As a patent lawyer I feel that have to chime in here. I have read the discussions thus far and I think most people are missing one important issue. Determining whether a patent is expired is not actually that easy. The patent office and various databases that list patents do not say whether a patent is expired or not.
The 20 years from filing rule for patent term seems deceptively easy. But there are many caveats. First, the rule is relatively new and there are still many patents out there that are subject to a different older rule. Second, there are various ways that the term of a patent can be modified, such as term extensions and terminal disclaimers.
So, if you want to absolutely certain whether a patent is expired or not you must either hire a patent attorney or spend a lot of time trying to learn patent law and patent practice by yourself.
As a patent attorney I should not complain, I suppose, but I think the law referenced in the article makes sense. False patent markings do discourage competition, and it is not actually that easy for the ordinary potential competitor to determine if a patent is valid or not. Although, the penalty of 500 per item may be a bit excessive.
The thing that really bothers me is future-dated copyrights. For example, buying a textbook and the copyright date on the title page is 2012. How is that not illegal?
edit: If I were just to scan them and host them all online would I be doing anything that could be considered infringement? Because as I read it, what they are saying is that this textbook is considered public domain for another two years.
Your reading is incorrect. In the United States (and most other signatories to the international copyright treaty whose name escapes me at 1 AM), copyright attaches automatically to any creative expression. Works in general default to copyright, not to the public domain.
The copyright notice, symbol, and date are advisory only, not magical runes with exotic legal effects. (Registration of copyrights gives you extra bonuses, but it isn't necessary to invoke copyright protection.)
Yes, taking them and hosting them would be infringement. So would republishing this comment, which has no date or copyright symbol but is copyrighted by virtue of existing. The usual rules about fair comment, etc, apply, and courts would hold that I've certainly given PG et al implied license to retain and display the comment as a consequence of writing it here.
I realize that the copyright date is only advisory, but if you're future-dating your work then what should that be seen as advising? Since future-dating your work is essentially stealing from the public domain, I think that any future-dated works should be legally seen as advising that anyone is free to copy and redistribute that work until the future date. That seems like fair compensation to me.
Since future-dating your work is essentially stealing from the public domain [...]
I think you're under the impression that copyrights expire at some point, which isn't really the case any more in the US for corporate-owned copyrights, right?
Regardless, when I purchase a textbook I am buying the right to copy and redistribute that textbook after X date. By future-dating the work the publisher is taking away something that I have paid for, which seems like it shouldn't be legal.
Since Congress can and has retroactively changed the length of copyright repeatedly, I don't think that there's any presumption that you are buying a right to copy after a given time, or at all. Since I'm against copyright in the first place, this argument about textbook copyright is rather academic to me. So to speak.
Super-summary: companies are getting sued for putting expired patent numbers on their products. Previously, for a maximum of $500; last december, a ruling allowed up to $500 per offense (with potential(?) speculation that this implies per individual item produced). And for some reason this includes retailers, not just producers, though I don't understand how.
I'll count this a good thing, though $500 per item on the shelf is excessive. As long as those patent numbers are on a product, people won't be as likely to do anything similar for fear of patent violation.
If the retailers are also held accountable, I feel sorry for them. That's a redonkulous amount of fact-checking they'd have to do, especially since some patent numbers are inside the items, on the motor housing.
As long as those patent numbers are on a product, people won't be as likely to do anything similar for fear of patent violation.
I don't buy that. At the very least you'll want to look up the title of the patent before getting scared off, which is an easy google request. And those patent documents all have issuing dates - if the data is 50 years ago, why worry?
What really gets me about the article are the claims about misleading customers. Unless I'm mistaken, customers don't care about patents. The numbers are only there so that if there is an infringement case, the patent owners can get more cash. The chilling effects of patents still stand, as you can never know if some product you think you just invented is covered, even a little bit, by some obscure patent. And they are all obscure, because it triples your damages if there is evidence you've read the relevant patents. But now I'm just ranting.
At least these guys have a product to write the patent number on.
Anyone seriously considering "doing something similar" is going to look into exactly what the patent covers, where, and for how long. There are plenty of databases to search for that information and plenty of professionals to help them do so.
At worst, an expired patent might be considered inaccurate advertising that fools a few consumers into thinking a product won't have any generic alternatives available. Not sure it's a $500 per violation level of misleading though...
I'm not really sure how anyone other than the lawyers attempting to extort money (and representing only themselves) benefits in any way.
The companies that suffer the most will be those that have genuinely tried to protect innovative product designs they've actually implemented, rather than those with secret arsenals of vague and broad business process patents that are mainly conceived as an excuse to sue the successful.
>Raymond E. Stauffer was shopping at a New Jersey mall when he noticed something peculiar about the bow ties on display at Brooks Brothers: They were labeled with old patent numbers.
Mr. Stauffer, who calls himself a "sharp-dressed man," also happens to be a patent lawyer. He sued Brooks Brothers Inc. in federal court, claiming it broke the law by marking its adjustable bow ties with patents that expired in the 1950s.
He figured the retailer would have to pay a nominal amount for violating a law that bars companies from marking products with erroneous patent numbers.
Opening paragraphs, among mentioning other retailers elsewhere (though those seemed to be referring to those retailers' own products).
I think its just a misleading choice of words. Article writers will often substitute a descriptive word for a proper name to avoid being overly repetitive - "the retailer" was probably just a reference to Brooks Brothers.
I assumed since Walmart stores was named as a defendant that other retailers could be named as well. As far as I know, Walmart doesn't do any manufacturing, even with their Great Value brand (citation needed).
What would be most reasonable is "brand owner". Not manufacturer or retailer (unless they are the same as brand owner). The owner of the brand is the one who sends the designs for manufacture, including the patent number labels. The manufacturer just executes on that.
Let's not get over-excited here. The WSJ article didn't seem to pick up on a June 2010 appellate holding: Someone suing for false patent marking must prove that the patent owner had a specific intent to deceive the public with the false marking. See http://www.townsend.com/Resources/legalupdates/Pequignot_Sol...
True, but a separate ruling says that they have to rule on the merits of the case and that they can't just dismiss for lack of standing as one court attempted to do (something that would've slammed the door shut to these cases).
In other words, they have to actually prove this at trial, which can be expensive, even if they have a fairly low bar to prove that they meant no harm.
It's 2010. Checking to see if a patent is still valid is trivial.
What happens to old stock or whatever? Do retailers have to pull things from the shelves when their patents expire?
Better yet, you could have a product code, that could lead to a web page that has the list of patents (and potentially other information; recalls etc?) on it.
If corporations want their patents to be protected, patents must be protected. Selling an item with an expired patent number is akin to fraud, and undermines the patent system at large.
There's just something about this story that left a bad taste in my mouth and turned my stomach. This is a quintissential example of lawyers behaving like scum. I'm not saying that companies shouldn't keep their patents updated. I am saying that it's greedy, sue-happy lawyers going around essentially trying to wring free money from companies. These people are simply the latest iteration of patent trolls, only with a slightly different shade of scaly green skin.
There are two things you may not be considering, though.
1) Mislabeling products with fake or expired patent numbers can be pretty hostile. I'm sure it happens by mistake in many cases, but I'm also sure it's malicious in others.
2) A few lawyers might make some cash bringing these lawsuits, but it won't last. Companies will quickly fix these problems if they're on the hook for more-than-tiny damages. It's pretty clear that $500 wrist slaps weren't doing any good.
Intellectual property laws create weird instances of deadweight loss. This one's just obvious and visible. Less obvious and visible are excess profits a manufacturer might take in if they manage to scare would-be competitors off with irrelevant patents.
So yeah, I don't really have much problem with the lawyers who are exploiting this.
Patents are very specific so at worse you force your competitors to lookup the actual patent. In which case I find it hard to believe the actual damages exceed 10,000$ per product and patent combination.
No, I say, "Live by the sword, die by the sword." With the benefits of patents come risks, and if you are not willing to manage those risks, then don't go get a patent in the first place.
How much time do companies spend putting patent numbers on their products? They can spend just as much time removing them. I say it is a simple cost of doing business.
How is this not an appropriate application of the patent system? The placing of patent numbers on products causes many people to not create imitations, clones and whatnot. If the patents are expired, there is no protection, so the placement of the patent number is an act of intimidation.
When the patent numbers are removed, people can start imitating, introducing competition in the market, and even commodifying things. Basically all the things patents prevent. This allows for increased overall market efficiency.
Since the patent system is in place, perhaps instead of feeling sorry for the poor companies being sued for abusing the patent system, maybe you should try to appreciate that some people will do this. Maybe they are scum, maybe not -- do you actually know anyone who does it? Most likely some are just looking for a quick buck. Some are doing it because it needs to be done. Some may be doing it because it is exciting new lawyering. How is this any different in terms of motives than a random sample of tech startups (replace lawyering with tech...).
Related: Do the people who launch suits to get patents invalidated make you sick also? Do you call them "just another form of patent troll"?
Perhaps it's an act of intimidation, more than likely it was placed on the product years in the past and it would cost the company a lot of money to take the patent number off.
Also, if I'm looking to make a competing product, and I see a patent number on a similar product, would it not make sense for me to check if the patent is still in effect? I'm not just going to see a patent number and say to myself, "oh shoot, they already got it, guess that's the end of that."
And from a consumer perspective, do I really care if there is a patent for this product or not?
My compromise would be to say the company would be required to have the patent numbers taken off and perhaps a fine to the USPTO, but why should this lawyer get money?
I doubt that it will cost the company that much to remove the patent number. Packaging changes all the time. Seriously name one product that uses the same packaging it did 17 years ago.
As for patent number stamped on the product itself, I bet if the company took the stamping tool off the machine, or filled in the patent number part of the mold, it would cost a day or two and a few $K. I bet the law (judges, regulatory agencies, etc) would be willing to make exceptions for "if it was manufactured while the patent was valid, there is no need to retroactively remove the number.
Your other points -- general advice is to not look into patents when creating things, seriously google it. Consumers don't care about the patent, but that is a strawman. Consumers do care about shady business practices, which this falls under.
As for why the lawyer should get money? He is willing to look for the violations of the law, he can get rewarded for it. Further, it is probably far more efficient than the amount tax money the USPTO would waste enforcing this poorly.
"The law on false patent markings is similar to whistle-blower laws. Anyone can file a claim on behalf of the government, and plaintiffs must split any fine award evenly with it. "
I specifically stated my comment was about these LAWYERS, not the companies. This specific case is of lawyers who are friends or spouses of other patent LAWYERS, as is plainly stated in the article. These are people who are specifically perusing stores to find products, writing down the patent numbers, finding if they've expired, and then suing companies. This is not the action of people who are trying to benefit the American public. This is a clear situation of despicable people trying to use the legal system to make a fucking buck that they didn't do anything on their own to earn honestly.
And ad-hominem attacks are completely unnecessary.
I completely agree. What really irks me is when Mr. Stauffer claims he's doing "a service to the United States". Seems more like a service to his wallet.
I remember reading a paper about marking with respect to software patents - since marking is required in order to enforce software patents, if a patent holder fails to cite patent numbers on applications that use the patent, there are limitations the enforcement of that patent. This would mean, for example, that for Amazon to fully enforce the One Click patent they would have to note "Pat." or somesuch on the web page.
The 20 years from filing rule for patent term seems deceptively easy. But there are many caveats. First, the rule is relatively new and there are still many patents out there that are subject to a different older rule. Second, there are various ways that the term of a patent can be modified, such as term extensions and terminal disclaimers.
So, if you want to absolutely certain whether a patent is expired or not you must either hire a patent attorney or spend a lot of time trying to learn patent law and patent practice by yourself.
As a patent attorney I should not complain, I suppose, but I think the law referenced in the article makes sense. False patent markings do discourage competition, and it is not actually that easy for the ordinary potential competitor to determine if a patent is valid or not. Although, the penalty of 500 per item may be a bit excessive.