One of the issues with the patent system that causes trouble for companies involved in patent infringement lawsuits is that there's often a parallel process going on: you fight the patent in court and you also fight it at the patent office. The process for each is totally independent. Even worse, the patent office process is often much slower, and because you may not even realize that someone thinks you're violating their patent until they've sued you, quite often the case is decided or settled long before the patent office can rule on the validity of the patent. This is what happened in the infamous RIM-NTP case. While the US Patent Office surprised many people by publicly saying it would reject the patents even before it actually did -- solely to let the judge know -- it still didn't prevent RIM from getting pressured by the judge to pay $612.5 million to settle the case. It appears that there's a similar problem over in Europe, where the Court of Appeal has decided that even if a patent is later rejected by the European Patent Office fees paid for earlier infringement on that patent will remain in place. The ruling makes it clear that the court understood the two sides, but somehow decided that "certainty" was more important than "fairness" and "not having to pay for doing something that was perfectly legal." For some, perhaps that makes sense, but being in business is an inherently uncertain state of affairs. If certainty was the most important thing in business then the laws would be a lot different -- and economic growth wouldn't exist. Uncertainty is part of business -- and any exec at any company should know that. Then, of course, there's the flip side of this -- which is that if "uncertainty" is such a bad thing, why is it that the courts keep adding "uncertainty" to lots of innovative companies by letting others spring submarine patents on them after they have successful products?
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