back to article Intel, Apple, Cisco, Google sue US Patent Office – Tech police, open up!

Intel is leading an effort to force the US Patent and Trademark Office to axe a new rule said to favor litigious patent trolls. The USPTO manages Inter Partes Review (IPR) panels that can be asked to assess granted patents and decide whether to throw them out on the grounds they should never have been approved in the first …

  1. DS999 Silver badge

    How else is the IPR process supposed to happen?

    You need financial incentive to challenge someone else's patent, because it isn't like you can just say "hey check out patent number 12345678 and see if it is legit" without any cost or any work on your part. If you could, someone would set up a bot that automatically files a challenge to every patent that gets issued and the process would be overwhelmed and meaningless.

    Not only do you need financial incentive to challenge a patent, it would cost a lot of money to trawl through 20 years worth of existing valid patents looking for ones that you might violate in order to challenge them. Most of the time companies have no idea they might be violating a troll's patent, because the way patent law is written they have every incentive NOT to look and see if they might be violating the patents of others.

    Even worse, challenging such a patent would be a red flag to the company that owns that the challenger believes they might be violating it. Even if you do it through a third party shell, it would still draw attention to the patent so its owner devotes more resources to seeing if they can muster up a lawsuit against one or more parties.

    I don't see what's wrong with the idea of challenging the validity of a patent as part of the claim. If you say they can't do that, then if a junk patent isn't challenged before, and can't be challenged after a lawsuit is filed then justice won't be done if a company is made to pay up a lot of money based on a patent that should never have been granted.

    If they ban just the company being sued from challenging it, but not others you'll just see the big tech companies named here set up a joint venture foundation they each contribute money towards that has as its only job challenging the validity of a patent whenever a lawsuit is brought against one of the companies in the consortium. It won't reduce the PTO workload, it'll just make more work for everyone by adding an extra layer to the process.

    1. lglethal Silver badge

      Re: How else is the IPR process supposed to happen?

      Your looking at it completely the wrong way. The IPR is a loosely attached bandaid over the gaping wound that is the USPO.

      The USPO sees its job as granting every patent submitted with the absolute minimum of checks, so that they get paid. Naturally this leads to utter junk patents that are clearly covered by prior art being granted and everyone else paying for it through needing to fight various patent trolls in court or paying them off if that's considered cheaper than actually fighting the action in court. Even if you would win, sometimes its cheaper to pay thanks to the US legal system.

      The USPO should be forced to do its actual job, of checking the actual validity of patents before granting them, and then the IPR process wouldnt be necessary. Wow revolutionary thinking, huh?

      1. Anonymous Coward
        Anonymous Coward

        Re: How else is the IPR process supposed to happen?

        "The USPO should be forced to do its actual job, of checking the actual validity of patents..."

        The USPO does do that.

        Would you like it if the USPO had a legal team to fight people filing patents? Large companies surely would, which is why large companies always use the children "patent trolls" to ever push their control over the USPO, which in turn greedily isolates large companies from poorer creators.

        This isn't about what you think it's about, and it hasn't been in 40 years.

        1. Graham Cobb Silver badge

          Re: How else is the IPR process supposed to happen?

          In the current state of technology, there really are no "poorer creators".

          Just having an idea isn't patentable. Patents should require that the inventor has done a lot of work to prove that their idea works and can be manufactured. Maybe a hundred years ago one guy could do that (although we all know the story that Edison had to spend many years, and employ many people, testing lots of ideas to find a workable light bulb). Now that is impossible.

          The patents filed by "poor creators" today are small variants on prior art and/or vague and unimplementable. They are almost all crap.

          It would be nice if that wasn't the case. It would be nice if one guy in a garage could come up with a valuable invention. But that time has passed.

          That realisation, combined with the fact that almost all innovation today is in software, means to me that the patent system has outlived its usefulness and needs to be scrapped. At the very least, it needs to be very firmly restricted back to physical products and physical industrial processes: if you have expended over 100 person-years of effort on developing a new drug or a new manufacturing process then you should be considered for a patent.

          1. Anonymous Coward
            Anonymous Coward

            Re: How else is the IPR process supposed to happen?

            "But that time has passed."

            Would you say, 40 years passed? Are you understanding what is happening to the patent system, political system, capitalism... just the whole system in general?

            Anything done in favor of today's large corporations hurts people. But, like you say, it would be nice if that wasn't the case.

      2. DS999 Silver badge

        How is the USPTO supposed to do that?

        How much would it cost to have experts in every field working there, so they properly evaluate them? How much time would it take to trawl through decades worth of patents to insure there is no prior art?

        It is simply a matter of efficiency. The best course of action is to assume a patent is valid unless it is obvious during the initial evaluation it is not, and allow patents to be properly challenged later by experts in the field only when necessary (i.e. during a lawsuit)

        Otherwise there would be a ton of wasted effort to do the same thorough evaluation for every patent submitted, even though 99.99% of them never become a legal matter and it doesn't end up mattering whether or not they should have been issued.

        1. lglethal Silver badge

          Re: How is the USPTO supposed to do that?

          Every other nation does it so i fail to see the problem. The EPO definitely does it, as I can attest to from when they came back on one of my ideas with an obscure chinese patent (tangetially related to my patent application but not actually using the same tech), and required me to modify my patent application enough to prove originality or it would be rejected. Getting a patent with the EPO costs a lot and takes a lot of time (about 2 years), but the system works, if you have a patent from them, people know its very likely to be valid.

          The USPTO should have the people able to do a quick word search from a patent application review previous patents with those keywords and determine if there is prior art. They dont do that. They rubber stamp the application through. It's at the point where a patent from the USPTO is basically considered unsound from the beginning, and able to be challanged without too much effort.

          It costs time and money to get a patent application granted anywhere else in the world. And it should, because what you're asking for is the right to have sole claim over an idea to monetise as you wish for the next 20+ years. That should not be something that should be easy to obtain. Not if we dont want innovation strangled in red tape and unjust lawsuits...

          1. DS999 Silver badge

            Re: How is the USPTO supposed to do that?

            What you mean to say is that the EPO does a better job at it than the USPTO, but if you think they are doing a perfect job you're fooling yourself. They will still miss prior art, approve patents that shouldn't have been approved and so forth, and still need a process for such bad patents to be invalidated.

  2. cbars

    Long term

    If USPTO wants less work throwing these out, they should stop granting bullshit patents. They brought this on themselves by making the application process a rubber stamp exercise.

    1. Doctor Syntax Silver badge

      Re: Long term

      OTOH they have a massive incentive to rubber stamp them because of the fees.

      The way to reverse this would be to make them liable for all the challengers' costs on successful challenges.

      There might even be an argument for making them liable for the holder of the failed patent on the grounds that is the patent had been refused initially they wouldn't have made the failed attempt to assert it. However covering the costs of trolls ought not to be supported by public policy - best just to return their fees.

    2. Mage

      Re: Long term: Elephant in Room

      USPTO makes more money by granting patents than refusing and lower costs by not checking that they are not too broad, not easily thought up by someone versed in the Art, not considering Prior Art (especially if not in USA or decades ago) and not considering novelty.

      They are about making money and protecting the larger USA based Corporates. Not about patents as originally envisaged. But this problem started in the Victorian era. Edison exploited the system. Then from the 1920s it was RCA.

    3. Blergh

      Re: Long term

      What they should do is double the cost of a patent application, and then if it gets accepted you get half the money back. This way the USPTO would be incentivised to refuse patents. Of course this might backfire and they simple refuse all patents, but that would just show how corrupt the whole thing is anyway.

  3. MiguelC Silver badge

    Never expected saying this, but...

    I hope Intel, Apple, Cisco & Google succeed

    (in this case alone)

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