Yeah, that does make searches harder, in all art areas though it seems especially problematic in software. In theory, vague or "indefinite" patent claims aren't supposed to get through the patent office either. They're supposed to be clear enough so that someone looking at it would have a reasonable understanding of whether they're within the claim scope. That's another area when bad examination causes problems, I suppose.
With respect to software, it's probably a good area for Congress to step into, but they don't seem to be willing to do it. So we'll stumble around a bit more while the courts try to figure it out.
I think my post was in plain English, but let me summarize it briefly for one who apparently can't make it out. There is nothing in my posts regarding software patents or whether they are good or bad. My only comment was directed to why patent Examiner's, in any art area, might miss prior art. I'm assuming you didn't follow any of that, since you went off on a tangent. Maybe you're just trolling. In any event, if you want to flail around further with whatever your mind invents upon reading a post, I doubt I'll be bothered to respond again. I also doubt you're a programmer, since most programmers I know pay better attention to detail than you've evidenced here.
Usually, if the patent falls, licensing deals are going to go down with it. There may be exceptions, depending on what the license says (though if there is even a question, I wouldn't want to be in the licensor's shoes).
I don't think Samsung is likely to get any of its legal expenses back. Have they paid any of the judgment at this point?
I've seen Examiner's do Google searches. It is not the best searching method. Some of the companies that do prior art searches have better electronic systems. Google and other web search engines run into the same issue of returning far more results than the patent examiner can go through.
No, Juan. That's why I said the term "evergreening" is really misleading. They can't recover the original subject matter, and from what I know of patents in India, that holds true there just like it does in the U.S.
Instead, when companies patent a trivial modification to a drug, they use the power of their branding, marketing, distribution, and so on to push that new version to prominence. The generic company can produce the original drug, but now you have an incentive for the doctors not to prescribe the "old" version and to go with the "improved" version instead, and on the improved version there is no generic competition.
I think the reason things get caught on re-exam is that the patent office has new art before it that it didn't catch the first time around. Sometimes, this is just the result of a bad examination the first time. Sometimes, it isn't. If you think of the vast scope of prior art out there (we're at what, over 8 million issued patents, who knows how many published applications, and literally uncounted masses of non-patent literature). There's no way that it is possible for the patent office to have reviewed all of the art that is out there before making a determination.
What we need is a better prior art search process that is able to focus the search and is more likely to pull up the relevant art. That's not as easy to do as it sounds, though, because given the bulk of prior art out there, even well-constructed electronic searches of the art are going to miss references that use different wording to describe the subject matter.
The patent office does let a lot of patents through that should never have made it (the one that was recently shot down on a mathematical formula should have been unpatentable subject matter from the outset), but sometimes they do a decent job with the art that is before them, and once the patentee tries to enforce the patent, the accused infringer spends a lot more time and money on searching and comes up with art the examiner didn't have.
Yes, they could. The pharma corps push doctors to prescribe the new version. Also, doctors are sometime more likely to do it for liability reasons. If the patient dies, they don't want to be sued for malpractice and asked why they were using the older version when there's a "new and improved version" on the market.
Re: Response to: Steerpike on Apr 1st, 2013 @ 4:07pm
Yeah, but that wouldn't matter. If you eliminate elements from a patent claim, you don't infringe. So if a patent claim covers A, B, C, & D, you can make A, B, & C all you want without infringing. It's when you add D that you're in trouble.
Nevertheless, I think it is a good idea that courts look at these kind of incremental 'innovations' more closely to determine whether something truly inventive is going on or not. If not, no patent should be allowed.
Even if an "evergreen" patent goes through, can't the public still practice the claims of the original patent?
In other words, if a drug company patents a medicine having components A, B, and C, and then when that patent expires they get another patent for the medicine, but having components A, B, and C' (where C' is some modified version of C), then generic drug companies should still be able to produce a medicine having A, B, and C without infringing the new patent.
If you're talking about a private employer, the issues are not the same because there are no Constitutional protections at work. Remember, the Constitution constrains government action. If a public school district, or public official, or public employer does this sort of things, the First and Fourth Amendments come into play. If a private individual or employer does, the Constitution is not implicated and you have to rely on statutory or common law (to the extent it covers the act).
I wonder why they don't mention "obviousness?" It is true that for a patent claim to be anticipated, each and every element of the claim has to be present in a single reference. However, to be valid a patent claim must also be non-obvious, and that requirement of a single reference doesn't exist in that case.
Watching the video, I get the sense that this guy (and probably the rest of the jury) really did try to do what they thought was correct under the law. I think that fact, in and of itself, can support Mike's contention that a jury isn't the best arrangement for patent cases. Having an arbiter that understands the nuances of the law better would lead to better decisions, and probably just as importantly more predictable decisions so that companies getting involved in an industry have a decent idea of the bounds of the patents in that field. This case makes it seem kind of like a crap shoot.
I don't believe the Constitution guarantees a jury in every civil case, however. I suppose you could have specialized courts at the trial level, just as you have the Federal Circuit at the appeals level (not that the Federal Circuit is infallible).
I think the initial debacle shows the dangers of acting without thinking (or knowing) when using social media.
That said, personal attacks and threats against these writers, no matter that they were in the wrong, are way out of bounds. I'm glad the owner of LendInk said as much as well. As Dark Helmet notes, people making these threats are idiots. But it is a reality of social media today that if you step in it you're going to be the focus of a bunch of idiots until they find the next thing to attract their attention. Doesn't make it right, but people need to realize it happens and be smart.
More and more States are introducing alternative routes to certification, which I think is a good thing.
Using myself as an example here: I've taught both law and science at the University level. I've given talks on both subjects to high schools and junior high schools in the U.S. and Canada. I'm good at it (if I can toot my own horn for a moment). I'm particularly good with junior high and high school students, mostly because those are the age groups I really enjoy working with, and I can teach the subjects in a way that seems to connect with them.
I am not currently "qualified" to teach at a junior high or high school full time. I've started the process to become qualified, but it will be slow I think. The truth is, I could do it tomorrow and do it well, but even though we have a great need for good science teachers here I couldn't get hired (and it certainly isn't about money; I'd be taking about a 75% pay cut).
My personal view is that many of the requirements for getting a teaching certification are great when dealing with younger children. I wouldn't be comfortable teaching first graders, for example, without knowing more about child development specifically as it relates to that age group.
Once you get to junior high or high school, however, I think training in the subject matter is the most important in terms of formal education. The ability to connect with the students and teach them seems to me to be something that is inherent in the person. I know people who have Ph.Ds who are not qualified to teach in high school, but who would be brilliant at it. I also know certified teachers who teach in high schools who hate the job and frankly are not very good.
I think an alternative route to get people who would be great teachers into the school is an idea that is long overdue. On the whole, I view the obstacles regarding certification (when it comes to that level) to be more about protectionism than about ensuring that good teachers are in the classroom.
It isn't really a free speech issue. The Constitution protects against government action, and doesn't necessarily protect you against entering into agreement with private parties. From a legal standpoint, there's no free speech issue to form the basis of a challenge.
There is good reason to find such contractual provisions void for public policy, however. If that happens, even in a few jurisdictions to begin with, the practice will probably decline. In the mean time, to the extent possible it is best not to do business with people who want you to sign this sort of thing.