If Patents Are Supposed To Support The Independent Inventor, Why Isn't There An Independent Invention Defense?
from the copycats dept
Joe Mullin has written up an interesting post, talking about how almost no patent infringement lawsuits involve accusations that one firm specifically “copied” the other. Traditionally, of course, if you think about intellectual property or the way most people view intellectual property — and you hear that someone’s been accused of patent infringement, their first thought is that the invention was “copied” or (as some incorrectly claim) “stolen.” Yet, the evidence suggests that this is rarely, if ever, the case. Outside of the pharmaceutical industry, you almost never see accusations of outright copying — even though there is some incentive for the accuser to bring that up in court (both to influence the jury and to make something of a case for willful infringement). Now, as the post and the comments show, there’s not a direct correlation between “copying” and “willful infringement,” so not every case needs to show direct copying — but you would think that such evidence would make the overall case stronger (especially in front of a jury). Yet, it almost never happens.
And that, of course, highlights one of our biggest concerns about the patent system. It’s the total lack of an independent invention defense. In fact, I still contend that if you can show multiple people invented the same thing, independently, around the same time, you’ve established a pretty clear case that the concept is obvious to a person skilled in the art — and thus, unpatentable. Unfortunately, this argument is rarely used in court (though, sometimes…).
I always find it amusing, however, when the strong patent system defenders rush into the comments and automatically accuse any accused infringer of “theft” and “destroying the small independent inventor.” That’s because they never have an answer for the “theft” and the “destruction” of the independent inventor (or, more likely, inventors) who came up with the invention entirely independently, but are totally barred from using the invention without purchasing a license. That seems like a much bigger “theft” both to those other independent inventors and to the rest of the world, who is left with a single monopolist provider.
Filed Under: independent inventor, patents
Comments on “If Patents Are Supposed To Support The Independent Inventor, Why Isn't There An Independent Invention Defense?”
Theft of an idea, proved beyond a reasonable doubt? nay.
But you bring up a good point, Mike.
If I was an IP lawyer, I’d ask why make it more difficult than it is? In an IP case, burden of Proof is on the invention, who files, and not on the acquisition process. There is no need to establish reasonable doubt, (reasonable doubt for what?) when you describe in patent filing how it works.
Looking from the other direction...
I wonder how many times “independent invention” has actually occurred. The few vague numbers I have seen seem to indicate that “independent invention” happens even less often than actual copying. Does anyone have anything definitive?
Re: Looking from the other direction...
I wonder how many times “independent invention” has actually occurred. The few vague numbers I have seen seem to indicate that “independent invention” happens even less often than actual copying. Does anyone have anything definitive?
How do you figure? As the study notes, there’s almost no evidence that the inventions are copied. So, how can you say that independent invention almost never occurs? It seems to suggest that in most cases it *is* an independent invention.
Re: Re: Looking from the other direction...
Mike:
hah hah…Funny.
My question is, how often does someone independently invent something that was previously invented? If your answer is that independent invention occurs in the vast majority of infringement cases, then I can estimate the total number of “independent inventions,” which, based on the total number of patents in force, is a teensy percentage. However, I was wondering whether someone had different evidence.
Re: Re: Re: Looking from the other direction...
My question is, how often does someone independently invent something that was previously invented? If your answer is that independent invention occurs in the vast majority of infringement cases, then I can estimate the total number of “independent inventions,” which, based on the total number of patents in force, is a teensy percentage. However, I was wondering whether someone had different evidence.
I’m reading this sentence over and over again and it makes no sense to me whatsoever. Independent invention occurs *all* the time. Whether or not someone sues for infringement over it is a different story altogether.
Re: Re: Re:2 Looking from the other direction...
Interesting. I have been involved in inventions for at least two decades, and I do not recall EVER having seen an independent invention that came after the original. Indeed, I believe nearly all the infringements I have seen personally (as opposed to those I have read about) have been copies.
Of course, my personal experience is not a substitute for actual data, and neither is yours.
Re: Re: Re:3 my patent attorney experience
Lonnie, as I’ve noted here, in all the umpteen times I’ve done this over the last 15 or so years, I have never, ever, even once, seen a case where the client’s engineers copied the patented invention. In every case that I can recall, the company designed its product on its own–using available technology, to meet the market demands–and then only later were made aware of some patent buried among millions in the bowels of the patent office. Then they panic, worrying that they might be shut down by an injunction by a competitor, or sued into the ground (for examples see my Radical Patent Reform Is Not on the Way).
Re: Re: Re:4 my patent attorney experience
Stephan:
I find your anecdotal evidence interesting, and contrary to my own experience. Based on my experience, copying happens about 50% of the times. In half the cases I recall, the company saw a product produced by another company, frequently marked with patent numbers, and then copied the product so precisely that the product was an identical match for the patent product. In one particularly humorous case, the copying company used an image from a patent listed on a product they copied as part of one of their advertisements.
If you are going to copy someone else’s patented product, at least do so in a way that you can claim indignation that you never saw a patent buried in the USPTO – even if the patents are prominently placed on the actual product. Making a copy so exact that the engineer who originally designed the product cannot tell the difference between the original and the copied product and using a patent image are hardly ways to claim you “independently” invented something.
Re: Re: Re: Looking from the other direction...
I…think I understand what your asking.
Independent invention can occur on something that has already been invented easily. If the “second” inventor in this case had never heard of the invention prior to creating an identical invention, then that is independent invention for an invention that exists already.
Re: Re: Re:2 Looking from the other direction...
That was Mike’s definition. All I want to know is according to actual, measured data, how many times has “independent invention” happened. I appreciate Mike’s highly quantitative data represented by “it happens all the time,” but nothing like a good old fashioned study or survey with good old fashioned evidence rather than someone’s opinion.
Re: Looking from the other direction...
I would say that, the broader we allow patents to be, the more examples we will see on independent invention.
Take Apple’s patents on a multi-touch display, for example. Do you really believe that no one else ever thought of it? Watch Minority Report. Steven Spielberg thought of it, at least. I have no problem with Apple patenting their particular design, but they should not be allowed to patent the idea. Same with the big Blackberry patent battle. The idea of transferring mail to mobile devices through a central server should not be patentable, but rather only a specific implementation.
As long as we have a twisted patent system that allows ideas can be patented, independent invention will happen all over the place. Most ideas are inspired by a need for certain functionality, and if it is a need with a market, it is also a need that more than one person encounters. To assume that only one person is capable of inventing a solution is quite silly.
Re: Re: Looking from the other direction...
hegemon:
How fortunate that our patent system does not permit ideas to be patented, only inventions.
However, you did not answer the question. How often does someone “independently” invent something that was already invented?
Re: Re: Re: Looking from the other direction...
How fortunate that our patent system does not permit ideas to be patented, only inventions.
If only that were true in practice.
I hear this copout from patent supporters all the time. It’s as if they don’t actually live in the actual world and see what is happening all the time with the patent system, which DOES allow patents on ideas. That’s because the patents are written so broadly and in such vague terms that it blocks out any such efforts in certain areas.
However, you did not answer the question. How often does someone “independently” invent something that was already invented?
Almost always. For almost any great “invention” you’ll find stories of someone else working at about the same time inventing the same exact thing:
We discussed this last year. Research has shown that almost every major scientific breakthrough has involved multiple parties coming up with the idea independently. It’s hard to find exceptions.
http://www.techdirt.com/articles/20080507/0114581051.shtml
Re: Looking from the other direction...
From personal experience I would say independant invention is probably very common. A good historical example is calculus. With Kepler introducing the need for calculus and unable to com up with it, several people came up with the idea Ferment, Leibniz and Newton.
http://www-groups.dcs.st-and.ac.uk/~history/HistTopics/The_rise_of_calculus.html
Personally many times I have come up with a exceptional idea to see that it was already done. Although often times there are not optimally done or left some minor improvements out. Check out patent 7206142, I came up with the idea independently then found that a similar idea was done but not as well. (Check out http://www.sol-solution.net for details)
Ogburn and Thomas
To Lonnie E. Holder:
Well, of course there is William F. Ogburn and Dorothy Thomas’s classic “Are Inventions Inevitable,” published back in 1922, with a list of 150 simultaneous inventions. One of the classic examples is Calculus in the 1670’s. Issac Newton started in from the Differential Calculus end, and Gottfried Leibnitz went in from the Integral Calculus end, and they passed each other in the middle. Of course it is generally held that Archimedes was pretty close to Calculus back in the third century, BC. There are cases of simultaneous inventions happening close enough together in time that it would have been impossible to communicate from one inventor to the other, given the primitive means of transportation before 1800. For example, it took a ship something like two months to cross the Atlantic, and the passes over the Alps, at 6000 ft or so, more or less closed down for the winter.
Re: Ogburn and Thomas
I looked through the list. The vast majority of the items on the list are not patentable under current U.S. patent law. Perhaps none of them were patentable.
Independent invention
“Pegging” again!
I have proof of an inventor who did not patent; but went to a company who he knew could use his invention. All was well at first, they agreed it was brilliant, admitted they hadn’t thought of it, and agreed that they needed it.
Then they found out that he had not patented.
They started using the invention, and when he found out and objected, claimed “independent invention” (which is a defense in trade secret, his method for “protecting” his invention).
When sued, they advanced an “independent inventor” (who, unfortunately, they had neglected to educate on what he had “invented”) and generally made the inventor’s life miserable.
I am not sure how it came out, but had he patented …..
Re: Independent invention
But, you see, the company was innovative. Once the invention was explained to them, they started copying it, but they did so innovatively (they made it available in several colors, added a switch to control speed, and put it into a shiny box with a pretty picture on it). So, by taking the inventor’s invention for their own, they improved society, and their corporate wealth. It is always a good thing to do this.
The inventor, on the other hand, will hang himself, become bitter and hostile, or make damn sure that if he ever has another invention that he will patent it first rather than just giving it away for free for the betterment of an innovator or corporate America.
Incidentally, according to “innovators,” inventors are a dime a dozen and innovators are in short supply…apparently there are too many inventors and not enough telemarketers.
Mr. Holder,
The problem with any discussion about “independent invention” is that almost invariably a close scrutiny of the “independent invention” reveals that it is not a fair “apples-to-apples” comparison. The competing inventions may have similarities, but only rarely can it truly be said that two or more inventors working independently came up with the “same invention”.
One source of information that I believe reflects a true “apples-to-apples” comparison is contained in the USPTO records pertaining to interferences declared between co-pending applications. If “independent invention” is as commonplace as many here seem to believe, then I would expect a relatively sizeable number of interferences to be declared each year. After all, the purpose of an interference proceeding is to determine priority between two or more applicants each claiming the “same invention”.
In my experience the declaration of an interference between parties claiming the “same invention” is exceedingly rare. In fact, only a very few practioners before the USPTO ever participate in an interference during the entirety of their professional careers. The number of interferences does vary from year to year, but I have not as yet seen any total number initiated in any year that exceeds two digits, and those totals as I recollect are typically in the low two digits.
Thus, to say that “independent invention” is commonplace is simply not borne out by USPTO data.
The meaning of "independent invention"
Mike, thanks for the writeup, I appreciate your thoughts and the comments here from other viewpoints as well.
To Lonnie Holder——and I honestly ask this as someone just hunting for the right words to describe patent disputes——
Isn’t any patent defendant who has not been accused of copying an “independent inventor”? We know that 1) they have (or had) a product of some kind on the market, and 2) they are not accused of copying it.
Anyone who creates and markets a product of some kind that isn’t exactly identical to another product is an inventor on some level, right? And since copying, at least, held in low esteem by society, shouldn’t their invention be considered independent until someone at least alleges otherwise?
Re: The meaning of "independent invention"
In answer to your question, not necessarily. I had a discussion regarding this same issue today and it was pointed out to me that copying is not always alleged when it could be. The logic provided to me was that copying of a patented product is essentially the same thing as patent infringement and copying is not necessarily illegal. Plus, proving copying legally is tougher than proving patent infringement, so even some cases where blatant copying has occurred do no bother alleging copying. However, I have no numbers other than anecdotal evidence.
It would also seem that there would be a time element involved. If someone invented invention A in January, and filed a patent application in February, and a second person filed an application in December, before the first application published, then independent invention may have occurred.
On the other hand, if invention B was patented and went into production, and a second person “invented” the same thing three years after invention B went into production, I would struggle to accept an independent invention argument.
Patent troll
Our resident troll wrote:
A lot of tripe, as usual, including this gem: “I have no numbers other than anecdotal evidence.”
Indeed; as usual, all you have, Lonnie, is anecdotes, and mostly, those anecdotes appear to have been pulled directly out of your butt.
It’s a shame that debunking your sorry, disheveled, and oft-repeated arguments in favor of the sorry, disheveled, broken notion of “patents” has become a full-time job in itself. But many hands make light work, so perhaps a bunch of us can pick different blogs and/or days of the week to find and respond to Lonnie’s ill-informed and dangerously mislading comments, so that they don’t unilaterally sway members of an unsuspecting public.
Any takers?
Re: Patent troll
Beeswax:
You are a sad, frustrated person who has once again not “debunked” anything. If you are the best the anti-IP forces can muster, we have nothing to worry about.
Re: Patent troll
Beeswax:
By the way, nice double whammy here.
First, you advocate stalking (…perhaps a bunch of us can pick different blogs and/or days of the week to find…Lonnie). Then, you insult everyone who reads this web site (referring to my comments, “…so that they don’t unilaterally sway members of an unsuspecting public”). I believe the people who read these posts are quite intelligent capable of making up their own mind without your paranoid delusions and advocacy of stalking. And before you claim those are lies, I suggest you re-read what you wrote.
2 new invention
had to build 2 prototypes to prove it can be done. have pic. and data. 1 with water 4 X output over input & 1 with fishing weights 10 lbs. work force. form Gravity. working Perpetual motion for energy. “Math dose not lie”. Can prove it on paper!!!! pic. & data at my space indsloan prototype picture file. lets see who get the pat. & credit for my work.
Thanks to everyone at the convention! It was a great experience and we were delighted that it was such a great success.We’re already on to another show season! I hope it is pructive and successfu at all your shows.Thank………..
aquiring Ip without owner consent or transfer of rights
GB1106683.4 this so called application for patent is claimed to be the property of the applicant , however, the applicant in audio recorded evidence prior to signing as applicant did have no idea as to what a patent is and what it means , the ip lawyers were contacted by the genuine owners and inventors and all drawings, specs, etc were withdrawn by the owners of those designs, PLANS of construction and so on , and also the device claimed in the draft is not correctly described at all , inclusive of mechanism , missing from draft, the applicant sent the genuine owner the draft because he has absolutely no idea as to how it is constructed how it works what enables the operation of it , I have all this evidence , i am not happy this is legal practice , and if it is, then the applicant has only a direct copy of the original item WTF ?
aquiring Ip without owner consent or transfer of rights
YES, WELL, LICENSE YOUR INVENTION TO A COMPANY THAT DOES NOT EXPORT TO THE uk , RENDERING A UK PATENT OBTAINED BY DECEIT AS TOTALLY USELESS, THIS METHOD WILL TEACH THE GREEDY TROLLS
NOT TO INGEST THINGS THAT DO NOT BELONG TO THEM , I AM SICK AND TIRED OF THIS ” I WEAR A WIG CRAP” DOESNT MAKE ANY DIFFERENCE WHEN A TRAIN IS ROLLING AINT NO 1 MAN CAN STOP IT IF HE ISNT IN CONTROL OF THE VEHICLE, AND IN THIS CASE ALL OF THE EVIDENCE POINTS DIRECTLY TO THE FRAUDULENT CLAIMS OF THE APPLICANT AND THEN ALSO THE LAWYERS REPRESENTING HIM.
tHE uk MARKET IS MINIMAL COMPARED TO OTHER MARKETS AND WITH NO PATENT WHICH CAN BE PROVEN AS TRUE THEN I CAN AND WILL LICENSE MY DEVICE TO A MARKET WHERE IT’S USE IS FAR LARGER THAN THE uk. OH I AM NO COWARD … IS THERE NO ONE ELSE !
AH BUT AN ENGINEERING WORKAROUND IS HOW THE BIG WIGS GET AWAY WITH IT, SHAME THAT THIS DEVICE HAS BEEN SO DEFINATELY NAILED BY THE INVENTORS AND OWNERS SO TO MAKE A WORKAROUND QUITE LITERALLY AN IMPOSSIBILITY , EITHER WAY I NEVER GAVE MY CONSENT OF TRANSFER OF ANY RIGHTS TO ANY PERSON CLAIMING TO BE THE OWNER , THE EVIDENCE SHOWS THE TRUTH AND THE HOLDERS OF ALL OF THAT EVIDENCE ARE THE TWO PERSONS THAT CREATED THE DEVICE FROM WHICH THE APPLICANT AND HIS ACCOMPLICES DID MAKE DIRECT COPIES OF , THEIR SIGNATURES UPON cda AGREEMENTS SUPPORTS THE FACTS .
LIKE I SAID – IS THERE NO ONE ELSE ! ! ! KOFF.
SO WE HAVE, LETTER ADDRESSING APPLICANT, CONFIRMING FRAUD, WE HAVE, ALL WORKS RELATING TO THE DEVICE, WE HAVE AUDIO EVIDENCE OF MISLEADING CONDUCT WITH INTENT , WE HAVE ALL PLANS OF CONSTRUCTION, ALL CONFIDENTIAL DISCLOSURE AGREEMENTS , AND OF COURSE WE HAVE THE ORIGINAL ITEM FROM WHICH WAS MADE COPIES OF IT ACCORDING TO THE CONSTRUCTION PLANS OF THE GENUINE OWNERS AND INVENTORS , ASIDE FROM THESE WE ALSO HAVE THE DRAFT CREATED BY THE LAWYER WHICH IS INCOMPLETE, INCORRECT, AND IS A BLATANT EVIDENTIAL DOCUMENT WHICH HAS BEEN CONSTRUED IN ORDER TO RECEIVE PAYMENT , THAT ABOUT SUMS IT UP, WAS TOLD I HAD DUG A HOLE BIG ENOUGH TO TRAP AN ELEPHANT , OK I GOT SOME JCBS CAN FILL THE HOLE IN NO PROBLEM AND FOR FREE TOO .
SO AS I SAY, GET YOUR DEVICE FINISH IT, MARKET IT, LICENSE IT, = INCOME = MEDIA = VICTORY SIGN AND NO WASTED FINANCES .
SO WE HAVE, LETTER ADDRESSING APPLICANT, CONFIRMING FRAUD, WE HAVE, ALL WORKS RELATING TO THE DEVICE, WE HAVE AUDIO EVIDENCE OF MISLEADING CONDUCT WITH INTENT , WE HAVE ALL PLANS OF CONSTRUCTION, ALL CONFIDENTIAL DISCLOSURE AGREEMENTS , AND OF COURSE WE HAVE THE ORIGINAL ITEM FROM WHICH WAS MADE COPIES OF IT ACCORDING TO THE CONSTRUCTION PLANS OF THE GENUINE OWNERS AND INVENTORS , ASIDE FROM THESE WE ALSO HAVE THE DRAFT CREATED BY THE LAWYER WHICH IS INCOMPLETE, INCORRECT, AND IS A BLATANT EVIDENTIAL DOCUMENT WHICH HAS BEEN CONSTRUED IN ORDER TO RECEIVE PAYMENT , THAT ABOUT SUMS IT UP, WAS TOLD I HAD DUG A HOLE BIG ENOUGH TO TRAP AN ELEPHANT , OK I GOT SOME JCBS CAN FILL THE HOLE IN NO PROBLEM AND FOR FREE TOO .
SO AS I SAY, GET YOUR DEVICE FINISH IT, MARKET IT, LICENSE IT, = INCOME = MEDIA = VICTORY SIGN AND NO WASTED FINANCES .
TROLLS ARE SUBJECT TO MONOTONY AND THEN ALSO DICTATION, THEY RARELY SEE TRUTH BECAUSE TROLLS ARE NONE THE BRIGHTEST OF CREATURES, HOWEVER ALL TROLLS HOARD THEIR GAINS , AND THEY STUFF THEMSELVES WITH RELATIVELY LARGE WORDS WHILE MISSING THE POINT COMPLETELY, I KNOW A TROLL NAMED FAFFREY DORIS AND HIS FRIEND ULAN EYELID , BOTH OF WHOM WEAR LOVELY KIPPER TIES
AND WHOM DINE ON LARD AND OTHER CHUBBIFYING FOODS ,
FAR TOO SLOW TO CATCH A FAST MOVING WEE BEASTIE , SO THERE WE HAVE IT GAME SET AND MATCH TO THE ORIGINAL OWNERS AND INVENTORS PJB AND GL AN ADJUSTABLE SUPPORT DEVICE IN A BROAD ASPECT NARROWED BY DIET AND CORRECTLY DRAFTED BY DEFAULT OF OWNERSHIP TP THE GENUINE OWNERS PJB AND GL RESPECTIVELY. SECTION 21 OBSERVATIONS HAVE BEEN MADE BUT ARE INSUFFICIENT AT PRESENT TO ASSIST THE DEMISE OF THE TROLLS.
THE PRETENDER APPLICANT, MAY RE ENTER TO NEGOTIATE- HOWEVER THE GENUINE OWNERS AND INVENTORS DESCENDANCY AND LINEAGE IS LIKELY TO PROVIDE NO QUARTER GIVEN, THIS IS THE NATURE OF TRUTH YOU SEE , OH AND IT REALLY COSTS NOTHING TO MEASURE SUCCESS EVEN IF IT IS NOT IN THE PRESENT TENSE,
FAKING OWNERSHIP IS NOT SO DIFFICULT TO PROVE, BUT THAT ASSUMES LITIGATION, THE WEE BEASTIES HAVE THE LEAD AND ARE NOT
IN THE SAME RACE AS THE TROLLS ARE , THUS ARE NOT SUBJECT TO THE TROLLS ASSORTMENT OF CUTLERY ,GB1106683.4 A COPY OF A SUPPORT DEVICE……………………… OH FAFFERY DORIS HAS A FINE OLD TIE , NECK DOWN TO THE GROUND , STAKED IN WORDS LEARNED IN FLOWER ARRANGING SCHOOL, NEVER TRUSTED AND COMPLETELY UNSOUND .
Looking from the other direction...
That was until recently.
An algorithm is an idea.
And yet we get software patents. Had the same rules appled to a car, we will be diving some cars with a steering wheel others with a level and yet some with your two feet. With no standardization whatsoever.
And yet someone on the patent office felt that algorithms where patentable with no one to challenge the inspectors.
I wonder what would have happened in patents where invented before the wheel.
The problem is that the people that gains the most from the extortion scam are the same people that make the laws and become judges.