I'm an attorney who litigates patents. I also write about IP litigation at https://ipde.com.
A patent can be invalidated by a court during litigation or through procedures at the U.S. Patent Office, such as inter partes review or an ex partes reexamination.
When asking whether an earlier patent renders a later patent invalid, the fact finder will generally look at anticipation and obviousness. Anticipation means that every element of the claims is literally present (explicitly or inherently) in the earlier patent, under 35 U.S.C. § 102. Obviousness means that the claimed invention as a whole would have been obvious to a person of skill in the art, under 35 U.S.C. § 103.
How do you figure that out? You have to look at each claim individually. If the fact finder determines that the earlier patent discloses or renders obvious every element of the claim, then the claim is invalid.
This comparison is easier said than done, because it is going to depend on claim construction, meaning how the claims are interpreted. In theory, they are interpreted according to how a person of skill in the art would read them, but in practice there is an art to claim construction, and it can be difficult for anyone to predict how a Court or the U.S. Patent Office will construe claims (especially since it is often judge- or examiner-dependent).
I won't get further into burdens of proof and legal standards, but both anticipation and obviousness tend to be a high bar.
From a very quick review of the two patents you posted, it looks like claim 1 the second patent claims, for example, "lowering the vertical axis of the bead height of a bead disposed between a bead on either side thereof." From a quick look at the specification, this may refer to staggering the vertical size of the beads themselves in each row.
It looks like the earlier patent discloses staggering the alignment of the columns of beads, but I don't see (from a quick glance) whether or not it discloses staggering the size of the beads. If it doesn't disclose that element of claim 1 (however the court or PTO interprets it), then it can't anticipate that claim of the second patent. Of course, it could still render it obvious if, for example, there is another prior art patent that discloses varying the beads in the claimed way, and if a person of skill in the art would have been motivated to combine them (assuming the combination also meets all of the other elements).
Each claim in the second patent will need to be looked at individually. Even if claim 1 were invalid, for example, other independent claims may not be.
Keep in mind that everything in this post is hypothetical and I am not your attorney. If you want to try to invalidate the patent, you'll need to get your own attorney involved or otherwise get one to take up the cause, including to take a real look at the patents and prior art and to figure out how best to proceed. It is not a small task.
Nor would I assume, cheap. If the community wanted to fundraise to get the patent invalidated, what sort of money are we talking about? How much if they decide to contest the invalidation? $10,000,? $100,000? $1,000,000? I'm sure it depends on a lot of factors, but getting an idea of how many zeros we're talking about would be useful.
Again speaking generally, attempting to invalidate a patent is going to cost more than $10k, but $100k should be enough to do an ex partes review petition. If you want to do inter partes review, which is much more involved but may also have a higher chance of success, it's more expensive. The total cost will depend on what attorneys you use and how they go about it (which also impacts the likelihood of success).
> 35 U.S.C. § 102. Obviousness means that the claimed invention as a whole would have been obvious to a person of skill in the art, under 35 U.S.C. § 103.
This is the part that always gets me. Having read through over a couple thousand patents, it is my opinion that the vast majority of them are obvious to anyone skilled in the art. Some of them are so ridiculous that a university student about to finish a relevant degree would consider the claims obvious.
This bothers me deeply because patents that should not have been granted force us to play a patent arms race. If the other side has an axe, you have to have an equal or better axe...and it gets nastier from there.
In some industry sectors you'd be crazy to put out a product without ensuring you have enough legal weapons of IP war to protect yourself from other IP as well as slow down or eliminate copy cats and competitors who will gladly take advantage your your "R" (Research) at zero cost. In "R&D" the "R" is usually the most expensive phase. Once you know what you are building the "D" tends to be simpler, shorter and costs significantly less.
It stands to reason that getting a patent should become more and more difficult over time. As more is invented the "art" and those skilled in it become more sophisticated. Which means the rate of true invention should (not fake invention) should come down to an asymptotic level. We should see less true patents per year, not more fluff patents per year.
I've been thinking about this a bit since the hearing, and here are some ideas:
- If lawyers for a defendant are going to settle (we generally prefer not to), we often want a portfolio license -- a "go away" license. By splitting up the patents among entities and keeping itself hidden, an entity like MAVEXAR can keep filing serial suits against the same targets and can keep receiving more expensive "global" settlements.
- It dodges liability for attorneys fees, since the entities have little or no money, and may decrease the chances of a fee award generally.
- It means that the entity with the patent has little or no discoverable information, decreasing the cost of suit because there is nothing to produce. Lawyers for that entity can also take stronger discovery positions because there is no concern about about responsive discovery.
I'm the author. It's actually kind of hard to say at this stage, and the judge suggested amicus briefing to help the Court figure out what to make of all this.
The article says “All they had to do was become the owners of a patent assertion entity, and accept the "liabilities" that come along with that.”
Can you say more what this means? What were the risks these people were (I would guess unknowingly) accepting in return for their 5-10% if things went ‘well’?
They seemed unsure at the hearing of what exactly they had signed up for.
Certainly, their LLCs could be subject to attorneys fees if the Court awards fees (which it generally only does in exceptional cases) or for sanctions based on attorney behavior.
However, normally, only their LLCs would be liable rather than the owners personally--unless they fail to observe the corporate formalities.
Once they own the patent, could they not break with MAVEXAR and keep 100% of what they would get from the litigation? In theory, I'm aware they probably had neither the know-how nor the funding.
Well, unrelated to the topic, but I'd be curious how many request / sec you were getting, and how many nodes Render autoscaled up to. I'm running a client's site on a single Render node right now and have been curious how it'd stand up to traffic spikes.
I can't tell from the logs that I can see. But the site is all or almost all text from Render with images on AWS, and bandwidth topped out at "220MB" (per hour? Not sure) from Render this morning. It came back up as soon as I enabled scaling, and it only scaled to 3 nodes.
It's also a Python 3 instance running Django/Wagtail/Puput, and all blame goes to me for poor coding. If anyone reading this happens to be a Wagtail & Render expert and wants some short contract work fixing my code, please reach out (arussell@shawkeller.com)!
I recently had an unoptimized Django site running on render.com with the `plan: standard` setting survive the HN front page with a single node. I had autoscale set to on, but it never needed to scale up.
I don't know the requests/second, but at peak on Google Analytics it said that 300 people were on the site "right now" -- unsure of what that corresponds to. ~5-10 reqs/s roughly?
Also note that render.com puts Cloudflare in "front" of the nodes automatically, which helps with some caching.
(I'm unaffiliated btw, just moved to them from Heroku and have been happy to far)
Hardly effective for gauging HN readership, given the abundant use of ad blockers. Based on no evidence whatsoever, 100x that and you should have a reliable estimate.
We have readers at the Delaware courthouse and, incredibly, the courthouse network setup blocks the site for Chrome users if I use Cloudflare. I tried for weeks to find a solution other than removing Cloudflare but nothing seemed to work, and I really want people from the courthouse to be able to read the blog!
> the courthouse network setup blocks the site for Chrome users if I use Cloudflare
Lovely.
As my local county attorney told the court, "We will not be using the cloud because it is not secure," this doesn't surprise me. The bane of local governments strikes again.
I would ballpark Delaware court IT security requirements as similar to DoD Secret level clearance.
And as far as I understand a higher security cloud solution is usually a custom ask and really expensive at any of the major providers, simply not affordable for smaller organizations.
Most of the cloud providers (at least AWS/Azure) charge about 15-20% more for the "government" data centers. It's really not that much more. It's also not really much different, just slightly more auditing, if any difference at all. You also don't have to strictly be a government agency, you can also be a government contractor.
From what I understand, the infrastructure is really, technically, exactly the same, but just limited to certain customers. It's also, generally speaking going to be as, or more secure than any self-managed datacenter connected to the internet. The transparency could probably be a bit better.
note: used to work for a government contractor that received a LOT of hacking effort as a target.
Since “cloud” is actually a marketing term (usually meaning virtualized servers), any company or department who says no to any mention of using the cloud is showing willful ignorance.
If you know you don’t know enough, demanding paper documents makes sense. It takes quite a bit of study and knowledge to determine that a “cloud document” cannot be changed or altered after submission (and by whom).
Generally Cloudflare is integrated as the DNS level. In most configurations that would prevent intercepting their network requests and redirecting them to a copy hosted elsewhere or on another CDN.
Pretty much every CDN works the same way or very similarly.
I am an IP litigator, and I have dealt with patent trolls repeatedly. I have taken these kinds of cases pro bono in the past for small companies (including through the EFF attorney referral list, https://www.eff.org/pages/legal-assistance), and I know that others have as well.
There are definitely low-cost and pro bono (free) options out there for very small businesses. The EFF attorney referral list is a good place to start.
Agreed -- it would be a service to the community that helped connect them if they could share some approaches / advice for others in a future similar situation!
I could discuss it with Andrew, but every case will be unique and necessitate its own approach. If I could make one suggestion for anyone dealing with a software patent issue, from my crash-course, is to look into Alice (2014)[1] under Section 101, and review any similar cases, especially by the same entity. You can download case documents pretty cheaply and learn a lot. I paid like 15c a page, and seeing the docket is free. Take the curiosity you have for computers and apply it to the legal system. It's inputs and outputs. But don't go too deep and put your business on the bench. Move the needle a little each day but know you have some time and don't rush into any decisions. Ultimately it's not the end of the world and life will go on.
Largest "patent troll" in history was brainchild of and founded by former Microsoft CTO. The person who coined the term "patent troll" helped him start the company. He came from Intel. The saddest part of the idea of "trolling" as a "business" is that it has spread into other areas, outside IT. "Patent trolling" is easy to spot when the patents are software patents as so many software patent are low quality. However, the patent quality problem is not nearly as acute in other industries.
There are in fact legitimate small inventors who must approach large companies, and that situation predates the hardware and software industries, but it was software and hardware people that created this idea of the "patent troll". If there was a "bad" situation that existed before Intellectual Ventures was founded, no solution was offered by those who were negatively affected. Rather, the approach taken was "If you can't beat `em, join `em." One could argue, as a result, the situation went from bad to worse.
> The saddest part of the idea of "trolling" as a "business" is that it has spread into other areas, outside IT.
I'd say the business idea was created by the govt. Finding new ways to profit via exploiting the laws will always happen sooner or later if they exist.
Hardware and software are perhaps unusual because the patent office has such a divergent idea of what is and novel and obvious to experts versus reality, presumably because computer technology moves so fast.
If the patents are legitimate it seems like a business model similar to debt collectors or "cash now for annuity" companies. A small company might have a winnable case of damages but doesn't have the resources or risk appetite to take the case to trial. It's a rational decision to sell off the claim to another company for X% of the expected value and let them take risk of enforcing the claim.
Taking a look around this thread should make it clear that even if patents are legitimate, many patent trolls are not. They are frequently going after entities that are not actually infringing, or threatening people with obviously invalid patents, because the legal system makes it cheaper to pay the troll than go to court, even if you will win.
(But you probably have a point that if patents are legitimate than an otherwise ethical patent troll would also be legitimate)
> But you probably have a point that if patents are legitimate than an otherwise ethical patent troll would also be legitimate
I'm not sure it's possible to be an "ethical" patent troll. It is a structure explicitly chosen to minimize any collateral in case their patents are thrown out in court, claims are invalidated, and they have to pay to for the counterpart's expenses (and which point the company is simply dissolved, with little to no damage to the owners).
If somebody is so sure their patents are valid, let them form a "real" company which utilizes said patents to bring in revenue, and let that company go to court with competitors and bear the risk of having to pay for frivolous lawsuits.
Not that I think that that software should ever be patentable, of course.
Step 1 for being an ethical patent troll would be having enough assets that you aren't just a judgement proof vehicle for lawsuits, but there's no reason that isn't possible. A diverse portfolio of legitimate patents, a healthy bank account, and voila.
There are a variety of reasons why forming a "real company" that produces products might not be practical. For example you might be in a field where the startup costs for a competitive company is in the billions (silicon manufacturing), or that is a natural monopoly already monopolized by one or two big companies (operating systems). Your competitors also have patents on things that you would need to be competitive and for whatever reason you aren't willing to license them.
Or really you might just not be well suited to running a company, bad at managing people or whatever, and if patents are legitimate it seems like they are legitimate regardless of whether or not you want to start a company.
(PS. I'm generally against patents, and strongly against software patents, but that's neither here nor there on whether or not patent trolls are legitimate under the assumption that patents are)
I'm not sure it's feasible to meaningfully regulate/legislate what a "healthy bank account" is for such a company. There is always risk that, when the going gets tough, the company will transfer funds (e.g. by purchasing some "consultation services" from a tightly-controlled shell company), or that it will get into too many lawsuits, losses on which will still exceed the available balance.
> There are a variety of reasons why forming a "real company" that produces products might not be practical. For example you might be in a field where the startup costs for a competitive company is in the billions (silicon manufacturing), or that is a natural monopoly already monopolized by one or two big companies (operating systems). Your competitors also have patents on things that you would need to be competitive and for whatever reason you aren't willing to license them.
But what are you doing with those patents, then? As much as we both consider them to be a bad idea, patents are supposed to be a vehicle to promote tangible advancements in the field, to encourage development and manufacturing. If you don't produce anything but just stop anybody else from doing that, or just collect rent by granting out permissions, you are not using patents "correctly".
> I'm not sure it's feasible to meaningfully regulate/legislate what a "healthy bank account" is for such a company.
I'm not sure it is either, the law is a blunt tool and it's not always possible to legislate things like "be ethical".
One potential way to do legislate this is to require that plaintiffs place funds in escrow pending the outcome of the case, to pay for the other sides fees if they lose. Occasionally courts will already order this under current law. I'm not going to generally advocate for that as a good idea though, I think it probably has a lot of side effects and I haven't put enough thought into it to be sure it is a good idea.
> But what are you doing with those patents, then? As much as we both consider them to be a bad idea, patents are supposed to be a vehicle to promote tangible advancements in the field, to encourage development and manufacturing. If you don't produce anything but just stop anybody else from doing that, or just collect rent by granting out permissions, you are not using patents "correctly".
Theoretically, it was the act of inventing that occurred prior to the award of the patent that the patent is supposed to be rewarding. The reward is precisely the ability to extract rent from people who use the invention (whether by making it and selling devices at a premium, or licensing the patent).
You see this mechanism actually function in pharmaceuticals for instance, because patents are so valuable there are companies that pour resources into inventing new drugs that they can patent. (I have other issues with patents in this industry, I wrote about them elsewhere in this comment thread, but the reward mechanism really does motivate useful work here: https://news.ycombinator.com/item?id=27587034)
> One potential way to do legislate this is to require that plaintiffs place funds in escrow pending the outcome of the case, to pay for the other sides fees if they lose. Occasionally courts will already order this under current law. I'm not going to generally advocate for that as a good idea though, I think it probably has a lot of side effects and I haven't put enough thought into it to be sure it is a good idea.
That's an interesting direction, but how does the collateral compare to the average lawsuit's costs? What happens if the suit drags on, exceeding the collateral, do the parties just agree to disagree and drop it?
I could also be a small company, on the defending side, which is the frequent case in patent trolling scenarios. I shouldn't be barred from defending myself in court if I don't have the ability to post the collateral up front (if I'm convinced my case is strong, at least).
On the flip side, a small IP owner should still be able to sue a giant company that is violating their patents/copyrights/etc. Even if the said company has a lot of money and is liable to create huge attorney bills. But I suppose if the escrow for plaintiffs becomes more common, it's a small price to pay for the benefit of the whole ecosystem.
> You see this mechanism actually function in pharmaceuticals for instance, because patents are so valuable there are companies that pour resources into inventing new drugs that they can patent. (I have other issues with patents in this industry, I wrote about them elsewhere in this comment thread, but the reward mechanism really does motivate useful work here: https://news.ycombinator.com/item?id=27587034)
Good points on the pharma industry.
But okay, let's agree that there are pharma companies (research laboratories, etc) that don't ever do the end production themselves. Perhaps that's even a good state of affairs (of which I'm less certain).
Still, those companies are "real", and they have financing and budgets for stuff other than the patent lawsuits. They have to do the said research and put quite a lot of money in it (which is what makes those patents valuable and arguably a benefit to society as a whole), and that distinguishes them from an average patent troll.
Collateral requirements would generally only apply to plaintiffs (the people suing), requiring collateral for the defendant is obviously problematic...
You would expect the value to be set by the court as an approximation of the amount of fees that they might award to the defendant (which in turn is an approximation of what a reasonable defense might cost), as the lawsuit goes on you would expect the court to periodically increase the collateral requirements on the plaintiff, since the total cost to defend the suit has gone up.
Small, legitimate, companies having to put up collateral is an unfortunate side effect, but if they have good claims (and can convince a lender of that) they should be able to finance it... so that's probably not the end of the world? It does seem like a bit of an access to justice problem, not really sure how I feel about it.
> They have to do the said research and put quite a lot of money in it (which is what makes those patents valuable and arguably a benefit to society as a whole), and that distinguishes them from an average patent troll.
This is true if they license the patent directly to the manufacturers, but that's not necessarily the case. It seems entirely reasonable for a company to discover a drug, patent it (so they have something to sell), and then sell the patent to another company that deals with licensing it out to drug companies.
A license management company (aka patent troll) in the middle comes with a number of benefits:
- Chances are there's still a lot of risk associated with that drug, e.g. it might fail in human trials, by selling the patent immediately you reduce your risk.
- Licensing patents is not your core competency as a drug discovery company, it makes sense to have an entity that handles licensing for the patents invented by many different drug-discovery companies.
- You might, for whatever reason, want to stop operating as a drug discovery company. Maybe you want to retire. This shouldn't wipe out the worth of your previous work.
Generally, assets being transferable seems like a good thing. A lot of our society is based upon that principle... and if patents are transferable, it seems inconsistent to say "you can do X with asset Y, and so can most other companies, but not if the only thing a company does is doing X to assets Y". Inconsistencies like that generally lead to weird arbitrage opportunities and inefficiencies in society...
Imposing limits on intellectual property for public benefit is nothing new, though. Expiration terms, for example.
So the system might still work fine even if all patents get shut down when a company that acquired them does.
It's not what I suggested, though: just that a non-practicing (at least in some sense) company can't litigate.
That would mean that you can sell your patents to some shell company even. But the recipient couldn't sue anybody over them until they either start a profitable business on the side relating to said patents. Or they resell it again to a company that satisfies the requirements. Or have a lump sum set aside in escrow, I guess.
I hope the entire patent system is simply dissolved. Patents are an artificial restriction on free trade that prevents competition and put profits in the pockets of the greedy undeserving.
Are trade secrets really worse? My (uninformed, anecdotal, unsubstantiated) intuition is that reverse engineering, or even just the knowledge that something is possible, ensures that trade secrets are no barrier to progress. While patents definitely seem like a barrier.
I think it stalls more innovation than it encourages, and generally prevents new entry into a technology space, because the existing players have all the patents that a new player would need to get started. The fewer players you have in a technology space, the less innovation there will be, because “necessity is the mother of invention” and people don’t generally start working on an idea unless they are exposed to the problems of that field. In theory, a non-player could start a research shop and then sell the results of their research in the form of a patent, and this happens sometimes, but just as often the industry decides they don’t want to pay, and leaves the idea dead until the patent expires.
My pet example is the mosquito laser. They invented it at MIT, and showed that it could effectively shoot down mosquitos that pass between posts. The hardware costs were a bit high, but would come down drastically if someone mass-produced custom chips for it. But, the overall idea is patented, and currently held by a “think tank” licensing company, and no product has emerged. I can only assume that it is because their licensing demands are too high. I’d be happy to start my own company to build mosquito lasers, but I’m sure that their licensing costs would kill any profit from it, so I don’t. And so the world is left with no mosquito lasers for more than a decade.
If you want another extreme example, the 3D printer craze was kicked off by the expiration of a patent on the FDM process: https://www.fabbaloo.com/blog/2020/3/2/the-challenge-and-opp... The innovation in the 3D printer space probably lost 10 years due to that patent.
One possible solution to the problem, without throwing out the entire patent system, would be to create a mandatory licensing system with fixed rates. For example, if you know that your design is about 60% patented, and there is a law that says 20% of your profits have to be given to the patent holder, then you might be able to go ahead and make the product and still turn a reasonable profit. The patent holders would get paid something and the products would continue being innovated without these stupid wait-17-years delays. Also it would put less severe stake on the patents, so people could just argue out the details in court about who gets how much money without worrying that it was going to bankrupt a company or kill the product line.
This is prophetic patents, another unwanted side effect of the system. I'd say it's the norm in every niche nowadays.
As soon as any technological idea becomes well-known, say some research idea getting hyped in the media (e.g., quantum, VR, some new kind of laser, 3D displays, etc.), then people everywhere run out and patent all possible imagined ideas of how this new tool might be used to make products.
> I can only assume that it is because their licensing demands are too high.
This seems an arbitrary assumption. Products don't make it to market for myriads of reasons. Seems like a poor example to use to target patents - especially as with patents you know that within ~20 years that idea will be freely available to everyone.
- Academics, who would be doing the same thing regardless of patent revenue
- Entrepreneurs (and people working for small companies), who are hurt much more by the existence of the patent system than the potential revenue from it.
- People working for big companies, who would almost always be building the exact same product if the patent system didn't exist, except they wouldn't have to worry about working around competitors patents.
Certainly the patent system makes some people money, but it mostly seems to be
- Lawyers (for obvious reasons)
- Owners of already very large and no longer very innovative big companies, who had the time to build up a war chest of patents.
I don't particularly believe that giving extra money to either of those groups encourages innovation, and I certainly don't believe it encourages innovation enough to make up the harm it does to people attempting to be entrepreneurs, people having to work around patents, and so on.
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One potential exception to this is bio related industries, which are different in that patents are often the primary product a company produces, instead of a byproduct produced by engineering work that happens for other reasons. Without patents you would need to find another way to fund that work, if you want it to happen. I wouldn't call most of that work particularly innovative though, it's mostly just very expensive mind numbing work like "trying a million different possible drugs" and "running huge human trials" and so on.
I would generally prefer that the bio work be funded by a different system, because I don't think the patent system produces good outcomes for society. It creates perverted incentives to always be creating new drugs, instead of finding new ways to use old ones. It creates perverted incentives to not build on each others work. It means that drug companies have the ability to charge substantially more than the cost of production for drugs they produce, meaning people who could be treated cheaply in an optimal system go untreated (note: The marginal cost of treating more people is really small since the expensive part is the R&D that already happened). Moreover it forces drug companies to do that if they want to recoup their R&D costs.
Something like direct government subsidies to companies who discover drugs that people end up using (for medical purposes) seems like a better solution. There are a million variations on that, but I'd claim that basically any variation on that is probably better than patents.
I believe we would have released open source FPGAs and the accompanying toolchain about 18 years ago if it wasn't for patents. I was getting quite into it, but the patent minefield made it financially too worrying to continue, and it also put off potential collaborators at the time. People literally warned me "you will lose your home - I'm not willing to take that risk". I didn't have a home to lose :p but it was still a downer.
And a novel high performance x86 CPU design. x86 is patented thoroughly, although now it ought to be ok to ship one that has the features from about 20 years ago. I would still recommend to be cautious!
And an ARM one. ARM is known to some in the field as a company with an army of lawyers after all.
A lot of innovation happens when patents expire.
Other people's open source FPGA designs are shipping now (and kudos to the designers - they are really well implemented!), in part thanks to many of the basic patents on FPGAs expiring about now.
I would be quite surprised if RISC-V implementations aren't dependent on a number of key patents having expired by now.
FDM 3D printing (where hot plastic is squirted through a moving nozzle) became popular when the patents on it expired. Some people into open source 3D printing think it happened because that's when people innovated. They did innovate at making it low cost, but the expiry of the patents was a factor too.
At the moment I'm building a specialised high-performance database engine, and I have to explicitly avoid some of the obvious on-disk data layouts because they turn out to be patented. It's annoying having to come up with some "clever" alternative, but I'll find a way.
I don't know if patents encourage innovation on balance, but they've definitely prevented me from shipping some fairly advanced things I've worked on in the past.
I don't begrudge the companies or the system, but I will argue that there is plenty of innovation impeded by it, and in my experience I have never worked anywhere that patents helped, only places where they hindered. It could happen but it hasn't yet.
When I discussed this with a patent attorney once, there was a fascinating gulf between people who dream up patentable (or already patented) solutions almost casually on demand when faced with a problem, and people who think this is impossible and such insights are precious gems that rarely occur. I'm sure it differs between fields, and I know there are some very clever patents. But in software and to an extent hardware, the two fields I'm most familiar with, most patents seem to cover natural solutions to a problem which would occur to anyone skilled in the area when faced with that particular problem.
That works both ways - the IP folks have their own echo chamber. I remember reading one article on an IP blog which mentioned that of course IP laywers know much more about what would help innovation than engineers.
Well, they come in different shapes and tunes: without talking hackers or espionage, you also have “investors” kindly asking for details of your software. In fact, in many fields (and mine, materials informatics), you can file a patent for the end product of your software (novel alloys, in my case) while keeping your code entirely private. How could they troll you then? Patents make their own industry as well.
IIUC, inter partes review is a relatively recent (9 y.o.?) patent law practice that allows 3rd parties to challenge patents directly to the patent office any time between patent award and expiry. I had thought there was only a short period this could be done after award of the patent.
It's more than that. The fee to request the IPR is $19,000, plus $375 for each claim in excess of 20. If the USPTO decides to institute the IPR, the post-institution fee is $22,500, plus $750 for each claim in excess of 20. [0] Attorney's fees will be far more than these amounts.
Right? The AIA made it easier and cheaper (*) for big companies to invalidate the patents of small inventors who try to assert their patents against them. It reduced the amount of money that big companies will pay to license a patent because the threat of an infringement lawsuit became less valuable. It literally took value from small inventors and handed it to big business.
(*) Edit: An IPR may seem expensive (~$500k is average), but if successful it is much cheaper than winning a patent infringement lawsuit ($millions).
It's almost as if Barack Obama had been bought by big tech moguls who didn't like having to pay IP holders for their work but wanted to stop startups from encroaching on their monopolies. Oh wait...
The patents already include that, they are meant to be only given on things that are not standard practice or obvious to any competent proffesional. Just software patents fucked it up
Had a professor who wat was at big company. Forget which.
IBM came in with a list of patents that were being violated.
Professor went through the list and managed to document fully how each one didn’t apply to company. One of which was for pythagorean theorem.
They had another meeting to go over it with IBM to show results.
Not impressed IBM said fine you don’t violate those. We have a hundred thousand more patents.
Are you buying a license for these, or should we go find more that you “violate”
I've always wondered if sublicensing was a way to get around this. Instead of owning the core technology itself, set up an offshore holding company to own the technology rights, then "license" them out. The main company probably can't be sued since they have a legal contract for the tech and if they go after the holding company, fine, the parent company can then "license" tech from another, similar holding company.
So I think what I'm talking about his more of a decoy than a privateer. I think of privateering as plausible deniability in attacking someone.
Whereas, what I'm suggesting is more structuring a business such that they can't be sued for patent infringement since they don't own the technology that is allegedly infringing. So if your company receives a cease-and-desist letter, your lawyers can respond with a contract from Core Technology LLC granting you license to use the technology as you deem if, and that the Patent Troll needs to contact Core Technology LLC if they have patent issues.
In the mean time, you can stop licensing from Core Technology LLC and instead move to a new vendor, Core Technology II LLC, who offers an improved product anyway.
The goal being to make it not worth pursuing your business.
You don't have to "own" tech in order to infringe a patent. Making a product that includes the technology protected by the patent, or selling it without there being a license (eg you buy it offshore where they're not covered by a particular patent, but you sell it where there is a patent covering that tech).
None of that matters in USA, as the threat of a lawsuit is threat of massive costs; ostensibly it doesn't matter that the court would award costs of a few $thousand against you if the lawyers to get you through the case cost $100,000s.
But if the licence is that cheap, they're showing their hand, the difference between a protection scheme and IP protection here is incredibly murky. Even if you didn't aim to help others not be bullied around, going for a settlement seems the smarter option.
You are right and it probably wasn’t cheap, but at least comparable to the cost of going to court. If you have two options that cost around the same, but one will give you an immediate out, it’s likely you want to take the immediate out rather than taking additional risk for a what if.
On a side note, I know someone who’s company got sued, then when the lawyers came to the table to negotiate, they showed him a list of other companies that had previously settled with them and the amounts they had settled for. He said the lawyers had clearly done their homework in terms of estimating how much it would cost the company to go to court and the proposed settlement amount was within 10-15% of that estimate. He decided to settle.
You can assume in the vast majority of cases patent trolls don't have valid patents. And if even if they are "valid", the patent system is so messed up, that they have to be invalid in reality.
Trolls' method is exactly racketeering because it's extorting money using threat tactics. "You don't want something worse happening to you? Better pay up XYZ amount!". It's not going get much more classic protection racket than that. Except they threaten not with beating you up, but with you spending millions on court cases. I'd say trolls getting jail time for this garbage should be a good medicine for them.
Without knowing the content of the patents(merely that they are valid) - would you be able to differentiate between a patent troll and someone with a great patent that wants their hard work licensed instead of taken for free?
Who is taking anything for free? Do you think people go read through the patent database to get product ideas? If I create a product and bring it to market without any knowledge of your patent, why should I pay you just because you invented it earlier and then sat on it?
It's not _just_ because you invented it earlier, you also have to disclose it in a way that makes it workable. The disclosure is supposed to drive innovation and use of innovations; that's the patent deal, the monopoly is "paid" for with disclosure.
Aside, in the UK there's compulsory licensing (UKPA Section 48x to prevent people from inventing stuff and refusing to license it (at reasonable terms), too.
I would be surprised if this happened even once in the history of the patent system, and I feel confident stating it has never happened in the past 50 years. Patents do not drive innovation, they restrict it and erect barriers to entry.
It's usually cheaper to settle than to go to court. A company I worked for got hit (apparently using TLS violates their patent. Even though it's the browser that initiated the connection). Company simply paid up because it was cheaper.
Unfortunately this is one of those instances where looking out for oneself (in a business sense) does more harm to society than eating the costs and fighting the battle.
IANASBO (I am not a Small Business Owner) so I can't say I wouldn't necessarily do any different, sadly. But I like to think I would.
lotnet.com
Lawsuits from Patent Assertion Entities (PAEs, sometimes called “patent trolls”) can be a drain on resources for any company. With software a primary PAE target, and software becoming an integral part of all industries — putting nearly all companies at risk of being sued.
That’s why leading companies have come together to form a collaborative, voluntary community to reduce this risk – one that grows in importance as the economic environment becomes increasingly uncertain.
A patent can be invalidated by a court during litigation or through procedures at the U.S. Patent Office, such as inter partes review or an ex partes reexamination.
When asking whether an earlier patent renders a later patent invalid, the fact finder will generally look at anticipation and obviousness. Anticipation means that every element of the claims is literally present (explicitly or inherently) in the earlier patent, under 35 U.S.C. § 102. Obviousness means that the claimed invention as a whole would have been obvious to a person of skill in the art, under 35 U.S.C. § 103.
How do you figure that out? You have to look at each claim individually. If the fact finder determines that the earlier patent discloses or renders obvious every element of the claim, then the claim is invalid.
This comparison is easier said than done, because it is going to depend on claim construction, meaning how the claims are interpreted. In theory, they are interpreted according to how a person of skill in the art would read them, but in practice there is an art to claim construction, and it can be difficult for anyone to predict how a Court or the U.S. Patent Office will construe claims (especially since it is often judge- or examiner-dependent).
I won't get further into burdens of proof and legal standards, but both anticipation and obviousness tend to be a high bar.
From a very quick review of the two patents you posted, it looks like claim 1 the second patent claims, for example, "lowering the vertical axis of the bead height of a bead disposed between a bead on either side thereof." From a quick look at the specification, this may refer to staggering the vertical size of the beads themselves in each row.
It looks like the earlier patent discloses staggering the alignment of the columns of beads, but I don't see (from a quick glance) whether or not it discloses staggering the size of the beads. If it doesn't disclose that element of claim 1 (however the court or PTO interprets it), then it can't anticipate that claim of the second patent. Of course, it could still render it obvious if, for example, there is another prior art patent that discloses varying the beads in the claimed way, and if a person of skill in the art would have been motivated to combine them (assuming the combination also meets all of the other elements).
Each claim in the second patent will need to be looked at individually. Even if claim 1 were invalid, for example, other independent claims may not be.
Keep in mind that everything in this post is hypothetical and I am not your attorney. If you want to try to invalidate the patent, you'll need to get your own attorney involved or otherwise get one to take up the cause, including to take a real look at the patents and prior art and to figure out how best to proceed. It is not a small task.