Why Do We Assume Patents Are Valid When Patent Office's Own Numbers Show They Get Things Wrong All The Time?

from the simple-questions dept

One of the bizarre things about the patent system is the "presumption of validity," in which a patent officially has to be presumed valid. Conceptually, this makes very little sense. Patents grant a pretty broad monopoly on "inventions" for an extended period of time... based entirely on approximately 18 hours that a patent examiner has to spend looking over the thing. Do we really think that a patent examiner gets things right most of the time? It seems that even the US Patent Office's own data shows that's simply not true. A friend pointed me to the USPTO's recently released data concerning re-exams (pdf and embedded below), which demonstrates in great detail why patents shouldn't be presumed valid. Basically, the data suggests that an awful lot of patents were handled poorly.

The document notes that 92% of re-exam requests are granted -- meaning that nearly all re-examination requests lead to a re-examination by the Patent Office. So, if most patents were well constructed in the first place, you would imagine that most of them would come through the re-examination process unscathed with no changes, right? Only if patent examiners were really bad at their jobs would a large percentage of patents need to be changed or rejected completely on re-exam. Given the "presumption of validity" that grants a monopoly, and the massive dollar amounts that patents sell for and are able to extract in settlements, you'd think that re-examined patents must normally confirm the original diagnosis. Hell, given that information, I'd hope that at least around 95% of patents, having passed the approval process, would be solid enough to survive the re-exam process untouched.

If the number was below 90%, I'd think the system was in trouble and needed some fixing. If it was below 70%, I'd think that we should be declaring the system a failure. If it was below 50%, I'd be questioning the entire basis of the patent system. So what is it?

Would you believe that only 22% of re-examined patents have all claims confirmed? 22%! That means that 78% of all patents that are granted a re-exam had serious problems with their original claims -- and remember, 92% of re-exam requests are granted. All these patents were initially approved and enjoyed the presumption of validity, which would may have cost companies millions (or more). This isn't just a failing grade. This is an epic disaster. It's true that 67% of the re-examined patents still are allowed with "claim changes", and only 11% are completely rejected, but those numbers are little comfort when we're told that we need to presume all of the claims in all patents are perfectly valid.

Now, some might claim that this number is perfectly fine, because only bad patents get re-exam requests. In fact, you could argue that perhaps these numbers show the system is working in that bad patents get re-exam requests and good patents remain valid. But there's little to no evidence to support that. Already, those who dislike patent re-exams are claiming that patent re-exams are abused with too many good patents getting re-examined. So it certainly appears that all sorts of patents get re-examined... and a very large percentage of them appear to turn out to have been mistakenly granted.

This highlights, in pretty stark contrast, just how broken and completely arbitrary the system is. For a system like this to be valid, it should be formalized and repeatable. It needs to be based on objective information, not the random subjective opinions of a particular examiner. Yet the data suggests that's exactly what's happening, meaning that we're handing out hundreds of thousands of monopolies based on the mere whims of patent examiners, who haven't been shown to be even remotely consistent, and who have very little time to actually examine what it is they're granting monopolies over.

How does anyone consider that to be a reasonable system?


Reader Comments (rss)

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  1.  
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    Prisoner 201, Aug 20th, 2012 @ 3:27am

    WHARRGARBL MASNICK WHY U NO DEBATE ME!?!?!

     

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    Donglebert the Extreme, Aug 20th, 2012 @ 3:43am

    Out of interest, are there historic figures on this? Is it worse now, or better?

    And does that 32% in litigation refer to patents currently being used to sue someone?

     

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    Anonymous Coward, Aug 20th, 2012 @ 3:46am

    I might be nitpicking, but

    I would rather say:
    "That means that at least 78% of all patents that are granted a re-exam had serious problems with their original claims" (bold text is my edit)

    The reasoning is that in the 8% where a reexamining request isn't granted, there's still some who could have false claims. I mean if they fail 4 times out of five, we can't assume the reexamining procedure is always spot on 100% accurate either ...

     

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    Don, Aug 20th, 2012 @ 3:52am

    R&D

    Where I is d to work in Toronto, we'd hire outside help to investigate and write up our R&D documents to submit to the government for a credit.

    Once I was asked to review one of those documents and it read like a Star Trek requirements doc. written by a 5 year old. The guy had no clue about computers or the technology. But funny enough we were still granted our credit.

     

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    Anonymous Coward, Aug 20th, 2012 @ 4:02am

    Well the government clearly still believes that monopolies will save them from global competition, they are wrong but we will have to wait until the world comes down grumbling around them for the idiots to take some sort of action.

    Before you had to show a prototype and hire at least an artist to produce the drawings for the application today you don't need either, you don't need to show some working thing you just need to claim something and it gets approved.

    A think the world forgot what monopolies mean to everyone.

    The new developing countries will be the ex-developed ones.

     

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    Anonymous Coward, Aug 20th, 2012 @ 4:02am

    you could argue that perhaps these numbers show the system is working in that bad patents get re-exam requests and good patents remain valid. But there's little to no evidence to support that.


    yes, there is, you said so yourself !!!

    It's true that 67% of the re-examined patents still are allowed with "claim changes", and only 11% are completely rejected,

    so you managed to work out the patent system is like most every other system in the world, it is a multi-iteration process. That results in the vast majority of cases in a successful patent application... you said so yourself..

     

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    Anonymous Coward, Aug 20th, 2012 @ 4:12am

    it also shows that the patent office does not simply rubber stamp patents, they spend time in analysis, there is generally notice slight technical errors, or even spelling errors, as a patent is a legal document it has to be 100% accurate, and worded correctly..

    that would be the majority of reasons why patents require re-submission. It's because of technical accuracy, and legal correctness.

    it is far too simplistic to state that a patent is either "good" or "bad", because of some requirement for it to be formatted and presented in a very specific manner.

    you of all people masnick should realise you are doing a major disservice to your readers by prejudging if a patent is "good" or "bad" and making it sould that simplistic.. I mean really !!! is that the level of understanding you wish to convey ?

     

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    Anonymous Coward, Aug 20th, 2012 @ 4:18am

    78% of all patents that are granted a re-exam had serious problems with their original claims

    Serious problems ???? that is an assumption by you right, there is nothing in the data you presented that indicates that a patent that requires re-examination has SERIOUS PROBLEMS.. so again, why did you say that ?

    the evidence does not support that claim.

     

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    Donglebert the Extreme, Aug 20th, 2012 @ 4:24am

    Re:

    The argument is that, considering the significantly damaging effect these patents have on innovation, the effort going into granting the patent should be much greater. Fewer opportunities to resumbit patents would provide the resource.

    It surely can't be contested that a system where patents are more assuredly granted would be better. Patents would be stronger and so legal processes would be shorter.

     

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    Kylin, Aug 20th, 2012 @ 4:26am

    Here's an idea...

    For starters lets stop assuming the validity of a patent...a nd while we're at it, let's not big down the patent office with frivolous patents... We could also not patent software and computer codes, which would be legitimate since you cannot patent a mathematical formula (which essentially all software and coding is anyways)

     

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    abc gum, Aug 20th, 2012 @ 4:28am

    Re:

    Bogus patents are real my friend. And they cost you a lot.
    No matter how hard you wish them to be good, overall they are indeed bad for us - the people.
    Here are just a few of many references:

    Business Costs Quadruple on Patent-Owner Claims
    http://www.bloomberg.com/news/2012-06-26/business-costs-quadruple-on-patent-owner-claims-bgo v-barometer.html

    Why There Are Too Many Patents in America
    http://www.theatlantic.com/business/archive/2012/07/why-there-are-too-many-patents-in-ameri ca/259725/

     

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    Goyo, Aug 20th, 2012 @ 4:29am

    Re:

    He didn't. So why did you say he did?

     

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    arleenzank (profile), Aug 20th, 2012 @ 4:32am

    A Bit of Reality

    There are other things going on here that might change your opinion on the reexamination process.

    First, of the 12,258 reexam requests 32% were initiated by the owner of the patent. The reexamination process is a precursor to many licensing agreements as well as enforcement activities. If a patent holder has a patent that is for technology viewed as really seminal or that is essential to the a standard, it is not uncommon to require a reexamination as part of that process to minimize risk.

    Reexaminations are not the random subjective opinions of a particular examiner. A reexamination is handled by a team of three senior examiners including a supervisory examiners. Generally these are the best examiners on the subject matter.

    The reexaminations initiated by third parties - other members of the public - are a by product of patent litigations. One of the tactics used during litigation is to request a reexamination. Since there are often multiple patents that are part of a suit you are going to see lots of reexam requests. While the report shows that 32% of the reexams were associated with litigations it doesn't reflect reexaminations requested as a precursor to litigation that may be settled outside of the purview of USPTO. Patents involved in law suits are generally the ones someone thinks are high value. Successfully reexamined patents are more valuable.

    4.1 million patents issued from 1981-2011. There have probably been over 100,000 issued already this year. In the same period there were 12,258 reexaminations. This means that .002% of all patents being reexamined.

    The average US patent has 20 claims that means that last year there were 4.9 million claims. Even if you use 10 claims per patent as the average since 1981 that means that the reexamination impacted roughly 82,000 claims out of 41 million claims.

    And finally, every application must include a substantial new question of patentability. It's not like you send a patent number and a check and the examiners are off to the races. the SNQ has to document the justification for a reexamination.

    While I'm not always a fan of USPTO, I am missing your point.

     

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    saulgoode (profile), Aug 20th, 2012 @ 4:47am

    Re:

    I don't know it there are any historical statistic data on this, but anecdotally I would point out that "Thomas Edison's" light bulb -- the very symbol of a "good idea", and which the Director of the USPTO promotes as a "great example" of how the patent system works (he keeps the model that accompanied the original patent application in his office, when it is not being publicly exhibited as an "Icon of Innovation") -- was originally granted a patent (#223,898) on January 27th, 1880.

    This patent -- the paragon of invention and the patent monopoly -- was subsequently ruled invalid on October 8, 1883.

    Perhaps the numbers have changed over time, but the failure of the US Patent Office is unremitting.

     

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    Ninja (profile), Aug 20th, 2012 @ 5:30am

    I guess the same question could be asked on copyright grounds:

    Why do we assume all DMCA notices are valid when a variety of numbers show copyright holders get things wrong all the time?

     

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    gnudist, Aug 20th, 2012 @ 5:36am

    Re: Re:

    The symbol of alledged patent system innovation wasn't even a valid patent? Really?

    HAHAHAHAHAHAHAAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAH

    *takes deep breath*

    HAHAAHAHAHAHAHAHAHAHAHAHHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHHA HAHAHAHAHA

     

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    Anonymous Coward, Aug 20th, 2012 @ 6:08am

    How does anyone consider that to be a reasonable system?

    Demagoguery at its best, as always, Mike.

    he document notes that 92% of re-exam requests are granted -- meaning that nearly all re-examination requests lead to a re-examination by the Patent Office.

    And what percentage of all the patents issued have requests put in for their reexamination? Why don't you tell us that number so we can put this into perspective?

    It's quite possible that 99.99999999999999999% of all patents never have a reexamination request and are perfectly constructed. I'm not saying that is the case, I'm only saying that that is possible, given the information (or lack thereof) that you have provided.

    That 92% number, and all of your other numbers, are meaningless without some context. If there's millions of valid patents, and only a handful of ones that are requested to be reexamined, and only a handful of those are actually invalid, then this might be a situation where you're pointing to a 0.0000000000000000000000000001 error rate and whining about it.

    I bet you have the numbers that would put this into perspective, but consciously chose not to mention them so as to give your patent FUD piece more gravitas. Am I right? God forbid you were *ever* honest about anything.

     

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    Anonymous Coward, Aug 20th, 2012 @ 6:10am

    So it's ok for the govt to assume patents invalid, but it's not ok for the govt to create and enforce measurement standards.

     

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    Anonymous Coward, Aug 20th, 2012 @ 6:12am

    Re:

    Yep. He'll whine about all IP, no matter what. And he'll lie and cheat and do *anything* to get his way. Mike is the most desperate IP hater there is.

    11% of 92% of HOW MANY?

    He whines about the numbers, but consciously chooses to omit the numbers that would give this piece any perspective.

    And God forbid he actually make a real argument about why or why not there should be a presumption of validity.

     

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    LOL, Aug 20th, 2012 @ 6:36am

    Re:

    Oh, the percentage of patents issued with requests for re-exam is less than 0.3%. It's right there in the paper. (12,258 since 1981) while more than 4 million has been granted (and over 10 million filed).

    Also, it states that 32% were initiated by the patent owner. That means 32% were by people who thought that their patent was too narrow and wanted broader claims for more protection - it's likely that more of the rejections derive from these cases.

    The writer here is either incapable of processing simple numbers or using the worst kind of arguments (like that anti-abortion GOP rep who claimed women don't get pregnant from "legitimate" rape).

    Patents have their issues but this article is just pure fail in a bottle.

     

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    Ninja (profile), Aug 20th, 2012 @ 6:53am

    Re:

    Just in case your browser doesn't highlight links, there's one nice little link in the article that leads to the numbers and the site where you can possibly get more information:

    http://www.uspto.gov/patents/stats/EP_quarterly_report_June_30_2012.pdf

    I invite you to come with those numbers to counter what Mike said. We'll gladly discuss with you about your numbers. And please avoid ad homs, you won't be taken seriously if you use them ;)

     

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    Ninja (profile), Aug 20th, 2012 @ 6:54am

    Re: Re: Re:

    I'm laughing hard too. I never knew of this irony! Count on techdirt commenters for further information and a ton of lulz!

     

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  23.  
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    Ninja (profile), Aug 20th, 2012 @ 6:58am

    Re: Re:

    Excuse me but he is pointing out that other outcomes are possible even when there's little evidence on it. And he points us to the source of his numbers (http://www.uspto.gov/patents/stats/EP_quarterly_report_June_30_2012.pdf) as he always do so... your point again?

     

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    Anonymous Coward, Aug 20th, 2012 @ 7:01am

    The analysis of the data presented here is so lacking in substance that it must fall under its own weight.

    First, patents issue on the basis of the "evidence" presented during the prosecution of the original application. If after issue a previously unknown written reference comes to the attention of either the patentee or a third party, a reexamination can be requested to determine if the new reference is, in fact, relevant and pertinent to the subject matter set forth in one or more claims of the patent.

    Requests for reexamination are in large measure granted merely out of an abundance of caution. Just because a reexamination request is granted does not mean that there is a defect in one or more of the claims. It only means that another look as the claims appears at first blush to be warranted.

    Now, much is being made of the large percentage of reexamination proceedings where claims are changed. To the uninitiated this may suggest that many, if not all, of the claims were defective and had to be changed. This is not at all true in many instances. Sometimes only a single claim is involved, and if the reference is in fact relevant the claim may need to be amended to address the newly discovered evidence. To throw 92% around without making note of this is terribly misleading.

    Clearly, Mr. Masnick is using these figures to craft an argument that the initial examination process is broken. If he hopes to succeed in crafting such an argument, then it beehoves him to drill down into the numbers before an honest and complete assessment can be made. Experience informs me that what seems to be the case based upon raw numbers does not stand up to a truly detailed analysis.

     

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    Prisoner 201, Aug 20th, 2012 @ 7:01am

    Re: Re:

    Thank you, my first 10/10 for a faux troll post! If I wasn't saddled with a conscience I might consider taking up trolling in a professional capacity.

     

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    Anonymous Coward, Aug 20th, 2012 @ 7:05am

    Re: Re:

    if you can find so much bad patents in only 0.3% imagine what people would find if they were able to re-exam all patents in real time.

    I don't believe you understand the power of that small sampling and how damaging it is patent claims, if 99% of all patents where good the chances of finding bad patents should be minimal as in 1% or less, instead you get from a 0.3% a rate of more than half of all re-exam applications accepted because of they are bad in some way, that is not good at all.

    The accuser(you) are probably the one that can't parse numbers correctly.

    The article correctly points out of the absurd high number of bad patents found in a sample size that should contain none.

    If what you said was true, finding bad patents should be like finding oil or gold, difficult, instead apparently if you strike anywhere in the patents accepted you can find 50% or more bad patents.

     

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    Anonymous Coward, Aug 20th, 2012 @ 7:18am

    Putting in perspective, if you sample 0.3% of an area and found a deadly pathogen contaminating more than 50% of your sample would people be sniffing the floor or fooling around with it?

    Monopolies are deadly to trade, do these people don't take commerce seriously?

     

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    balh, Aug 20th, 2012 @ 7:20am

    There is another explanation, and that is that people only put patents that are bad into reexam and leave the good onse alone. Why would someone waste money by attempting to reexam a rock solid patent?

     

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    Anonymous Coward, Aug 20th, 2012 @ 7:24am

    Re:

    This is Mike Masnick making his usual baseless attacks of the patent system. Mike consistently shows that he doesn't actually have any insight into patent law or its problems, and he'll spin anything in any way he can to try and make the system look broken. This is Mike's plan of attack for all IP law in general actually.

    Techdirt is just mindless IP bashing from the biggest IP whiner on the planet. And whatever you do, don't expect him to come into the comments to acknowledge your points. He's busy writing the next baseless attack on IP. It's all he knows. To say that a piece Mike wrote about IP is lacking in substance is equivalent to noting that the sky is blue.

     

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  30.  
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    Mike Masnick (profile), Aug 20th, 2012 @ 7:25am

    Re:

    Just because a reexamination request is granted does not mean that there is a defect in one or more of the claims.

    Just 78% of the time, apparently.

    It only means that another look as the claims appears at first blush to be warranted.

    Apparently 92% of the time, a second look is warranted at first blush. If that's not problematic to you, you don't know what the word problematic means.

    Now, much is being made of the large percentage of reexamination proceedings where claims are changed. To the uninitiated this may suggest that many, if not all, of the claims were defective and had to be changed.

    No, because I quite clearly stated that only 11% had all claims defective.

    Sometimes only a single claim is involved, and if the reference is in fact relevant the claim may need to be amended to address the newly discovered evidence.

    Yes, but as I pointed out, thanks to the presumption of validity, even that one falsely granted claim can be used to destroy businesses. Having just one falsely granted claim can wreak havoc. That seems like a problem.

    To throw 92% around without making note of this is terribly misleading.

    I did make note of it.

    Do you ever tire of being wrong around here? Of course not, because every time I point it out, you fail to admit and apologize. It's kind of shameful how often you seem to attack me based on your misreading of what was written. Have you discovered that Bret Easton Ellis has fans yet?

     

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  31.  
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    Anonymous Coward, Aug 20th, 2012 @ 7:53am

    Re:

    The chances of getting a patent approved on the first try are minimal, since the patent officers keep bringing up prior art until they get either tired or satisfied with what it was submitted in some ways it is capricious.

    But you should know that patents where only granted not so long ago to people able to prove that they were making something, they had to submit a prototype of some kind demonstrating how it worked, that is gone now and that is probably why so many bad patents pass through.

    The vagaries of any written language are no substitute for the physical embodiment of something that could be compared and validated against the language used to describe it.

    That was not the only change that made the quality of patent applications go down and the number of bad ones soar.

    Patents are a joke, if you doubt you can just search for "funny patents" and see it for yourself.

    Cross USB drive
    United States Patent # D533179
    http://marc-apotd.blogspot.com/2012/05/patenting-and-creative-freedom.html

    Patent Acquisition and Assertion by a (Non-Inventor) First Party Against a Second Party (aka patent trolling patent)
    United States Patent Application 20080270152
    http://www.freepatentsonline.com/y2008/0270152.html

    Animal Toy - United States Patent #6360693
    http://www.ipwatchdog.com/2010/10/06/animal-toy-patent/id=12711/
    The guy patented a stick. Now that is novel right?

    There are more crazy ones.
    http://www.freepatentsonline.com/crazy.html

    The patent office is becoming a place of joy, for the people looking for laughs.

     

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    Anonymous Coward, Aug 20th, 2012 @ 7:56am

    Re:

    Just look at the patents being allowed at any given day and you see why that is probably not it.

     

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    Old Man in The Sea, Aug 20th, 2012 @ 8:03am

    I'm staggered by the big miss from everyone

    The big miss is --

    the number of patents filed and the number actually issued.

    Millions filed and millions issued. This is a demonstration of the true ridiculousness of the patent system. If the patent system was truly working well, a reasonable number issued over decades for truly outstanding insight into new functionality would be in the low thousands per decade.

    If we were issuing for outstanding insight in the millions, my personal expectation is that we should be out amongst the stars colonizing new worlds, we should have no hunger and no disease anywhere on the planet, we should have total control over the climate, we should have completely restored the ecological balance to the planet.

    Otherwise, the reality would be that the patents issued are for unimaginative additions to our knowledge and are a farce. Oh hang on, that what is happening under the auspices of the legal profession writing these patent applications. Instead of advancing knowledge for all, we are just contributing to the retirement funds of that class of people.

    regards to all

     

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    Nasch, Aug 20th, 2012 @ 8:07am

    Numbers

    I haven't checked the numbers but if it's true that 99.998% of patents are never reexamined, that kind of makes this a non issue, even if 100% of reexams completely rejected all claims. Patents are a big problem, but apparently not because of this issue. I didn't see Mike take issue with the other guy's numbers so I'm assuming for now they're correct.

     

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  35.  
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    Anonymous Coward, Aug 20th, 2012 @ 8:11am

    Re:

    http://www.freepatentsonline.com/result.html?p=1&srch=ezsrch&search=Search&pn=&apn=& amp;all=&ttl=&abst=&aclm=&spec=&apd=&apdto=&isd=07%2F01%2F2012&isdto =08%2F21%2F2012&prir=&ccl=&icl=&in=&icn=&is=&ic=&an=&acn=&as =&ac=&ref=&fref=&oref=&parn=&pex=&asex=&agt=&uspat=on&date_r ange=all&stemming=on&sort=relevance

    There go search the patents granted this month and see for yourself, just doing a little quick search you can spot the probable candidates for funny patents of the month and every month is the same.

    Most likely to be BS patents this month.


    8222152 Method for fabricating hole pattern
    8221217 Gaming system and method of gaming
    8225305 Delivering software product updates via a response file
    8225323 Control device and control method for reduced power consumption in network device
    8221244 Table with sensors and smart card holder for automated gaming system and gaming cards
    8225355 Program search apparatus and program search method for same (Somebody patented Google again)
    8224025 Group tracking in motion capture
    8221297 Storage system for tool holders
    8221370 Personal care article with substrate surface topography for evoking a neurosensory skin response
    8224161 After-recording apparatus

     

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  36.  
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    Anonymous Coward, Aug 20th, 2012 @ 8:17am

    US patent #D664060 - Ring

    Why is the patent office granting a patent for a ring?

     

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  37.  
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    arleenzank (profile), Aug 20th, 2012 @ 8:34am

    Re:

    It's not a patent for a ring it's a patent for the DESIGN of a ring. It's how the ring looks. BTW, Jimmy Choo patents the design of its shoes and Kimberly Clark - the owner of the Personal care article with substrate surface topography for evoking a neurosensory skin response (an absorbent pad for use during surgery, patent their designs so the knock off kings can't steal their stuff.

     

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    Anonymous Coward, Aug 20th, 2012 @ 9:13am

    Re: Re:

    Exactly, that is not useful art is it?

    For the substarte surface topography for evoking a neurosensory skin response, that is fancy language to describe tactile sensation that can be produced by any object you touch is it not?

     

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  39.  
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    Anonymous Coward, Aug 20th, 2012 @ 9:16am

    Re: Re:

    Let me throw a question your way. Do you ever tire of making broad generalizations on subjects with which you have no significant and substantive experience?

    "..falsely granted claims..."

    Please excuse me, but patents are issued based upon "evidence". If previously unknown "evidence" comes to the fore, then a re-look at the patent may be appropriate. To say a claim was falsely granted demands support from you far more detailed that the mere discovery of previously unknown evidence that may or may not prove relevant.

    As for your constant refrain about being "wrong", I can only respond by saying that even when proof traversing your assertion is provided your keyboard suddenly goes into "sleep mode".

    Once and for all, I commented that it is difficult to see screen writers as having a fan base. This is not the same as saying they do not. You, on the other hand, made the comment that they have a somewhat rabid fan base. My comment was not a firm and definitive statement of fact. Yours was, which, of course, may or may not be correct since I do not have factual data in hand by which to measure its accuracy.

     

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  40.  
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    Anonymous Coward, Aug 20th, 2012 @ 9:18am

    Re: Re:

    "Personal care article with substrate surface topography for evoking a neurosensory skin response" = A piece of anything with a texture that has a characteristic tactile sensation or in other words a piece of material with a texture on it.

    How is that patentable?

     

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  41.  
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    Anonymous Coward, Aug 20th, 2012 @ 9:20am

    Re:

    I have not looked at this, but it is useful to note that it is a "design" patent, and not a "utility" patent.

     

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  42.  
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    Stephan Kinsella (profile), Aug 20th, 2012 @ 9:27am

    It's not really a presumption

    It's just a way of stating who has the burden of proof: the person challenging the validity of the patent has the burden of proving that it should not have been issued by the PTO. The only way to change this burden, and get rid of the presumption of validity, is to move to some kind of petty patent system where patents are not examined by the PTO but are only reviewed for formal considerations. Then the patentee would have to establish its validity when it sues. This might be an improvement in the law; not sure. In any case, it's moot, since any such change to patent law is viewed as "radical" and would never happen.

     

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  43.  
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    Anonymous Coward, Aug 20th, 2012 @ 10:02am

    Failure of your logic,... Re: A Bit of Reality

    The failure of your logic is that you are assuming the reexamination process is the process whereby all illegitimate patents are vetted, versus being a representative sample of all patents.

    Easily, 90% of patents do not result in a successfully marketed product. That takes down the numbers right there... Nobody starting a reexamination in order to prove to potential licensees that the patent is valid... Secondly, the law of large numbers dictates that the reexamination process is simply just a representative sample of the issued patents. That means that the reexamination process does not reveal that only 0.002% of patents are invalid, but that the representative percentages of failure may safely be applied to the entire block of issued patents...

    Your argument is a slight of hand /smoke and mirrors argument. You are trying to misinterpret what that statistical data proves, in order to perpetuate a logical fiction.

     

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  44.  
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    Mike Masnick (profile), Aug 20th, 2012 @ 10:33am

    Re: Re: Re:

    Let me throw a question your way. Do you ever tire of making broad generalizations on subjects with which you have no significant and substantive experience?

    I wouldn't know, but I will properly assume that the reference you are stating here refers to yourself.

    Please excuse me, but patents are issued based upon "evidence". If previously unknown "evidence" comes to the fore, then a re-look at the patent may be appropriate. To say a claim was falsely granted demands support from you far more detailed that the mere discovery of previously unknown evidence that may or may not prove relevant.

    If the claims are changed or rejected, and were previously assumed valid, then they were falsely granted -- giving a monopoly to a party that does not deserve one, and allowing them to wreak havoc on innovation.

    If you cared about innovation, rather than your paycheck, you'd recognize this. But since you're a patent lawyer, we know which one you care about.

    As for your constant refrain about being "wrong", I can only respond by saying that even when proof traversing your assertion is provided your keyboard suddenly goes into "sleep mode".

    You made multiple significant factually incorrect statements and have done so for a while. I will note, amusingly, that you fail to respond to the factual errors I brought up in this thread.

    Once and for all, I commented that it is difficult to see screen writers as having a fan base. This is not the same as saying they do not. You, on the other hand, made the comment that they have a somewhat rabid fan base. My comment was not a firm and definitive statement of fact. Yours was, which, of course, may or may not be correct since I do not have factual data in hand by which to measure its accuracy.

    Yes, let's be clear. On a post about Bret Easton Ellis raising a shit ton of money on Kickstarter, you directly claimed that you did not see how he could have fans. In response, we pointed out that he has a TON of fans, and asked you to admit that you were speaking out of ignorance (see the top of this comment). Then you started doing a head fake where you refused to admit that on a post about Bret Easton Ellis raising money that you said that you didn't believe someone like him could have fans. You then doubled down and insisted that the project would likely fail because we didn't know what an executive producer was. Then we pointed out that the project does have an experience exec producer... and you again pretended to have said something entirely different.

    You keep making factually incorrect statements because you speak from ignorance and a weird dislike of me personally. It's sad.

     

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  45.  
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    Anonymous Coward, Aug 20th, 2012 @ 11:18am

    You should never confuse "disagreement" or "criticism" with personal animus.

    You mentioned the other day that you have been in Florida several times. Perhaps next time you come over this way you can give me a call so we can finally meet and have a substantive discussion versus back and forth comments using a keyboard. My home is about 5 miles as the crow flies north of the Disney property.

    I have always found the former to be much more constructive and less likely to lead to misunderstandings.

     

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  46.  
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    tired IP guy, Aug 20th, 2012 @ 11:22am

    wow

    I've worked in IP for 30 years, and neither Masnick nor Anon Coward know what they are talking about. Masnick looks at numbers, and only numbers. Re-exam (and all patent prosecution and litigation) is very complex and done for many reasons. Masnick does not understand the re-exam process. See the comment from "Arleen..." for an excellent explanation.

    And Anon Coward, you are also a moron. A patent # that starts with a "D" is a design patent, not a utility patent. That is not a patent for a ring, but for a design of a ring. If you don't think patents should be granted for designs, take it up with the Supreme Court.

    Here's a typical validity scenario. A patent was granted, after four years of prosecution. A year after it was granted, someone found a Master's Thesis written in the UK in the 1970s as prior art. A competitor really wanted the patent to be invalid, and spent a lot of money looking for prior art. In the end, the patent was determined to be valid.

     

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  47. This comment has been flagged by the community. Click here to show it
     
    identicon
    Anonymous Coward, Aug 20th, 2012 @ 11:34am

    Re: Failure of your logic,... Re: A Bit of Reality

    Your argument is a slight of hand /smoke and mirrors argument. You are trying to misinterpret what that statistical data proves, in order to perpetuate a logical fiction.

    Mike Masnick in a nutshell. Bravo.

     

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  48. This comment has been flagged by the community. Click here to show it
     
    identicon
    Anonymous Coward, Aug 20th, 2012 @ 11:38am

    Re: wow

    I've worked in IP for 30 years, and neither Masnick nor Anon Coward know what they are talking about. Masnick looks at numbers, and only numbers. Re-exam (and all patent prosecution and litigation) is very complex and done for many reasons. Masnick does not understand the re-exam process. See the comment from "Arleen..." for an excellent explanation.

    Close. Mike starts with the conclusion, that patents are the devil and should be exorcised, and then tries to spin the data to fit the conclusion. Hence his incredibly noob article. It's just more backwards thinking from the master demagogue.

     

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  49.  
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    Anonymous Coward, Aug 20th, 2012 @ 11:54am

    In this topic Mike misunderstands what the presumption of validity is about (it is not about declaring it valid btw). He also misunderstands why a small selection of patents (those put through reexam) selectively selected because of questionable claims are then found wanting.

    Not to mention that he also misunderstands what the purpose of the first examination is.

     

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  50.  
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    Anonymous Coward, Aug 20th, 2012 @ 11:56am

    "when we're told that we need to presume all of the claims in all patents are perfectly valid."

    Nobody ever told you this Mike. You are merely told that the claims will enjoy, in a legal setting, a presumption of validity. That presumption can be overcome by clear and convincing evidence under 102/103 or good reasoning (and evidence sometimes) under 101/112.

     

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  51.  
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    Anonymous Coward, Aug 20th, 2012 @ 11:58am

    "meaning that we're handing out hundreds of thousands of monopolies based on the mere whims of patent examiners, "

    Mike learns what the power of an examiner is. Muahahahahahah.

     

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  52.  
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    Anonymous Coward, Aug 20th, 2012 @ 12:00pm

    Re: wow

    Uh...the comment reads "I have not looked at this, but it is useful to note that it is a "design" patent, and not a "utility" patent." I believe we are both saying the same thing.

     

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  53.  
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    Sean, Aug 20th, 2012 @ 12:05pm

    An answer

    My answer to the question originally posed in the title: If we didn't presume patents were valid, that would be equivalent to not having a patent system. If someone patents a device, and I can assume their patent is invalid and produce and sell that device myself, it is like they have no patent at all.

    The patent system is necessarily one based on human judgement, and therefore will always be imperfect, and never reproducible.

    Other comments:
    The number of reexamined patents that have claims rejected is not necessarily evidence of poor initial examination. Rather, it could be due to people picking accurately which patents to make requests on. However, in the case of the reexaminations requested by the patent owners, they presumably want their patents to be valid and think they are valid, so these numbers are more troubling.

    The above discussion of the 0.3% number misses the fact that it is not a randomly selected set. (Except, possibly arguably in the owner-requester set as I just mentioned.) It costs money (if I'm not mistaken) and takes time to request a reexamination. So in general it doesn't say much about the general distribution of "bad" patents in the whole.

     

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  54.  
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    Anonymous Coward, Aug 20th, 2012 @ 3:48pm

    Re:

    " are there historic figures on this? Is it worse now, or better?"

    If not, perhaps the lack of such figures is, itself, a criticism of the system. Part of the alleged purpose of patents are about disclosure and disclosing such data is an important tool for the public to better determine the efficiently and effectiveness of the patent system in serving the public interest and to determine what should be done to make it more efficient and effective.

     

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  55.  
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    Luke, Aug 20th, 2012 @ 8:42pm

    Math

    3,844,337 utility patents were issued between January 1, 1981 and December 31, 2010 (I'm too lazy to look for the two last years or figure out other kinds of patents when it isn't necessary for my point.)

    According to the document listed as a source on that article, only 12,258 re-examination requests were filed by the USPTO between January 1, 1981 and June 30th of this year. For convenience, I'm going to pretend that these were all during the period described above.

    (It should be noted that nearly a third of these requests were made by the owner of the patent, meaning they thought the patent was too weak. However, I'm going to pretend that they were all from third parties.)

    Of those requests, 92% were granted, for a total of 10,755 (some have not had a decision made yet.)

    Of those, 78% were adjusted. 11% were complete cancellation of the claims, 67% were merely changes.

    That 78% makes up 7,090 patents. Pretending these all were completely reversed, were all utility patents and all took place from 1981-2010, this is 0.1844% of all patents. I'd bet that number drops by at least a factor of 100 when you correct for my laziness.

    Based on these statistics, I'm much more confident in the USPTO. Thank you for posting this.

     

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  56.  
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    arleenzank (profile), Aug 20th, 2012 @ 9:11pm

    Re: Math

    I cranked up the numbers as well and had an error on the placement of the decimal (my apologies - before coffee).

    The only issue I have with your commentary is the statement that the owner of the patent thought the patent was too weak. My experience is that the owners request a reexamination as part of a licensing program and a litigation readiness exercise. When you are getting ready to enforce your patent and you can say hey, I'm confident enough in my invention that I had it examined TWICE and both times I got me some good claims. And at least 4 patent examiners evaluated my invention, it's game on.

    Others may have a different experience.

     

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  57.  
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    Anonymous Coward, Aug 20th, 2012 @ 10:59pm

    Re: wow

    Exactly why are patents allowed for non-useful-arts?

     

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  58.  
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    Mike Masnick (profile), Aug 21st, 2012 @ 12:54am

    Re: Math

    That 78% makes up 7,090 patents. Pretending these all were completely reversed, were all utility patents and all took place from 1981-2010, this is 0.1844% of all patents. I'd bet that number drops by at least a factor of 100 when you correct for my laziness.

    That assumes, completely incorrectly, that any patent not challenged by a re-exam must be good. That's simply false as anyone who actually deals with this stuff would know. Most patents don't ever get used for anything, so there's no issue and they never get asked to be re-examined. But the data we have, on patents that do get looked at a second time, suggests that in a very, very high percentage of cases, original claims were granted in error.

    That should scare the living daylights out of you, unless you abuse the system to make money.

     

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  59.  
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    bikey, Aug 21st, 2012 @ 6:06am

    Patents have only been 'presumed valid' since 1982 when the Court of Appeals for the Federal Circuit was established to give the final rubber stamp to any and all patents. Prior to that, they were usually found to violate anti-trust law. This legislative presumption can be reversed with a flick of the wrist if only there were halfway intelligent and independent legislators.

     

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  60.  
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    Anonymous Coward, Aug 21st, 2012 @ 6:11am

     

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  61.  
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    Vic Kley, Aug 21st, 2012 @ 6:41am

    Re: I'm staggered by the big miss from everyone

    Although the problems you've listed have been solved, there is no investor with cajones large enough or CEO leader enough bring off the inventions.

    Like Mush-mind-nik and many others a patent is confused with its full implementation. That has never been true.

    Under the latest law America Invents Act with first to file even less so.

     

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  62.  
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    vic Kley, Aug 21st, 2012 @ 6:56am

    Presumed Valid or Die

    Once you've fought through the barriers put up by the USPTO and obtained a patent to protect what you are making or hope to soon make it better be valid and represent some value for your extreme effort.

    It better help you get those who have decided to copy your idea to pay for the right to license it. The patent better help you in court establish the validity of your new field of endeavor.

    Finally if there are to be no patents or patents only for the wealthy (where we are headed) let's get there as soon as possible so we can look for other solutions.

    Yes there are other ways to protect "software" ideas, new concepts and other things. One obvious one is to find a country that cares about small inventors and creators and go there.

     

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  63.  
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    staff, Aug 21st, 2012 @ 8:09am

    more dissembling by Masnick

    "Why Do We Assume Patents Are Valid When Patent Office's Own Numbers Show They Get Things Wrong All The Time?"

    Have you ever filed, or prosecuted a patent application? Have you ever invented anything, or had to fight off large infringers who ripped you off and thumbed their noses at you saying "so sue us"? All you know about patents is you don't have any.

    Itís about property rights. They should not only be for the rich and powerful. Show me a country with weak or ineffective property rights and Iíll show you a weak economy and high unemployment.

    Please see http://truereform.piausa.org/default.html for a different/opposing view on patents.
    http://docs.piausa.org/

     

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  64.  
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    Anonymous Coward, Aug 21st, 2012 @ 9:31am

    Re:

    The "presumption of validity" first appeared in statutory form in the Patent Act of 1952 at 35 USC 282. This provision of the 1952 act codified federal common law that was articulated by the Supreme Court at least as early as 1934 when it issued its opinion in the matter of Radio Corporation of America v. Radio Engineering.

     

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  65.  
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    Anonymous Coward, Aug 21st, 2012 @ 7:25pm

    Re:

    The selection is mostly random, most patents are re-examed by their own applicants which suggests that most patents are indeed bad a) because the own applicant is not sure of the quality of it for lack of clear guidelines and b) people already know that at an re-examination most patents fall apart so they do it as many times as they can to assure it will stand up to scrutiny in the future.

    The first examination is for what then?
    If you are going to grant a monopoly to someone something that is called a "necessary evil" people should make sure it is valid and if they have any doubts should not grant it at all.

     

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  66.  
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    Anonymous Coward, Aug 21st, 2012 @ 7:27pm

    Re:

    Which is clearly the wrong assumptions about something that could damage others so profoundly.

    Any exclusion mechanism should be used with great care, but in this case all the assumptions made are to make it easy to exclude others not to protect others from exclusion which should be the priority.

     

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


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