US Gov't Supports Keeping Patents Difficult To Invalidate

from the government-wants-its-fees... dept

With the Supreme Court agreeing to hear the i4i vs. Microsoft patent case, we're starting to see the amici briefs, and the US government has decided to support those against innovation, by siding with i4i. This is a pretty sad statement about the US government's understanding of patents. If you don't recall, the lawsuit focuses on a single key issue:
In court, parties have to prove their case by some "standard of proof." In almost all civil cases, the standard is "preponderance of the evidence" -- meaning it is more likely than not that the facts are true. When the question is invalidating a patent, however, the U.S. Court of Appeals for the Federal Circuit decided that a defendant trying to prove a patent invalid must do so by a higher standard than normal civil cases, that of "clear and convincing" evidence. "Clear and convincing" means that the facts are "highly probable," which is a much more difficult standard to meet when trying to invalidate a patent than just a preponderance.
That's it. It's pretty simple. The bar for invalidating bad patents should be "the preponderance of the evidence." Anyone who has any experience in actually bringing innovative products to market, and facing a bunch of threats and lawsuits from patent holders who have obviously bad patents would agree that this makes sense (or, rather, would agree that moving in this direction makes sense). In fact, that's why tons and tons of successful companies supported Microsoft in getting the Supreme Court to hear the case.

So pardon me for finding it laughable when i4i's chairman, Loudon Owen, claims that switching the standard would mean innovative organizations can't survive:
"As you can see from the amicus briefs, and from a letter previously sent to the Attorney General by over 260 signatories, this is an absolutely pivotal case that threatens the ability of inventors and innovative organizations to survive,"
Let's be 100% clear here, because Owen is lying. If you have a legitimate patent, you have nothing to fear from this requested change. Even if you have a bad patent, it's unlikely that this change would mean much for you. It's only if you have a ridiculously bad patent that this change would have any impact. And that certainly is not about the ability of inventors or innovative organizations to survive. Oh, by the way, take a guess at the level of quality that i4i has with its patents? Yeah...

In the meantime, if you look at the list of folks who filed amicus briefs supporting i4i, you'll notice that it's basically a bunch of companies who rely on patent licensing, rather than products to get by. There's also a funny one about "leading venture capital firms," which doesn't list any actual "leading" VC firms. No Accel. No Sequoia. No Kleiner Perkins. No Union Square Ventures. Those are the firms that people get excited about. Those are the firms that everyone wants to raise money from. They're all absent. The rest of the list is a mix of "IP" organizations and pharmaceutical companies -- who are hanging onto patents as their last gasp effort to stay alive, since they're failing to actually innovate.

As for the brief from the US government itself, which is embedded below, it's pretty weak if you're familiar with the problem of bad patents. But it basically says the law (which, it should be reminded, was written by a former patent lawyer, and was done before the recent burst of massively bad patents), says we should use the higher standard, so we should. It's also laughable, in that it assumes that the US Patent Office actually does its job in making sure that patents are valid before allowing them.

Finally, we should note that, yes, there's tremendous irony in Microsoft trying to lower the standard for ditching bad patents, at the same time it appears to be relying on ridiculously bad patents in lawsuits itself.


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  1.  
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    6 (profile), Mar 22nd, 2011 @ 4:08pm

    Just to be clear Mike, as all of those in the field will tell you, this case, and the potential differnce in standards would have a negligible effect on 99.9% of patent cases.

    The difference between preponderance of the evidence and clear and convincing evidence is so academic that it practically doesn't matter irl.

    This is all a bunch of hublah about nothing.

     

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  2.  
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    6 (profile), Mar 22nd, 2011 @ 4:10pm

    ""As you can see from the amicus briefs, and from a letter previously sent to the Attorney General by over 260 signatories, this is an absolutely pivotal case that threatens the ability of inventors and innovative organizations to survive," "

    That is just them being overly damatic prima donnas.

     

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  3.  
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    ChurchHatesTucker (profile), Mar 22nd, 2011 @ 4:24pm

    Re:

    May you forever get Ę99 for every dollar.

    It's so academic it doesn't matter.

     

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  4.  
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    Mike Masnick (profile), Mar 22nd, 2011 @ 4:43pm

    Re:

    Just to be clear Mike, as all of those in the field will tell you, this case, and the potential differnce in standards would have a negligible effect on 99.9% of patent cases

    Yeah, that's why I wrote "If you have a legitimate patent, you have nothing to fear from this requested change. Even if you have a bad patent, it's unlikely that this change would mean much for you. It's only if you have a ridiculously bad patent that this change would have any impact." in the post.

    I still think it's important, because in those few cases where it would apply, it get rid of a hindrance to innovation.

     

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  5.  
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    6 (profile), Mar 22nd, 2011 @ 5:17pm

    Re: Re:

    Give me 99.9c with a bar over the last 9 and I'll take that deal.

     

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  6.  
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    6 (profile), Mar 22nd, 2011 @ 5:22pm

    "I still think it's important, because in those few cases where it would apply, it get rid of a hindrance to innovation."

    Meh. To be clear, it won't hinder innovation, it will spur innovation, indeed, publish it for all to see, the ultimate in spurring innovation. It will only hinder the implementation of innovation. Which of course is probably what you meant, but you could be more tidy and less outraged.

    Also, while I have your attention, if you could kindly stop using the word "debunked" forever the rest of the world would appreciate it. It just makes you sound like a nut-case consipiracy theorist. Of course we all know that you're just an economist, or at least that you play one on the internet. And while being an economist puts you close to being a nut-case conspiracy theorist, it doesn't really (necessarily?) make you one.

     

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  7.  
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    Anonymous Coward, Mar 22nd, 2011 @ 5:36pm

    Re:

    Is "6" here and "6" at a legal blog one in the same?

    Personally, I have never observed anyone at that blog, "6" included, ever use the term "debunked", as well as the myriad of other words dismissively used here with increasing frequency.

     

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  8.  
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    Anonymous Coward, Mar 22nd, 2011 @ 5:40pm

    Re:

    BTW, Lemley filed an amicus in support of the petitioner. As you will undoubtedly recall, he is a "never has practiced" expert regarding practice before the USPTO.

     

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  9.  
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    ChurchHatesTucker (profile), Mar 22nd, 2011 @ 5:45pm

    Re: Re: Re:

    The bar is always the bitch.

    (Yeah, math AND legal joke. Suck it, CLT!)

     

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  10.  
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    6 (profile), Mar 22nd, 2011 @ 6:45pm

    "Is "6" here and "6" at a legal blog one in the same?"

    I am the same the world over. The Alpha, if not also the Omega.

    Unless of course you're talking to Tricia.

    http://en.wikipedia.org/wiki/Number_Six_(Battlestar_Galactica)

    But that's kind of a different context.

     

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  11.  
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    6 (profile), Mar 22nd, 2011 @ 6:47pm

    "Is "6" here and "6" at a legal blog one in the same?"

    I am the same the world over. The Alpha, if not also the Omega.

    Unless of course you're talking to Tricia.

    http://en.wikipedia.org/wiki/Number_Six_(Battlestar_Galactica)

    But that's kind of a different context.

     

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  12.  
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    6 (profile), Mar 22nd, 2011 @ 6:48pm

    Re:

    Also, sometimes I repeat myself when the site is burping.

     

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  13.  
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    Anonymous Coward, Mar 22nd, 2011 @ 6:54pm

    Re:

    Innovation is the implementation of invention. You're arguing that it will spur invention (though I disagree with that, it will hinder invention too), not that it will spur innovation. It will hinder innovation because it will hinder the implementation of invention.

     

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  14.  
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    Anonymous Coward, Mar 22nd, 2011 @ 7:21pm

    Re:

    As I suspected. See you at the other site where I do not post as an AC.

     

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    6 (profile), Mar 22nd, 2011 @ 9:27pm

    "Innovation is the implementation of invention. You're arguing that it will spur invention (though I disagree with that, it will hinder invention too), not that it will spur innovation. It will hinder innovation because it will hinder the implementation of invention."

    Meh, different definitions for different folks. People in the field use the two terms invention and innovation synonymously. But you're welcome to make up your own definition.

    "though I disagree with that, it will hinder invention too"

    Oh really? So what better way to promote innovation than to have published, for all to see, the invention upon which others may build new inventions, and to have, in some small way, rewarded the inventor on the patent's cover?

    Trust me, in the useful arts that is the way to spur invention, innovation, or whatever you want to call the base invention itself. Now, there is plenty of patenting going on at the patent office right now which is not directed to subject matter within the useful arts, but that is a different fight under a different statute.

    "It will hinder innovation because it will hinder the implementation of invention."

    That I agree with under your definitions, in fact, that is exactly what I said above. But, that is the price which we're currently paying to get people to disclose their invention. Otherwise they might just keep em secrit. Now, whether or not that is a good price to pay is debatable, and is a policy question, which you're free to write your congressman about. But I can tell you, when high-dollar powerful folks from industry come in and tell your congressman that they'd like to have patents be the way they are, in so far as the useful arts are concerned, then your congressman will very likely lend them more of their ear than he will lend to you, mr. anon coward of the internet.

     

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  16.  
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    Anonymous Coward, Mar 22nd, 2011 @ 9:27pm

    Re:

    There is no problem in lowering the standard then, that is fantastic.

     

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    Anonymous Coward, Mar 22nd, 2011 @ 9:30pm

    "There is no problem in lowering the standard then, that is fantastic."

    Yeah, except for the things the gov. just mentioned in the brief mike put up for you. Maybe after you read it, and somewhat grasp what they're talking about, then you'll see that there may very well be somewhat of a problem, from a legal point of view.

     

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  18.  
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    Anonymous Coward, Mar 22nd, 2011 @ 9:38pm

    Re:

    Quote:
    Oh really? So what better way to promote innovation than to have published, for all to see, the invention upon which others may build new inventions, and to have, in some small way, rewarded the inventor on the patent's cover?


    Make it useful, it is not useful if people can't use it, it doesn't bring progress it stall it, see the progress in open source vs commercial ones, see also how the internet leaped forward when there were no restrictions in place.

    In every place a look where there are "owner" of something there is a million people excluded from the benefits of something.

    But you are right about politicians they will not listen to people so people need to go outside the law to have nice things.

     

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  19.  
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    Anonymous Coward, Mar 22nd, 2011 @ 9:41pm

    Re:

    Then your other comment was BS and you are a liar.

     

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  20.  
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    Anonymous Coward, Mar 22nd, 2011 @ 10:43pm

    Re:

    Quote:
    Trust me, in the useful arts that is the way to spur invention, innovation, or whatever you want to call the base invention itself. Now, there is plenty of patenting going on at the patent office right now which is not directed to subject matter within the useful arts, but that is a different fight under a different statute.


    To trust a guy who holds a grudge and have no problem BS'ing people is just not sensible or wise.

    You first started mocking Mike saying those laws don't change anything and the differences are only academic, then when told that it was fantastic because then there was not going to be a problem to lower that you backtracked faster then a rabbit jetting through a field of lillies, saying there is a problem.

    We all knew you are a shill and a liar I just like to point out that so no one will be under the impression that you are somebody to be taken seriously here or in any place else.

     

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  21.  
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    6 (profile), Mar 22nd, 2011 @ 11:29pm

    Re: Re:

    Well, irl, companies do this thing called "licensing" and let other companies use their patents. And, post ebay, you practically get a compulsory license unless there is really some equitable reason to issue an injunction against you.

    Now, personally speaking, I agree, the system is far from perfect, and perhaps the patent term is a bit long considering our current state of technological super-fast developement, but, thems the legacy systems we will live with at least until my generation gets into power. And, those are policy considerations for your congress. Talk to them.

    "see the progress in open source vs commercial ones, "

    Well, you're talking about software, and whether or not that is within the useful arts, or is simply authorship of a written work is very much debatable and is a fight liable to come to a court room near you!

     

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  22.  
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    6 (profile), Mar 22nd, 2011 @ 11:33pm

    Um, no, you need to read and understand the gov's brief.

    The issue is not how much of an impact there will be, the issue(s) which the gov. brings up is just a legality. Specifically it is that congress may have spoken to the issue in a statute, and also, the PTO is entitled to administrative deference for their decisions. Both of which , I note, are not anywhere near the "problem" or "issue" of this instant decision affecting all that many cases in the future.

     

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  23.  
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    Mike Masnick (profile), Mar 23rd, 2011 @ 12:55am

    Re:

    Oh really? So what better way to promote innovation than to have published, for all to see, the invention upon which others may build new inventions, and to have, in some small way, rewarded the inventor on the patent's cover?

    Trust me, in the useful arts that is the way to spur invention, innovation, or whatever you want to call the base invention itself.


    Studies have shown, time and time again, that patents do not, in fact, promote innovation. Instead, what promotes innovation are two key things: need and competition. Need gets people to invent stuff, and competition gets them to improve it. The rewards is there too. It's called *selling stuff*.

     

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  24.  
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    Anonymous Coward, Mar 23rd, 2011 @ 1:37am

    The rewards is there too. It's called *selling stuff*.

    Except in the case of things that are easily copied; then the reward is in the stuff you made somehow magically imbuing additional value into completely separate stuff, which you can then try to sell at a premium as long as you continually convince your buyers that the magically imbued value isn't just imaginary...

     

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  25.  
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    Josef Anvil (profile), Mar 23rd, 2011 @ 1:37am

    Things we learn as children...

    When I was growing up, I was ALWAYS taught that Necessity is the Mother of Invention.

    At no point do I remember EVER hearing that Patents were the Mother of Invention. Maybe the IP gurus feel that patents are the father of innovation? No no that doesn't sound right. How about Patents are the Father of Monopoly?

     

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  26.  
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    Not an Electronic Rodent (profile), Mar 23rd, 2011 @ 2:17am

    But it basically says the law [snip] says we should use the higher standard, so we should.

    "The law is the law and shouldn't change"? Wow, what a compelling argument, you sold me. Better get those darkies back in chains and build some more prisons for all the homos then..... /sarcasm

     

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  27.  
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    Not an Electronic Rodent (profile), Mar 23rd, 2011 @ 2:28am

    Re: Re: Re:

    Well, irl, companies do this thing called "licensing" and let other companies use their patents. And, post ebay, you practically get a compulsory license unless there is really some equitable reason to issue an injunction against you.

    Lets see, how might that conversation go IRL?
    "Hello we'd like to license your patent please we're building this thing"
    "Certainly sir, well it's a nice broad patent that you can't possibly build something like that without and we have a monopoly here so that'll be a gazillion pounds please."
    "Hang on a minute our projections for the first 5 years say we can only make a couple of billion we can't afford that. We're just going to have to invent something ourselves."
    "Oh I'm sorry sir but our patent is so ridiculously vague and non-specific that anything you could invent that does even faintly the same job will covered by the patent too so I'm afraid we're going to have to sue you if you don't pay up. We get our money either way so I guess you won't be competing with us any time soon. Goodbye sir..."
    "Oh F**K!*
    Nah, never happens right?

     

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  28.  
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    Not an Electronic Rodent (profile), Mar 23rd, 2011 @ 2:31am

    Re: Things we learn as children...

    How about Patents are the Father of Monopoly?

    I thought that was Parker.... :-)

     

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  29.  
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    Bernard Gilroy, Mar 23rd, 2011 @ 3:25am

    The government's position seems necessary

    But it basically says the law (which, it should be reminded, was written by a former patent lawyer, and was done before the recent burst of massively bad patents), says we should use the higher standard, so we should.

    Are you saying the US government should advocate not following the law? It seems to me that the government position is in fact the correct one for it to take, whether or not the actual law is a good one. It's not up to judges to fix bad law except in the most absolute egregious of cases. (In fact, even then, it's iffy.)

    The government is arguing that the court defer to the Congress and to the administrative department the Congress has designated as overseeing this process. That is, policy is, well, political, and should be settled by the political branches. The judges should enforce the law before them.

    I know it sounds quixotic, but if the law is broken, it should be fixed -- not circumvented.

     

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  30.  
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    6 (profile), Mar 23rd, 2011 @ 3:37am

    Re: Re: Re: Re:

    ""Certainly sir, well it's a nice broad patent that you can't possibly build something like that without and we have a monopoly here so that'll be a gazillion pounds please.""

    As I understand it the avg might be closer to 10k per year for a po-dunk patent, but it depends on what patent you're talking about. For instance, my uncle's company is about to be talking to this company that advertises on its website that it tries to get 10% of all the gross sales, but they keep the actual amount they get from their licensees secret. That 10% is roughly in the millions for my uncle's company. So, they might try to negotiate, they might try to find some prior art, they might threaten litigation and an attempt to kill the patent (which is currently licensed to a dozen or so other companies, thus pulling in $$$ for the patentee). You never know what they'll do. They might get sued themselves. They might not infringe at all.

    But like I said, it happens every day in the business world, and somehow some companies (all the ones you know of plus all the rest in the world) are still standing. Some companies get sued out of existance. It's true. That is a downside.

     

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  31.  
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    Anonymous Coward, Mar 23rd, 2011 @ 3:44am

    Re: The government's position seems necessary

    The first step to fixing those kind of laws is circumventing them to show that those attempts to guide behavior will not succeed.

     

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  32.  
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    6 (profile), Mar 23rd, 2011 @ 4:08am

    "Studies have shown, time and time again, that patents do not, in fact, promote innovation. "

    Your studies will never trump the real world Mike the economist. Unfortunate, but true.

    I wish your studies mattered more than they do, I really do. I find them quite interesting. And one day, I would love to have a patent free world, or at least one where the term is shorter.

    You can beat the drum all you like, but it isn't going to change anything, the powerful people who produce the inventions upon which the useful arts are promoted are all pretty sure they want patents. That's the end of it. You (and everyone else) get like 0% say in the matter. They get 100% say in the matter. Why? Because they're the ones that produce (and perhaps more importantly, decide to disclose or not) the inventions.

    The same goes for copyright of course, but copyright will probably eventually fade away on its own. Once everyone can hold the entire works of the world on a disk that fits in a computer you can pretty well bet that it'll be gone. Look on the bright side, it's only like 20 years away probably. Eventually the useful arts themselves might do the same, in like 500 years or something crazy like that.

    Besides that Mike, as a person of some skill in my art, who is perfectly capable of spitting out several inventions on the spot, I personally say that within this monetary system you "money/financial/bankers etc" people set up I'd like a patent if I so desire to get one on something I come up with in my art. And everyone else in the art would too, I know them, they're pretty much all in agreement, and what the other 99% of the world says doesn't matter. It really doesn't.

    Unless and until the pirate party takes over. Which is fine by me, but they aren't exactly growing by leaps and bounds here.

    "Instead, what promotes innovation are two key things: need and competition. Need gets people to invent stuff, and competition gets them to improve it. The rewards is there too. It's called *selling stuff*."

    I might 100% agree with you. Not really quite 100%, but it doesn't matter either way. Fact is, even if that is reality it just doesn't matter. I want a patent if I invent something, and so do the rest of the skilled artisans of the world. That's why patents have existed from the beginning of this country. Sure, they're there to promote the arts, but they exist because skilled artisans want them. If the skilled artisans all said "do away with them" then they'd be gone tomorrow. Until that happens, what you say really doesn't matter man.

    God bless you, but it doesn't.

    Capiche? Your studies, and even reality, will never change what me and people like me want within this monetary system we have. If we lived in some utopian society like star trek or whatever, then fine, no patents.

    On the other hand, feel free to fight software patents etc. within the bounds o da law. And feel free to advocate however you wish. But understand what you're up against. You're up against the people that want a patent. And they have the people with power's ear. Want to change the system? Become one of them, refuse patents, get congress's ear with your billions.

    But like I said, I agree the patent system has its problems, but you're never going to weed them out as long as congress controls the system.


    I'm going to leave you with one final thing for you to think about though Mike. Within the Useful Arts there are a lot of little tricks of the trade, many of which are quite valuable and nobody would be able to reverse engineer in a reasonable time if nobody published how they figure out how to do it, those are the real gems that the patent system sometimes brings to light. The modern patent system doesn't focus on those, which I feel is kind of a downside to our current patent system, but, alas, we find ourself strapped with a legacy system from the days of yore when knowledge was scarce and enticing soemone into publishing pretty much anything was a really good deal for the gov. at 17-20 years patent term.

     

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  33.  
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    Not an Electronic Rodent (profile), Mar 23rd, 2011 @ 5:19am

    Re: Re: Re: Re: Re:

    That 10% is roughly in the millions for my uncle's company. So, they might try to negotiate, they might try to find some prior art, they might threaten litigation and an attempt to kill the patent (which is currently licensed to a dozen or so other companies, thus pulling in $$$ for the patentee). You never know what they'll do. They might get sued themselves. They might not infringe at all.

    IANAL and neither am I in a business where I have to worry much about patents, but that all sounds pretty damn uncertain to me and were I in that position the thought of forking over 10% of what I make on what might well be a tight margin doesn't sound like it's encouraging me to take a chance. Even more so if I have to do that 2 or 5 or however many times with multiple licenses. So I'd say that suggests that at least in some cases patents hinder innovation.
    I'd be especially p*ssed off if I was paying the 10% for something I could knock up on the back of a fag packet without ever knowing the patent existed (there was a menu payment system patent posted in here not so long ago that was well in this category for example). I'd say that was a good argument for anything that heads even slightly in the direction of better patents since every piece of legislation or decisions I've seen heads the other way or ignores it (a limited subset to be sure so if there's evidence the other way, then by all means....).
    But like I said, it happens every day in the business world, and somehow some companies (all the ones you know of plus all the rest in the world) are still standing. Some companies get sued out of existance. It's true. That is a downside.

    And that to me is the argument. You yourself (who seem to be pro-patent) say there's a downside to patents. The downsides are sometimes pretty obvious and some are pretty specific (number of companies folded due to patent suits perhaps?) and I'd guess that numbers could be or have been attached to them.
    On the other hand I've yet to see anyone come up with equally specific argument of the "good" side of patents. I'm not anti-patent and I'm willing to accept there is one but it seems nebulous - based on a "Oh well getting payed for stuff you invent must be an incentive, right?", rather than any quantitative study of how many of those patented "inventions" might have been created no matter what patent term or lack of patent applied.To me arguments like "Oh well that's the way it is and it's OK because not that many companies go out of business because of patent suits and I don't think it stops that many new companies or products" simply aren't good enough. For patent to be valid it should be definitively shown that;
    patent benefit - patent (your word) "downside" >= no patent benefit - no patent "downside"
    And then if it comes out on the patent side to keep going until you find the right method of controlling patent to maximize that number. Inertia is not a good reason for doing anything.

     

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    Gert, Mar 23rd, 2011 @ 5:43am

    To the shill

    "Instead, what promotes innovation are two key things: need and competition."

    "I might 100% agree with you. Not really quite 100%, but it doesn't matter either way. Fact is, even if that is reality it just doesn't matter. I want a patent if I invent something, and so do the rest of the skilled artisans of the world."

    So Mike is right after all!

    It is good to hear that from Patent System 'user' like you.

    And I guess that since "it doesn't matter", you'll have no objection to lowering the bar for getting rid of bad patents. Because that would only be an improment, wouldn't it?

     

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    JEDIDIAH, Mar 23rd, 2011 @ 7:25am

    The current mess.

    The attitude of the government as expressed in this brief is why patents are such a mess. The PTO rubber stamps trivial nonsense and the rest of us are left holding the bag. If the PTO won't do it's job properly, then the rest of the government including the courts and juries need to be able to act as a check against their stupidity and corruption.

    A patent comes with it a 17 year right to interfere with anyone else capable of building the same thing. This is where the real destructive force in "intellectual property" lies. A patent grants ownership on not just one's work but everyone else's. This sort of thing actually DISCOURAGES anyone from taking advantage of the shared knowledge that patents in aggregate represent.

    Not only should "inventors" have a burden, it should have a very harsh burden. When ever a patent hold tries to stifle the rest of the industry, that should trigger a very high burden. They should have to prove themselves in court under the highest burden available.

    The patent holder should have as much at risk as the defendant.

    Any patent holder should run a grave risk of losing their patent for trying to enforce it. Certainly any inventor should be able to argue their case against some "meddlesome jury".

    A 17 year monopoly on something that can interfere with my own ability to work should rightfully need to be able to justify itself.

     

    reply to this | link to this | view in thread ]

  36.  
    identicon
    JEDIDIAH, Mar 23rd, 2011 @ 7:30am

    Invention vs. Monopoly

    > I want a patent if I invent something, and
    > so do the rest of the skilled artisans of the world.

    I think this is a good deal of the problem.

    Individuals tend to only see beyond their own nose and typically don't bother to consider the wider implications of their decisions. They don't even realize the long term consequences to themselves, never mind any one else.

    This is why we have societies and governments, to balance multiple competing personal and group interests.

    Although a big problem here is that the term "invention" has been diluted to the point where it is pretty meaningless.

     

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  37.  
    identicon
    staff, Mar 23rd, 2011 @ 7:47am

    stop the shilling

    "basically a bunch of companies who rely on patent licensing"

    Prior to eBay v Mercexchange, small entities had a viable chance at commercializing their inventions. If the defendant was found guilty, an injunction was most always issued. Then the inventor small entity could enjoy the exclusive use of his invention in commercializing it. Unfortunately, injunctions are often no longer available to small entity inventors because of the Supreme Court decision so we have no fair chance to compete with much larger entities who are now free to use our inventions. Worse yet, inability to commercialize means those same small entities will not be hiring new employees to roll out their products and services. And now some of those same parties who killed injunctions for small entities and thus blocked their chance at commercializing now complain that small entity inventors are not commercializing. They created the problem and now they want to blame small entities for it. What dissembling! If you donít like this state of affairs (your unemployment is running out), tell your Congress member. Then maybe we can get some sense back in the patent system with injunctions fully enforceable on all infringers by all inventors, large and small.

    For the truth about trolls, please see http://truereform.piausa.org.

     

    reply to this | link to this | view in thread ]

  38.  
    icon
    burdlaw (profile), Mar 23rd, 2011 @ 7:59am

    Re:

    Moron, there is a huge difference in evidence. I am in that field and I think you are an idiot, as the potential difference would be huge on 99% of patent cases.

     

    reply to this | link to this | view in thread ]

  39.  
    identicon
    tifoso, Mar 23rd, 2011 @ 8:47am

    Basis for Patents

    Throughout this discussion, there seems to be a lack of understanding why the patent system is the way it is.

    During the Constitutional Convention of 1787-89, Madison opposed a patent system. Jefferson, an inventor, wanted a strong system. Both had good arguments which have been echoed here. As it so often the case when both sides are right, they compromised. So patents have a limited term after which the public may make and use the invention. This was contained in the Constitution. The most foolish waste of time is to argue against having patents since it would take an amendment to the Constitution to accomplish that. The process is long and tedious and likely to fail.

    The length of the term of a patent is what is called a "political" issue. (Jedidiah has it wrong. The present term is twenty years for utility patents and that term can be extended an extra year with a provisional patent.) A great number of inventors do not pay the renewal fees and their patents expire long before the twenty year term.

    There is no doubt that some patents are trivial, but some are incredibly complex. The problem is how to come up with rules to cover both without creating an undue hardship at either end of the spectrum.

    On another point: throughout this discussion we have seen use of terms like "bad patents" and "obviously bad patents". Such patents do not get to the stage where the burden of persuasion matters. That is, in the correct sense of the term, "begging the question", that is, assuming the conclusion as a premise.

    The issue before the SCt is where to draw the line. Whether the SCt will do that is questionable since the present SCt has a history of giving deference to Congress and the govt, that is, the PTO.

    Let us hope that when the SCt does decide the case, it will do a better job than it did with Bilski.

     

    reply to this | link to this | view in thread ]

  40.  
    identicon
    Anonymous Coward, Mar 23rd, 2011 @ 10:18am

    Re:

    Re the first quote in your comment, it seems you may very well have been sucked in by use of the word "innovation", a word that is used here in a very special way to decry what is viewed by its users as the fundamental unfairness associated with patent and copyright law. For example, "Yea, I am infringing the patent, but so what? I am doing what I think is a better job getting product to market than the job being done by the patent holder."

     

    reply to this | link to this | view in thread ]

  41.  
    icon
    burdlaw (profile), Mar 23rd, 2011 @ 10:33am

    Government brief opposes lowering standard

    There is a huge difference in evidence between a dubious preponderance and clear and convincing. . I am in that field and I think you are an idiot, as the potential difference would be huge on 99% of patent cases. Nice to see the Government on the side of patent validity rather than patent theft.

     

    reply to this | link to this | view in thread ]

  42.  
    icon
    burdlaw (profile), Mar 23rd, 2011 @ 10:48am

    Clear and convincing is the right standard

    Clear and convincing is the right standard. The USPTO has examined every patent application prior to issuing a patent. That is a prior adjudication by a trained expert in the field, in fact arguably the best trained experts in the world.

    If we returned to a registration system for patents, and I think we should, then a preponderance would be the right standard, since there would have been no prior adjudication. But, that is not where we are, we are here with a thorough examination having been made that deserves respect. Sure Mike and the other invention theives that post on this site would like to more easily steal inventions, but Mike and the thieves are going to lose this case, and lose badly.

    That examination is a prior quasi-judicial finding which is entitled to respect in court, just as prior decisions of lower courts are given respect by higher courts. That is what the "clear and convincing" standard accomplishes.

    The only aspect of Mike's analysis that is correct is that "it is simple, really."

     

    reply to this | link to this | view in thread ]

  43.  
    icon
    Mike Masnick (profile), Mar 23rd, 2011 @ 11:37am

    Re:

    But understand what you're up against. You're up against the people that want a patent. And they have the people with power's ear.

    Yes. What a surprise. The people who want gov't granted monopolies want gov't granted monopolies.

    I recognize that logic, knowledge and evidence won't change the corruption. But I have principles, and that means I stand up for what I believe in.

     

    reply to this | link to this | view in thread ]

  44.  
    identicon
    tifoso, Mar 23rd, 2011 @ 2:12pm

    Mike's Principles

    Mike -

    Actually, the people who want patents get them not because they have the ear of the powerful but because that is the deal the Founding Fathers worked out over two centuries ago. The arguments for and against a patent system were aired. A compromise was worked out. It has served our country very well.

    You might thing your logic is sound but when you start with false premises, you can reach absurd conclusions. You have a poor knowledge of history and how our political system works. Put simply, your side lost. Get over it.

     

    reply to this | link to this | view in thread ]

  45.  
    icon
    6 (profile), Mar 23rd, 2011 @ 3:14pm

    Re: Re:

    Except the common man (much less the legal community) doesn't see issuance of a patent for a specific contribution as being corruption. Never has, and never will.

    Furthermore Mike, you don't really have a monopoly if the court won't issue an injunction against the infringer. And those aren't so easy to get post-ebay. You just get some royalties from the infringer. Practically the only way you get a monopoly is by building yourself an awesome company selling/using the invention and you can show harm to your business by an upstart infringer.

    "I recognize that logic"

    It isn't logic. It is a desire.

    But carry on, just so long as you're clear that you're fighting a battle in which you will make 0 headway within your lifetime, and the situation will only change when skilled artisans are no longer needed to promote the useful arts, or we do away with money. It is going to be several thousand years for the former, at the least, and I'm all for the later.

     

    reply to this | link to this | view in thread ]

  46.  
    icon
    6 (profile), Mar 23rd, 2011 @ 3:16pm

    Re: To the shill

    "So Mike is right after all!"

    I never said he wasn't. I don't say he is, or if he is not. Bottom line is, it is irrelevant whether he is right or not.

     

    reply to this | link to this | view in thread ]

  47.  
    icon
    6 (profile), Mar 23rd, 2011 @ 3:22pm

    Re: Invention vs. Monopoly

    "I think this is a good deal of the problem.

    Individuals tend to only see beyond their own nose and typically don't bother to consider the wider implications of their decisions. They don't even realize the long term consequences to themselves, never mind any one else."

    Many artisans don't consider the wider implications, but I do. And I specifically choose to have those wider implications apply FOR ME and AGAINST ME (should I choose to go into business).

    The only "problem" is that people without a clue, who are barely affected by the whole system, and who are not artisans within the useful arts have no comprehension of what it is like to advance one's art. They have little comprehension of the time and money put into schooling gaining experience to the point to where you even CAN advance your art.

    Well, besides the obvious problems with the current implementation of the patent system. Ala business methods, software, long waits for examination blah blah blah.

    "This is why we have societies and governments, to balance multiple competing personal and group interests."

    And they balanced it. And what you see is the balance.

    "Although a big problem here is that the term "invention" has been diluted to the point where it is pretty meaningless"

    I agree with you that it is substantially diluted in this day and age. However, the courts have tried to clamp down on things. See the KSR decision, Bilski decision, etc.

     

    reply to this | link to this | view in thread ]

  48.  
    icon
    6 (profile), Mar 23rd, 2011 @ 3:24pm

    Re: Basis for Patents

    "During the Constitutional Convention of 1787-89, Madison opposed a patent system. Jefferson, an inventor, wanted a strong system."

    You got those two turned around there bucko. Even though Jefferson was an inventor, he did not initially support the patent system, while Madison did. Eventually they reached a compromise. And Jefferson became the first examiner as it happened.

     

    reply to this | link to this | view in thread ]

  49.  
    icon
    Mike Masnick (profile), Mar 24th, 2011 @ 1:03am

    Re: Re: Re:

    Except the common man (much less the legal community) doesn't see issuance of a patent for a specific contribution as being corruption. Never has, and never will.

    Don't be so sure on the latter part.

    Furthermore Mike, you don't really have a monopoly if the court won't issue an injunction against the infringer. And those aren't so easy to get post-ebay.

    For NPEs, perhaps. Anyway, speaking of history, there is actually some evidence that the "exclusive rights" that were put into the Constitution actually were *meant* as "exclusive rights to profits." In which case it's still a monopoly, but you don't necessarily need an injunction anyway. I'm not sure I agree with that view either, but just pointing it out. There was an interesting paper I read on this a year or so ago.

    It isn't logic. It is a desire.


    Heh. Quite true. But doesn't change the fact that it doesn't make it right.

    But carry on, just so long as you're clear that you're fighting a battle in which you will make 0 headway within your lifetime, and the situation will only change when skilled artisans are no longer needed to promote the useful arts, or we do away with money. It is going to be several thousand years for the former, at the least, and I'm all for the later

    Now this I disagree with. I mean, honestly, just within the last few years I've seen headway. I've seen greater and greater numbers of people recognizing the problems with the patent system and more and more evidence to support that. I've seen the respect for the patent system dwindle, even as those who benefit from the system have strengthened their lobbying efforts.

    But reality wins out in the end.

    And you're simply wrong if you claim that it only changes if skilled artisans are no longer need to promote the useful arts. It's a lie. They can and would and do still promote the useful arts even without patents.

    This is the biggest problem I have with statements like yours. You seem to think that people invent because of patents. That's false.

    As for the end of money, I have no idea what that has to do with anything.

     

    reply to this | link to this | view in thread ]

  50.  
    identicon
    Anonymous Coward, Mar 24th, 2011 @ 7:51am

    To be fair to Judge Rich and Mr. Federico, the two most closely associated with the Patent Act of 1952, they did not "write" the act, but "codified" it. This is an incredibly important distinction.

     

    reply to this | link to this | view in thread ]


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