Junk patent ditched in EAST TEXAS A US judge has tossed out a patent he considers “obvious”, and with it more than 150 lawsuits launched by a company called eDekka. eDekka had launched action against too-many-defendants-to-list here because they were based on “unpatentable subject matter”. That subject matter is US Patent 6,266,674 which describes something …
It's the USPTO that needs to be charged with everything from "gross incompetence" to "fraud" for allowing these patents to go through the system. They've cost not just the US economy but the world economy billions upon billions of dollars in junk patents they've allowed through since one of the Republican presidents turned them from a service centre into a for-profit money maker.
Indeed - for two reasons, though.
First is how a patent like this ever gets granted in the first place. Second is how in the hell it took 9 years to grant.
What are they actually doing? That it takes so long implies there is a rigorous process that must be completed for each patent but the results of the process (whatever it is) tell the exact opposite story.
I appreciate that much patent material can be highly technical in nature and that the language used is specifically vague and wordy and thus far from straight-forward to decipher but it surely must be a requirement that the people who grant a patent actually understand it.
It's damning whichever way you slice it - either they didn't understand the patent or they did understand it and granted it knowing that it was obvious. Or they didn't even read it.
None of those options describe a workable system.
That normally implies the patentee was playing the system, refiling with modified claims to extend the patents effective life or add claims, sometimes claims that would have prior art if not attached to an earlier claim date. The US patent system is almost designed for abuse by trolls. It sometimes looks like troops deliberately file defective claims knowing they can take their time fixing the mistake, without the patent life clock even starting.
I remember using the data structures created by Ashton Tate(?) for a program called DBase back in the 1980s. Data was collected, condensed and added to the files, then processed by an engine based on DBase code. OK there was no human intervention to enter the data, it was all machine based from creation to final analysis though the final print out was wetware readable. So prior art ruled supreme long before Trolls Unlimited stuck their feet into trying to create their bog of legal malfeasance.
Almost perfect.
Yes, it was A-T.
It was not Dbase. It was Dbase 2.
The important difference here is the 2
It could have open TWO (2) Different files
in full R/W mode.
OK kids. Laugh your asses off, now.
Your grandchildren will skewer you in the full measure of time.
For the historians... Think about this.
Having the capability of addressing Millions of records
In say, SALES and INVENTORY at the same time,
and the ability to deduct a unit in real-time
and record the sale.
I said 2 R/W files. So, you could READ more than 2 (client data)
Please remember, we're doing on this on 100,000 Instructions per second on
the IBM 5150 (Models B and Z). So, moon shot grade shit here.
Later, the mini based CDI 1000 database was ported now
to CDI 100 on the 5150. Gawd the small team was too
Exhausted to party when in config.sys you could enter
files=99
and have 90+ R/W files open at once.
<remember you still needed I/O for
keyboard, monitor, and that 30 character per second Hayes
Async modem>.
Tom 13 writes "You were doing fine on the front end of the post then went partisan. It wasn't a Republican who did this."
Hmm. Let's see.
1982 (Reagan, Republican) was the start of the problem, when a centralized appellate court was created, which turned patents into more powerful legal weapons.
1992 (Bush, Republican) was when the USPTO was converted to a profit centre.
However, it does seem that both times it was a mostly Democrat controlled House that passed the associated laws, and both Democrats and Republicans have bragged about how wonderful it is that the USPTO brings in all this money, while completely ignoring the damage it causes.
So yes, it was REPUBLICAN presidents in power when the damage was done. As I stated. If you consider that "partisan" so be it.
Most European patents are subject to public scrutiny before issue. The application gets published after 18 months and then anybody can write to the office providing relevant prior art and/or arguing why the invention is not patentable.
A lot of US patent applications are also published prior to issue, and the public have the same right to comment on pending applications.
It seems to be a very rarely used option though.
I was going to touch on that issue, but you beat me to it.
I would not be surprised that you have it 'spot on' - a shell corporation with no discoverable assets to confiscate in the event they lost. So, perhaps someone ought to go after the stockholders?
To pay for independent experts, which I would suggest would not be cheap, either the cost of the patent process has to come from general taxation or from the fee recovered from the applicant. Either way, someone is not going to be happy. (Those without deep pockets, or Republican/Conservative/Libertarian "small state" types)
Of course if one can bribe the independent experts, and one usually can, we're likely worse off than we are now. Heck, Edison had 'friends' in the patent office which helped him out from time to time, why can't anyone else with a few bucks to toss around?
How about if the patent author be required to write the patent in clear language rather than in verbose legal obscurese? A simple test would be to bring it down to the pub and if the bartender doesn't understand the language used, it isn't clear enough.
Once a judge passes a verdict like this the company using the patent to receive funds should immediately be liable to massive fines to discourage this sort of behaviour (and some extra rules might be needed so the courts can go after the parent company instead of letting it hide behind the shell company and let it go bankrupt.)
I have been repeating for years now that the only surefire way to prevent patent trolling from even starting is to tie the amount claimable to the revenue of the company.
Because the only entities harmed by patent abuse are the ones selling product. You don't sell product, you are not harmed if someone else is doing the selling.
That way, patent trolls will know that unless they make and sell what they have patents on, the judge will only grant them whatever they claim times the amount of goods they sell, which is zero.
If you know you're getting zero, you're not going to start the lawsuits.
And that nips the issue in the bud, and frees the Courts from dealing with them in the first place.
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" tie the amount claimable as damages to the amount that claimant itself "
A small inventor might have spent 100,000 UCU on a pretty impressive invention, idea of which MegaCorp steals and creates a product worth 1billion UCU the main part of it involving that invention.
The inventor wins in court, gets 100,000UCU and the MegaCorp goes away smiling.
Patents work if 1) They truly solve a problem that peers would find difficult to solve in such an efficient or practical way
2) They aren't issued just because the potential patentee was the first to solve a particular problem (for instance they were just the first to come across that problem)
3) They can be reviewed periodically to either limit claims on them or neuter them if the world has moved on sufficiently that patented item would likely to have been superseded or become obvious if it had never been invented (for instance - someone patents a data retrieval system from tape but databases come along and it turns out that the system used for retrieving data from tape has some overlap but there was no influence in the tape patent to the database patent).
4) Stop accepting software patents as they don't "transform a machine"
"Because the only entities harmed by patent abuse are the ones selling product. "
Now I'm not trying to defend any Patent Troll, however that idea is flawed.
If a genuine "inventor" has toiled for 5 years creating a truly innovative and patentable idea but doesn't have the skills/money/resources to turn it into a marketable product (or maybe it is only a small part that will transform existing products) then he would probably look to licence that patented idea.
If it is fair game (as he doesn't sell a product) for anyone to rip him off and create their own products based on it (he has after all published the way to do it via the patent system) then he would never be able to sell a licence or have any hope of getting any money for it. Any company he went to with the product to try to licence it could just copy it without fear.
His only option would be to sell the patent to a company that produces that product that could use that tech for a one-off fee - knowing that the situation he was in would likely to result in a much reduced offer. The company that bought it has a cheap patent, with the resources and the manufacturing to protect it, while the inventor gets a small one-off payment for his 5 years work.
"I have been repeating for years now that the only surefire way to prevent patent trolling from even starting is to tie the amount claimable to the revenue of the company."
No. It's a perfectly legitimate business model to develop something and licence it to others providing that the something is a genuine innovation. The problem here is the granting of patents to something that isn't innovative or that is obvious.
As far as S/W patents go, given any particular problem to be solved most of the time most developers will come up with the same solution or, at worst, one of a few alternatives and move on to the next line of code. Then along comes some smartarse who applies for a patent to do what a stack of others have done already. The patent offices should require evidence that the proposed patent solves something for which is recognised as a previously unsolved problem; such evidence might be peer-reviewed papers discussing the problem (and not strawman papers published by the proposed patent's claimants).
And the patent office that lets crap patents through should be liable for costs along with the troll.
Indeed it is, and when that happens, said inventor will be backed by said investor and they will be selling product, therefor will be entitled to damages.
Also, I never said that damages should be limited to sales, I said they should be linked to them. I am quite aware that trolls have vast lawyering coffers, so I will not venture to provide any rule more specific than the one I indicated : you produce nothing, you get nothing. Anything more complicated than that will likely have to be hashed out by lawyers in order to protect true innovators.
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That's a very bad idea. Yes, it would nip trolls in the bud. But established companies could trade patents (as they do today), while startups which have no revenue would be permanently shut out of the market.
Inventors could only work for huge corporations and never hope to have their own startup.
Is it obligatory when posting a Comment about patents to post the dumbest thing that comes into your head? It seems to be the rule around here.
"Because the only entities harmed by patent abuse are the ones selling product. You don't sell product, you are not harmed if someone else is doing the selling."
So you genuinely invent something that's worth millions and get a patent on it, but without massive investment or infrastructure you can't simply manufacture and sell it independantly. You then approach a large corp that it would fit well with, and offer to sell / licence your invention to them since they've got related products, capital, facilities etc. They use your patent info to build it themselves and pay you nothing...
By your logic you couldn't sue large corp since you don't produce anything and currently make no money with your invention.
No. that will greatly favor the large players and eliminate startups. There will be no reason for a large corporation to buy small startups. They could just blatantly steal their technology and pay the small fine instead. Perhaps it could be tied to the revenue from ALL sources.
Problematic. For all the trouble they cause these troll firms have decent lawyers. So it is likely any rule you can implement to attack the troll will be used instead by the troll to attack their prey.
No, this one needs to be solved at the Congressional and USPTO levels.
""filed in 1992, granted in 2001"
nine years! is that typical in the USA?"
Yup. Non patent trolls, you can get a fast track patent in a matter of weeks, and conventional months. But patent trolls use tricks to intentionally delay this process. Read on...
There's a few particular attributes of the US patent system that makes them take this long. Intended use was, back when people were working on whatever invention and were worried about someone filing days or weeks ahead of them. So, you can file a patent describing the basic device, and have some time to refile to add additional claims to the patent as you refine or add to your design. When you do this, though, it resets the time limit so you'd have a little more time to flesh out your design if you wanted.
The problem is, a patent troll can subvert this system, they will make frivilous "continuation applications" on the patent (legalese for a requests for more time). The classical "submarine patent", until 2000 one could keep getting their patent extended out, and it'd be valid 17 years from the date it's actually granted rather than the original filing date. This was put to a stop for patents filed after 2000, they're 20 years effective filing date. The new-style submarine patent, there is a tradeoff where the longer they submarine it, the less time they have left on the patent to collect on it. But, a patent troll can file a patent, add claims onto it for years, then when they pop this patent up and start swinging it around, defendants are expected to show prior art effective the original filing date, not the years later date the claims were actually added.
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