11-14 10:23:42 AM

Kinek: Theaetetus: Kinek: So to take your analogy, and if you'd like to understand non-lawyer's POV, we've ALSO got people who are not practiced in our field interjecting their noses into our business and telling us what things are without really understanding half of it, or even giving half a fark about how it affects the field. That's what has most people in genetics pissed, and I'm guessing that's why software people are pissed too.

Except that patent lawyers with genetics backgrounds are the ones that draft and prosecute genetics related patents, and patent lawyers with software backgrounds are the ones that draft and prosecute software related patents. The whole idea that the lawyers are not practiced in the field is a misconception.

We've spoken about this before. I understand that lawyers that have a genetic background do that. But given how rapidly it changes, it's hard for people who even work in the field to keep up. Just because you understood the terminology working even five years ago means nothing now.


But patent attorneys are both seeing brand new invention disclosures, way before they get published or released to the public, and are talking to the inventors as they come up with the new ideas. We're literally on the bleeding edge of advancement, way ahead of what people might learn in school from textbooks that get written and published years after the invention is made.
 
2012-11-14 10:30:48 AM

Kinek: Teiritzamna: nmemkha: I'm sure you resident Fark patent attorney shills will chime in soon. Then we can hear the informed truth from people who make their money off the current system.

First things first: I am an IP litigator.

Now i tend to represent clients who are trying to invalidate bad patents, as that is part of their business model, but given your statement i figure we should get that out of the way.

The reason "Fark patent attorney shills" tend to roll into these threads and start "fights" is that there tend to be two factors at work in any patent thread on Fark:

1) The patent system has some serious problems, especially to do with the Pre-KSR, Post-Diehr glut of software/tech patents that were granted under a much weaker version of 103 Obviousness. There are some major patent thickets out there, and I don't know any practitioners who wouldn't say that the system - especially as it applies to the tech field - is being hampered by the tragedy of the anti-commons. Of course this sort of thing happens whenever there is a major emergent technology - it happened in cars, aeronautics and telephony - but in each of those cases the government stepped in and forced rights holders to coordinate into pools.

2) Posters on Fark, however, tend to know about as much about law as the standard lawyer knows about cryptography or undersea botany. This leads to threads where a nebulous and misleading article about some new outrage (OMG the title of this patent says sandwich! They are patenting sandwiches now!!), which is translated into an even more misleading headline (its not news . . .) which leads to a patent law equivalent of a mob of people shouting "rabble rabble rabble." To lawyers, people arguing badly is like nails on a blackboard. Its like a dog whistle. Its like fat people in porn. We feel a desperate need to jump in and at least try to explain what the real issues are, so that at least the argument makes sense.

Or to say it with an analogy: Imagine your ...


*ding*
 
2012-11-14 10:31:52 AM

Theaetetus: Kinek: Theaetetus: Kinek: So to take your analogy, and if you'd like to understand non-lawyer's POV, we've ALSO got people who are not practiced in our field interjecting their noses into our business and telling us what things are without really understanding half of it, or even giving half a fark about how it affects the field. That's what has most people in genetics pissed, and I'm guessing that's why software people are pissed too.

Except that patent lawyers with genetics backgrounds are the ones that draft and prosecute genetics related patents, and patent lawyers with software backgrounds are the ones that draft and prosecute software related patents. The whole idea that the lawyers are not practiced in the field is a misconception.

We've spoken about this before. I understand that lawyers that have a genetic background do that. But given how rapidly it changes, it's hard for people who even work in the field to keep up. Just because you understood the terminology working even five years ago means nothing now.

But patent attorneys are both seeing brand new invention disclosures, way before they get published or released to the public, and are talking to the inventors as they come up with the new ideas. We're literally on the bleeding edge of advancement, way ahead of what people might learn in school from textbooks that get written and published years after the invention is made.


But you're seeing individual cases. Think about it like this. If I came to your office with a leaf (It's a metaphor). A brand new leaf that you'd never seen before and said "Here, let me patent this." And you looked in your books and applications and saw that there was no prior art for this, you'd say "Sure. Never seen this before. It must be innovative."

Meanwhile, there's a pile of leaves outside. All like the one you just started patenting. And considering we're moving to a first to file system.....you can see where the problems lie. You're not on the bleeding edge of advancement. The people actually doing the advancement are on the bleeding edge of advancement.

Also, I can't remember the last time I used a book as a source for anything less than a few years old. That's all papers, connections, seminars, and the day to day task of trying to stay apprised of advancements. It takes a fark-ton of time.
 
2012-11-14 10:43:35 AM

Theaetetus: Kinek: So to take your analogy, and if you'd like to understand non-lawyer's POV, we've ALSO got people who are not practiced in our field interjecting their noses into our business and telling us what things are without really understanding half of it, or even giving half a fark about how it affects the field. That's what has most people in genetics pissed, and I'm guessing that's why software people are pissed too.

Except that patent lawyers with genetics backgrounds are the ones that draft and prosecute genetics related patents, and patent lawyers with software backgrounds are the ones that draft and prosecute software related patents. The whole idea that the lawyers are not practiced in the field is a misconception.


Jack of all trades, master of none.
 
2012-11-14 10:43:39 AM

Theaetetus: Kinek: Theaetetus: Kinek: So to take your analogy, and if you'd like to understand non-lawyer's POV, we've ALSO got people who are not practiced in our field interjecting their noses into our business and telling us what things are without really understanding half of it, or even giving half a fark about how it affects the field. That's what has most people in genetics pissed, and I'm guessing that's why software people are pissed too.

Except that patent lawyers with genetics backgrounds are the ones that draft and prosecute genetics related patents, and patent lawyers with software backgrounds are the ones that draft and prosecute software related patents. The whole idea that the lawyers are not practiced in the field is a misconception.

We've spoken about this before. I understand that lawyers that have a genetic background do that. But given how rapidly it changes, it's hard for people who even work in the field to keep up. Just because you understood the terminology working even five years ago means nothing now.

But patent attorneys are both seeing brand new invention disclosures, way before they get published or released to the public, and are talking to the inventors as they come up with the new ideas. We're literally on the bleeding edge of advancement, way ahead of what people might learn in school from textbooks that get written and published years after the invention is made.


I also find this sentence incredibly troubling because of what it says about where you think advancements come from.
 
2012-11-14 10:43:48 AM

Kinek: But you're seeing individual cases. Think about it like this. If I came to your office with a leaf (It's a metaphor). A brand new leaf that you'd never seen before and said "Here, let me patent this." And you looked in your books and applications and saw that there was no prior art for this, you'd say "Sure. Never seen this before. It must be innovative."

Meanwhile, there's a pile of leaves outside. All like the one you just started patenting. And considering we're moving to a first to file system.....you can see where the problems lie. You're not on the bleeding edge of advancement. The people actually doing the advancement are on the bleeding edge of advancement.


Except no part of that is actually true. You've come to my office with a leaf, and I say "yawn, I've got a dozen leaf applications sitting on my desk. Show me something new."
You protest and say "but my text book, only a few years old, doesn't show any leaves," and I respond, "these applications were drafted less than a month ago. It's understandable you didn't know about them. Sorry."
 
2012-11-14 10:44:36 AM

Kinek: Theaetetus: Kinek: Theaetetus: Kinek: So to take your analogy, and if you'd like to understand non-lawyer's POV, we've ALSO got people who are not practiced in our field interjecting their noses into our business and telling us what things are without really understanding half of it, or even giving half a fark about how it affects the field. That's what has most people in genetics pissed, and I'm guessing that's why software people are pissed too.

Except that patent lawyers with genetics backgrounds are the ones that draft and prosecute genetics related patents, and patent lawyers with software backgrounds are the ones that draft and prosecute software related patents. The whole idea that the lawyers are not practiced in the field is a misconception.

We've spoken about this before. I understand that lawyers that have a genetic background do that. But given how rapidly it changes, it's hard for people who even work in the field to keep up. Just because you understood the terminology working even five years ago means nothing now.

But patent attorneys are both seeing brand new invention disclosures, way before they get published or released to the public, and are talking to the inventors as they come up with the new ideas. We're literally on the bleeding edge of advancement, way ahead of what people might learn in school from textbooks that get written and published years after the invention is made.

I also find this sentence incredibly troubling because of what it says about where you think advancements come from.


Sweat, tears, but primarily blood.
 
2012-11-14 10:49:57 AM

Theaetetus: Kinek: But you're seeing individual cases. Think about it like this. If I came to your office with a leaf (It's a metaphor). A brand new leaf that you'd never seen before and said "Here, let me patent this." And you looked in your books and applications and saw that there was no prior art for this, you'd say "Sure. Never seen this before. It must be innovative."

Meanwhile, there's a pile of leaves outside. All like the one you just started patenting. And considering we're moving to a first to file system.....you can see where the problems lie. You're not on the bleeding edge of advancement. The people actually doing the advancement are on the bleeding edge of advancement.

Except no part of that is actually true. You've come to my office with a leaf, and I say "yawn, I've got a dozen leaf applications sitting on my desk. Show me something new."
You protest and say "but my text book, only a few years old, doesn't show any leaves," and I respond, "these applications were drafted less than a month ago. It's understandable you didn't know about them. Sorry."


I'm not sure where you get the idea that scientists work out of textbooks. Maybe that's true of Undergrads, but Phd level material, I'm not sure where I'd even start with Genomic selection textbooks for cereals with current methods. Most of the data and material that we work with is -not- published widely. Scan through any paper and you'll see citations for data (Not published). That's the bleeding edge. That's where scientists work. That's what makes a Thesis. New, novel, and original. Not textbook information.

And correct me if I'm wrong, but isn't it a violation of due process to deny one patent application because of another patent application? I believe you've mentioned that before as a defense against why we can't judge patents for obviousness based on independent invention.
 
2012-11-14 10:52:22 AM

Theaetetus: Kinek: Theaetetus: Kinek: Theaetetus: Kinek: So to take your analogy, and if you'd like to understand non-lawyer's POV, we've ALSO got people who are not practiced in our field interjecting their noses into our business and telling us what things are without really understanding half of it, or even giving half a fark about how it affects the field. That's what has most people in genetics pissed, and I'm guessing that's why software people are pissed too.

Except that patent lawyers with genetics backgrounds are the ones that draft and prosecute genetics related patents, and patent lawyers with software backgrounds are the ones that draft and prosecute software related patents. The whole idea that the lawyers are not practiced in the field is a misconception.

We've spoken about this before. I understand that lawyers that have a genetic background do that. But given how rapidly it changes, it's hard for people who even work in the field to keep up. Just because you understood the terminology working even five years ago means nothing now.

But patent attorneys are both seeing brand new invention disclosures, way before they get published or released to the public, and are talking to the inventors as they come up with the new ideas. We're literally on the bleeding edge of advancement, way ahead of what people might learn in school from textbooks that get written and published years after the invention is made.

I also find this sentence incredibly troubling because of what it says about where you think advancements come from.

Sweat, tears, but primarily blood.


No. It makes me think that you think you are an integral part of this system. You're not.
 
2012-11-14 10:56:34 AM

Kinek: Theaetetus: Kinek: But you're seeing individual cases. Think about it like this. If I came to your office with a leaf (It's a metaphor). A brand new leaf that you'd never seen before and said "Here, let me patent this." And you looked in your books and applications and saw that there was no prior art for this, you'd say "Sure. Never seen this before. It must be innovative."

Meanwhile, there's a pile of leaves outside. All like the one you just started patenting. And considering we're moving to a first to file system.....you can see where the problems lie. You're not on the bleeding edge of advancement. The people actually doing the advancement are on the bleeding edge of advancement.

Except no part of that is actually true. You've come to my office with a leaf, and I say "yawn, I've got a dozen leaf applications sitting on my desk. Show me something new."
You protest and say "but my text book, only a few years old, doesn't show any leaves," and I respond, "these applications were drafted less than a month ago. It's understandable you didn't know about them. Sorry."

I'm not sure where you get the idea that scientists work out of textbooks. Maybe that's true of Undergrads, but Phd level material, I'm not sure where I'd even start with Genomic selection textbooks for cereals with current methods. Most of the data and material that we work with is -not- published widely. Scan through any paper and you'll see citations for data (Not published). That's the bleeding edge. That's where scientists work. That's what makes a Thesis. New, novel, and original. Not textbook information.


And that's the sort of stuff we get as invention disclosures - not "leaves", but that new, novel and original data.

And correct me if I'm wrong, but isn't it a violation of due process to deny one patent application because of another patent application? I believe you've mentioned that before as a defense against why we can't judge patents for obviousness based on independent invention.

Nope, not at all - if your application comes later (under a first to file system) or you can't prove that you conceived of the idea first (under a first to invent system), then your application is denied and the earlier one wins.
What I mentioned before is that we can't throw out both applications as obvious, on the grounds that "if someone else invented it too, a few weeks later, then the first guy's application must be obvious," which I believe was your suggestion - that if several people independently come up with the same idea, that it must have been "ripe" for conception and is therefore obvious, even for the very first one.
 
2012-11-14 10:59:45 AM

Kinek:
No. It makes me think that you think you are an integral part of this system. You're not.


Ah, I thought you were taking issue with the word "literally". Instead, you're taking issue with... the fact that I talk to inventors? Actually, I'm not sure exactly what your point is. The core of your argument seems to be that I and other patent attorneys have no idea what's going on in the industry, as if we somehow ended our educations years ago and never read any of the material that passes our desks daily, or had some sort of short-term memory impairment. I'm not sure why you think that's even a reasonable argument, without some sort of extraordinary evidence to support it.
 
2012-11-14 11:07:04 AM

Theaetetus: Kinek: Theaetetus: Kinek: But you're seeing individual cases. Think about it like this. If I came to your office with a leaf (It's a metaphor). A brand new leaf that you'd never seen before and said "Here, let me patent this." And you looked in your books and applications and saw that there was no prior art for this, you'd say "Sure. Never seen this before. It must be innovative."

Meanwhile, there's a pile of leaves outside. All like the one you just started patenting. And considering we're moving to a first to file system.....you can see where the problems lie. You're not on the bleeding edge of advancement. The people actually doing the advancement are on the bleeding edge of advancement.

Except no part of that is actually true. You've come to my office with a leaf, and I say "yawn, I've got a dozen leaf applications sitting on my desk. Show me something new."
You protest and say "but my text book, only a few years old, doesn't show any leaves," and I respond, "these applications were drafted less than a month ago. It's understandable you didn't know about them. Sorry."

I'm not sure where you get the idea that scientists work out of textbooks. Maybe that's true of Undergrads, but Phd level material, I'm not sure where I'd even start with Genomic selection textbooks for cereals with current methods. Most of the data and material that we work with is -not- published widely. Scan through any paper and you'll see citations for data (Not published). That's the bleeding edge. That's where scientists work. That's what makes a Thesis. New, novel, and original. Not textbook information.

And that's the sort of stuff we get as invention disclosures - not "leaves", but that new, novel and original data.

And correct me if I'm wrong, but isn't it a violation of due process to deny one patent application because of another patent application? I believe you've mentioned that before as a defense against why we can't judge patents for obviousness based on independent invention ...


Hence why I think the first to invent system is a crock of shiat. Even if it makes your life easier because it reduces time wasted in court.

Alright, lets take the leaf metaphor a step further and where I think our worldviews differ. When a new technology is introduced, say....Illumina sequencing, suddenly a tree can shake off a lot of leaves. New and unobserved data. All of these leaves represent a reflection of the same truth. We'll pretend it's that 2-row barley hybrids make great beer. Lots of people work on the Illumina sequencing of the genome and say together 'Yeah, 2 row barley hybrids do make great beer!'

If many people are coming up with the same conclusion at once, all of that data is new, novel, and original. But if you're only seeing the first application, you haven't realized how -many- people are working on it and came to the conclusion at the same time. It's both new, and obvious. Simultaneously. This happens a lot. The history of innovation is filled with competing inventors. The scientific world has a biatching time dealing with first to publish problems, much to its detriment. Yet this has not stopped some scientists from sharing anyways.

Admittedly, data is not the same as patents, but the concept still applies.
 
2012-11-14 11:10:00 AM
Shut up and give the EFF your money
We need patents for innovation, but the current system is broken.

I'm a 'co-inventor' on a few patents, and the handful of patent lawyers I've interacted with say the system is broken.

FYI for those in the bay area, there's a conference on software patents this weekend in Santa Clara if anyone's really interested in the topic: Solutions to the Software Patent Problem
 
2012-11-14 11:17:05 AM

Theaetetus: Kinek:
No. It makes me think that you think you are an integral part of this system. You're not.

Ah, I thought you were taking issue with the word "literally". Instead, you're taking issue with... the fact that I talk to inventors? Actually, I'm not sure exactly what your point is. The core of your argument seems to be that I and other patent attorneys have no idea what's going on in the industry, as if we somehow ended our educations years ago and never read any of the material that passes our desks daily, or had some sort of short-term memory impairment. I'm not sure why you think that's even a reasonable argument, without some sort of extraordinary evidence to support it.


Considering the volume of information that's produced on a weekly basis in even a highly specialized field, no. I don't believe it's possible to be an expert in for example...genetics. Maybe tomato genetics. Maybe. But the cutting edge is relentless, and even to keep up you spend literally most of your time reading to keep up with a very small subsection of your field. I'm saying that it is literally impossible to keep up with the cutting edge in more than one very small area.
 
2012-11-14 11:18:50 AM

Kinek: Hence why I think the first to invent system is a crock of shiat. Even if it makes your life easier because it reduces time wasted in court.


There were, on average, 20 interference proceedings per year. It's not really a huge issue.

Alright, lets take the leaf metaphor a step further and where I think our worldviews differ. When a new technology is introduced, say....Illumina sequencing, suddenly a tree can shake off a lot of leaves. New and unobserved data. All of these leaves represent a reflection of the same truth. We'll pretend it's that 2-row barley hybrids make great beer. Lots of people work on the Illumina sequencing of the genome and say together 'Yeah, 2 row barley hybrids do make great beer!'

If many people are coming up with the same conclusion at once, all of that data is new, novel, and original. But if you're only seeing the first application, you haven't realized how -many- people are working on it and came to the conclusion at the same time. It's both new, and obvious.


You have this odd ex post facto definition where if one person came up with the idea, it's nonobvious, but if two people came up with the idea, it's obvious, even though it's the same exact idea. How can the same idea, based on the same technology and with the same state of the art, be both obvious and nonobvious, purely dependent on whether two people were working on something? If Bill called in sick that day and it took an extra day to complete his work, suddenly Al's idea is nonobvious, even though Al and Bill have never met or even spoken?

But let's follow this to its conclusion... Say the system worked that way. Al comes up with a new idea... does he file a patent application on it? No, because even if he's the absolute first person to come up with the idea and it's nonobvious at that moment, if Bill comes along a few days later with the idea, then Al's patent application may be invalid. And since Al doesn't know Bill, he can't predict whether that will happen, so why waste money on the application.
Now, Al's employer, knowing that it can't protect Al's innovative, nonobvious idea with a patent (since a Bill could pop up at any moment), instead bars Al from publishing his idea. They keep it as a trade secret, locked away in the laboratory, and the public doesn't get the benefit of the knowledge.

... at least until Bill comes up with it, right? But no... Bill doesn't file a patent application for the exact same reason (an Al or a Charlie could pop up at any moment, so why waste money), and also keeps it a trade secret.
And no one publishes, and the idea is locked away for years upon years until it finally leaks, and then there's endless expensive lawsuits about who caused the leak, and there's tons of people who will show up on internet forums to complain that trade secrets are stifling innovation. The difference is that, this time, they're right.
 
2012-11-14 11:28:46 AM

Theaetetus: Kinek: Hence why I think the first to invent system is a crock of shiat. Even if it makes your life easier because it reduces time wasted in court.

There were, on average, 20 interference proceedings per year. It's not really a huge issue.

Alright, lets take the leaf metaphor a step further and where I think our worldviews differ. When a new technology is introduced, say....Illumina sequencing, suddenly a tree can shake off a lot of leaves. New and unobserved data. All of these leaves represent a reflection of the same truth. We'll pretend it's that 2-row barley hybrids make great beer. Lots of people work on the Illumina sequencing of the genome and say together 'Yeah, 2 row barley hybrids do make great beer!'

If many people are coming up with the same conclusion at once, all of that data is new, novel, and original. But if you're only seeing the first application, you haven't realized how -many- people are working on it and came to the conclusion at the same time. It's both new, and obvious.

You have this odd ex post facto definition where if one person came up with the idea, it's nonobvious, but if two people came up with the idea, it's obvious, even though it's the same exact idea. How can the same idea, based on the same technology and with the same state of the art, be both obvious and nonobvious, purely dependent on whether two people were working on something? If Bill called in sick that day and it took an extra day to complete his work, suddenly Al's idea is nonobvious, even though Al and Bill have never met or even spoken?

But let's follow this to its conclusion... Say the system worked that way. Al comes up with a new idea... does he file a patent application on it? No, because even if he's the absolute first person to come up with the idea and it's nonobvious at that moment, if Bill comes along a few days later with the idea, then Al's patent application may be invalid. And since Al doesn't know Bill, he can't predict whether that will happen, so wh ...


Except you're wrong. Here's why.
Bill and Al are in the same field and have both conducted tests and generated data. Due to the nature of uncertainty, they want to share data to make sure that they're not alone. This happens all the time in science. Sure there are reclusive douchebags who refuse to share with anybody, but for the most part, they're the exception, not the rule. Even in a field where a novel publication can get you a fat raise or even a chair. Sure, there's some holding back. Some prized data sets. But by and large, it's cooperative.

Even with companies, after hearing about how some companies share data with some of the people in my university, they expect a quid pro quo. They give you genotypes for 10000 lines, they want recommendations back. Patents don't enter into it. They don't need to. They're not necessary. The company develops a new PRODUCT to sell. Not a patent. Not some bit of IP. But an actual, living, breathing thing that makes its way in the market. Sure they develop a patent, but only because it's a necessary evil.

As soon as you take the arms race mentality out of things, people get a lot more cooperative. That's why I think that patent law stifles innovation. For the same reason that Publication stats make for shoddy results. People abuse the system.
 
2012-11-14 11:33:10 AM
Dance monkey, dance.
uk-mkivs.net
 
2012-11-14 11:34:01 AM

Kinek: Except you're wrong. Here's why.
Bill and Al are in the same field and have both conducted tests and generated data. Due to the nature of uncertainty, they want to share data to make sure that they're not alone. This happens all the time in science. Sure there are reclusive douchebags who refuse to share with anybody, but for the most part, they're the exception, not the rule. Even in a field where a novel publication can get you a fat raise or even a chair. Sure, there's some holding back. Some prized data sets. But by and large, it's cooperative.


And if Bill and Al were both postdocs, you'd be right, but they aren't. They work for companies, who don't care about them having chairs. They care about having a commercially exploitable and protectable product.

Patents don't enter into it. They don't need to. They're not necessary... Sure they develop a patent, but only because it's a necessary evil.

Uh...

As soon as you take the arms race mentality out of things, people get a lot more cooperative. That's why I think that patent law stifles innovation. For the same reason that Publication stats make for shoddy results. People abuse the system.

Sure, and if we all lived in a socialist utopia, then everyone would work together and it would be wonderful. As long as we live in a capitalist system, however, then protecting property is important.
 
2012-11-14 11:35:09 AM

Theaetetus: MayoSlather: I'm inclined to question if we need them at all anymore? The concept of patents came about in an era where it was a protection against a simple invention made by a small company or individual that could potentially be ripped off by larger companies.

No, the concept of patents is a little over 500 years old, and came about because an inventor had a great idea for a shallow-draft easy-loading merchant barge, and he was going to keep it secret and only do his loading/unloading at night with dozens of armed guards bashing heads of any onlookers, and the rulers of Florence offered him three years of exclusive use if he would show everyone how it worked. Patents aren't about "protecting the little guy," they're about destroying trade secrets and increasing public knowledge.


Right, I'm the first person ever to present the idea that patents are about protecting the interests of smaller entities. I should patent that it's so original. It's always been part of the core argument for patents.
 
2012-11-14 11:49:55 AM

Kinek: This is one of the issues though. High tech has gotten really high. DNA sequencing for one is beating even Moore's law for advancement, and even people specializing -in- the field are having problems keeping up with the march of progress. For people outside the field, this makes it near impossible to judge things based on obviousness, and combined with the length of patents, breeds a bad situation. If we're releasing next-gen sequencing that'll be protected for 14 years when the halflife of some of these sequencers is only maybe a year or two, it slows things by retarding the progress made on the stepping stones to the next thing. That's why software patents seem to be a big target. Software moves fast.

Take the Myriad Genetics case recently, where the judge ruled that the isolated gene was a manmade thing, and thus patentable. To anyone practiced in the art, this makes absolutely no sense. A PCR product, absent some incidental methylation cues in the natural form is indistinguishable from the exact same section of the genome. That's the reason its so useful. If a PCR product were different, it would be a really shiatty technology. Analagously, this is like saying that a tree is non-patentable (lets ignore the fact that cultivars -can- be registered), but a leaf from that tree is not.

So to take your analogy, and if you'd like to understand non-lawyer's POV, we've ALSO got people who are not practiced in our field interjecting their noses into our business and telling us what things are without really understanding half of it, or even giving half a fark about how it affects the field. That's what has most people in genetics pissed, and I'm guessing that's why software people are pissed too


I have few feelings regarding your post:

1) Man, you have made me weirdly hate nostalgic from when i used to work a lab bench with my PCR clicking away nearby. I am now so out of date with regard to actual genetic work that it kinda scares me. (i don't do gene based patents)

2) I am with you on the argument that at least as concerns certain fast moving tech, the time span of patents seems oddly out of whack. However i would say it is not the duration of the patents that is a problem, but the likelihood of creating what are known as patent thickets, dense piles of slightly overlapping patents that make it difficult for a manufacturer to know who it needs to get a license from. This is the tragedy of the anti-commons i was speaking of, and is usually sorted out - as in the standard commons variety - by government action.

3) I personally dont like the result of Myriad either, but i must admit Prometheus is a good scale back by the Supreme Court and greatly blunted the scope of Myriad's patent. I am interested to see what the SCOTUS will do when confronted with a product of nature style claim as put forth in Myriad, since it seems like their hobby, when not bending over the 9th Cir and farking them like dirty biatches is to take the Fed Cir behind the woodshed and spank them on a patent issue.

4) You appear not to be the sort of person i was talking about as a) you are making cogent arguments that actually address real problems in the system b) you seem to be attempting to make suggestions on how you would like the system fixed and most importantly c) you are not making pronouncements regarding the law that are so balls out stupid that they are the equivalent of hearing a TV show scientist say "the DNA is breaking down into amino acid chains."* That kind of dumb-assery is usually why lawyers launch in law threads.

/* i hate that this actually happened on DS9. Why Bashir!? Why!?
 
2012-11-14 11:50:13 AM
Theaetetus is correct, he is on the bleeding (or at the very least, important) edge of technology.

Let's go with your leaf example.

Inventor A files a patent for a leaf. Let's assume it's relatively new, but not new new. T hasn't seen it before, so reads the full disclosure and then probably asks the inventor any questions he has regarding it, and probably does a bit of google scholar searching.

T submits patent application, examiner reviews, does his own research into the leaf field, and responds citing A, B, and C.

T has to now review all three references in order to understand the rejections made and to counter them with legal fury, or to amend in appeasement. While reading each of the cited references T gains more knowledge about the progress in the field and the direction it seems to be going.

The patent system is a feedback loop of knowledge. From the patent application itself, to the references provided, and the references utilized by the examiner gives in very great detail the state of the art at the moment the case was filed.

Only truely innovative ideas have nothing to counter/support/read on it. Almost always that leaf gets a patent because while A has the same sort of leaf, the applications leaf has 3 little spokey things that will be claimed to get over the other type.
 
2012-11-14 12:10:13 PM

Teiritzamna: Kinek: This is one of the issues though. High tech has gotten really high. DNA sequencing for one is beating even Moore's law for advancement, and even people specializing -in- the field are having problems keeping up with the march of progress. For people outside the field, this makes it near impossible to judge things based on obviousness, and combined with the length of patents, breeds a bad situation. If we're releasing next-gen sequencing that'll be protected for 14 years when the halflife of some of these sequencers is only maybe a year or two, it slows things by retarding the progress made on the stepping stones to the next thing. That's why software patents seem to be a big target. Software moves fast.

Take the Myriad Genetics case recently, where the judge ruled that the isolated gene was a manmade thing, and thus patentable. To anyone practiced in the art, this makes absolutely no sense. A PCR product, absent some incidental methylation cues in the natural form is indistinguishable from the exact same section of the genome. That's the reason its so useful. If a PCR product were different, it would be a really shiatty technology. Analagously, this is like saying that a tree is non-patentable (lets ignore the fact that cultivars -can- be registered), but a leaf from that tree is not.

So to take your analogy, and if you'd like to understand non-lawyer's POV, we've ALSO got people who are not practiced in our field interjecting their noses into our business and telling us what things are without really understanding half of it, or even giving half a fark about how it affects the field. That's what has most people in genetics pissed, and I'm guessing that's why software people are pissed too

I have few feelings regarding your post:

1) Man, you have made me weirdly hate nostalgic from when i used to work a lab bench with my PCR clicking away nearby. I am now so out of date with regard to actual genetic work that it kinda scares me. (i don't do gene based p ...


I'm so glad that my lab outsources PCR work to a professional lab. I hate to sound arrogant, but I'd rather someone else take care of the nitty gritty while I get on with the actual research. And I'm sure they're professionals there, and they can get results much faster than I can. Undergrad was a nightmare of finnicky machines and unreliable temperatures.

Moving on from that, I can agree that certain patents are necessary. I'm not a throw the system out the window sort of person. But I do believe that patents are a bargain struck between the government and the public. And currently I think the public is getting shafted because of a one size fits all system. When I can read papers from 2008 and chortle to myself about how tiling arrays are so quaint, there's an issue in time dilation.

However, carving out industries seems rife for abuse. What defines a gene patent? What is a software patent? How will people redefine things to get the longer patent system? This is something that becomes an issue.

In addition, I find the trade secrets apocalypse that's so often put forward odd, considering the number of NDAs and Confidentiality and security agreements I've had to sign. And I'm not even that far along in my work. We're already living in a guild world. I'm sure if I go work for the great Satan, there'll be a non-compete clause there too. I think that the public is getting the worst of both worlds. Patents when control wants to be exercised on a competitor. Trade secrets when we don't want there to -be- a competitor.

We need to take a long hard look at the patent agreement, rather than taking it as a given that it either serves to advance innovation, or does a disservice to it. On both sides. I don't believe the current bargain is helping as a whole, but if it ever changes to where there's less sharing because of this fear (I doubt this will happen in my lifetime), then I'll be on the opposite side. I couldn't give two farks what Company beats who. I'm in it for the progress. And anything that impedes that progress is frankly, unconstitutional.
 
2012-11-14 12:10:26 PM
Also, in favor of Theaetetus i should stress that there are three kinds of lawyer in any patent dispute and they have very very different roles/outlooks:

Patent Prosecutors - these guys actually write the damn things. They are probably closest to consultants in this respect. They work very hard, and try their best to claim as much of what their client wants. It is their job and ethical duty to do so. They really do tend to be on the bleeding edge of the art because they actually have to constantly deal with prior art, research, and the like. They are often Ph.D.s in the field.

Patent Litigators - lawyer-y lawyers. They get brought in when either A) someone screws up or B) someone thinks someone screwed up. They are often quite knowledgeable about the science, but frankly they need to be much more knowledgeable about the law (and tactics), especially as they can have experts weigh in and deal with any wrinkles in the science on the ground.

In House Counsel - the people who usually actually make the decision to sue. They get to work nice hours, dont go to court, and are usually the people who frothing internet rage should be turned against, but arent.
 
2012-11-14 12:38:27 PM

hammer85: Gunther: nmemkha: I'm sure you resident Fark patent attorney shills will chime in soon. Then we can hear the informed truth from people who make their money off the current system.

It's telling that the lawyers are the only ones you ever see defending it. The inventors and innovators it's supposed to protect seem to hate it the most.

It's telling that the armchair Internet warriors that have no clue how the system works are the biggest idiots attacking it. Maybe if people could even bother learning how it works you're uninformed opinions would mean more.

But clearly, the patent system is broken because idiots on fark and in the news look at the title "time machine" and go "haha apple patents a time machine derpedydoo".

Yes there are some blatant errors (see cat exercise quoted above) but overall most patents patented stand on the merits (as we'd hear much more about patents being invalidated by google/Samsung/apple rather than arguing that it doesn't apply to them). If apple sued google over their time machine patent, wouldn't it be in googles best interest (and the easiest method to escape suit) to get the entire thing invalidated? But that doesn't happen often for a reason.


The system is broken because it by design creates monopolies. In a capitalist system the government has no business restricting open competition
 
2012-11-14 12:43:06 PM

Warlordtrooper: hammer85: Gunther: nmemkha: I'm sure you resident Fark patent attorney shills will chime in soon. Then we can hear the informed truth from people who make their money off the current system.

It's telling that the lawyers are the only ones you ever see defending it. The inventors and innovators it's supposed to protect seem to hate it the most.

It's telling that the armchair Internet warriors that have no clue how the system works are the biggest idiots attacking it. Maybe if people could even bother learning how it works you're uninformed opinions would mean more.

But clearly, the patent system is broken because idiots on fark and in the news look at the title "time machine" and go "haha apple patents a time machine derpedydoo".

Yes there are some blatant errors (see cat exercise quoted above) but overall most patents patented stand on the merits (as we'd hear much more about patents being invalidated by google/Samsung/apple rather than arguing that it doesn't apply to them). If apple sued google over their time machine patent, wouldn't it be in googles best interest (and the easiest method to escape suit) to get the entire thing invalidated? But that doesn't happen often for a reason.

The system is broken because it by design creates monopolies. In a capitalist system the government has no business restricting open competition


Except that the monopolies granted create positive externalities like knowledge. In theory. Patents are evil because they are monopolies, but as long as society is gaining a greater benefit in exchange for a little bit of evil, it was supposed to be worth it. Except now it's not. Which is the issue. We get all of the evil, and very little of the cream filling.
 
2012-11-14 12:44:03 PM

Kinek: Warlordtrooper: hammer85: Gunther: nmemkha: I'm sure you resident Fark patent attorney shills will chime in soon. Then we can hear the informed truth from people who make their money off the current system.

It's telling that the lawyers are the only ones you ever see defending it. The inventors and innovators it's supposed to protect seem to hate it the most.

It's telling that the armchair Internet warriors that have no clue how the system works are the biggest idiots attacking it. Maybe if people could even bother learning how it works you're uninformed opinions would mean more.

But clearly, the patent system is broken because idiots on fark and in the news look at the title "time machine" and go "haha apple patents a time machine derpedydoo".

Yes there are some blatant errors (see cat exercise quoted above) but overall most patents patented stand on the merits (as we'd hear much more about patents being invalidated by google/Samsung/apple rather than arguing that it doesn't apply to them). If apple sued google over their time machine patent, wouldn't it be in googles best interest (and the easiest method to escape suit) to get the entire thing invalidated? But that doesn't happen often for a reason.

The system is broken because it by design creates monopolies. In a capitalist system the government has no business restricting open competition

Except that the monopolies granted create positive externalities like knowledge. In theory. Patents are evil because they are monopolies, but as long as society is gaining a greater benefit in exchange for a little bit of evil, it was supposed to be worth it. Except now it's not. Which is the issue. We get all of the evil, and very little of the cream filling.


Let me tell you about the twinkie....
 
2012-11-14 01:44:33 PM
Odd...my Boobies on this apparently didn't take...trying again....(sorry if it repeats)....

Teiritzamna: (lots)


Theaetetus: (lots)


That's all fine, but how does our system prevent the stanard-issued "patent trolls" (the recent example: Link)? Or, are you suggesting that patent trolls are not stifling innovation, despite having no use for the patent they're holding other than to get money from others who are using it to advance even further with it? Can you at least agree that they increase the cost of entry into some products, despite themselves having no direct competition to protect against with your new product?

CSB example:

I have an invention I feel I can bring to market that would serve a specific purpose. This invention is novel and unique (from my "expert" opinion), however, after doing some patent research, I have discovered that there exist (at least) 2 patents that MIGHT be infringed by this patent. I believe these two patents to be generic and obvious in nature, not to mention apparently intended for a completely different application, but I am not 100% confident a judge would not consider my invention infringing upon them. As a bonus, it appears that these two patents are owned by patent trolls, though I don't really know that but, for sake of argument, let's assume they are patent trolls in that they will never use the patents themselves and have no intention on agreeing with a reasonable licensing agreement with me, and would definitely sue me if I tried to come to market with my product (regardless if I'd eventually win in litigation) since that'd be easier for them to get their payday.

So, what do I do? Do I try to patent my invention (and therefore disclose to these trolls that their patents are similar enough to mine to "take a stab" at suing me)? Or, do I just go to market with it unprotected anyway, knowing that they'd never realize it based on how "hidden" it'd be and hope that no one else patents my variation and then sues me for marketing my own invention?

The real problem is that I have enough capital to bring the product to market, but I suspect I do not have enough to also support a litigation battle/settlement should they decide to sue me. 

/CSB

TLDR: I certainly am not an expert on the patent system, but since these "patent trolls" can exist in this system, I consider it to be flawed. I don't know the solution (whether it being that the owner of the patent can only sue if the offender is a direct competitor, or something along those lines), but I consider it broken while they can exist.
 
2012-11-14 02:02:06 PM

FarkGrudge: That's all fine, but how does our system prevent the stanard-issued "patent trolls" (the recent example: Link)? Or, are you suggesting that patent trolls are not stifling innovation, despite having no use for the patent they're holding other than to get money from others who are using it to advance even further with it? Can you at least agree that they increase the cost of entry into some products, despite themselves having no direct competition to protect against with your new product?


Intellectual Ventures has paid somewhere around $40 million to inventors, which does quite a bit to encourage them to keep inventing. If you think of them as a patent aggregator representing thousands of inventors, it's not such a big deal.

... but that said, I think reform is needed on the damages side of litigation, and I think that's where you could really affect the trolls. Start pinning damages to past licenses (so as to not harm non-practicing entities like research universities) or, where a past license doesn't exist, have an independent expert selected by the court determine a reasonable royalty rate based on the industry. It's tough to argue for outrageous damage awards when your last case settled for $10k, or when you've never asserted this patent before and you're just going after the deepest pockets out there.

I have an invention I feel I can bring to market that would serve a specific purpose. This invention is novel and unique (from my "expert" opinion), however, after doing some patent research, I have discovered that there exist (at least) 2 patents that MIGHT be infringed by this patent. I believe these two patents to be generic and obvious in nature, not to mention apparently intended for a completely different application, but I am not 100% confident a judge would not consider my invention infringing upon them. As a bonus, it appears that these two patents are owned by patent trolls, though I don't really know that but, for sake of argument, let's assume they are patent trolls in that they will never use the patents themselves and have no intention on agreeing with a reasonable licensing agreement with me, and would definitely sue me if I tried to come to market with my product (regardless if I'd eventually win in litigation) since that'd be easier for them to get their payday.

So, what do I do? Do I try to patent my invention (and therefore disclose to these trolls that their patents are similar enough to mine to "take a stab" at suing me)? Or, do I just go to market with it unprotected anyway, knowing that they'd never realize it based on how "hidden" it'd be and hope that no one else patents my variation and then sues me for marketing my own invention?

The real problem is that I have enough capital to bring the product to market, but I suspect I do not have enough to also support a litigation battle/settlement should they decide to sue me.


Disclaimers apply: I am not your lawyer, this isn't legal advice, but is for my own amusement only, etc. Do not rely on this advice, and instead consult a qualified attorney in your jurisdiction.

Patent litigation costs a lot of money - upwards of $200k, frequently - and the most a patent owner can get in damages is 100% of revenue, by definition (and it's going to be much, much less, generally)... So if you start making product and make $50k per year in revenue, you're highly unlikely to get sued. You're just not worth it. Consider it from their perspective - they're parasites, and if they bleed their host dry, they don't get anything.
It's when you start making millions each year that you might expect a suit demanding a few tens of thousands, and frankly, there are worse problems to have and you can cry yourself to sleep on your giant pile of money.
You could also even reach out to them - "hey, guys, I'm a small inventor and I have an idea. I don't think it infringes on your patents, but I'm willing to take a license for $5k provided I never, ever get sued by you." Not many businesses turn down free money.

And getting the patent is always a good idea... it doesn't change the above calculation from their perspective, it gives you leverage against competitors, and you could even sell the patent to your trolls in exchange for a grantback and license to the other two patents, making you suit-proof while letting them go after your competitors.

There's no need to be afraid of trolls - you can actually work with them, and even use them to your advantage, with some proper planning.
 
2012-11-14 02:21:09 PM

FarkGrudge: TLDR: I certainly am not an expert on the patent system, but since these "patent trolls" can exist in this system, I consider it to be flawed. I don't know the solution (whether it being that the owner of the patent can only sue if the offender is a direct competitor, or something along those lines), but I consider it broken while they can exist.


Additionally, the phrase "patent troll" is to IP what nazi or facist is to the politics tab. It is a word that gets tossed around quite a bit without people really clarifying what they mean. Is it someone who holds patents but makes nothing, and only emerges when a target corporation has been arguably infringing? Is it someone who holds likely invalid patents and sues only to collect a quick strike settlement? is it a company that actually makes something but is very litigious? Is it a patent holder we do not like?

You linked to Intellectual Ventures. Here is the thing about IV. Imagine we have a small scale inventor, Irving. Irving makes a widget and gets a patent on it. It cost Irving, say $30k in time and effort to invent the thing and patent it. But Irving lacks the capital to actually make the widget commercially viable. Then some big company, Capital comes along and offers Irving $100k for the widget. Capital takes the assigned patent and holds on to it, in its portfolio of IP. Later, a large tech company, Tech, creates a product that incorporates Irving's initial device. Capital sues Tech.

Now, traditionally, a fark thread would howl about how awful this scenario is, because Capital is not making the widget and Tech is. But would the analysis be different if it were Irving v. Tech. Irving would not be making the widget either, because he could not afford to. But as the inventor, i think many would claim he would have a right to sue.

Note that this is not saying that bad patents shouldnt be flushed from the system, nor that patent thickets have made infringement free development in tech really messy. But the general argument that a company that collects patents and sues over them, to me, is sort of besides the point. The individual inventors all could have not invented anything and still sued.
 
2012-11-14 02:36:38 PM

Teiritzamna: FarkGrudge: TLDR: I certainly am not an expert on the patent system, but since these "patent trolls" can exist in this system, I consider it to be flawed. I don't know the solution (whether it being that the owner of the patent can only sue if the offender is a direct competitor, or something along those lines), but I consider it broken while they can exist.

Additionally, the phrase "patent troll" is to IP what nazi or facist is to the politics tab. It is a word that gets tossed around quite a bit without people really clarifying what they mean. Is it someone who holds patents but makes nothing, and only emerges when a target corporation has been arguably infringing? Is it someone who holds likely invalid patents and sues only to collect a quick strike settlement? is it a company that actually makes something but is very litigious? Is it a patent holder we do not like?

You linked to Intellectual Ventures. Here is the thing about IV. Imagine we have a small scale inventor, Irving. Irving makes a widget and gets a patent on it. It cost Irving, say $30k in time and effort to invent the thing and patent it. But Irving lacks the capital to actually make the widget commercially viable. Then some big company, Capital comes along and offers Irving $100k for the widget. Capital takes the assigned patent and holds on to it, in its portfolio of IP. Later, a large tech company, Tech, creates a product that incorporates Irving's initial device. Capital sues Tech.

Now, traditionally, a fark thread would howl about how awful this scenario is, because Capital is not making the widget and Tech is. But would the analysis be different if it were Irving v. Tech. Irving would not be making the widget either, because he could not afford to. But as the inventor, i think many would claim he would have a right to sue.

Note that this is not saying that bad patents shouldnt be flushed from the system, nor that patent thickets have made infringement free development in tech ...


Most of that 'howling' is coming from beaten dog syndrome that seems to exist here. It has just been a case of the us all watching frivolous, ridiculous decisions and lawsuits being made about things that the general population feel shouldn't be patentable. So like the beaten dog, he flinches whenever his antagonist approaches without giving much thought to the particular action.

Personally I have no problem with real patent trolls. Generally they nickle and dime the system for smaller settlements from bigger companies. At least in my experiences.

I think the 'new' patent troll most people are talking about are those who successfully patent things that, as I mentioned above, shouldn't be patentable. I propose we call these patent ogres.
 
2012-11-14 04:44:03 PM
Theaetetus / Kinek - I just want to say thanks guys for a very good thread. Lots of opportunities for poo flinging, but instead good spitballing of problems and ideas back and forth.
 
2012-11-14 06:53:05 PM

The All-Powerful Atheismo: I couldn't have or TMLO would sue my ass


*nods*

You got that right, mammajamma (R).
 
2012-11-14 07:07:43 PM

Half Man Half Biscuit: Theaetetus / Kinek - I just want to say thanks guys for a very good thread. Lots of opportunities for poo flinging, but instead good spitballing of problems and ideas back and forth.


Intelligent and reasonable discussions on MY Fark?

Thanks though. I'm not always so reasonable. Today was just a good day.
 
2012-11-14 09:07:19 PM
2c worth...
what i hate is when people own (buy) patents but do not actively use it, never have used it and probably never will, then are suing others to get a profit off of those that are using it incidentally or not. If you have the patent and never use it you should lose it to those that are... make a good faith effort to use or sell it fine, but to sit on advancing technology to sue is lame and mucking everything up.
 
2012-11-14 09:40:33 PM

Virulency: 2c worth...
what i hate is when people own (buy) patents but do not actively use it, never have used it and probably never will, then are suing others to get a profit off of those that are using it incidentally or not. If you have the patent and never use it you should lose it to those that are... make a good faith effort to use or sell it fine, but to sit on advancing technology to sue is lame and mucking everything up.


But how do you necessarily litigate that? How do you prove that a patent holder isn't actively trying to find investors, or anything like that? I don't disagree with you, mind you, I just think it's something that'd be really hard to actively enforce. Personally I'd rather see us get rid of the overly broad patents than anything else - that really seems to be the root of most of the problems...
 
2012-11-17 01:35:40 AM

Toshiro Mifune's Letter Opener: The All-Powerful Atheismo: I couldn't have or TMLO would sue my ass

*nods*

You got that right, mammajamma (R).


Mammajamma is a Republican?
 
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