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On Monday, the New York Times ran an article bringing to light the challenges plaguing a U.S. Patent Office that is ill-equipped to function in the 21st century. Please take a look at the article, it is a wonderful read, but I have re-posted an excerpt below:

“In 2008, Mr. Phillips’s company, Vlingo, had been contacted by a much larger voice recognition firm called Nuance. “I have patents that can prevent you from practicing in this market,” Nuance’s chief executive, Paul Ricci, told Mr. Phillips, according to executives involved in that conversation.

Mr. Ricci issued an ultimatum: Mr. Phillips could sell his firm to Mr. Ricci or be sued for patent infringements. When Mr. Phillips refused to sell, Mr. Ricci’s company filed the first of six lawsuits.

Soon after, Apple and Google stopped returning phone calls. The company behind Siri switched its partnership from Mr. Phillips to Mr. Ricci’s firm. And the millions of dollars Mr. Phillips had set aside for research and development were redirected to lawyers and court fees.

When the first lawsuit went to trial last year, Mr. Phillips won. In the companies’ only courtroom face-off, a jury ruled that Mr. Phillips had not infringed on a broad voice recognition patent owned by Mr. Ricci’s company.

But it was too late. The suit had cost $3 million, and the financial damage was done. In December, Mr. Phillips agreed to sell his company to Mr. Ricci. “We were on the brink of changing the world before we got stuck in this legal muck,” Mr. Phillips said.”

I am glad that this ran on the front page. Even with an economic crisis plaguing this country, fixing the broken patent and copyright system is often overlooked as a potential solution to stimulate American innovative power. A patent is essentially a government-sanctioned monopoly, and should not be given away lightly. What if a restaurant patented the method of “taking orders and serving food to customers in cars”. What if an appliance company patented a “metal box that lowers the temperature inside and keeps it cold”? What if an auto company patented a “circular wheel which directs the movement of an automobile”? What if a manufacturer patented the process of “taking fibers and pressing them together to produce flexible sheets”? What if, what if, what if... But of course, these patents are completely fictional, because they are all ridiculous. These are all standard common-sense ideas that everyone in a certain industry would need access to in order to remain competitive. Patents need to be specific, like Patent #D21H 2118, which states:
“A method for manufacturing paper with improved strength by introducing into the paper pulp in the wet end of a paper making process an aqueous starch dispersion of a gelatinized cationic starch and a blocked glyoxal resin.”
Sure, you still need to take fibers and press them together to produce paper, and I'm not a scientist, but this patent gives the inventor of this specific technique the ability to make better paper through a more specialized process. That is what the patent is supposed to do: protect innovation.

In the technology sector, however, the U.S. Patent Office has been allowing people to stifle competitor's innovation by approving patents such as a “method or system for selecting and conjugating a verb” (Microsoft), “method and system for navigating paginated content in page-based increments,” or page up/down buttons (Microsoft again), and “communicating a newsfeed of media content based on a member's interactions in a social network environment” (Facebook). Even more ridiculous: “method and system for creating an interactive virtual community of famous people” (invented by a patent lawyer while he was shopping for groceries). And of course there are the famous patents Apple used to win a billion dollars from Samsung: The ability to enlarge documents by tapping the screen, using square icons to denote “apps”, having a product that is rectangular in shape and white, and rectangular and black. This is simply ridiculous. Bill Flora of the New York Times argued that enforcing patents like these is like enforcing patents on round steering wheels. As Business Insider put it:

“Even filing for patents on these features, let alone enforcing them, is beyond lame, especially for a company [Apple] that is already so rich and powerful. Yes, the U.S Patent Office is partly responsible--imagine the laughter and disbelief among Apple's lawyers when they were actually granted a patent on "rectangular and white.”
This brings us to the “patent trolls”, companies which consist only of lawyers who accumulate (or “invent”) patents and sue legitimate businesses for patent violation. According to researchers from Lex Machina, UC Hastings, and Stanford, patent trolls accounted for 40% of all patent-related lawsuits in 2011. By suing legitimate businesses, patent trolls cause their victims to lose millions of dollars in legal fees and hundreds of hours of lost productivity when engineers must consult with lawyers instead of inventing. Consider the case of Golden Bridge Technology, which claims the patent on 3G wireless and sued Apple, Samsung, Motorola, Barnes & Noble, Lenovo, LG, HP, Research in Motion, Sony, and every other major wireless device company. They boast a total of three employees, one of whom is a “patent administrator”, and hold contracts with six law firms. Six! For a company with three employees! Although this is an extreme case, that doesn't mean that patent trolls should be underestimated. Like I argued above, high-profile companies like Apple can also be accused of patent trolling, even if it is not their primary business. In the end however, while our nation's broken patent system allows patent trolls and large businesses with lots of money to win, the biggest losers are small businesses like Vlingo.

Do you think the U.S. Patent Office needs reform? Discuss and feel free to leave comments!

Originally posted to Edmund Xu on Fri Oct 12, 2012 at 06:06 PM PDT.

Also republished by SciTech and Community Spotlight.

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Comment Preferences

  •  yes (11+ / 0-)

    and none too soon. it's stacked against regular people, and that's not just wrong, it's unAmerican.  

    reelect the president

    by anna shane on Fri Oct 12, 2012 at 06:09:04 PM PDT

  •  I've heard the argument that a patent means (6+ / 0-)

    nothing until it has been challenged in court. That the patent office has no duty, right, or even method to weed out the nonsensical patent applications.
    But as the above excerpt shows, a court challenge can ruin smaller companies.

    -- We are just regular people informed on issues

    by mike101 on Fri Oct 12, 2012 at 06:20:36 PM PDT

    •  No, patent examiners are tasked not only (12+ / 0-)

      with ensuring that the patent is not anticipated by the prior art, but also have the duty to examine applications substantively for patentability requirements.

      "Put your big-girl panties on and deal with it." -- Stolen from homogenius, who in turn stole it from a coffee mug.

      by Mother of Zeus on Fri Oct 12, 2012 at 06:30:27 PM PDT

      [ Parent ]

      •  Yes. I have heard it. n/t (0+ / 0-)

        -- We are just regular people informed on issues

        by mike101 on Fri Oct 12, 2012 at 06:48:46 PM PDT

        [ Parent ]

      •  However (8+ / 0-)

        The time and resources they have at their disposal, and the fact that the "prior art" examined is that cited by the applicant, suggest the process is not a sound as you suggest.

        For example, numerous applications based on common practice where there is, effectively, no prior art in the patent system, result in the issuance of patents which are based on retroactive claims of invention that arguably should never have been issued and are nearly impossible to invalidate after issuance.

        Any designer of electronic circuits knows that a dielectric material sandwiched between two electrodes makes a capacitor and this basic fact has been exploited almost as long as the technology has existed. And yet, some clever trolls patented this already existing idea that had been used in countless designs, and then went after selected practitioners forcing them to license it; some objected and took it to court in at least three cases I know of and all lost. Afore-mentiond patents expire this year which will benefit the industry and end-users.

        Now can you explain why a patent examiner reviewing the original applications would have signed-off?

        I can. The method was so commonly used as a standard technique that there was no similar prior art to be found to question the claims so the examiner (presumably) had to rely on the art surrounding the general technology and judge the claim as "unique and unexpected" even though outside the system the technique was very well documented.

        Patent examination is a fishing expedition in a small pond defined by the applicant and if the examiner can't find similar fish there, they don't go fishing in the ocean.

        Not their job.

        What about my Daughter's future?

        by koNko on Sat Oct 13, 2012 at 04:53:09 AM PDT

        [ Parent ]

        •  And now, "first to patent", lol. (5+ / 0-)
          Recommended by:
          koNko, ubertar, BYw, elfling, WI Deadhead

          That's the new system that a recent patent "reform" law put in place. It replaced the "first to invent" philosophy. Has anybody patented the addition algorithm yet?

          Moderation in most things.

          by billmosby on Sat Oct 13, 2012 at 05:25:59 AM PDT

          [ Parent ]

          •  Bite your tongue! (1+ / 0-)
            Recommended by:

            .. or file a claim, LOL.

            What about my Daughter's future?

            by koNko on Sat Oct 13, 2012 at 05:53:05 AM PDT

            [ Parent ]

          •  The change to "first to file" is to HARMONIZE (1+ / 0-)
            Recommended by:

            with the patent laws in most other countries. (NOT "first to patent")  This is a change in US law from "first to invent."

            In most other countries, there is NO grace period for disclosing your invention before you file.

            In most other countries, patent applications published at 18 months after filing, and the US put that rule in place on June 8, 1995 (with one exception -- allowing a request for non-publication at the time of filing as long as you are not filing in other jurisdictions, and if you later do so file, informing the USPTO within 45 days so they can publish your application, and a penalty of unenforceability if you fail to make the disclosure).

            Just one more change in a continuing series of changes in patent law.

            "The battle, sir, is not to the strong alone; it is to the vigilant, the active, the brave." -- Patrick Henry November 6, 2012 MA-4 I am voting for my friends Barry, Liz and Joe (Obama, Warren and Kennedy)

            by BornDuringWWII on Sat Oct 13, 2012 at 11:22:59 AM PDT

            [ Parent ]

            •  The system is set up for big Business and trolls (2+ / 0-)
              Recommended by:
              wildweasels, koNko

              A first to file system means don't bother creating a prototype to see if it works. Just draw it, make the claims and file. That could easily happen when a inventor invites someone to look at his invention and the person shoots an image with his nifty iPhone, records the description verbally and then files a patent on it. He's the first to file. Even if the guy who invents it does file, but the other patent is issued first, he is SOL unless he sells out for pennies to a patent troll firm.  

              Try getting a declaratory judgement on a patent.

              I licensed a invention where there was a narrow patent. A frequent filer filed one that was so broad, it was as if the inventor had invented the category. The legal quote was for $70,000, 20 years ago which is the point I knew I had no funds to access the court system. They had been exhausted.  Nothing left for the attorneys.

              All the development costs, marketing costs , travel, trade shows etc was shot to shit. I was depending on making it as an OEM product, but the guy who had filed the broad patent had built a rep in my industry of turning businesses into parking lots./ As soon as their patent was issued, they sent a letter to all my potential customers and the whole product died. Now 20 years later, they are still trying to bring it after all the momentum we had built up was  gone.

              The suit would probably run $150,000 or more today and that's just to get a judge to order the patent office to reexamine a patent. That's when new information is supplied. Patent examiners, are, by and large budding patent attorneys. Many times they will be stubborn and let  two conflicting patents exist so they have a shot at the lucrative private sector jobs later. The whole system is rotten to the core.

              It's been bought out and blown up up by large companies, Patent trolls and the patent attorneys that serve them. Try to find a good patent attorney who will take a case on contingency.

            •  Japan is also an exception (0+ / 0-)

              They have a dual patent system, with "Regular" patents processed under the international norms and "Secret" patents going to a public vetting process before issuance.

              What about my Daughter's future?

              by koNko on Sat Oct 13, 2012 at 11:19:43 PM PDT

              [ Parent ]

          •  "First to file" may be unconstitutional (0+ / 0-)

            IANAL, but the Constitution specifically allows Congress to grant patent rights to Inventors.  By its normal definition, the first to invent or discover something is its Inventor, no matter who is first to file or publish.  So this "harmonization" will probably get challenged as soon as a deep pocket gets burned by it, and the outcome will depend on what SCOTUS decides is the legal meaning of Inventor.

            Better to hide your tax returns and be thought a crook than to release them and remove all doubt. [Adapted from Abraham Lincoln]

            by Caelian on Sat Oct 13, 2012 at 03:09:17 PM PDT

            [ Parent ]

        •  I didn't suggest it was sound (1+ / 0-)
          Recommended by:

          Actually, my comment earlier says exactly the opposite of that.  However, the commenter to whom I was directly responding had the impression that substantive examination is simply not the duty of the patent office at all.  That is certainly not true.

          Your example is a great one for showing precisely one way that the system gets tripped up.

          "Put your big-girl panties on and deal with it." -- Stolen from homogenius, who in turn stole it from a coffee mug.

          by Mother of Zeus on Sat Oct 13, 2012 at 06:08:15 AM PDT

          [ Parent ]

        •  Enormous pressure to say "Yes" (1+ / 0-)
          Recommended by:

          Every company wants to get patents for whatever it can dream up (even though the patents of other companies may indeed crimp its business). And Congress responds to the desires of companies, individually, in groups, and in terms of the corporate world in general. So the default answer of patent examiners, as a result of these pressures on the Bureau, would seem to be "Yes." It should be "No."

      •  The USPTO also has a natural inclination to defend (1+ / 0-)
        Recommended by:

        its issuances.  So if they do issue a patent, they are inclined to defend it.

        and their contempt for the Latin schools was applauded by Theodoric himself, who gratified their prejudices, or his own, by declaring that the child who had trembled at a rod would never dare to look upon a sword.

        by ban48 on Sat Oct 13, 2012 at 06:12:00 AM PDT

        [ Parent ]

  •  This is an interesting diary. (13+ / 0-)

    Definitely not your usual Friday night fare!  I used to practice IP law, although I ended up gravitating more toward copyright and trademark before I left the practice.  Patent cases are too big and full of boring documents to review. :D

    Patent trolls create immense inefficiency and unquestionably stifle innovation.  I do agree that the PTO has been too quick to issue ill-defined method patents; those in particular have been a fruitful way for large corporations to tie one another up in litigation or use the threat of it for competitive advantage.  But I've never been immersed enough in the field to really fathom a reasonable solution.  The task of being a patent examiner sounds like pure hell.  Can you even imagine reviewing all of those applications all day long and trying to make sensible decisions?  It somehow does not surprise me that individuals just throw up their hands and grant the damned things.

    I do think that the white rectangle and the square icon examples are not really on point since they are design patents only.  Yes, stupid design patents do create an incentive for frivolous litigation and can create wasteful delays in bringing a new product to market, but since by definition they do not cover any useful features, they do not stifle innovation.

    "Put your big-girl panties on and deal with it." -- Stolen from homogenius, who in turn stole it from a coffee mug.

    by Mother of Zeus on Fri Oct 12, 2012 at 06:26:00 PM PDT

  •  My favorite bogus patent: the Linked List. (16+ / 0-)

    Patent number 7028023, entitled "Linked List". Its claim to fame: "A computerized list is provided with auxiliary pointers for traversing the list in different sequences."

    What an innovation. The original linked list had only one such pointer and one sequence. I programmed one with two pointers and sequences sometime in the 70s, and I'm sure many other people did, too, as the need for such would naturally occur many times during the normal course of work for many programmers. Only back then software wasn't patentable because it was still correctly seen as an algorithm, which is not patentable.

    Moderation in most things.

    by billmosby on Fri Oct 12, 2012 at 06:47:36 PM PDT

    •  When I read this I could not believe (9+ / 0-)

      that this patent was granted.  I have written several programs with complicated linked lists with multiple pointers years before the patent was filed.  Did they assign this to an examiner who had never written code?

      If it is ever tested in court, I hope it is thrown out.  But a small start up cannot afford patent litigation, so it could be used as a weapon.

      "The trouble with the world is that the stupid are cocksure and the intelligent are full of doubt." Bertrand Russell

      by Thutmose V on Fri Oct 12, 2012 at 07:55:25 PM PDT

      [ Parent ]

      •  I don't think there are examiners (9+ / 0-)

        who have written code. And apparently they didn't go to any trouble to do any research when software patents were foisted upon them. I first came across this kind of ignorance when reading patents relating to 3-D graphics editors. Plenty of prior art information was available in the form of Association for Computing Machinery papers, but I doubt the patent office was aware of them. Donald Knuth had this to say about software patents back in the 90s (link):

        When I think of the computer programs I require daily to get my own
        work done, I cannot help but realize that none of them would exist
        today if software patents had been prevalent in the 1960s and 1970s.
        It's gotten much worse since then, eh.

        Moderation in most things.

        by billmosby on Fri Oct 12, 2012 at 09:31:50 PM PDT

        [ Parent ]

  •  republicans are the worst thing to happen to inven (7+ / 0-)

    tion and innovation in the US.

    by deregulating wall street they made it easier to make money with money games than with actual innovation and invention. there is also a general worship of the businessman/business - and the notion among the money managers that inventors need to be business experts too. and they pick through a bunch of business plans and end up with the safe ones and franchises that have succeeded before. you might have a good idea but the real value is if you can write a cookie cutter business plan and run a business until they want to take it over.

    as for the patent office- WTF!!! general electric will pay only 2x small inventor's fees for maintaining the USPTO!

    for the small inventor who spends years of time and money on an idea it makes some sense. it allows the inventor to shop it around more freely. it also represents value for a company wanting to invest in an outside idea.

    but many big co's won't take outside ideas, or when they do they require a waiver. some big cos don't even entertain outside patents- if it's in their area they want to be able to design around whatever is there without problems. most cos are not interested in outside ideas, patent or no patent.

    one billion dollar co that had an interest in a patent of mine got a patent for using my technology for their application if it was developed because it would have competed with their technology. they may have spent more to do that than it would have cost to actually develop my technology.

    i'm going to let another patent expire rather than renew- maybe that will encourage development that's out of my resource range.

    could be all those years of work were for nothing but i have learned one thing. patent or no patent, being an inventor is a lot easier if you have a bunch of money.

    This is a list of 76 universities for Rush Limbaugh that endorse global warming denial, racism, sexism, and partisan lying by broadcasting sports on Limbaugh radio stations.

    by certainot on Fri Oct 12, 2012 at 07:18:16 PM PDT

    •  Republicans are the party of Looters that ayn (0+ / 0-)

      Rand railed against so...

      Just more infantile projection.

      A standing army is like a standing member. It's an excellent assurance of domestic tranquility, but a dangerous temptation to foreign adventure. Elbridge Gerry - Constitutional Convention (1787)

      by No Exit on Sat Oct 13, 2012 at 07:42:02 AM PDT

      [ Parent ]

  •  tip'd rec'd and repost'd to SciTech (5+ / 0-)
    Recommended by:
    Garrett, Renee, kurt, koNko, farmerchuck
  •  I have my name on several patents. (15+ / 0-)

    But some of these patents are software patents that I think should never have been granted.  But my company, like many companies, gave a bonus for patents.

    The patent I was involved in that I thought was the best one took the longest to be granted.

    I think  a lot of patents should not have been patents.  A special rule should be made disallowing patenting DNA gene sequences that occur in nature.

    "The trouble with the world is that the stupid are cocksure and the intelligent are full of doubt." Bertrand Russell

    by Thutmose V on Fri Oct 12, 2012 at 08:00:50 PM PDT

    •  As do I (5+ / 0-)

      My first one (the most significant) actually took four years of wrestling with the patent office to get it granted.  However, what was really bizarre is that another inventor (from another computer company) patented virtually the same thing.  My patent was filed two weeks earlier.  But both stood.  Both patents were necessary to license for the implementation of a modem standard.  Everybody paid up (of course only my company saw the royalties -- not I) even though clearly at most one of them could have been valid.  The whole process is insane.

      There are no solved problems; there are only problems that are more or less solved. Henri Poincare

      by Bourbaki on Sat Oct 13, 2012 at 06:09:49 AM PDT

      [ Parent ]

  •  How can you defend (0+ / 0-)
    having a product that is rectangular in shape and white, and rectangular and black
    .  There has to be more to it than that, or the defender would simply bring into court a product
    that is rectangular in shape and white, and rectangular and black
    and void the patent by priority.  There must be more to it than that, no...???

    and their contempt for the Latin schools was applauded by Theodoric himself, who gratified their prejudices, or his own, by declaring that the child who had trembled at a rod would never dare to look upon a sword.

    by ban48 on Sat Oct 13, 2012 at 06:09:43 AM PDT

    •  You mean something like this ... (0+ / 0-)

      LOL ...

      Samsung Has Like Totally Never Ever Copied Apple.

      "Trade Dress" Patents are limited in scope but arguably as valid and useful as copyrights applied to other creative works, so if you are going to promote the argument that there should be no protection of creative works please elaborate the reasons, otherwise I'd suggest you actually read the patents in the case I presume you refer to (since you did not name it you'll forgive my presumptuousness, thanks).

      What about my Daughter's future?

      by koNko on Sat Oct 13, 2012 at 06:58:34 AM PDT

      [ Parent ]

      •  Creative work: a square box, industry standard (0+ / 0-)

        USB connectors, and a picture of a microphone for an application you speak into.  Wow, I'm totally impressed.  Someone must have burned the midnight oil for years to come up with that.....

        By that logic, I would say Apple simply ripped off the phone companies for their image of a round device with holes in it to physically protect but also allow the passage of sound to a receiving transducer.  And you know Apple ripped them off because the holes in their image are non-functional as they are only the image of holes.  But, they do profit by mimicking the appearance of function that the holes in a real phone perform, because people see it and think "hey, this is something I can talk into" thanks to the great work of the phone companies.

        and their contempt for the Latin schools was applauded by Theodoric himself, who gratified their prejudices, or his own, by declaring that the child who had trembled at a rod would never dare to look upon a sword.

        by ban48 on Sat Oct 13, 2012 at 07:36:14 AM PDT

        [ Parent ]

    •  Even funnier (0+ / 0-)

      Samsung Is Copying Apple’s Dock In Their Win 8 Machines Too: Will They Ever Learn?

      which links to

      Apple Patents OS X Dock

      Holy Android Fanboy Outrage, Batman, this thing could end up in court!

      What about my Daughter's future?

      by koNko on Sat Oct 13, 2012 at 07:18:55 AM PDT

      [ Parent ]

    •  I think what you refer to (0+ / 0-)

      Is this patent, no?

      Well, sure there is more to it.

      And less: there are hundreds of phone designs that are rectangular with rounded corners and black cases that have not been the subject of law suits because they are obviously different than the trade dress appearance of the device in this patent.

      So I think the questions are, should there be protection of trade dress, does it stifle innovation (some would argue the opposite since it requires designers to create things that look different) and if we don't have such laws, would counterfeiting be a problem?

      What about my Daughter's future?

      by koNko on Sat Oct 13, 2012 at 07:32:55 AM PDT

      [ Parent ]

      •  Design patents are different. You can patent and (1+ / 0-)
        Recommended by:
        Dogs are fuzzy

        protect a specific physical design or logo.  I don't think many people confused the samsung with an apple though.  Calling samsung an apple counterfeit is really pushing it.  Their patent is 'an ornamental design'.  If the layout or any of the proportions are different, it is then a different 'ornamental design'.

        And ornamental designs do need to have limits.  For example, a design patent protecting a portable radio with earphone jacks by dressing them up as 'ornamental' is a cheap end-around to the fact that a utility patent could not be issued for said earphone jacks.

        If courts are allowing design patents to proceed where utility patents fail, then the patent system is broken.

        and their contempt for the Latin schools was applauded by Theodoric himself, who gratified their prejudices, or his own, by declaring that the child who had trembled at a rod would never dare to look upon a sword.

        by ban48 on Sat Oct 13, 2012 at 08:01:44 AM PDT

        [ Parent ]

        •  Logos are ornamental designs (0+ / 0-)

          And Apple did not invent the trade dress patent, a class of which Samsung has many.

          The Samsung design, right down to copying things like the shape of cables and the design of product packaging is so obviously a copy that you might want to find another case to make this argument.

          And if the essence of your argument is "I don't think many people were confused" I'd suggest that, likewise, "not many people would fail to see Samsung copied the design".

          To a less than casual observer, the only real difference is:

          (a) square home button vs round home button
          (b) Samsung logo verses Apple logo

          Otherwise, the Samsung is an obvious copy.

          I agree the system is totally screwed-up, but honestly, Samsung copied Apple and suggesting otherwise is kind of a joke. Seriously, if you can't see it, maybe you need an eye exam.

          And note this too: Galaxy 3, which looks nothing like an Apple product (but is rectangular, has rounded corners and comes in black or white) is the most successful Samsung product to date, so is it possible that (a) not copying other products promotes innovation (b) long-term this kick in the ass will be good for Samsung?

          Any comment on Samsung's rotten behavior on FRAND patents?

          What about my Daughter's future?

          by koNko on Sat Oct 13, 2012 at 09:55:51 AM PDT

          [ Parent ]

        •  By the way (0+ / 0-)

          The terms "ornamental design" and "trade dress" are, in fact, "a specific physical design" as you put it, i.e., "Design Patents".

          That is the legal terminology applied.

          The question in any case is whether a design in dispute is deemed to appropriate the "embodiment" that is patented, and if you go to the patent in question I linked to, you can see the extent of the claims and the preferred embodiment, which are a specific physical design. I encourage you to actually read it.

          Samsung lost on that count with respect to certain models, and it's pretty obvious why.

          What about my Daughter's future?

          by koNko on Sat Oct 13, 2012 at 10:40:21 AM PDT

          [ Parent ]

          •  I wasn't referring to the Apple patent (0+ / 0-)

            but to the generic statement in the diary itself.  If "trade dress", "ornamental design", or "design patents" are protecting otherwise free and clear utility, then the system is being abused.

            and their contempt for the Latin schools was applauded by Theodoric himself, who gratified their prejudices, or his own, by declaring that the child who had trembled at a rod would never dare to look upon a sword.

            by ban48 on Sat Oct 13, 2012 at 04:00:31 PM PDT

            [ Parent ]

            •  Yes, but it might not be that simple (0+ / 0-)

              In principle, I agree that appearance and utility are different issues and the former should be quite narrowly defined, even, possibly, to the extent of requiring a product facsimile as would be required with embodiments of logos, for example.

              However, what we have in the Apple vs Samsung case is a bit more complex in that, not only was the product appearance found to conflict with the trade dress patent, but various software features were found to violate design patents and then there were clams/counter-claims based on utility patents.

              So while I think the trade-dress issue is pretty clear-cut (and obviously think Apple had a case there), the case in general was a bit less clear-cut and is a good illustration of the pratfalls industry faces with an antiquated system that does not adequately differentiate issues such as trade dress, design verses utility, proprietary utility verses standards-essential utility and so-on.

              And that is why I posted various links to some articles that elaborate the situation and state some of the issues more clearly with examples, and to some articles that argue principles.

              So, any thoughts on the current cases involving FRAND patents Samsung is trying to retroactively claim as proprietary?

              Or the extent of Apple software patents (just to be fair)?

              Both companies seem to be playing the system now, ironically prompted into doing so by others such as Nokia, Motorola, et al.

              What about my Daughter's future?

              by koNko on Sun Oct 14, 2012 at 12:54:21 AM PDT

              [ Parent ]

  •  As a small business owner and inventor, (2+ / 0-)
    Recommended by:
    Dogs are fuzzy, Caelian

    my problem with the patent system is they are just too damned expensive. I can't afford to pay thousands to protect my ideas when I'm struggling to make rent each month. At least when it was "first to invent" I didn't have to worry so much, but now that it's "first to file", it's much worse. If I throw caution to the wind and market something without patenting, someone could take the idea, file a patent, then prevent me from using my own idea. It's a horrible system, and has prevented me from introducing new products.

    Mitt Romney = Draco Malfoy

    by ubertar on Sat Oct 13, 2012 at 07:16:15 AM PDT

    •  You're being too harsh on Draco. (0+ / 0-)

      He could not kill Dumbledore. Romney would have.

      What's that sound you hear when Mitt Romney walks? Oh, yeah. Flip-flop flip-flop.

      by edg on Sat Oct 13, 2012 at 11:25:28 AM PDT

      [ Parent ]

    •  IANAL, but if you're already marketing the... (0+ / 0-)

      ... product, I believe it becomes prior art and any patents filed after the fact are invalid.  Now proving they're invalid can be expensive.  Another way to protect yourself is to publish your idea on a web site and register the copyright, which was only US$35 per work the last time I checked.  This gets you an official time stamp for prior art.

      I think your chief danger with selling any product is that patent trolls will swoop in and demand Danegelt whether you're actually infringing their patents or not.  Proving you're not is so expensive that they get away with this far too often.


      Better to hide your tax returns and be thought a crook than to release them and remove all doubt. [Adapted from Abraham Lincoln]

      by Caelian on Sat Oct 13, 2012 at 03:18:55 PM PDT

      [ Parent ]

      •  That may have been true a few years ago, (0+ / 0-)

        but it's not true today. Up until recently, the US had a "first to invent" system. Now it's "first to file".

        Mitt Romney = Draco Malfoy

        by ubertar on Sat Oct 13, 2012 at 06:59:44 PM PDT

        [ Parent ]

        •  Patents still have to be novel, whether it's... (0+ / 0-)

          ... first to invent or first to file.  You can be "first to file" a patent on breathing, but since there's prior art, then nobody should be able to get a patent on it.  You aren't allowed to patent something that's already published, because the point of patents is to encourage inventors to disclose inventions so that others can improve them instead of keeping them secret.  If the invention is already disclosed, there's no need for a patent to encourage the inventor to disclose it.

          Of course, it's always possible to write patents obscurely enough to get them through USPTO and it's almost as expensive to fight a bogus patent as a valid one.


          For a clear explanation, talk to a lawyer.  For an unclear explanation, talk to two lawyers.  [Adapted from a joke about Rabbinical Law.]

          Better to hide your tax returns and be thought a crook than to release them and remove all doubt. [Adapted from Abraham Lincoln]

          by Caelian on Sun Oct 14, 2012 at 07:36:33 AM PDT

          [ Parent ]

  •  There is one rather famous case of multiple (2+ / 0-)
    Recommended by:
    koNko, billmosby

    patents by a couple of holders and tight restrictions leading to innovation: the Edison Diamond Disc Phonograph.

    Edison may have made the first working phonograph, but most of his patents were for cylinder, not disc phonographs. Those patents were held by folks associated with the Victor company. Nearly every detail of disc phonograph design was covered by these patents, and Edison did NOT like paying money to use other people's ideas. He had patented a disc phonograph design back about 1880, and had to work within those parameters to avoid marketing a machine full of patent infringements. The result was brilliant: a phonograph which was much more like an actual musical instrument than any Victrola was. It also meant that his vertically-cut discs, reproduced by a polished diamond stylus could not be played on other maker's machines and vice versa. However, these machines were superior products, and working within very narrow parameters to avoid patent infringement was responsible for the result.

    (By the way, Edison also had a patent problem with wax cylinders: after building the first phonograph he moved on to other things. Tainter and Bell got the patent on improved wax media for reproducing sound in the meantime, and Edison in this case did have to pay to use someone else's patent when he turned to commercial phonograph production in the late 1880's.)

  •  This seems to be more of a bullying problem (3+ / 0-)
    Recommended by:
    koNko, billmosby, FG

    than a patent problem per se.

    The diary nicely documents a couple of examples where Microsoft engages in this behavior, but perhaps my favorite is:

    Microsoft Patents Ones, Zeroes

    REDMOND, WA—In what CEO Bill Gates called "an unfortunate but necessary step to protect our intellectual property from theft and exploitation by competitors," the Microsoft Corporation patented the numbers one and zero Monday.

    With the patent, Microsoft's rivals are prohibited from manufacturing or selling products containing zeroes and ones—the mathematical building blocks of all computer languages and programs—unless a royalty fee of 10 cents per digit used is paid to the software giant.

  •  I didn't real anywhere (2+ / 0-)
    Recommended by:
    koNko, greengemini

    in the article that Mr. Phillips had his own patents. Critical error. I'm sure Mr. Ricci knew this.

    1. Patent first.

    2. Sell second.

    The patent laws allow for sublime differences in prior art. It is very easy to patent all or some of your product. Mr. Phillips made some fundamental errors.

    No Jesus, Know Peace

    by plok on Sat Oct 13, 2012 at 07:51:03 AM PDT

  •  Its a major problem in cancer research, too (3+ / 0-)
    Recommended by:
    koNko, greengemini, billmosby

    Some companies are quick to patent genomic tests and potential treatments that aren't yet validated for widespread use.  They then drag out the validation process as long as possible while preventing other researchers from doing work to expand on or improve the theories.  In fact, genomic assay has already been granted approval by Medicare & Medicaid, but not by the FDA.

    So we may end up finding several years down the road that a test or treatment may not work when other researchers may have been able to determine that much sooner.

    Funny, many of these early patented tests and treatments are always from companies linked to big conservative financial backers and have staffs of lobbyists who worked for GOP leaders in Congress.

    "Mitt Romney is Dick Cheney with more charisma"

    by Betty Pinson on Sat Oct 13, 2012 at 08:04:12 AM PDT

  •  Everyone agrees the system is a mess (2+ / 0-)
    Recommended by:
    DanceHallKing, greengemini

    Including some of the companies that helped to make it so.

    But the problem now, is how to solve it, given the tangled mess of case law and regulatory mechanisms (particularly the ITC and Appellate jurisdictional domains) involved.

    If we look at the recent history of copyright reform, it suggests that trusting Congress to legislate solutions would only make the situation worse given the lobbying pressure by vested interests that succeeded on weakening "fair use" and extending the term of copyright license, which now extends far beyond the life of creators giving their estates (or corporate owners) virtually indefinite control that would not be tolerated in any other domain.

    I think it may be helpful for people to understand how bad the situation is and how it got that way, and these articles may help:

    Owning the stack: The legal war to control the smartphone platform
    How a rogue appeals court wrecked the patent system
    Judge decries "excessive" copyright and software patent protections
    Lodsys claims momentum in patent fight as some indie devs leave US (Updated)
    New study, same authors: patent trolls cost economy $29 billion yearly

    And what some organizations and companies are trying to do about it when they are not busy suing the crap out of each other:

    Are patent pools the solution to smartphone lawsuits?
    Tech firms and regulators meet at UN patent pow-wow
    UN IP group tells Pirate Party: You can't even watch ... oops

    Of course, this is nothing new, but the recent Smartphone Wars and the high profile Apple vs Samsung trial have heightened public awareness of the issue, but also polarized public opinion in some unhelpful ways as the backlash against Apple and portrayal of Samsung as a underdog suggest.

    So perhaps it's worth setting the record straight in this case by noting that Apple did not start these "wars" but was actually the target of suits from Nokia (they eventually settled out of court with a cross-licensing deal) and that prior to the Apple vs Samsung suit-counter-suit, Apple twice initiated negotiations with Samsung proposing cross-licencing, which the latter refused.

    Apple offer 2010
    Apple offer 2012

    Furthermore, it was Samsung that insisted, against the advice of the court and Apple, to join the suits which it now protests were unfair and unjust since they did not have sufficient time to present (exactly what the judge warned about).

    And of course, Samsung continues to press other suits against Apple et al, so what we have is more of the usual corporate shit.

    This will not be solved soon.

    Great diary, T+R.

    What about my Daughter's future?

    by koNko on Sat Oct 13, 2012 at 09:04:38 AM PDT

  •  I'm afraid I have to disagree (2+ / 0-)
    Recommended by:
    NoMoJoe, FG

    On this:

    And of course there are the famous patents Apple used to win a billion dollars from Samsung: The ability to enlarge documents by tapping the screen, using square icons to denote “apps”, having a product that is rectangular in shape and white, and rectangular and black. This is simply ridiculous. Bill Flora of the New York Times argued that enforcing patents like these is like enforcing patents on round steering wheels.
    You can read my comments and links elsewhere on Apple vs Samsung and you should note that (a) Samsung has a long history of copying successful competitors (b) most certainly copied the iPhone look, functionality and feel, all the way down to the packaging (c) has frequently used it's own patents against competitors including Apple (including their current suits on FRAND patents which is going nowhere) and (d) they never seem to learn.

    I also have to ask this:

    If Trade Dress patents and invention patents prevent others from copying, how does that discourageinnovation?

    IOW, if designer/engineers are forced to make things different, wouldn't that encourage innovation?

    You have to answer this apparent paradox if what you are proposing is to reign-in the system.

    Certainly I'd agree the system is screwed-up, prone to abuse and favors the big over the small, but no system (i.e., deregulation) has never proven to be a solution.

    Should we not have laws against murder merely because some wealthy people with lawyers get away with it?

    Reforming the system might be a better idea.

    What about my Daughter's future?

    by koNko on Sat Oct 13, 2012 at 09:36:28 AM PDT

    •  I never argued that we should get rid of patents (1+ / 0-)
      Recommended by:

      but rather that we should reform the patent system. I never gave any clear direction as to what path of reform I believe we should take - I left that to the discussion.

      Secondly, as to Apple and Samsung, I simply cannot fathom how you can design a smartphone these days without it being rectangular in shape and in either black or white color.

      •  Is that a problem? (0+ / 0-)

        Most smartphones and even more feature phones, are rectangular, have rounded corners and are available in black or white, and Apple has not sued the makers because they are not copies of the iPhone.

        One company, Samsung, make a model series that quite obviously did, right down to the accessories and packaging (refer to the photos I link to elsewhere), and they did get sued, with a jury agreeing certain models violated the trade dress patent involved and others not.

        I think that suggests the scope of the Apple patent would not and has not prevented other from making phones with those generic features in other embodiments as you seem to  imply.

        And despite the highly emotional flame wars that have erupted between Android and Apple Fanboys which have colored public perceptions of the case promoting the meme you are repeating, Apple has not trolled the industry suing indiscriminately on the basis of the patent (if I'm mistaken about that, please cite the cases).

        So what I'm going to suggest is that you more carefully study the case of Apple vs Samsung in all respects to understand the facts, including that Apple proactively raised complaints about the copying to it's partner Samsung, pursued cross-licensing agreements that Samsung declined, and only filed suit after exhausting good-faith negotiations.

        Which is how the system is supposed to work, no?

        I'd also be interested in your take on the numerous FRAND suits Samsung is trolling the industry with (including Apple) because this is actually a better example of patent abuse and might make a better example to argue your case.

        You may also note that Apple and Microsoft have not clashed in this domain and the reason is quite simple; they have a broad based cross-licensing agreement including a mutual agreement not to copy each other's product trade dress, thus, we can see MS now releasing the Surface pads which actually started development before iPad, and yet no suits between them.

        Lastly I'd repeat the question put to others: if patents restrain explicit copying, how does that stifle innovation?

        Wouldn't it have the opposite effect to promote it by prompting competitors to make things different?

        Give me a serious and convincing answer to this apparent contradiction and you may be on the way to a better argument than you present with the Apple vs Samsung example.

        Samsung's most successful smartphone design to date is Galaxy 3, which is rectangular with rounded corners, comes in black and white, looks nothing like an Apple product, and quite successfully differentiates itself on it's own design, feature set and appearance.

        Which also suggests the system can work.

        I realize you did not provide any answers on how to improve the system; hence my question that assumes you haven't got any but invites your suggestions. Got any?

        What about my Daughter's future?

        by koNko on Sun Oct 14, 2012 at 12:12:09 AM PDT

        [ Parent ]

        •  I do have ideas that I think could work (1+ / 0-)
          Recommended by:

          but this diary is mostly about presenting facts with some of my own personal analysis mixed in. But since you asked so kindly, I will tell you fully what I think: the U.S. Patent Office needs to be enlarged significantly, with new hires including people with computer science and engineering backgrounds. There needs to be more funding so that the backlog can be cleared up, and there needs to be more employees who have some kind of an understanding of the patent that they just approved. There needs to be a stronger filtering system so that invalid patents aren't left for the courts to invalidate. This is, in the current political environment, a pipe dream. But this is the first step to fundamental patent reform in the U.S.

          You know what I think about Apple and Samsung? They can both be patent trolls at times. So has Oracle and Google. And any other large tech company. It is required to be aggressive sometimes to survive in this broken patent system. Perhaps my definition of "patent troll" is more expansive than yours - the term itself is very fluid. But you asked for my opinion, and here it is.

          •  Generally I agree (0+ / 0-)

            But the problem is not just staffing and resources, but also a poorly defined and antiquated system/categories that leave too much room for broadly defined and specious claims.

            There should be classes of patents, some more limited than others and more restrictive rules on defining embodiments.

            There should also be tighter restrictions against claiming natural properties as inventions, such as one of the cases I elaborated, which is a common way to corral existing (unpatented) practice and build a portfolio of "variations on a theme" to extend the term of license.

            But copyright is even a bigger mess.

            What about my Daughter's future?

            by koNko on Mon Oct 15, 2012 at 08:11:51 AM PDT

            [ Parent ]

          •  By the way (0+ / 0-)

            The term "Patent Troll" is normally applied to "Non-Practioners", i.e., companies that buy or apply for patents for the purpose of extracting royalties or judgements but do not use the technologies to produce anything.

            Something you might find interesting is the Wikipedia chronology of the Smartphone Wars, which tracks the history of litigation and ITC suits.

            What about my Daughter's future?

            by koNko on Mon Oct 15, 2012 at 05:42:42 PM PDT

            [ Parent ]

  •  The issue is the overwhelmed patent office (4+ / 0-)
    Recommended by:
    ybruti, koNko, greengemini, Shockwave

    My mother worked for a huge patent laws firm for decades. What I get from the lawyers is that the patent office refuses to do its job! They allow a patent on "rectangular shapes" - they pretty much never reject a patent application, no matter how laughable. They prefer to simply let it go through and let the parties fight it out in civil court. Because they don't have the time or resources to do anything else!

    Now, a big part of the problem is that the PTO is unbelievably understaffed. I appllied for a copyright and I didn't even get a response from an examiner for over a year. Then my paperwork took another six months to arrive. So the first step in fixing this system is expanding the PTO (my lawyer friend says it should be ten times larger than it is) to handle the workload, and let their examiners weed out the stupid troll-patents before they ever get to the courts.

    "They say a little knowledge is a dangerous thing, but it's not one-half so bad as a lot of ignorance." -- Terry Pratchett

    by Joe Max on Sat Oct 13, 2012 at 09:46:21 AM PDT

  •  A mess (4+ / 0-)
    Recommended by:
    koNko, greengemini, the fan man, Shockwave

    There are so many problems with the USPTO, listing them will take another article - most of them have already been mentioned anyway. In addition to ridiculous patents being granted, the examiners do not have the necessary tools to identify prior art. The grant rate is well above 50% when it should be less than 10%. Congress also treats the USPTO as a cash cow and there is no immidiate financial incentive to change the process - keep filing patents for the USPTO and congress to collect $ and resolve the patent nonsense in courts (many times with a ridiculous outcome as in the Apple vs. Samsung case). Patents are essential for innovation but the current system is completely broken.

  •  I've given up... (1+ / 0-)
    Recommended by:
    Edmund Xu

    am releasing everything creative commons/open source under a pseudonym, and am trying to get a job at McDonalds or Home Depot or some such. I'm not kidding...

    "I took a walk around the world, To ease my troubled mind. I left my body laying somewhere In the sands of time" Kryptonite 3 doors Down

    by farmerchuck on Sat Oct 13, 2012 at 03:13:14 PM PDT

  • (1+ / 0-)
    Recommended by:
    Edmund Xu

    IMO the best place to find out more about patent and copyright abuse, especially software patents, is  Along with the best commentary on current cases, it has terrific reference resources.

    Better to hide your tax returns and be thought a crook than to release them and remove all doubt. [Adapted from Abraham Lincoln]

    by Caelian on Sat Oct 13, 2012 at 03:25:15 PM PDT

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