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View Diary: Why Patents Can Stifle Innovation (74 comments)

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  •  I've heard the argument that a patent means (6+ / 0-)

    nothing until it has been challenged in court. That the patent office has no duty, right, or even method to weed out the nonsensical patent applications.
    But as the above excerpt shows, a court challenge can ruin smaller companies.

    -- We are just regular people informed on issues

    by mike101 on Fri Oct 12, 2012 at 06:20:36 PM PDT

    •  No, patent examiners are tasked not only (12+ / 0-)

      with ensuring that the patent is not anticipated by the prior art, but also have the duty to examine applications substantively for patentability requirements.

      "Put your big-girl panties on and deal with it." -- Stolen from homogenius, who in turn stole it from a coffee mug.

      by Mother of Zeus on Fri Oct 12, 2012 at 06:30:27 PM PDT

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      •  Yes. I have heard it. n/t (0+ / 0-)

        -- We are just regular people informed on issues

        by mike101 on Fri Oct 12, 2012 at 06:48:46 PM PDT

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      •  However (8+ / 0-)

        The time and resources they have at their disposal, and the fact that the "prior art" examined is that cited by the applicant, suggest the process is not a sound as you suggest.

        For example, numerous applications based on common practice where there is, effectively, no prior art in the patent system, result in the issuance of patents which are based on retroactive claims of invention that arguably should never have been issued and are nearly impossible to invalidate after issuance.

        Any designer of electronic circuits knows that a dielectric material sandwiched between two electrodes makes a capacitor and this basic fact has been exploited almost as long as the technology has existed. And yet, some clever trolls patented this already existing idea that had been used in countless designs, and then went after selected practitioners forcing them to license it; some objected and took it to court in at least three cases I know of and all lost. Afore-mentiond patents expire this year which will benefit the industry and end-users.

        Now can you explain why a patent examiner reviewing the original applications would have signed-off?

        I can. The method was so commonly used as a standard technique that there was no similar prior art to be found to question the claims so the examiner (presumably) had to rely on the art surrounding the general technology and judge the claim as "unique and unexpected" even though outside the system the technique was very well documented.

        Patent examination is a fishing expedition in a small pond defined by the applicant and if the examiner can't find similar fish there, they don't go fishing in the ocean.

        Not their job.

        What about my Daughter's future?

        by koNko on Sat Oct 13, 2012 at 04:53:09 AM PDT

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        •  And now, "first to patent", lol. (5+ / 0-)
          Recommended by:
          koNko, ubertar, BYw, elfling, WI Deadhead

          That's the new system that a recent patent "reform" law put in place. It replaced the "first to invent" philosophy. Has anybody patented the addition algorithm yet?

          Moderation in most things.

          by billmosby on Sat Oct 13, 2012 at 05:25:59 AM PDT

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          •  Bite your tongue! (1+ / 0-)
            Recommended by:
            elfling

            .. or file a claim, LOL.

            What about my Daughter's future?

            by koNko on Sat Oct 13, 2012 at 05:53:05 AM PDT

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          •  The change to "first to file" is to HARMONIZE (1+ / 0-)
            Recommended by:
            koNko

            with the patent laws in most other countries. (NOT "first to patent")  This is a change in US law from "first to invent."

            In most other countries, there is NO grace period for disclosing your invention before you file.

            In most other countries, patent applications published at 18 months after filing, and the US put that rule in place on June 8, 1995 (with one exception -- allowing a request for non-publication at the time of filing as long as you are not filing in other jurisdictions, and if you later do so file, informing the USPTO within 45 days so they can publish your application, and a penalty of unenforceability if you fail to make the disclosure).

            Just one more change in a continuing series of changes in patent law.

            "The battle, sir, is not to the strong alone; it is to the vigilant, the active, the brave." -- Patrick Henry November 6, 2012 MA-4 I am voting for my friends Barry, Liz and Joe (Obama, Warren and Kennedy)

            by BornDuringWWII on Sat Oct 13, 2012 at 11:22:59 AM PDT

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            •  The system is set up for big Business and trolls (2+ / 0-)
              Recommended by:
              wildweasels, koNko

              A first to file system means don't bother creating a prototype to see if it works. Just draw it, make the claims and file. That could easily happen when a inventor invites someone to look at his invention and the person shoots an image with his nifty iPhone, records the description verbally and then files a patent on it. He's the first to file. Even if the guy who invents it does file, but the other patent is issued first, he is SOL unless he sells out for pennies to a patent troll firm.  

              Try getting a declaratory judgement on a patent.

              I licensed a invention where there was a narrow patent. A frequent filer filed one that was so broad, it was as if the inventor had invented the category. The legal quote was for $70,000, 20 years ago which is the point I knew I had no funds to access the court system. They had been exhausted.  Nothing left for the attorneys.

              All the development costs, marketing costs , travel, trade shows etc was shot to shit. I was depending on making it as an OEM product, but the guy who had filed the broad patent had built a rep in my industry of turning businesses into parking lots./ As soon as their patent was issued, they sent a letter to all my potential customers and the whole product died. Now 20 years later, they are still trying to bring it after all the momentum we had built up was  gone.

              The suit would probably run $150,000 or more today and that's just to get a judge to order the patent office to reexamine a patent. That's when new information is supplied. Patent examiners, are, by and large budding patent attorneys. Many times they will be stubborn and let  two conflicting patents exist so they have a shot at the lucrative private sector jobs later. The whole system is rotten to the core.

              It's been bought out and blown up up by large companies, Patent trolls and the patent attorneys that serve them. Try to find a good patent attorney who will take a case on contingency.

            •  Japan is also an exception (0+ / 0-)

              They have a dual patent system, with "Regular" patents processed under the international norms and "Secret" patents going to a public vetting process before issuance.

              What about my Daughter's future?

              by koNko on Sat Oct 13, 2012 at 11:19:43 PM PDT

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          •  "First to file" may be unconstitutional (0+ / 0-)

            IANAL, but the Constitution specifically allows Congress to grant patent rights to Inventors.  By its normal definition, the first to invent or discover something is its Inventor, no matter who is first to file or publish.  So this "harmonization" will probably get challenged as soon as a deep pocket gets burned by it, and the outcome will depend on what SCOTUS decides is the legal meaning of Inventor.

            Better to hide your tax returns and be thought a crook than to release them and remove all doubt. [Adapted from Abraham Lincoln]

            by Caelian on Sat Oct 13, 2012 at 03:09:17 PM PDT

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        •  I didn't suggest it was sound (1+ / 0-)
          Recommended by:
          koNko

          Actually, my comment earlier says exactly the opposite of that.  However, the commenter to whom I was directly responding had the impression that substantive examination is simply not the duty of the patent office at all.  That is certainly not true.

          Your example is a great one for showing precisely one way that the system gets tripped up.

          "Put your big-girl panties on and deal with it." -- Stolen from homogenius, who in turn stole it from a coffee mug.

          by Mother of Zeus on Sat Oct 13, 2012 at 06:08:15 AM PDT

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        •  Enormous pressure to say "Yes" (1+ / 0-)
          Recommended by:
          koNko

          Every company wants to get patents for whatever it can dream up (even though the patents of other companies may indeed crimp its business). And Congress responds to the desires of companies, individually, in groups, and in terms of the corporate world in general. So the default answer of patent examiners, as a result of these pressures on the Bureau, would seem to be "Yes." It should be "No."

      •  The USPTO also has a natural inclination to defend (1+ / 0-)
        Recommended by:
        koNko

        its issuances.  So if they do issue a patent, they are inclined to defend it.

        and their contempt for the Latin schools was applauded by Theodoric himself, who gratified their prejudices, or his own, by declaring that the child who had trembled at a rod would never dare to look upon a sword.

        by ban48 on Sat Oct 13, 2012 at 06:12:00 AM PDT

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