The previous commenter is right -- the reason businesses use standard contract language is to have consistency. Often groups of businesses -- like insurance companies -- use the same language because courts have already decided what certain terms or clauses mean and there is consistency and predictability.
However, just because Judge Posner didn't ready his mortgage contract doesn't mean that he shouldn't have -- I know that when I bought my house and got my mortgage, I read everything (even though I knew I couldn't change anything) just to know what I was getting into. There's really no excuse for not reading a contract if it's important to you and involves a lot of money. If the purchase agreement for you house is in "legalese," spend 50 bucks and take it to an attorney who will explain it -- it may save you a lot of heartache.
But I just don't buy the argument that because most people are too lazy to read the contracts they sign, that the contracts shouldn't be enforced. That's like saying if I'm too lazy to change the oil in my car, I should get a free car when the engine burns up.
I am more than happy to get rid of crappy patents, but this process is a fly trying to melt an iceberg in my opinion. They'd make more progress putting crappy patents asserted in litigation into re-examination --which can be done by anyone, not just the parties. Also, obviousness is normally proven by using prior art (in combination with other prior art), so this is useful.
As I read the jury verdict, the "triple dipping" was because $200 million was awarded for each patent, not for each product. And the verdict has not been stayed yet -- Apple made the motion on Sunday and it has not yet been decided.
Given the fact that the patent system exists and will continue (as will patent litigation), I prefer to inveigh against patent trolls, which I view as inimical to the patent system and to distort the economic value of patents. Whether or not patents increase innovation or not, they are still around and we have to deal with them, What I don't appreciate are the people whose only use for them is to bring lawsuits.
And I do disagree with you about copycats -- copying a website is a far cry from copying a piece of technology which took years and millions of dollars to develop. I don't think that someone who didn't spend that money in R&D should be able to just market the heck out of their copy and outsell the innovator without penalty. That's a little too "free market" for me. [Not that the Super Soaker is a complex piece of technology -- though it is AWESOME].
I do admire your intellectual consistency, though -- however misplaced :)
Mike: I don't remember seeing a patent you liked or a patent lawsuit you thought was anything less than an assault on competition, but I was wondering if there was a limit.
Hasbro sued Buzz Bee Toys, its direct competitor, for patent infringement for selling what appears to be a direct copy of its Super Soaker and Nerf Disk gun products. I have the same low opinion that you have about patent trolls who, in my opinion, are just leeches on the patent system who assert their patents for no good economic purpose. But what about using your patents to protect your market segment from copycats? Aren't you entitled to protect your market share which you have gained through your own innovation from competitors who have just copied you?
If you can't sign on to a patent lawsuit in these circumstances, I think you are just writing off the patent system as a whole.
BTW, check out my blog post on this case which has a really cool picture of a Nausicaan holding a Super Soaker. If you don't like patents, just pretend he's pointing it at the USPTO.
Willful infringement is prospective, i.e. once you know that you are infringing the patent you are supposed to stop using it. If you keep infringing even know you know that you are doing so, a plaintiff can get triple damages -- the theory is that you should be punished for deliberately infringing. You claim it in your complaint because if you don't, you waive asking for it. A plaintiff's right to recover willful infringement doesn't stop as of the date the complaint is filed, but continues as long as the defendant keeps infringing -- until trial, at least.
So there is nothing sinister or unusual for Red Bend asking for willful infringement damages in its complaint even though the patent had just issued -- indeed, its lawyers would have been at fault for not doing so.
This is, of course, putting aside whether you think their patent is any good or whether Google will ultimately be held at fault.
She is satisfying the "domestic industry" requirement by saying that importation of infringing goods interferes with her ability to license her patents. The complaint is available on the ITC website, BTW, if anyone wants to take a look.
The Commission started an investigation on this one last week anyway, so, off to the races!
Rusty raises exactly the point on damages that the courts miss -- the "value" of a patent is the benefit the infringer gets over the next best [non-infringing] alternative. The way damages [at least reasonable royalty damages] are supposed to be calculated is to assume that the parties were actually negotiating, assuming the patent is valid and infringed. What the infringer would pay is governed by the benefit he gets from infringing over not infringing [i.e. taking the infringing feature out or using a non-infringing alternative]. So, if I can sell a car for $20K with an intermittant wiper and for $19900 without it, the patent is "worth" $100 per car -- the patentholder normally gets half of this benefit. If I could make an intermittant wiper in another way without infringing the patent, but it cost $50 more per car to make, the patent is "worth" $50 per car and the patentholder would get $25.
If I could not sell the car at all without an intermittant wiper and I could not design around it, the roaylty would be based on the entire market value of the car -- a relatively rare occurance in my experience.
This s what the law is at present and this is exactly what the patent reform bill provides. And why the arguments over patent reform damages drives me nuts.
What drives me crazy in all of this is that the patent reform bill doesn't actually change the law on damages -- it just puts explicitly in the statute what the courts have already said is the law. The problem has been that no one, including the courts, has applied the law correctly, leading to damages awards which make little sense, either economically or legally. The patent-holder's lobby is in a panic that the courts might actually apply the law correctly and thus are trying to keep the issue thoroughly confused.
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Boilerplate contracts
The previous commenter is right -- the reason businesses use standard contract language is to have consistency. Often groups of businesses -- like insurance companies -- use the same language because courts have already decided what certain terms or clauses mean and there is consistency and predictability.
However, just because Judge Posner didn't ready his mortgage contract doesn't mean that he shouldn't have -- I know that when I bought my house and got my mortgage, I read everything (even though I knew I couldn't change anything) just to know what I was getting into. There's really no excuse for not reading a contract if it's important to you and involves a lot of money. If the purchase agreement for you house is in "legalese," spend 50 bucks and take it to an attorney who will explain it -- it may save you a lot of heartache.
But I just don't buy the argument that because most people are too lazy to read the contracts they sign, that the contracts shouldn't be enforced. That's like saying if I'm too lazy to change the oil in my car, I should get a free car when the engine burns up.
Prior art vs. obviousness
I am more than happy to get rid of crappy patents, but this process is a fly trying to melt an iceberg in my opinion. They'd make more progress putting crappy patents asserted in litigation into re-examination --which can be done by anyone, not just the parties. Also, obviousness is normally proven by using prior art (in combination with other prior art), so this is useful.
Triple Dipping
As I read the jury verdict, the "triple dipping" was because $200 million was awarded for each patent, not for each product. And the verdict has not been stayed yet -- Apple made the motion on Sunday and it has not yet been decided.
Re: Re: Patent Lawsuits Between Competitors for Copying
Given the fact that the patent system exists and will continue (as will patent litigation), I prefer to inveigh against patent trolls, which I view as inimical to the patent system and to distort the economic value of patents. Whether or not patents increase innovation or not, they are still around and we have to deal with them, What I don't appreciate are the people whose only use for them is to bring lawsuits.
And I do disagree with you about copycats -- copying a website is a far cry from copying a piece of technology which took years and millions of dollars to develop. I don't think that someone who didn't spend that money in R&D should be able to just market the heck out of their copy and outsell the innovator without penalty. That's a little too "free market" for me. [Not that the Super Soaker is a complex piece of technology -- though it is AWESOME].
I do admire your intellectual consistency, though -- however misplaced :)
Patent Lawsuits Between Competitors for Copying
Mike: I don't remember seeing a patent you liked or a patent lawsuit you thought was anything less than an assault on competition, but I was wondering if there was a limit.
Hasbro sued Buzz Bee Toys, its direct competitor, for patent infringement for selling what appears to be a direct copy of its Super Soaker and Nerf Disk gun products. I have the same low opinion that you have about patent trolls who, in my opinion, are just leeches on the patent system who assert their patents for no good economic purpose. But what about using your patents to protect your market segment from copycats? Aren't you entitled to protect your market share which you have gained through your own innovation from competitors who have just copied you?
If you can't sign on to a patent lawsuit in these circumstances, I think you are just writing off the patent system as a whole.
BTW, check out my blog post on this case which has a really cool picture of a Nausicaan holding a Super Soaker. If you don't like patents, just pretend he's pointing it at the USPTO.
http://bit.ly/cNLswV
Willful infringement
Willful infringement is prospective, i.e. once you know that you are infringing the patent you are supposed to stop using it. If you keep infringing even know you know that you are doing so, a plaintiff can get triple damages -- the theory is that you should be punished for deliberately infringing. You claim it in your complaint because if you don't, you waive asking for it. A plaintiff's right to recover willful infringement doesn't stop as of the date the complaint is filed, but continues as long as the defendant keeps infringing -- until trial, at least.
So there is nothing sinister or unusual for Red Bend asking for willful infringement damages in its complaint even though the patent had just issued -- indeed, its lawyers would have been at fault for not doing so.
This is, of course, putting aside whether you think their patent is any good or whether Google will ultimately be held at fault.
Re: Re: Re: Re: Re:
Try this:
http://searchapp.usitc.gov/edis3/app;jsessionid=18723A226182BA6D662655460F6916A4?service=direct/1/InvestigationDocuments/next&sp=2&sp=StabularResult
It's #12.
If this doesn't work, try searching in the public filings under "Short wavelength" -- the investigation # is 360
Re: Re: Re:
She is satisfying the "domestic industry" requirement by saying that importation of infringing goods interferes with her ability to license her patents. The complaint is available on the ITC website, BTW, if anyone wants to take a look. The Commission started an investigation on this one last week anyway, so, off to the races!
Reply to Rusty Mase's excellent comment on damages
Rusty raises exactly the point on damages that the courts miss -- the "value" of a patent is the benefit the infringer gets over the next best [non-infringing] alternative. The way damages [at least reasonable royalty damages] are supposed to be calculated is to assume that the parties were actually negotiating, assuming the patent is valid and infringed. What the infringer would pay is governed by the benefit he gets from infringing over not infringing [i.e. taking the infringing feature out or using a non-infringing alternative]. So, if I can sell a car for $20K with an intermittant wiper and for $19900 without it, the patent is "worth" $100 per car -- the patentholder normally gets half of this benefit. If I could make an intermittant wiper in another way without infringing the patent, but it cost $50 more per car to make, the patent is "worth" $50 per car and the patentholder would get $25.
If I could not sell the car at all without an intermittant wiper and I could not design around it, the roaylty would be based on the entire market value of the car -- a relatively rare occurance in my experience.
This s what the law is at present and this is exactly what the patent reform bill provides. And why the arguments over patent reform damages drives me nuts.
Patent reform -- damages
What drives me crazy in all of this is that the patent reform bill doesn't actually change the law on damages -- it just puts explicitly in the statute what the courts have already said is the law. The problem has been that no one, including the courts, has applied the law correctly, leading to damages awards which make little sense, either economically or legally. The patent-holder's lobby is in a panic that the courts might actually apply the law correctly and thus are trying to keep the issue thoroughly confused.