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Delaware judge discovers hidden entity recruiting people to be patent trolls

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Re: Delaware judge discovers hidden entity recruiting people to be patent trolls

#131

Post by breck »

btrettel wrote: post #60

Current USPTO patent examiner here. The most effective way to eliminate bad patents would be to give examiners more time, say double the time across the board to start. If an examiner can't find prior art in the little time they're given, and they have no other reasons to reject the application, they'll have to grant it. The amount of time was (basically) set in the 1970s based on data from the 1960s. There have been…

Friendly advice: start looking for a new job.

https://longbets.org/855/

https://breckyunits.com/the-intellectual-freedom-amendment.h...

Re: Delaware judge discovers hidden entity recruiting people to be patent trolls

#132

Post by pannSun »

TheRealPomax wrote: post #106
tgflynn wrote: post #87

Earlier quoted context omitted.

It seems to me that one of the biggest problems with patents is that it has become possible to patent the "what" instead of the "how". In most cases the "what" is obvious, it's the "how" that's hard. An example would be the Amazon One-Click patent. That should never have been granted because the "what", ie. the basic idea, is obvious and once you have that the implementation is trivial. To get a patent you should at…

Except it wasn't: Amazon--like everyone else filing a patent--had a duty to bring the idea to market within the time frame that US patent law required, which they then did. _That_ is the how. Demanding the patent goes into the specific details on the "how" gets us things like "they implemented it in JS but we used TS so that's legally distinct, this patent doesn't apply to us" (ignoring how idiotic software patents a…

> Except it wasn't: Amazon--like everyone else filing a patent--had a duty to bring the idea to market within the time frame that US patent law required, which they then did. _That_ is the how.

That's not proof of non-obviousness. And even if it were, it's still not a reason to allow 'what' patents (which the law actually doesn't allow! But they get granted anyway).

> Demanding the patent goes into the specific details

You are arguing a strawman. A patent must describe the invention in sufficient detail for someone skilled in its art to reproduce. Incidental details shouldn't be (and I believe aren't, legally. What the USPTO actually does in practice is a different matter) grounds for calling an alternate implementation non-infringing.

What you're describing is a hideous perversion of the patent system. It allows patenting any obvious [1] idea so long as you are first to file [2]. Alternately, if the idea is novel and non-obvious, it grants patent protection without requiring disclosure of implementation. It basically grants patent protection to trade secrets.

[1] A test for non-obviousness: does an implementor care to look at your patent or reverse-engineer your implementation, or is a description of what the invention does sufficient?

[2] And eventually implement.

Re: Delaware judge discovers hidden entity recruiting people to be patent trolls

#133

Post by b800h »

CoastalCoder wrote: post #64
Cthulhu_ wrote: post #59

Earlier quoted context omitted.

Fingers crossed that the court just says "this reeks too much like a scam to me" and summons the real owner of these patents instead of the mailbox / shell companies, under threat of dissolving the shell companies.

I still don't understand what the scam would be in this case. IANAL, but I wouldn't think "this seems sus" to be a sufficient justification for a court to compel discovery without a clear relevance to the issues before it.

Well presumably if there is a significant penalty for making a false patent assertion, then placing the assertion in the hands of a very small company would simply bankrupt that company in the case of the penalty coming due, and the real owner wouldn't be liable.

So essentially the scam removes liability from the (dubious) patent owner - it removes the downside to (allegedly) abusing the law, and subverts the intent of the legislation.

Re: Delaware judge discovers hidden entity recruiting people to be patent trolls

#134

Post by blobbers »

toss1 wrote: post #98
brador wrote: post #78

Earlier quoted context omitted.

Every patent should be automatically granted and the courts can sort out the winners if there is a dispute. That is the system we have moved to.

Right, so the players with money can simply massively burden the minor players, often to bankruptcy. A Patent is simply a ticket to start a lawsuit as a plaintiff. So just file, get your ticket, and start suing competitors, putting on them the burden of proving your patent is worthless. That is the opposite of the way it is supposed to work. Without some kind of penalty beyond the costs of patent & prosecution, this…

Interesting that you view the patent as a sword. Depending on your view of mutually assured destruction, you could also view the patent as a shield.

Certainly this is what I was told when I started filing them at my mega corp. 3K for filing, 10K bonus if granted and helping shield the product in case we are served. Our patents can be horse traded to settle a dispute. Because I believed in our team, product etc. it was easy to think we should be capable to defend ourselves; we were the best and that meant the stragglers would come for us using any means available, including patent trolling.

Re: Delaware judge discovers hidden entity recruiting people to be patent trolls

#135

Post by kochb »

pc86 wrote: post #76
kochb wrote: post #42

Earlier quoted context omitted.

Nominated Delaware DA by George W. Bush. Recommended to Delaware District Court by Senators Coons and Carper. Appointed by Trump. Confirmation approved by voice vote (which generally means no Senator expressed the desire to register opposition in a recorded vote). You know officials are doing something right when they can secure broad support like that.

It's pretty common for judges, especially at lower levels, to have broad bi-partisan support. Lots of politicians are lawyers, and if you're well regarded by the local/state Bar Associations, you're going to have lots of friends and colleagues on both sides of the aisle. Until you start ruling on very high-profile cases, or if you have a lot of partisan scholarship, you're unlikely to alienate the folks confirming yo…

I agree that judicial candidates draw bipartisan support more often than most would realize, but you might be overstating how often this happens. In our current political era, Connolly falls into a minority.

https://crsreports.congress.gov/product/pdf/R/R45622

See pages 30-33:

> during the Trump presidency, with 81.0% of district court nominees confirmed by roll call vote

> During the Trump presidency, in contrast to the two immediately preceding presidencies, only 15 (10.6%) of 141 district court nominees confirmed by roll call vote received zero nay votes at the time of confirmation. A plurality of nominees (36, or 25.5%, of 141) received more than 40 nay votes when confirmed by the Senate, while another 20 nominees, or 14.2%, received 31 to 40 nay votes at the time of confirmation.

Re: Delaware judge discovers hidden entity recruiting people to be patent trolls

#136

Post by toss1 »

kelseyfrog wrote: post #127
toss1 wrote: post #98

Earlier quoted context omitted.

Right, so the players with money can simply massively burden the minor players, often to bankruptcy. A Patent is simply a ticket to start a lawsuit as a plaintiff. So just file, get your ticket, and start suing competitors, putting on them the burden of proving your patent is worthless. That is the opposite of the way it is supposed to work. Without some kind of penalty beyond the costs of patent & prosecution, this…

Make fees means tested and scaled to income or wealth. Make fees scale according to a power law. There are numerous ways to level the playing field. We have only to improve upon the current system and cannot let perfect be the enemy of good.

What? What you are proposing has nothing to do with the perfect vs the good, it is a massive fantasy completely ignorant of how things actually work.

Fees are merely a rounding error in the overall cost of patents, prosecuting (obtaining) them, pursuing cases against "violators" or defending them. The fees are in the $hundreds to small $thousands of dollars [0]. It typically costs $20,000 to $50,000 in patent lawyer fees to get a patent. A company I was personally involved with ran up over $350K in attny bills to obtain only a handful of patents. The fees were a rounding error.

Fees for prosecuting a "violator" or defending a suit? Again, court fees are in the $100 range. Just the opening motions would be in the $20,000 range easily. And that does not even begin to account for the technical and executive time to understand and mount a defense.

I've been directly involved, and one thing that is absolutely the opposite of scalable is the court system. It is massively time-consuming and money-consuming. Worse yet, it takes many years for any case to wind it's way through the system, often more than a decade.

Yet, you are proposing dumping the entire issue on the courts and attorney system. How are you proposing to mitigate those costs?

Seriously, not to be rude, but you should stop positing about stuff of which you are clearly massive ignorant (or actually explain how your proposed solution would actually work among all the factors).

Sheesh

[0] https://www.uspto.gov/learning-and-resources/fees-and-paymen...

Re: Delaware judge discovers hidden entity recruiting people to be patent trolls

#137

Post by P5fRxh5kUvp2th »

temporallobe wrote: post #93
btrettel wrote: post #60

Current USPTO patent examiner here. The most effective way to eliminate bad patents would be to give examiners more time, say double the time across the board to start. If an examiner can't find prior art in the little time they're given, and they have no other reasons to reject the application, they'll have to grant it. The amount of time was (basically) set in the 1970s based on data from the 1960s. There have been…

I do contracting for USPTO and have another perspective as an insider to their technology and internal processes (not legal), who works very closely with examiners and other stakeholders. The tools that patent examiners use is quite awful. Like many other government agencies, it’s embedded with legacy tools that are extremely obtuse, difficult to use, and time consuming. Many of these tools are decades old, unreliabl…

what does the cloud have to do with the tools being old and creaky?

Is there some magic sauce that makes the search suddenly useful once it's sitting in AWS?

I ask because I see this ALL the time. technical people abusing business ignorance by using initiatives to improve tools to "move to the cloud". Unless you're telling me the problem you're solving has to do with elastic demand or too much costs maintaining infrastructure, this does NOTHING to solve the actual problem.

Do we imagine that suddenly this organization is going to start maintaining their stuff if it's sitting on AWS servers instead of their own?

Re: Delaware judge discovers hidden entity recruiting people to be patent trolls

#138

Post by iand »

brador wrote: post #78
tracker1 wrote: post #67

Earlier quoted context omitted.

I'm honestly of the mindset that at this point, the vast majority of patents, from what I've seen, don't pass the obviousness test. At least when it comes to process and software patents, which are very arguable in the first place. I do with the costs for a patent were a bit front-loaded where it costs even half the total amount just to (re)apply, in order to better pay for the review costs.

Every patent should be automatically granted and the courts can sort out the winners if there is a dispute. That is the system we have moved to.

Automatically grant every patent application but equally allow every granted patent to be challenged at no cost causing the patent rights to be suspended. The patent owner then has 5 years to prove the claims in court at their own cost.

Re: Delaware judge discovers hidden entity recruiting people to be patent trolls

#139

Post by entwife »

btrettel wrote: post #60

Current USPTO patent examiner here. The most effective way to eliminate bad patents would be to give examiners more time, say double the time across the board to start. If an examiner can't find prior art in the little time they're given, and they have no other reasons to reject the application, they'll have to grant it. The amount of time was (basically) set in the 1970s based on data from the 1960s. There have been…

> And while search technology has improved, it hasn't become orders of magnitude better.

The old "search technology" was "shoes" (boxes) of 5-20 patents arranged by patent classification. Patent examiners literally walking through the stacks of files to get the relevant shoes. This takes more physical time than doing a classification search using a computerized search tool.

There were some advantages of the old system that were not transferred to the new search. Specifically, in the old system Examiners would see each other as they were walking the stacks. Notes could be left on the paper copies in the shoes. This knowledge sharing is not included in the current USPTO system.

Re: Delaware judge discovers hidden entity recruiting people to be patent trolls

#140

Post by pj_mukh »

delfinom wrote: post #122
pj_mukh wrote: post #113

"Judge Connolly made very clear that, in cases before him, it is not truthful to represent that a post office box is a "principle place of business" of an entity. " "Uh Oh!" - Every Remote business owner.

Said remote business owners can declare their home office or whatever as principle place of business. That is different from a mailing address.

By remote business I don't mean "that one guy who is a contractor LLC",

I mean a 50 person team with no office (i.e the new COVID standard). Yes, you could use the "CEO's house", but then he's gotta actually live for a significant amount of time there and receive mail for the company?

None of this really makes sense, and the laws (or interpretations) have not been updated.

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