Will Fear Of Willful Infringement Hurt New Patent Peer Review System?

from the questions,-questions dept

There’s been a lot of talk about the US Patent Office’s decision to test a patent peer review system. Since there are so many complaints about patent examiners not knowing about important prior art, the idea is that actual experts in the space can weigh in on prior art and how “obvious” the idea is. There are some problems with the idea, however — not the least of which is that making sure the right experts are actually paying attention when certain patents come up is a big task, especially as the USPTO makes it increasingly difficult to follow patent applications. Add to that the fact that damages can be tripled if the court finds “willful infringement,” and a number of patent attorneys recommend their clients never actually look at patents — since it only puts them at greater risk. That has some worried that anyone who participates in the peer review simply opens themselves up to willful infringement charges at a later date. While we like the idea of having experts weigh in on patent validity, it’s never going to be useful if the system punishes people for doing so.

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Comments on “Will Fear Of Willful Infringement Hurt New Patent Peer Review System?”

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Casper says:

Re: Mike is clueless

Yeah, I think you need to reread that blog you troll. It’s not even up to par with what some high schoolers I know are writing.

“The Peer to Patent Project: Community Patent Review was always a dumb idea.”

From the grammar and language choice of that sentence, I would wager that your a little slower then the other children. Am I right?

Chronno S. Trigger says:

Re: Mike is clueless

Read the article. Tell me if I got it right.

A community patent application review is when a company has its own employees review the patent to see if there is prier art or its obvious. (according to Patent Prospector) and is a bad idea because if the employers discover that it is infringing and patent it anyways (agents this community) they won’t have the plausible deniability (isn’t that the point) and may face triple fines. Did I get it?

So in short: Don’t let the companies review there own patents so that the companies can infringe without fear of paying bigger fines.

I don’t even have to say how stupid that sounds, since in the links provided point to this revew system being hundreds if not thousands of experts in the field (Noware saying anything about internal employies) reviewing the patents. Bigger fines for knowingly infringing makes sence to me and removing plosible deniablility also makes since.

angry dude says:

Mike's education

“Prior to founding Techdirt Inc., Mike worked in business development and marketing at Release Software, an e-commerce startup, and in marketing at Intel. Mike has a bachelor’s degree in Industrial and Labor Relations and an MBA — both from Cornell University.”

That’s all you need to know about Mike.

The guys has 2 BS (that’s “bullshit”) degrees and dares to offer his shitty analysis to the rest of us

Casper says:

Re: Mike's education

Are you high? What the hell do degrees have to do with an editorial on patents?

I hate to tell you, but you could be a double doctorate and not matter. Degrees do not equate to intelligence or common sense. All degrees indicate is that you were able to complete a set course, not that you actually know anything, nor do they qualify you to speak on subjects with more authority.

Your so free to throw around Mikes education history, but what of your own? Better yet, are you employed? What makes your blog more authoritative on the subject then Mikes?

Trimble Flangebottom says:

There's another problem...

There’s the ‘prior art is under trade secrets’ problem.

So I’m been around, I’ve seen a few things, know a few secrets. If I see a patent application that has either prior art in one of the those secrets, or where the secret indicates the practice is obvious to someone skilled in the art, then I can’t challenge it without revealing the trade secret.

They should seriously consider whether the Patent office should even be considering some fields that are better protected in other ways.

Even the model market patent market ‘pharma’ should be reexamined. Where’s the AIDs cure? Prion disease cure? Necrotizing fasciitis cure? 50 pain killers but no cure for cancer. Seems to me the pharmaceuticals industry gets patents too easy for minor incremental work and has little incentive to spend on more difficult research.

hello says:

actual discussion of the topic

Isn’t there a concern that hiding behind willful blindness will also lead to penalties? Or is that not a problem? Does anyone know?

I feel like willful infringement should require the element of “willfulness,” (Yes, I know…duh). So if a company has reviewed the patents and doesn’t think they’re infringing on anyone else’s patents, how is that willful? I don’t get it.

Michael Kohne says:

A different way it might play out

I see a different way this might play out. Companies would start to hire engineers (possibly older, retired ones) who wouldn’t be part of product development. Instead they’d be charged with keeping up in their field and shooting down competitor’s patents.

I could see it being worth the while of any large company to fund 2-4 people who’s only job is to keep the competition from getting their patents granted.

They might also come in handy as a resource for legal to use when filing new applications – by figuring out how their own patents might be shot down, they could strengthen them.

I don’t know that this is really a fix, but it’s probably not a bad thing, overall.

chris (profile) says:

Re: A different way it might play out

who cares?

every patent hoarding company will hire a “patent team” to shoot down other people’s patents. at that point, patenting an idea is only feasible if your idea is either a) truly unique or b) worth buying the best patent team.

either way, frivolous and defensive patents are impossible to get… problem solved.

Chris (user link) says:


Another problem I see with bringing in ‘experts’ for peer review is that they would probably be employees or former employees of the companies filing patents in their field. Much like how the FCC seems to be run by former tv, radio and music execs. This would leave to many obvious issues involving conflict of interest and payoffs. People who used to work for say Microsoft blocking patents by Apple because they are ‘obvious’ yet when Microsoft applies for something similar it would be granted. Could Microsoft then sue Apple for their product?

I’m not happy with current patent law, but because of this I don’t think peer review would be a good thing at all (unless you are a lawyer).

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