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(Reuters)   Intellectual Ventures: the countries biggest patent trolling firm with almost $6 billion in assets, got cocky enough to try to shake down Wall Street. Big mistake   (reuters.com) divider line 93
    More: Spiffy, COF, Wall Street, non-practicing entity, Eastern District of Virginia, Microsoft Corp., patent case, Bank of America  
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10819 clicks; posted to Main » on 08 May 2014 at 1:52 PM (28 weeks ago)   |  Favorite    |   share:  Share on Twitter share via Email Share on Facebook   more»



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2014-05-08 11:10:46 AM  
"We are disappointed with the court's decision and are considering our options," Finocchio said.

His nose then grew an inch longer.
 
2014-05-08 11:24:07 AM  
God help me, I'm actually rooting for the banks.
 
2014-05-08 11:26:20 AM  
U.S. District Judge Anthony Trenga in Virginia dismissed the lawsuit against Capital One after finding that the two IV patents remaining in the case were abstract ideas that could not be patented

The patent examiners that approve crap like this need to be fired.
 
2014-05-08 11:31:35 AM  

Marcus Aurelius: U.S. District Judge Anthony Trenga in Virginia dismissed the lawsuit against Capital One after finding that the two IV patents remaining in the case were abstract ideas that could not be patented

The patent examiners that approve crap like this need to be fired.


Why? One of the patents was granted in October 2009, before the Supreme Court's Bilski decision, and way before Prometheus v. Mayo or any of the other more recent 101 cases. The Examiners were following the law as it existed at the time. They're to be fired for approving things based on the official guidelines they're handed?
 
2014-05-08 12:00:55 PM  

Theaetetus: Marcus Aurelius: U.S. District Judge Anthony Trenga in Virginia dismissed the lawsuit against Capital One after finding that the two IV patents remaining in the case were abstract ideas that could not be patented

The patent examiners that approve crap like this need to be fired.

Why? One of the patents was granted in October 2009, before the Supreme Court's Bilski decision, and way before Prometheus v. Mayo or any of the other more recent 101 cases. The Examiners were following the law as it existed at the time. They're to be fired for approving things based on the official guidelines they're handed?


If you think that I know bupkiss about patent law particulars, you are correct.  Thank you for the insight.

I guess who we really need to fire are the Congresscritters that allowed ideas to be patented to begin with, but if there's any left it wouldn't matter much anyway.  People will vote R or D regardless.
 
2014-05-08 12:11:20 PM  

Marcus Aurelius: Theaetetus: Marcus Aurelius: U.S. District Judge Anthony Trenga in Virginia dismissed the lawsuit against Capital One after finding that the two IV patents remaining in the case were abstract ideas that could not be patented

The patent examiners that approve crap like this need to be fired.

Why? One of the patents was granted in October 2009, before the Supreme Court's Bilski decision, and way before Prometheus v. Mayo or any of the other more recent 101 cases. The Examiners were following the law as it existed at the time. They're to be fired for approving things based on the official guidelines they're handed?

If you think that I know bupkiss about patent law particulars, you are correct.  Thank you for the insight.


No problem. Here's the short layman's summary:
Patents have multiple requirements to be valid, each coming from a different statute:
35 USC 101: patents must be directed to eligible subject matter
35 USC 102: patents must be novel
35 USC 103: patents must be non-obvious
35 USC 112: patents must be sufficiently well described
The patents here were not invalidated because they were not novel or were obvious (i.e. violating 102 or 103)... That takes evidence, in the form of prior art, and a real in-depth examination of the claims. Instead, they were invalidated because they weren't directed to eligible subject matter, violating 101.

Now, the prior art that was available during examination by the patent office is the same prior art available now (it's not like "prior" has changed), so if the Examiner had simply missed some stupid-obvious reference or even saw one and was all "nah, that's different because this one is pink and that's blue", then it's pretty reasonable to blame them for incompetence.
But this is all about 101 and what the meaning of an "abstract idea" is. Back then, a method was not abstract if it had a sufficiently concrete or tangible effect in the real world... Since then, that's changed to "something is not abstract if it is tied to a specific machine or transforms something" and then even further changed to "something is not abstract if Justice Thomas can understand it". So, the law really has changed, and something that was perfectly fine a decade ago may not be now.

I guess who we really need to fire are the Congresscritters that allowed ideas to be patented to begin with...

Blame Thomas Jefferson. He was the first patent examiner.

... but if there's any left it wouldn't matter much anyway.  People will vote R or D regardless.

True, and both the R's and D's are pro-patent. About the only real anti-patent movement is the Pirate Party.
 
2014-05-08 12:17:24 PM  

Theaetetus: both the R's and D's are pro-patent


Do you see patent defenses really getting any cheaper?  It was upwards of $5 million since I last got involved in one.
 
2014-05-08 12:23:42 PM  

Marcus Aurelius: Theaetetus: both the R's and D's are pro-patent

Do you see patent defenses really getting any cheaper?  It was upwards of $5 million since I last got involved in one.


Yes and no. The bar for fee shifting to the plaintiff just got lowered, so that probably means that fewer questionable suits will be brought... Additionally, since legal fees keep increasing, no one's really going to gamble on spending a few million in legal fees to collect only a few million if successful.
So, instead, the de facto damages threshold for bringing a suit will likely be raised. You don't sue someone for $50k for infringement of your patent, because it's going to cost much more than that just to get to the Markman hearing... You don't sue the basement inventor with his $100k in annual revenue. You (currently) sue the company with $1M in annual revenue, since now your reasonable royalty may actually be worth anything. I'd look for that threshold to go up to $5M or more - possibly much more, with that fee shifting issue. It just won't be worthwhile as a business decision to sue someone making less than that, with the potential for loss.

But, that also means that the only patent suits you'll be hearing about are going to be the ones with hundreds of millions on the line.

So, defense costs will likely go up, but the number of suits will go down and small companies won't be hassled as much, because you can't get blood from a stone.
 
2014-05-08 12:28:29 PM  
Mind you, that's more of an educated guess than a prediction. I wouldn't put money on it.
 
2014-05-08 12:44:28 PM  

Theaetetus: True, and both the R's and D's are pro-patent. About the only real anti-patent movement is the Pirate Party.


The Pirate Party is pretty reasonable with their stance on Copyright Reform, but I think their stance on abolishment of patents is a bit extreme.  I do like their ideas for banning pharmaceutical patents and shifting the burden for developing new drugs to governments who can then share the research freely.  With as much as the US Government spends on drugs through Medicare Part D alone it might be a money saver.

As far as other patents go the common sense approach would be to reform the rules of what is and isn't patentable (remove the ability to patent broad/general concepts or processes), and to set the bar much higher for software patents and 'look and feel' patents.

Mark Cuban also has some good ideas about a 'use it or lose it' clause that would help break down patent troll firms.  Make it such that for a company to hold onto a patent they have to either have a product on the market that makes use of it or be actively developing one.
 
2014-05-08 12:58:58 PM  

TuteTibiImperes: As far as other patents go the common sense approach would be to reform the rules of what is and isn't patentable (remove the ability to patent broad/general concepts or processes)...


That's already been removed. Under 35 USC 101, you can't patent an abstract idea. But that - and your proposal - simply raises another question: what's an abstract idea, or what's a "broad/general concept"? How you do distinguish something that's abstract or broad from something that's patent eligible? Is it just a "I know it when I see it" (which is the current, and awful, state of the law), or can you come up with a bright line test?

... and to set the bar much higher for software patents and 'look and feel' patents.

"Look and feel" patents, or design patents, are actually much more like trade dress, with their own separate rules. The bar for patentability is really low, but the bar for infringement is really high, so it tends to balance out.
And as for software, currently, it's shoehorned in to that whole question of "is it abstract"... but, fundamentally, why should something have a different bar for patentability if it's in software as opposed to being encoded in an FPGA?

Mark Cuban also has some good ideas about a 'use it or lose it' clause that would help break down patent troll firms.  Make it such that for a company to hold onto a patent they have to either have a product on the market that makes use of it or be actively developing one.

The problem there is that that would also include every research university, who currently make a ton off of licensing out inventions. It would also include small inventors who are trying to raise capital to put out a product, while big companies use their invention royalty-free... unless you start defining "actively developing" to include "trying to raise money and/or license the patent to a company that will build the product", which then makes a huge loophole for the trolls.

I think it's a baby-bathwater issue. There are reasons we dislike trolls, and trolls can be distinguished by their lack of products, but we don't dislike trolls  because of their lack of product. Tying any remedy to that lack of product therefore seems to only indirectly address our complaints, while having broader commercial effects than we want.

I'd say a better proposal would be to look at the reasons we hate trolls - extortion-like demands for injunctions from people who aren't even in the market, resulting in either a loss of a product for consumers or significantly increased cost; giant damage awards out of proportion to their revenue; stupidly granted patents with existing prior art; shotgun lawsuits targeting end-users of products rather than manufacturers; etc. - and make proposals to directly address those issues.
For example, one reason we hate trolls is because of the constant use of EDTexas through their "I'm suing Microsoft in Seattle and Joe Schmoe in Miami, and Texas is halfway between them, so it's the most reasonable forum," even though 99.999% of the suit is targeting Microsoft. That's been addressed by new rules that prevent joining unrelated defendants, and other new rules that make it easier to transfer cases. As a result, the number of defendants in EDTexas has now dropped over 10% over the past two years.
 
2014-05-08 01:48:36 PM  

Theaetetus: TuteTibiImperes: As far as other patents go the common sense approach would be to reform the rules of what is and isn't patentable (remove the ability to patent broad/general concepts or processes)...

That's already been removed. Under 35 USC 101, you can't patent an abstract idea. But that - and your proposal - simply raises another question: what's an abstract idea, or what's a "broad/general concept"? How you do distinguish something that's abstract or broad from something that's patent eligible? Is it just a "I know it when I see it" (which is the current, and awful, state of the law), or can you come up with a bright line test?

... and to set the bar much higher for software patents and 'look and feel' patents.

"Look and feel" patents, or design patents, are actually much more like trade dress, with their own separate rules. The bar for patentability is really low, but the bar for infringement is really high, so it tends to balance out.
And as for software, currently, it's shoehorned in to that whole question of "is it abstract"... but, fundamentally, why should something have a different bar for patentability if it's in software as opposed to being encoded in an FPGA?

Mark Cuban also has some good ideas about a 'use it or lose it' clause that would help break down patent troll firms.  Make it such that for a company to hold onto a patent they have to either have a product on the market that makes use of it or be actively developing one.

The problem there is that that would also include every research university, who currently make a ton off of licensing out inventions. It would also include small inventors who are trying to raise capital to put out a product, while big companies use their invention royalty-free... unless you start defining "actively developing" to include "trying to raise money and/or license the patent to a company that will build the product", which then makes a huge loophole for the trolls.

I think it's a baby-bathwater issue. There a ...


I think "Use or Lose" may be a bit but I don;t see a problem with including a "must defend" provision into patents similar to the one that applies to trademarks.   If you sit idly by and watch an entire industry build up based on something you supposedly hold a patent on, at some point a   Laches like defense needs to be available to the infringers.   For example when BT a few years ago popped up and tried to claim they held a patent on Hyperlinking, in the mid 2000's the only rational action by courts should be to day, yeah and where were in 1992 when the World Wide Web was starting to gather steam?"

or in the case of the guy who tried to say he had a patent on scanning a document and turning it directly into an email.  Even if survived and "obviousness" challenge  it should get thrown out because he waitied 10-15 years after the first commerically available systems to do that hit the market, and instead waitied until it was adopted by nearly every business in America and then chose to sue the businesses individually not the maker of the machines that supposedly infringe
 
2014-05-08 01:56:05 PM  
Should say "country's." Come on, subby.
 
2014-05-08 01:56:33 PM  
A representative for Capital One could not immediately be reached for comment.

The author must have called the customer service line.
 
2014-05-08 01:56:44 PM  
This is like a knife fight between Justin Bieber and Kanye West. I don't know who to root for, but if both died a painful death, that would suit me just fine.
 
2014-05-08 01:56:50 PM  
So Microsoft and Sony send protection money? Is that why they buy in? Despicable-- they give IV more resources to fark other companies over.
 
2014-05-08 01:57:51 PM  
Countries?/not a nazi
 
2014-05-08 01:58:47 PM  
This is good news. The better news is that Capital One can now send IV credit card offers three times per week for the rest of its life.
 
2014-05-08 02:03:05 PM  

Fark France: Should say "country's." Come on, subby.


I'm disappointed it took this many comments before someone pointed this out.
 
2014-05-08 02:03:57 PM  
The big boys don't like it when you try to cut in on their game...
/
 
2014-05-08 02:05:40 PM  
Thunderdome II - two dicks enter, no one leaves.
 
2014-05-08 02:07:12 PM  
The biggest hole in the patent system, is that  it allows these kind of practices to appear. A business idea that surrounds on only hoarding patents, and then charges /sues/harasses anyone that may turn them into useful products and so. No wonder why production costs are high these days, it is because some unproductive harassers  are there.
 
2014-05-08 02:09:14 PM  

Magorn: I think "Use or Lose" may be a bit but I don;t see a problem with including a "must defend" provision into patents similar to the one that applies to trademarks.   If you sit idly by and watch an entire industry build up based on something you supposedly hold a patent on, at some point a   Laches like defense needs to be available to the infringers.   For example when BT a few years ago popped up and tried to claim they held a patent on Hyperlinking, in the mid 2000's the only rational action by courts should be to day, yeah and where were in 1992 when the World Wide Web was starting to gather steam?"



There is a Laches defense, but it only applies to any damages prior to filing of the suit - so, for example, BT would be barred by Laches from any damages from 1992 all the way up to when they actually filed suit in the 2000s: they could only collect for the short time from filing through judgement...

... or they would, if there wasn't  also an equitable estoppel defense, which bars recovery if the patent owner sits on their hands without pursuing suit for a period of time, during which there was detrimental reliance by the infringer.

But, while I'd be fine with those doctrines getting used more frequently (and reliably), there's a downside to them - since small inventors frequently can't afford to file lots of infringement suits, this doctrine encourages them to sell their interest to a troll company, like IV, who then  can file those suits. In a way, these actually  increase trolling, rather than decreasing it.
 
2014-05-08 02:10:16 PM  

Fark France: Should say "country's." Come on, subby.


I'm noticing above-average levels of punctuation fail today.
 
2014-05-08 02:10:48 PM  

Warmnight: The biggest hole in the patent system, is that  it allows these kind of practices to appear. A business idea that surrounds on only hoarding patents, and then charges /sues/harasses anyone that may turn them into useful products and so.


[cough]
 
2014-05-08 02:12:17 PM  
Seems like the big mistake here was filing the claim in another state besides Texas.
 
2014-05-08 02:13:24 PM  

Theaetetus: TuteTibiImperes: As far as other patents go the common sense approach would be to reform the rules of what is and isn't patentable (remove the ability to patent broad/general concepts or processes)...


That's already been removed. Under 35 USC 101, you can't patent an abstract idea. But that - and your proposal - simply raises another question: what's an abstract idea, or what's a "broad/general concept"? How you do distinguish something that's abstract or broad from something that's patent eligible? Is it just a "I know it when I see it" (which is the current, and awful, state of the law), or can you come up with a bright line test?


There's also the issue of whether the CAFC will actually follow any precedents that come down from the Supreme Court. They have a tendency to be ... less than willing to follow those.
 
2014-05-08 02:14:05 PM  
The This American Life and Market Place Money podcasts on IV are a great read to see how creative and stupid trolls are.
 
2014-05-08 02:16:17 PM  

ffish: There's also the issue of whether the CAFC will actually follow any precedents that come down from the Supreme Court. They have a tendency to be ... less than willing to follow those.


Well, so far, the precedents they've gotten are "you know that test you were using? The bright line, easy to follow one? That's not the actual rule. It's just an important guide. So... yeah."

I'm not surprised that the Fed Circ basically throws their hands up and says "well, wtf do you  want?!"
 
2014-05-08 02:19:04 PM  

Atomic Spunk: This is like a knife fight between Justin Bieber and Kanye West. I don't know who to root for, but if both died a painful death, that would suit me just fine.


Indeed. If Kanye and Bieber do want to get in a knife fight I'llbe more than glad to loan them the knives and a strap to hold the who of them together.
 
2014-05-08 02:21:14 PM  

Theaetetus: ffish: There's also the issue of whether the CAFC will actually follow any precedents that come down from the Supreme Court. They have a tendency to be ... less than willing to follow those.

Well, so far, the precedents they've gotten are "you know that test you were using? The bright line, easy to follow one? That's not the actual rule. It's just an important guide. So... yeah."

I'm not surprised that the Fed Circ basically throws their hands up and says "well, wtf do you  want?!"


Exactly which bright-line test was that? And my reading of the CAFC has been "patent ALL the things!" and has been pushing back on any hint that things like software aren't patentable.
 
2014-05-08 02:21:18 PM  
Ya, go after the one group that surgeons think should tone down the hubris, looking for an easy payout. Nice lawyering there, Lou.
 
2014-05-08 02:25:03 PM  
I feel dirty wanting anyone to win. I say kill 'em all and let God sort them out.
 
2014-05-08 02:26:27 PM  

filter: So Microsoft and Sony send protection money? Is that why they buy in? Despicable-- they give IV more resources to fark other companies over.


No it's worse than that. Sony, Microsoft, Apple and other members oof the so called "Rockstar consortium" got into the Patent trolling business a few years back buying a huge patent portfolio from  dying telecom Nortel for a few billion precisely and explicitly for the purpose of using ti to hammer Andriod-based smartphones (MS gets $10 for every Samsung phone sold in the US thanks to a settlement between the two companies)

The real reason Google bought Motorola was so it too would have a giant binder of patents to lend Android device makers when they get sued by the Rockstar folks (the way patent litigation almost literally works these days is plaintiffs slap down their binder of patents , defendants slap down their binder of patents they can counter-sue with, and somebody measures.  The guy with the smaller binder cuts a check based on the size difference -not really joking BTW)

IV is basically Rockstar's kissing cousin.  While farking over Google is Rockstar's  Raison D'etre  some of the Rockstar partners realized there wad damn good money in patent trolling and invested/created Intellectual ventures to do it more broadly.  To its credit I see that Apple has announced it is no longer an IV investor and is cutting ties with the company
 
2014-05-08 02:26:49 PM  

Fark France: Should say "country's." Come on, subby.


Came here to note this.
 
2014-05-08 02:28:11 PM  

ffish: Theaetetus: ffish: There's also the issue of whether the CAFC will actually follow any precedents that come down from the Supreme Court. They have a tendency to be ... less than willing to follow those.

Well, so far, the precedents they've gotten are "you know that test you were using? The bright line, easy to follow one? That's not the actual rule. It's just an important guide. So... yeah."

I'm not surprised that the Fed Circ basically throws their hands up and says "well, wtf do you  want?!"

Exactly which bright-line test was that? And my reading of the CAFC has been "patent ALL the things!" and has been pushing back on any hint that things like software aren't patentable.


The "machine or transformation" test of Bilski (and Benson, and Flook). And 101 was always supposed to be a "patent ALL the things" super-low threshold - "anything under the sun that is made by man". It's the other three statutes that are supposed to be the gatekeepers for patents, not the subject matter requirement.

Frankly, most of the 101 issues have been because the judges feel in their guts that an invention is stupid-obvious, but because they're appellate judges and can't go looking for better prior art sua sponte, they instead try to wave their hands and say that something just isn't patent eligible because hey look over there. Bad facts make bad law.
 
2014-05-08 02:32:10 PM  

Magorn: Sony, Microsoft, Apple and other members oof the so called "Rockstar consortium" got into the Patent trolling business a few years back buying a huge patent portfolio from  dying telecom Nortel for a few billion precisely and explicitly for the purpose of using ti to hammer Andriod-based smartphones (MS gets $10 for every Samsung phone sold in the US thanks to a settlement between the two companies)


So, we're no longer using the "non-practicing entity = troll" definition? 'Cause last I checked, all of those guys put out products.

IV is basically Rockstar's kissing cousin.  While farking over Google is Rockstar's  Raison D'etre  some of the Rockstar partners realized there wad damn good money in patent trolling and invested/created Intellectual ventures to do it more broadly.

Rockstar Consortium and the Nortel bids was 2011. IV was founded in 2000. Your timeline is a wee bit backwards.
 
2014-05-08 02:35:53 PM  

xanadian: God help me, I'm actually rooting for the banks.


media.tumblr.com
 
2014-05-08 02:41:28 PM  

Theaetetus: Magorn: Sony, Microsoft, Apple and other members oof the so called "Rockstar consortium" got into the Patent trolling business a few years back buying a huge patent portfolio from  dying telecom Nortel for a few billion precisely and explicitly for the purpose of using ti to hammer Andriod-based smartphones (MS gets $10 for every Samsung phone sold in the US thanks to a settlement between the two companies)

So, we're no longer using the "non-practicing entity = troll" definition? 'Cause last I checked, all of those guys put out products.

IV is basically Rockstar's kissing cousin.  While farking over Google is Rockstar's  Raison D'etre  some of the Rockstar partners realized there wad damn good money in patent trolling and invested/created Intellectual ventures to do it more broadly.

Rockstar Consortium and the Nortel bids was 2011. IV was founded in 2000. Your timeline is a wee bit backwards.


IV's been around a long time but the started getting Heavy  cash from SOny and Microsoft only recently, like inthe last year or so.

And while Apple, MS etc do put out products NONE of them were designed or built using the patents they are asserting against Samsung et all from the Nortel portfolio, so that IS patent trolling by definition.  The Constitutional purpose of patents is to "encourage innovation"   patent trolling does the opposite.   The innovators, those anonymous engineers at Nortel, or even Nortel itself is in no way benefiting from the assertion of these patents, they are instead being used to stifle competition in a hotly contested and evolving market.
 
2014-05-08 02:47:18 PM  
As an analogy, contracts have multiple requirements - mutual agreement between the parties, an exchange of consideration, definiteness of terms, and a remedy available at law for a breach. Invalidating patents because they lack patent eligible subject matter, rather than lacking novelty, nonobviousness, or sufficient description, is like invalidating a contract because it lacks a legal remedy for breach. I mean, really? That should come up in like .1% of cases, if that.
 
2014-05-08 02:51:25 PM  

Theaetetus: The "machine or transformation" test of Bilski (and Benson, and Flook). And 101 was always supposed to be a "patent ALL the things" super-low threshold - "anything under the sun that is made by man". It's the other three statutes that are supposed to be the gatekeepers for patents, not the subject matter requirement.


The patent situation was messed up thanks to State Street when the CAFC ignored the precedent from Diehr:

"A mathematical formula as such is not accorded the protection of our patent laws, and this principle cannot be circumvented by attempting to limit the use of the formula to a particular technological environment."

But the CAFC jettisoned that, and instead of slapping them across the face for ignoring precedent, the Supreme Court let it ride out for 12 years, leading to the current mess.

Just look at Prometheus: the Supreme Court had to smack down the CAFC twice over the exact same argument. And that's post-Bilski.

Theaetetus: Bad facts make bad law.


I agree 100%.
 
2014-05-08 02:53:25 PM  
Magorn:
And while Apple, MS etc do put out products NONE of them were designed or built using the patents they are asserting against Samsung et all from the Nortel portfolio, so that IS patent trolling by definition.

That's the weirdest definition of a patent troll I've ever seen. So Apple is a patent troll when they sue on these, but not a patent troll when they sue Samsung for their design patents, say? The classification depends only on what patents you currently have in suit?

The Constitutional purpose of patents is to "encourage innovation"   patent trolling does the opposite.   The innovators, those anonymous engineers at Nortel, or even Nortel itself is in no way benefiting from the assertion of these patents, they are instead being used to stifle competition in a hotly contested and evolving market.

If no one could use those patents, Nortel could never have sold them. If Nortel couldn't have sold them, they wouldn't have hired engineers to create them. If Nortel didn't hire engineers to create things, then innovation would've been stifled.

Also, you're confusing two different things... The Constitutional purpose of the Patent Act is to encourage innovation, not any specific patent. Patents are a monopoly right, and, by definition, a monopoly stifles competition. The encouragement to innovation is not the result of any particular patent, but by (i) the availability of the monopoly right for inventors, and (ii) the required public disclosure of inventions in exchange for the patent that destroys trade secrets, eliminating inefficient re-invention, and expanding the public domain of knowledge.
 
2014-05-08 02:55:44 PM  

Theaetetus: As an analogy, contracts have multiple requirements - mutual agreement between the parties, an exchange of consideration, definiteness of terms, and a remedy available at law for a breach. Invalidating patents because they lack patent eligible subject matter, rather than lacking novelty, nonobviousness, or sufficient description, is like invalidating a contract because it lacks a legal remedy for breach. I mean, really? That should come up in like .1% of cases, if that.


Wait, what? If the subject matter isn't patentable, then the patent should never have been granted. Period. It's more like invalidating a contract because the contract is about something illegal (e.g., one person entering into slavery, or a contract to commit a crime).

And yes, ideally they should come up less. But given that I've had patent lawyers tell me they could get a patent on a flyer announcing a stand-up comedy show, it seems that there are a lot of patents out there which cover ineligible subject matter.
 
2014-05-08 02:57:32 PM  

ffish: Just look at Prometheus: the Supreme Court had to smack down the CAFC twice over the exact same argument. And that's post-Bilski.


That's because SCOTUS' Weeners was just "no, do it again", without any additional guidance. When they don't know what they want beyond "this isn't it", it's understandable that it's going to waste more time going back up and down through the courts.
 
2014-05-08 02:58:59 PM  

Anayalator: xanadian: God help me, I'm actually rooting for the banks.

[media.tumblr.com image 500x332]


3.bp.blogspot.com

Keep these on the nightstand.
 
2014-05-08 03:00:43 PM  

Marcus Aurelius: I guess who we really need to fire are the Congresscritters that allowed ideas to be patented to begin with, but if there's any left it wouldn't matter much anyway.


There long dead as it was the founding fathers who put it in the constitution. Now what can be done, and what used to be done was to limit the time IP could be valid for. Once upon a time IP was restricted to around 7 years or so. Go back to that and force RAND terms on anyone that wants to use IP and you could solve a lot of problems while still allowing people to make money off their IP.

The Congress shall have Power To...promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries....
Article I, Section 8, Clause 8
 
2014-05-08 03:00:47 PM  

ffish: Theaetetus: As an analogy, contracts have multiple requirements - mutual agreement between the parties, an exchange of consideration, definiteness of terms, and a remedy available at law for a breach. Invalidating patents because they lack patent eligible subject matter, rather than lacking novelty, nonobviousness, or sufficient description, is like invalidating a contract because it lacks a legal remedy for breach. I mean, really? That should come up in like .1% of cases, if that.

Wait, what? If the subject matter isn't patentable, then the patent should never have been granted. Period.


If a legal remedy for breach is not available, then the contract is void, by definition.

It's more like invalidating a contract because the contract is about something illegal (e.g., one person entering into slavery, or a contract to commit a crime).

Except that those are concrete and objective rules. This is something more philosophical - "is it abstract"? - which is similar to the philosophical question, "can a court do anything if you breach this alleged contract"? It's interesting from an academic standpoint, but it  shouldn't be the basis for most of these cases.

And yes, ideally they should come up less. But given that I've had patent lawyers tell me they could get a patent on a flyer announcing a stand-up comedy show, it seems that there are a lot of patents out there which cover ineligible subject matter.

Design patent?
 
2014-05-08 03:06:13 PM  

Theaetetus: ffish: Just look at Prometheus: the Supreme Court had to smack down the CAFC twice over the exact same argument. And that's post-Bilski.

That's because SCOTUS' Weeners was just "no, do it again", without any additional guidance. When they don't know what they want beyond "this isn't it", it's understandable that it's going to waste more time going back up and down through the courts.


They said, "hey, there's this Bilski ruling we wrote. You should read it."

Theaetetus: And yes, ideally they should come up less. But given that I've had patent lawyers tell me they could get a patent on a flyer announcing a stand-up comedy show, it seems that there are a lot of patents out there which cover ineligible subject matter.

Design patent?


Utility. "A method and process of large-scale, distributed notification of upcoming events."

The part that gets me is when patents lawyers get all pissy at computer scientists for pointing out that every computer program is just a large algorithm and can be represented by a single number. "IT'S A PROCESS AND IF YOU SAY IT'S A NUMBER AGAIN I'LL BAN YOU FROM THIS FORUM."
 
2014-05-08 03:06:21 PM  

onyxruby: Once upon a time IP was restricted to around 7 years or so. Go back to that...


14 years for patents, and it's only been really expanded once... to 17 years*. Unlike copyright, there's just as much push in the industry to have short terms - Apple may want their patents to last forever, but they really want Microsoft, Samsung, and Google's patents to expire immediately - so no one is pushing for the huge "lifetime+70" type extensions.

... except pharma companies, and I think we can all agree that they're just evil.

... and force RAND terms on anyone that wants to use IP and you could solve a lot of problems while still allowing people to make money off their IP.

Entirely different suggestion, and I think that's a lot more reasonable. There are two remedies for patents - royalties and injunctions. Injunctions are  never reasonable for trolls or non-practicing entities, since they don't lose market share to competitors as a result of infringement. So that should be pretty much off the table except for direct and active competitors.
And royalties are currently supposed to be "reasonable",  but can be multiplied by three if you're "willful". That's bringing a moral punishment aspect into what's supposed to be a purely economic business decision. That should be off the table except for when you can prove malicious "I'm going to deliberately try to destroy your company" type behavior.

So, yeah, forcing everything into compulsory licensing on FRAND terms except for direct and active competitors would be a great thing and do away with a lot of the complaints.

*it was moved from 17 years from issue to 20 years from filing in response to a treaty, but since there was a 3 year backlog at the time from filing to issue, it works out to be the same length
 
2014-05-08 03:09:46 PM  
ffish:They said, "hey, there's this Bilski ruling we wrote. You should read it."

"We did. You said 'the machine or transformation test is a good test, but not the only test. There are... other tests. Maybe. Kthxbye.' You then drew a picture of a clown on the remand order."

Theaetetus: And yes, ideally they should come up less. But given that I've had patent lawyers tell me they could get a patent on a flyer announcing a stand-up comedy show, it seems that there are a lot of patents out there which cover ineligible subject matter.

Design patent?

Utility. "A method and process of large-scale, distributed notification of upcoming events."


Sounds like more than just a flyer, but I'd have to see it.

The part that gets me is when patents lawyers get all pissy at computer scientists for pointing out that every computer program is just a large algorithm and can be represented by a single number. "IT'S A PROCESS AND IF YOU SAY IT'S A NUMBER AGAIN I'LL BAN YOU FROM THIS FORUM."

Every machine can be represented by a single number, too, as can every composition of matter. Computer scientists conveniently forget about that when you ask them if they believe that no machine or drug should be patentable either.
 
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