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Victory Lap for Ask Patents

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Re: Victory Lap for Ask Patents

#141

Post by busyant »

bandushrew wrote: post #118
busyant wrote: post #106

Earlier quoted context omitted.

Absolutely correct. I used to work in this industry, and one of the 1st questions asked when we were thinking about testing a drug to treat a disease was "Does someone else 'own' this drug or do we?" If someone else 'owned' the drug, then there was no point in pursuing it because the true "owner" would crush us if the drug ultimately proved useful in treating disease. Interestingly, the people writing the drug patent…

doesn't that mean that if nobody owned the drug, drug companies would be free to work on a wider range of research?

Put yourself in their shoes. It's going to cost you $50MM-500MM just to test if a drug is effective and safe for treating a disease.

You sink all of that money in, with the hopes that your drug gets approved. And then, once you've done the heavy lifting, every generic manufacturer can come along and sell the drug because you don't have it patented?

No rational person/company will do that.

Re: Victory Lap for Ask Patents

#142

Post by bstpierre »

xmodem wrote: post #137
pbhjpbhj wrote: post #136

Earlier quoted context omitted.

This weighs against individuals too heavily. The UK for a time had a zero filing fee but they've gone back to a small fee again (to avoid getting so much chaff). It's the renewal fees where you should be charging highly IMO; hyperbolic year-on-year increases would be an interesting option to model.

I know this sort of thing is unpopular in the United States, but how about a pay-according-to-your-means model? So individual inventors working for themselves could file quite cheaply, but a publicly held corporation with a >$1b market cap pays a much bigger fee for the same thing.

Or perhaps even a pay-based-on-number-of-filings model. First application is $500, with a doubling for each filing, up to a max of $10k. (Or whatever multiplier and ceiling you want to have.) For small filers, the legal fees will dwarf the USPTO fees; for large filers with dedicated legal assets, the USPTO fees are still fairly minor but might start to be large enough to deter some of the frivolous filings.

Re: Victory Lap for Ask Patents

#143

Post by pbhjpbhj »

bstpierre wrote: post #142
xmodem wrote: post #137

Earlier quoted context omitted.

I know this sort of thing is unpopular in the United States, but how about a pay-according-to-your-means model? So individual inventors working for themselves could file quite cheaply, but a publicly held corporation with a >$1b market cap pays a much bigger fee for the same thing.

Or perhaps even a pay-based-on-number-of-filings model. First application is $500, with a doubling for each filing, up to a max of $10k. (Or whatever multiplier and ceiling you want to have.) For small filers, the legal fees will dwarf the USPTO fees; for large filers with dedicated legal assets, the USPTO fees are still fairly minor but might start to be large enough to deter some of the frivolous filings.

How much does it cost to set up a shell corp, $50?

>For small filers, the legal fees will dwarf the USPTO fees //

You can self file; though it's not generally advisable. $10k isn't even a blip for someone like HP who (at least in the past) markets themselves on the number of patents they have.

Re: Victory Lap for Ask Patents

#144

Post by pbhjpbhj »

seeingfurther wrote: post #24

Isn't this the job of the patent examiner?

Sadly a patent examiner (in the UK at least) gets less than a day to do a prior-art search on the most complex applications in the most complex subject matter areas; half a day is probably the standard.

There are half-a-million patent applications per annum in the US alone (10 million since 1963). I'd estimate a global corpus of billions of patent applications. Prior art search extends though [in theory] to all publications.

You can see why prior art submissions are allowed from third parties. If you want to ensure only valid patents, or perhaps as few patents as possible, are granted then making such submissions is in your own interests.

Edit: Actually the gross figures are misleading, but remember these are complex 20+ page [in normal print size] documents on the whole. G06F11 - an IPC classification concerning error correction, detection and handling has ~9000 docs in the espacenet database for each of 2010/2011/2012.

Re: Victory Lap for Ask Patents

#145

Post by TempleOS »

http://www.youtube.com/watch?v=OGPD0ZBiMs0

God says... C:\TAD\Text\YANKEE.TXT

and privileges to the exclusion of the rest of the nation's families--_including his own_.

They all looked unhit, and said they didn't know; that they had never thought about it before, and it hadn't ever occurred to them that a nation could be so situated that every man _could_ have a say in the government. I said I had seen one--and that it would last until it had an Established Church. Again they were all unhit--at first. But presently one man looked up and asked me to state that propositi

-----

http://www.youtube.com/watch?v=ln8-Y-fIbqM

Re: Victory Lap for Ask Patents

#146

Post by mooreds »

From my friend who is a patent examiner:

"The Mexican standoff bit would be neat. The AIA allows for third-party submissions directly into the patent application file. I am not sure that any of the larger companies would do this, but I think a devoted engineer in some of the smaller companies could use askpatents to stave off predatory patents."

Re: Victory Lap for Ask Patents

#147

Post by sutro »

throwawaykf wrote: post #116
sutro wrote: post #53

Earlier quoted context omitted.

Actually you do have to worry about that. Since the USPTO is financed by patent application fees it has a perverse incentive to continue promiscuously granting as many patents as possible.

Another frequently repeated myth. Actually: 1) Pretty much each and every action has a fee attached [1]. 2) Each rejection has a 3 - 6 month time limit to be responded to. 3) Most applicants will fight every rejection to preserve their rights. 4) Granted patents have (admittedly higher [3]) fees due only every 3, 7 and 11 years, whereas patents in prosecution typically have fees due every 3 - 6 months . However, gran…

This myopic myth-busting of yours assumes that the number of patent applications remains unchanged regardless of how many are granted when in reality more granted patents fuels the fire of more applications. If the USPTO did the right thing and severely limited or even eliminated software patents there's no question that the number of applications, and thus the USPTO's overall budget and staffing levels, would decrease dramatically.

Re: Victory Lap for Ask Patents

#148

Post by dgesang »

Two quick thoughts:

1. Swap the burden of proof: couldn't much of these issues with software(!) patents be avoided just by forcing the "inventors" to check for prior arts themselves and prove (somehow) that they actually did do that?

2. Make them pay: What about a (huge) fine when the patent does not get approved eventually or when prior art was found during the approval process?

Re: Victory Lap for Ask Patents

#149

Post by SEMW »

zmmmmm wrote: post #104

There was an extremely depressing AMA on reddit a while ago where a patent examiner explained that what all of us consider "prior art" will be completely ignored by a patent examiner: http://www.reddit.com/r/Android/comments/ww982/iama_patent_e... The bar for prior art is very high - it has to be published in a recognized medium. Most specifically, unless it has a date that the patent officer can verify and cite (and…

> The bar for prior art is very high ... Even an actual real product made and sold by a company - not published. Even standard industry practise, established for years, if not written up and "published" somewhere, may not qualify as prior art

If that's true,[0] seems to me that the US has a much narrower definition of what can be part of the state of the art than Europe does. Here, the state of the art is "everything made available to the public by means of a written or oral description, by use, or in any other way"[1]

E.g. in the UK there was a famous case where a patent for a windsurfing board was invalidated because it was anticipated by a primitive board hacked together by a 12-year-old boy a decade earlier, and used by him on summer weekends.[2] That "the user was open and visible to anyone in the vicinity of the caravan site where the family stayed" was enough to qualify it as prior art.

[0] To be clear: as a Brit I have no idea about US patent law, and don't know whether the parent description of it is accurate. (It's not impossible that the USPTO's rules on what they'll look at when considering an application are narrower than what a court can consider prior art, just for practical reasons - a court can call and cross-examine witnesses to give evidence of oral disclosures or prior use, unlike a patent examiner. That's just a guess, though).

[1] Article 54(2) EPC

[2] http://en.wikipedia.org/wiki/Peter_Chilvers

Re: Victory Lap for Ask Patents

#150

Post by zmmmmm »

SEMW wrote: post #149
zmmmmm wrote: post #104

There was an extremely depressing AMA on reddit a while ago where a patent examiner explained that what all of us consider "prior art" will be completely ignored by a patent examiner: http://www.reddit.com/r/Android/comments/ww982/iama_patent_e... The bar for prior art is very high - it has to be published in a recognized medium. Most specifically, unless it has a date that the patent officer can verify and cite (and…

> The bar for prior art is very high ... Even an actual real product made and sold by a company - not published. Even standard industry practise, established for years, if not written up and "published" somewhere, may not qualify as prior art If that's true,[0] seems to me that the US has a much narrower definition of what can be part of the state of the art than Europe does. Here, the state of the art is "everything…

Yes, to be clear, (and I realize now that I wasn't above), what I'm talking about above is what a patent examiner is allowed to use to routinely disqualify a patent up front as part of the application process prior to granting it.

The examiner is not allowed to go on research expeditions to interview witnesses, or to locate, purchase and reverse engineer old products to prove they are implemented in such a way as to invalidate the patent. A court (or the litigants) can certainly do all that, but here we are focusing on what can invalidate a patent prior to it being granted. And for that we are limited to certain classes of readily verifiable types of evidence.

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