back to article Tales from an expert witness: Prior art and patent trolls

John Watkinson is an expert witness and on many occasions has had to deal with patent litigation. Here he describes the application of ideas in the art of invention both historically and currently from Galileo to patent trolls. A patent is a form of contract between society and the inventor that benefits both. In return for …

COMMENTS

This topic is closed for new posts.
  1. Michael H.F. Wilkinson
    Thumb Up

    Very interesting read!!

    Thanks for that

    1. Evil Auditor Silver badge

      Re: Very interesting read!!

      Seconded.

      1. Will Godfrey Silver badge
        Thumb Up

        Re: Very interesting read!!

        And another. Good stuff

        1. BillG
          Mushroom

          Re: Very interesting read!!

          One correction:

          Having discovered, using his telescope, that the Earth went round the Sun and not vice versa, he [Galileo] was declared a heretic by the Catholic Church and spent the rest of his life under house arrest.

          Galileo was not declared a heretic for discovering that the Earth revolves around the sun - that is a common myth. Turns out that Galileo took that scientific fact and tried to incorrectly use it as a basis for changing religious beliefs - to wit, if the Earth with Man (his most important creation) is not the center of the universe, and if God created the Earth and Man, then God is not the center of the universe. For that he was declared a heretic.

          Of course, this isn't "fun", it's more fun to promote the myth than the fact (the basis of politics and good marketing).

          1. Marshalltown

            Re: Very interesting read!!

            One of the ironies here is that in an article about the use of prior art to invalidate a claim, we see the old saw about Galileo and his telescope. That the earth revolves around the sun is a self-evident fact to anyone who spends time observing the night sky for a few years and bothers to consider even briefly the fact that the "cycle" of the stars is slower than the cycle of of the sun. It is simply the simplest way to understand what you see. Ptolemy had to postulate multiple independent shells, a complex view that needed several miraculous elements to operate unseen before it could make any sense. The alternative view is much simpler, since it all can be drawn from everyday experience. Omar Khayyam considered the sun the center of the system long before Galileo and reached that conclusion using only the Mark 1 eyeball.

            1. J.G.Harston Silver badge

              Re: Very interesting read!!

              And yet using just the Mk1 eyeball the Greeks declared that the moon was a perfect orb, whereas even without my glasses on I can see that it is textured.

          2. Anonymous Coward
            Anonymous Coward

            Re: Very interesting read!!

            Ironically, while the Catholic Church was pushing the Earth-In-The-Centre teaching in Europe, in Asia, the very same church was actually teaching that the earth was going around the sun.

            How peculiar.

    2. MrXavia
      Thumb Up

      Re: Very interesting read!!

      agreed, very interesting!

    3. DropBear
      Thumb Up

      Re: Very interesting read!!

      Thoroughly enjoyable piece. Appreciated.

    4. Oh Homer
      Holmes

      Re: Very interesting read!!

      Agreed, however I feel some of the points need further scrutiny.

      For example, can it be any coincidence that the renaissance mysteriously ended around the same time as the enactment of the Statute of Monopolies in 1624, and that the subsequent industrial revolution was primarily only of benefit to rich monopolists, leaving us with substandard yet still expensive junk, mass produced by low-paid factory workers and adolescent slave labourers in sweatshops, instead of high quality yet still reasonably priced goods that last a lifetime, made by properly rewarded craftsmen?

      Sorry, but whatever the supposed "benefit" of that is, I must have missed it.

      I also find it curious that mankind seems to have had no difficulty inventing, creating and discovering things for most of its history, prior to the point where it was mysteriously deemed absolutely necessary to monopolise such things.

      1. John Gamble
        Alien

        Re: Very interesting read!!

        Eesh. Another who gets his history from Dan Brown.

        So, the Renaissance only happened in England? And it somehow wasn't of benefit to rich monopolists long before 1624?

        Look, just attribute the Renaissance to the space aliens and be done with it, okay?

        1. Oh Homer
          Headmaster

          Re: Very interesting read!!

          Where did I claim the renaissance only happened in England? It ended, everywhere, not just in England, just as intellectual monopoly spread like a disease everywhere, not just in England.

          The fact of the renaissance being a benefit to everyone, including rich people, is not in contention. Monopolies, on the other hand, are only of benefit to monopolists. Given a choice, I'm fairly confident I know which is better.

          1. Ken Hagan Gold badge

            Re: Very interesting read!!

            Has the Renaissance ended? It just means re-birth, so either it is an event rather than a period or it should be considered to last until the re-born thing dies again. Last I looked, that hadn't happened yet.

          2. John Gamble
            Alien

            Re: Very interesting read!!

            "Where did I claim the renaissance only happened in England?"

            I'm sorry, but you really should get into the habit of reading what you write.

            E.g.: "... can it be any coincidence that the renaissance mysteriously ended around the same time as the enactment of the Statute of Monopolies in 1624 ..."

            Beyond the fact that the Statute of Monopolies was an improvement over the then-current system of monopolies (or lack of system), there's also the minor detail that it was an English Act. Just how it was supposed to have ended the Renaissance in France, Italy, Spain, Germany, and other countries... well, as before, your best hope is the space aliens theory.

        2. Anonymous Coward
          Anonymous Coward

          Re: Very interesting read!!

          > Look, just attribute the Renaissance to the space aliens and be done with it, okay?

          That would be unfair. We had very little to do with it, actually.

    5. Anonymous Coward
      Anonymous Coward

      Re: Very interesting read!!

      Yes good read but missing the biggest patent fraudster and troll of all time - Thomas Edison.

  2. ratfox

    "In return for making the details of his invention public, the inventor is given protection for a specific time period in which he can exploit his invention."

    This feels at odds with the apparently prevalent habit to patent random crap with the hope that sometimes in the future somebody will infringe it unintentionally.

    Personally, I feel the main problem of the system is that people who invent something on their own should be allowed to use it, even if somebody else happens to have had the same idea before. In other words, the worth of a patent should be proportional to its inventiveness. As it is, every patent is accorded the same protection, whether the invention is incremental or ground-breaking…

    1. lglethal Silver badge
      Go

      In my opinion, the solution to the problem comes down to one thing, the patent office should be doing the proper research to check that a patent IS relevant. At the moment, the problem seems to be that you can patent anything, wether or not there is prior art, obviousness or it being relevant.

      If the Patent Office did its job properly, a lot of these problems would go away...

      1. big_D Silver badge

        The biggest problem at the moment seems to be that anybody can take an existing idea add the words "on a mobile device" to the idea and it gets a patent!

        E.g. How does having a menu "on a mobile device" differ from having a menu on any other device? A menu is a menu!

        1. Steve Todd

          I think you'll find

          That previous ideas have to be adapted in some way in order to make them work on a mobile device. It's only that method of adaption that is patentable, not just using them on a mobile device.

      2. PyLETS

        Empire building

        "the patent office should be doing the proper research to check that a patent IS relevant"

        Surely an organisation given a license to print money will run the press at full speed ? That's human nature.

    2. Evil Auditor Silver badge

      ratfox,

      I once had a wonderful idea. And while researching I miserably found out that at that very same moment a start-up company started to market a product based on "my" idea. Bummer.

      Part of "inventing"* something is doing research of what's already around. If it's already around, it's not an invention. And no, you shouldn't be allowed to use (i.e. to market) it. I do, however, have sympathy for your feeling but the problem with that is that you would be messing around with legal certainty.

      The value of a patent is what the market is willing to pay for - not more, not less (with the limitations/failures well described in the article).

      *It actually is research and part of research can be an invention.

      1. ratfox

        @Evil Auditor

        The way the system is set, if fifty people invent the exact same thing at the same time, there is only one of them who is allowed to use it. And that is the one who runs fastest to the patent office. For the life of me, I cannot imagine why this guy has more merit or should have more rights than all the others. He does not bring anything to society, since society would have lost nothing if he had slept that day. On the contrary, he takes something from society, as he prevents all the others to exploit the idea in various and possibly more interesting ways. I don't see why society rewards this guy.

        The patent system is not an end in itself. It was created to foster innovation, and ultimately to benefit society; not to recognize some moral rights of inventors. If society does not benefit from granting exclusivity to first inventors, it should not be done.

        1. Yet Another Anonymous coward Silver badge

          Re: @Evil Auditor

          During the first year after filing a provisional patent it is kept secret by the patent office and you have time to improve it before final submission. There is a reasonable case that any other patents filed during this year should all be granted equally rather than first to file takes all.

          1. Steve Todd

            Re: @Evil Auditor

            The US used to run a "First to Invent" system, but then you got into long and protracted arguments over who thought of the idea first and it was subject to abuse (something that Edison got up to IIRC). First to file may not be perfect, but it is easy to prove and is the way that the rest of the world's patent systems work.

        2. Anonymous Coward
          Anonymous Coward

          Re: @Evil Auditor

          > The patent system is not an end in itself. It was created to foster innovation, and ultimately to benefit society; not to recognize some moral rights of inventors. If society does not benefit from granting exclusivity to first inventors, it should not be done.

          History is replete with incidents of this happening: still camera photography, moving image photography, electric light bulb....

          A lot of inventions come about because the time and technology is right. It is well known that a number of people were working simultaneously on movie photography. In this case it is certainly a race rather than innovation per se. However, in those cases, you could argue that there is insufficient innovation and the invention would be obvious to those skilled in the art if a number of people were pursuing the development.

          To be truly innovative, the invention should really come out of the blue without it being anticipated.

        3. Evil Auditor Silver badge

          @ratfox 15:46 GMT

          I agree with all what you said. I have a question though. What would be better than a patent system?

          The current patent systems are not perfect. Sometimes they fail (trivial patents, high litigation costs, etc.) and the system could likely be improved.

          I believe, however, that in general society does benefit from granting (temporary!) exclusivity to the patent holder. Without this exclusivity the inventor would probably be better off keeping his invention secret thus preventing others from using this idea for further innovation.

    3. dssf

      Patent-Worthiness... I wholeheartedly agree, too.

      The value of the patent should lie in how the actual, real, verified users are making do with the invention. Imagine if Ford got the patent to autos and KEPT it forever, and no one could improve upon it. What about socks, toothbrushes, hair brushes, drink mixers, TOILET PAPER, and on and on.

      Electronics and apps should be accorded no special privs except in the case of BLATANT rip-off and shameless purloining as original.

      If someone invents a neutron flux backscatter thingamajiggy, and in functions shittily, and the buyers hate it, and someone analyzes the nfbt's flaws and improves upon it, then good on them. Process and workability should determine whether the improver gets to keep using it, AND without having to pay royalties to a capable but lazy inventor, or a patent-seeking entity looking to screw people and companies should NEVER be rewarded. Such trolls should be nuked, and by DNA and assets connections be forever denied filing for or benefitting from a patent when discovered to have been found a PAE shaking down or booby-trapping well-meaning, legit, active, productive filers of patents that are for products that are factually well-received.

      Just my $1.79

  3. silent_count

    Wish I could up-vote articles because this one surely deserves it.

    Like most sane people*, I'm annoyed by the volume of the absurdity that exudes from the patient office, the patient trolls, and the companies who view the patient system as a stick to beat potential competitors with.

    As someone more directly familiar with the system, I'm curious about Mr Watkinson's view. Is the patient system salvageable? Or would we be better off tearing it all up and starting over?

    * There's whole minutes at a time when I'm lucid!

    1. Hollerith 1

      Yes, indeed

      I, too, would like to hear more from Mr Watkinson on 'is a workable and honourable patent system possible' and perhaps 'most ridiculous examples in the annals of trolling' and even 'how to do it right'.

    2. Pascal Monett Silver badge
      Coat

      "the absurdity that exudes from the patient office, the patient trolls"

      Patient trolls are probably the most vicious adversary you can possibly encounter.

      1. Dr Stephen Jones

        Re: "the absurdity that exudes from the patient office, the patient trolls"

        More vicious than a suicide bomber? I don't think so.

    3. DJV Silver badge
      Facepalm

      Patient Trolls

      Are those the ones that hide under hospital beds?

  4. Flocke Kroes Silver badge

    You missed the most common way inventors deal with patents

    Don't waste your time reading them because:

    You would have to read thousands to find anything relevant.

    You would have to learn patent language to understand them.

    Even if you understand the patent, your still have to do the research to create a product.

    Reading a patent makes you liable for triple damages.

    You are going to get sued anyway.

  5. Anonymous Coward
    Anonymous Coward

    "and I bought a helicopter. Those were the days."

    Best Article Ever. Can you employ/get more from this person? Loved it.

    I'm planning to add that sentence to my memoirs too, but it will be one of those £30 toy ones. :D

  6. DJO Silver badge

    The world’s strongest industrial nation, the United States, has probably reached that position because its constitution separates the state from churches.

    Partially yes but mainly because for the first 100 -150 years of the US they completely ignored foreign patents and copyrights. A tactic that's not so easy now days and see how they whine when other countries try to do the same to the US.

    1. Fred Flintstone Gold badge

      Partially yes but mainly because for the first 100 -150 years of the US they completely ignored foreign patents and copyrights

      .. which is a point that Cory Doctorow has made repeatedly, making the vast patent and copyright industry that exists now (and their whinging at China for principally doing the same) and all the associated chicanery in law and international politics just a tad hypocritical IMHO.

      BTW, I second the general upvote of the article - it was interesting, informative and insightful.

    2. The First Dave

      In that case, the constitution can be said to have failed, since judging by the influence that the church currently has over all US politicians.

      1. <shakes head>

        slight mistake

        it is the beliefs that has the infuence not the church per say.

        1. This post has been deleted by its author

        2. Anonymous Coward
          Anonymous Coward

          Re: slight mistake

          > per say.

          "per se" (by itself).

    3. Naughtyhorse

      ... And another thing

      It's overstating the case of separation of powers.

      It may well say that in the constitution, but it is actually the case that

      the US is to Christianity what Pakistan is to Islam.

      apart from that, most informative and entertaining article.

      1. Anonymous Coward
        Anonymous Coward

        Re: ... And another thing

        It is the worst example because of the fundamentalist steering politics?

    4. disgruntled yank

      yes, and

      The Bill of Rights states that Congress shall make no law, etc. At the time the Constitution and the first amendments were ratified, there were a number of state churches, and in a number of the fastest-industrializing states.

    5. Ken Hagan Gold badge

      Ignoring foreign copyrights was an own goal, since it created a situation where US authors were unattractive to US publishers because the latter could reprint new work from across the Atlantic without paying. The likes of Edgar Allan Poe suffered greatly because of this. If the US were still working this way, I doubt there would be a film industry in Hollywood (except, perhaps, for the porn).

      1. Anonymous Coward
        Anonymous Coward

        > If the US were still working this way, I doubt there would be a film industry in Hollywood (except, perhaps, for the porn).

        Wouldn't that be a most desirable state of affairs?

  7. Anonymous Coward
    Anonymous Coward

    err don't you mean...

    "Galileo Galilei, who may not have invented the telescope, but who was definitely the first to make it work properly.

    Original sinners

    Having discovered, using his telescope, that the Earth went round the Sun and not vice versa"

    Ptolemy discovered it and Copernicus rediscovered it.

    Galileo confirmed it by scientific observation.

    1. Brewster's Angle Grinder Silver badge

      Re: err don't you mean...

      *cough* Ptolemy promoted a geocentric model. *cough* Aristarchus of Samos opted for a heliocentric model and did so 400-500 years before Ptolemy. There are even older, non-geocentric models, but they are very strange.

    2. Ken Hagan Gold badge

      Re: err don't you mean...

      Galileo's contribution was to find four moons orbiting Jupiter. That made it hard to argue for an anything-centric universe.

  8. Thunderbird 2
    Thumb Up

    Quite probably the best article i've ever read here.

    I Wonder if this could be a semi-regular feature?

  9. Peter Simpson 1
    Childcatcher

    A baldric

    "I have a cunning plan..."

    // hizonner seems to have been a fan

  10. qwarty

    Skilled in the art

    Unfortunately, the language of patents has been contrived by lawyers to make the text totally unreadable or understandable by everyone actually skilled in the art to which the patent claims purport to apply.

    Also, after 30 years in software development, R&D etc. I have yet to meet anyone who has read a software patent in order to find out how to solve a problem.

    1. dssf

      Re: Skilled in the art... Reading of Patents SHOULD be Encouraged

      And lawsuits for reading should be QUASHED... Provided:

      -- the author/inventor of an improved/claimed improvement demonstrates there is not attempt to baldly rip off the original product

      --the author/inventor demonstrates how his/her improvement is materially improvement upon the prior art

      -- the courts or some sponsors pick up and actually TEST the thing for its merits (blind tests/open tests), and if feasible, replicate and distribute the competing items and let the testers (vetted and non-vetted) weigh in. IF a super-duper-piece-of-shit wins in court, and it is the ONLY version allowed based on the power or cunning of the lawyer and the timeliness of the inventor/improver, then society indeed suffers and is stuck with a POS that does not do what the potentially improved product offers/enables.

      This is why I favor a hybridized FTF/FTC system. Demonstrate originality or worthwhile improvements. Then, go further to demonstrate how MUCH a significant improvement the upstart/disrupting introduction is. If it is marginal improvement, but works in a different way, is not using more than 10% of the shapes of the original (for really novel original at-threat items), and cannot be easily confused by appearances, then improvements should be allowed.

      If an improvement is real, tangible, effective, enables improved productivity, and costs are not a severe, hostile under-cut, then is should have equal opportunity to compete. Society should not reward half-baked, first-to-file products if the inventors thing they can go on "auto-pilot" and sit on their asses when an improvement is champing at the bit to help people who'd pay in a heartbeat for said improvements.

      Inventors have to INVENT, and RE-invent, and one-shot-wonders hardly are perpetually rewardable. Inventors need to cover ALL currently-imaginable bases, not trawl and troll the future improvements that cannot easily be seen, or that the original inventor thinks to be too costly to pursue, doesen't want to pursue, and defies anyone else to expose an improvement.

  11. Mage Silver badge
    Headmaster

    Possibily till recently the World's Strongest Industrial Nation.

    Generally excellent, but this is plain wrong:

    "The world’s strongest industrial nation, the United States, has probably reached that position because its constitution separates the state from churches."

    I think by 19th Century the Church wasn't holding anyone back in Europe. During that period the USA ignored copyright (even today there are issues with US Book & Magazine distributions in UK & Ireland in retaliation and still a problem with Music Industry royalties on Radio in USA vs Rest of World) and ignored patents. Right in to 20th Century.

    They only strengthened USPO and US Copyright in 20th Century to protect their own alleged IP.

    Nothing to do with the bizarre Religion vs Government in USA (In God We Trust). C.f. France since the Revolution. Also Northern Germany became Protestant in Luther's time to avoid Church interference in State.

    Rest of article more reasoned opinion, but that statement is false.

    Also China is or may soon outstrip USA. But again it's nothing to do with separation of Church and State.

    1. captain_solo

      Re: Possibily till recently the World's Strongest Industrial Nation.

      especially since in China there is no distinction between Church and State. One is all that exists and the other is not technially allowed to exist except as part of the State

      No connection, and in fact in practice in the U.S. separation of Church and State has had far greater impact on the Church than on the State. Oh, and its also not actually in the Constitution FYI. "Congress shall make no law" is clear to anyone proficient in the field until they let the patent lawyers start interpreting it.

  12. Hud Dunlap
    Facepalm

    I have a problem with the last sentence

    " One of the best guides for inventiveness is that all of the ingredients were readily available, but no-one had previously thought to combine them in that way. ®"

    So you are saying the intermittent windshield wiper patent was valid? I know it was upheld as valid and if memory serves the inventor was paid three cents per vehicle with the intermittent wipers installed.

    Ok so it is a motor with a timer. No big deal but because no one had thought of putting it on a windshield wiper it was innovative?

    1. Yet Another Anonymous coward Silver badge

      Re: I have a problem with the last sentence

      Was there a demand for an intermittent wiper - yes

      Was it possible with state of the art technology - yes

      Had anyone else thought to make one - no

      The wiper case is one of the classic rip-offs of a small inventor, it took him most of his life to collect on the patent which was stolen by all the big auto makers. Their tactics (legal and illegal) make a classic story

      1. Anonymous Coward
        Anonymous Coward

        Re: I have a problem with the last sentence

        > The wiper case is one of the classic rip-offs of a small inventor, it took him most of his life to collect on the patent which was stolen by all the big auto makers. Their tactics (legal and illegal) make a classic story

        Indeed as I said above in response to someone else, most inventions come about because the need is there and the technology is ready. Very rarely does it occur that an invention totally comes out of the blue and no-one saw it coming.

        This is why a lot of inventions are worked on simultaneously by a number of people because the time is right and the technology is available.

      2. Hud Dunlap
        Trollface

        @yet another Anonymous coward

        I have to say that you and the people who up voted the post are part of the problem. There is no innovation here.

        Did anyone else thought to make one. I am sure people did, it just wasn't on there list of things to do. Did a lot people think it wasn't patentable. I am sure of that.

        Back when the Nest Thermostats were coming out I did a little research into the patent issues they were having with Honeywell. The patents were a lot like this. Plain language programing. Not innovative at all, just the next step in product evolution.

        http://allthingsd.com/20120926/nest-takes-honeywell-patents-back-to-the-drawing-board/

  13. Ian Michael Gumby

    Its a Catch-22

    In the first page of the article, all of the examples are physical products that were patented.

    Airplanes, Turbine engines, Hoovercraft and the infamous Dysons which are now worthless because of quality control issues and cheap manufacturing. (Sorry Dyson...)

    But I digress.

    Today's issues are less about patenting physical objects, but the patenting of business processes and such.

    A shopping cart for a web site? Really? Design of a screen layout and what a swipe or gesture means? Again, Really?

    The point is that software patents are being given out when the idea isn't really novel, unique or worthy of a patent. IMHO, this has to stop.

    With respect to patent trolls, its a slippery slope.

    First, a patent has value. Its intellectual property. Its considered an asset and is treated as such. It can be bartered, sold, and licensed. So as an asset, you have the legal right to protect that asset.

    You can't just remove the right of anyone who owns a patent, to protect the value of the asset against infringement. (Oracle bought Sun which owned Java. Google allegedly copied Java to get out of paying royalties on Java ME. Doesn't Oracle have the right to sue Google?)

    The point is that legitimate companies can buy and sell companies and their assets, or just buy the asset and have the legitimate right to protect the asset.

    So, how do you define a patent troll?

    Merely having a portfolio of patents doesn't make one a troll.

    Merely protecting your assets doesn't make one a patent troll.

    Its when the patent holder abuses the court system and uses it to blackmail litigants in to settling because its cheaper than fighting it out in a protracted court battle.

    There is a company that just settled with the NY State's Attorney and has to refund any monies gained from their lawsuits against New Yorkers and an agreement to never sue anyone in NY again over these patents.

    Its at the point that the patent holder becomes a vexatious litigant that they should be tossed from the courts.

    We saw this in a group of lawyers who sued people on copyright infringement over porn distributed via bit torrent. Only the lawyer owned the company purported to own the copyrights to the porn... (or something like that.)

    I'm not trying to condone patent trolling. Far from it.

    I'm just trying to point out that the problem is harder than you'd think and that while it would take a judge to rule that the trolls are along the lines of a vexatious litigant, we also need to stop the bogus 'Business Process' and Software patents from being created in the first place.

    1. dssf

      Re: Its a Catch-22... What makes a troll...

      What makes a patent troll.... My two assertions for legally eviscerating PAE back into the past of unborn...

      -- Having a portfolio and using it as a minefield with which to entrap those who step in (wittingly or unwittingly) and blackmail them in order for them to get out alive/in one piece.

      -- Having a portfolio and doing not a damned worthy/material/productive thing with it except to amass weapons of lawsuit destruction (WLDs) and/or stillbirth innovation, or to act as a gatekeeper to improvements when the portfolio is not really in use as live, tangible products for anyone other than the holder of the portfolio.

    2. PJI

      Re: Its a Catch-22

      >>he infamous Dysons which are now worthless because of quality control issues and cheap manufacturing. (Sorry Dyson…)

      Beg to disagree with this unsupported statement: I've had the full size versions and we use one of the handhelds frequently (or my wife does), have done for a couple of years, as have several others I know, because it is so useful. I note, when in UK, that lots of shops use Dysons because of their design and robustness. None of those that I have bought, nor those of people I know personally, have failed.

      I suspect that those that fail are either the usual sample with absolutely any product and those in the hands of people who seem able, (back to computing), to break laptops made of metal while denying abusing them.

      It's odd and perhaps supports some of the assertions in the article; but anything differing from what people are accustomed to seems to attract negative, false or ignorant responses. Then, once it gets widely copied it suddenly gets widely accepted or the copies do at least, just like certain mobile telephones from certain and Far Eastern sources.

  14. donik111

    Not Galileo but Copernicus

    "Having discovered, using his telescope, that the Earth went round the Sun and not vice versa "

    Not Galileo but Copernicus before him. Have discover that the Earth is rotating Sun not Vice Versa.

  15. Matt Devney
    Thumb Up

    I know how to fix it!

    All those experts that clients hire to prove prior art or whatever ought to work at the patent office instead. Then the bogus patents would never be granted in the first place, and all that legal stuff should go away.

    Unfortunately, there might not be as many helicopters for these experts if that happened, but I'm sure they wouldn't mind in order to make the world a better place!

    1. Yet Another Anonymous coward Silver badge

      Re: I know how to fix it!

      Who pays?

      If the applicant has to pay for 1000s of hours of world class expert consulting - it's going to be difficult for the small inventor to get a patent.

      If it's tax-payer funded then within a few years we drop back to the USPTO as more cuts/efficiency gains hit.

  16. Petrea Mitchell
    Alert

    Naming patent trolls

    Great article, but I have a nit to pick with: "When I was first involved in this sort of thing, it didn’t have a name."

    I recently read a book from 1934* which makes reference to "the special vehicle for exploiting patent monopolies", which seems to be about the same thing as a patent troll. Only briefly, though, apparently expecting the contemporary reader to be fully aware of the issues involved.

    The same book also bewails what's now called a patent thicket (they don't seem to have had a specific term for it at the time), mentioning for instance a mechanical loom which had to license 80 different patents.

    *Technics and Civilization, by Lewis Mumford

    1. Yet Another Anonymous coward Silver badge

      Re: Naming patent trolls

      The problem USED to be patent monopolies. The development of the steam engine was held back for a generation because James Watt held a near monopoly with patents and had strong views about high pressure boilers. But these were people who wanted to build something - it's just that they wanted to be the only ones to build it.

      The business model of buying patents purely to sue someone with no intention of developing a product is new = patent trolling.

  17. Charles Manning

    Expert witnesses hardly better

    I have been closely involved in a two patent cases, one of which was a defense against a well known company with a chair shortage.

    They hired two expert witnesses, both at over $400 US per hour. Both swore in their statements that this fee did not impact on what they had to say and both lied their pants off.

    Expert witnesses are not witnesses in the general sense of the word. Like good accountants, they can spin the facts any way you want them to.

    1. Anonymous Coward
      Anonymous Coward

      Re: Expert witnesses hardly better

      > Expert witnesses are not witnesses in the general sense of the word. Like good accountants, they can spin the facts any way you want them to.

      Charles, please do not generalise.

      First, in some (many? most?) countries, expert witnesses are nominated by the court from a list of people licensed and trained to provide this service, with the money held in escrow by the court, so there is no real incentive to be partial to one of the parties--although I will admit that this sometimes happens.

      Second, I acted as an expert witness on a handful of occasions in a previous life, and from the go I made it very clear to the requesting party that whatever came out from my research was what was going into the court report, and that it was just as likely to harm them as help them. People valued professional integrity because even when they had a losing case, at least they knew in advance how badly it could go and they could do proper damage control. To repeat myself, in my experience sometimes it happened that you had "crooked" (most likely misguided or inexperienced) witnesses, but the majority were above board.

      Mind you, I am not talking about either the UK or the US here. I don't know what goes on over there.

  18. JaitcH
    Alert

    If you write encryption software never patent it in the ...

    USA first as the USPO will freeze the registration until NSA, Pentagon, etc., have checked out it's value to them. Always register it with several Patent Offices in different countries simultaneously then the US Government will have no reason for seizure.

    Also use obtuse descriptions and avoid the obvious words such as 'encryption'.

  19. Stevie

    Bah!

    Hehhehheh. I have a copy of that automatic hat-doffer patent in a quirky little book titled "Absolutely Mad Inventions" I bought while at UEA in the mid 70s (published by Dover who I discovered a few years after I emigrated are based not 20 miles from my house on Long Island, NY - small world).

    The hat doffer is not the stupidest invention in the book. That claim must go to the idea of laying rails atop locomotives so that they may safely meet head on ...

    My favourite is the idea of putting fins on the spout of soda water siphons so that "they may not be misused" by "introducing them into body cavities e.g. as a syringe". There's a picture in one of the Monty Python books of Napoleon forging Luncheon Vouchers that I think must resemble the author of that one at work, feverishly working to save the world from a horror too foul to say out loud.

    Recommended reading.

  20. bfwebster

    "The fact that the patent was granted is harder to explain."

    I also work as an expert witness in IT-related intellectual property litigation, including patent work. That one sentence sums up my frequent experience. While I have seen truly novel and inventive patents with no prior art, I have also seen quite a few that have caused me to burst out with, "What? They claim that as a novel invention? In [insert year of patent application], no less?" But there you have it.

  21. Anonymous Coward
    Anonymous Coward

    Ahem...

    There was a post here yesterday by one "Bluepants" which, although a bit caustic, was nevertheless not entirely inappropriate (especially seeing the general level elsewhere in these comment threads). It contained a critique of the article by Mr. Watkinson--it used strong language which, granted, could have been toned down somewhat but no insults per se, and in my opinion a majority of his points were actually valid and useful feedback for the author.

    It has been deleted.

    Even my reply to him, which I can't see being offensive to anyone at all, has been deleted. I shall assume that this was done by mistake and repost it again so it can be judged in its own merits.

    This is ElReg's playground and they can do what they want with it, I understand that. However, if valid criticism of their articles is not going to be tolerated, I would like to know. Thank you.

    My original message:

    « Blueunderwear, I regret to say it is you who looks a bit agitated from the tone of your post. With that said, I must agree on a majority of your points: namely that the article is poorly structured and that many of his illustrative or incidental points are not adequately presented or suffer from a lack of diligent fact-checking.

    « That notwithstanding the article, if read as a personal experience narrative, is somewhat interesting. Perhaps Mr. Watkinson could take the essence, if not the tone, of your post as constructive feedback for any future contributions? »

  22. Herby

    Problem with "Prior Art"

    The wonderful patent office doesn't see very clearly, and is VERY self centered. In their mind "Prior Art" is "that which is patented". While this is at times reasonable, it doesn't take into account other forms of "Prior Art". Things can get pretty obvious (turn the screwdriver clockwise) obviously need not be patented, but as the author mentions "synchronization of bits on a disk drive" was pretty obvious to those who made them, and it wasn't documented as it was "common knowledge". When they decided that "software" was patentable they didn't have much "prior art" in the patent library, and as such granted bunches of patents on things that were already in use, or "commonly known" to those of us who practice the art of software. This is the reason that software patents are really bad (Amazon "One Click" comes to mind).

    Some of this could be mitigated if the public were more involved in the patent process, not just patent examiners. With the public's help say after one year of patent office examination, we could input our objections and notices of "prior art" and the patents issued would be much stronger than they are now. Wishful thinking, but it would be nice to have.

This topic is closed for new posts.

Other stories you might like