Earlier quoted context omitted.
A patent is nothing until it is tested in court; which is very expensive, patent reform or not.
But that's completely false isn't it, just like saying that copyright is nothing until it's tested in court? There is absolutely a difference between a copyrighted image and a free to use image, even if I know the copyright holder is in no position to sue me. Likewise, there is a clear difference between someone's protected invention (if they have passed a very high bar over prior art, obviousness, etc) and the way t…
Who’s behind the last-minute push to thwart patent reform?
51–60 of 65 posts
Re: Who’s behind the last-minute push to thwart patent reform?
#52Earlier quoted context omitted.
> Apple, Microsoft, IBM, DuPont, Pfizer, Ford, and GE DuPont, Pfizer, Ford and GE are in industries that are not plagued by patent trolls. That they're against it tells you nothing about how it would affect them because they don't experience the problem the legislation solves, so it necessarily creates nothing but downside risk for them. No matter how small that risk is, requiring them to put their full support behin…
I think you're understating the degree to which the formation of the Partnership for American Innovation, and similar efforts, sucked a lot of the air out of the reform effort. PAI's official position is that they're trying to endorse the fundamental soundness of the existing system, not support or oppose any particular legislation. But c'mon: how else should we interpret an endorsement of the soundness of the existi…
Notice the absence of criticism of the proposed reforms. They're not providing any reasoned critique of the proposed solution or suggesting any alternative way of dealing with patent trolls, they're just denying the existence of the problem because they don't experience it.
Re: Who’s behind the last-minute push to thwart patent reform?
#53Earlier quoted context omitted.
But that's completely false isn't it, just like saying that copyright is nothing until it's tested in court? There is absolutely a difference between a copyrighted image and a free to use image, even if I know the copyright holder is in no position to sue me. Likewise, there is a clear difference between someone's protected invention (if they have passed a very high bar over prior art, obviousness, etc) and the way t…
But we don't have a system in place that a lay person can use to distinguish between legitimate patents and illigitimate ones, do we?
On the other hand, actual practitioners can use their judgment. The standard is supposed to be non-obvious to someone skilled in the art. For most patents, this is going to be fairly simple, just as most cases where we respect copyright are fairly simple.
Re: Who’s behind the last-minute push to thwart patent reform?
#54Earlier quoted context omitted.
I think you're understating the degree to which the formation of the Partnership for American Innovation, and similar efforts, sucked a lot of the air out of the reform effort. PAI's official position is that they're trying to endorse the fundamental soundness of the existing system, not support or oppose any particular legislation. But c'mon: how else should we interpret an endorsement of the soundness of the existi…
I don't see how that's any different than what I wrote. Companies outside of the software industry don't think patent trolls are a problem because their industries aren't beleaguered with patent trolls. They don't have the problem so they don't care about fixing it. Notice the absence of criticism of the proposed reforms. They're not providing any reasoned critique of the proposed solution or suggesting any alternati…
Meanwhile, in the last month, these companies come out and endorse the status quo, and criticize the motivation behind the proposed reforms if not the specific terms. They come out and say, just in the last month, that "we think the current system is fine." Now, everyone opposed to the reform can wave these comments in front of the faces of everyone still on the fence. "See, we told you, the system is fine!" When you're talking about a reform bill, an endorsement of the status quo is almost the same as outright opposition to reform.
If PAI didn't intend to kill the bill, they sure as hell handed the trial lawyers a gift-wrapped present.
Re: Who’s behind the last-minute push to thwart patent reform?
#55Earlier quoted context omitted.
I don't see how that's any different than what I wrote. Companies outside of the software industry don't think patent trolls are a problem because their industries aren't beleaguered with patent trolls. They don't have the problem so they don't care about fixing it. Notice the absence of criticism of the proposed reforms. They're not providing any reasoned critique of the proposed solution or suggesting any alternati…
The title of this thread is about who killed the reform effort. You're saying its the trial lawyers. But they've opposed this from the beginning. What card did they pull in the last few weeks they couldn't pull before? Meanwhile, in the last month, these companies come out and endorse the status quo, and criticize the motivation behind the proposed reforms if not the specific terms. They come out and say, just in the…
Re: Who’s behind the last-minute push to thwart patent reform?
#56Earlier quoted context omitted.
The title of this thread is about who killed the reform effort. You're saying its the trial lawyers. But they've opposed this from the beginning. What card did they pull in the last few weeks they couldn't pull before? Meanwhile, in the last month, these companies come out and endorse the status quo, and criticize the motivation behind the proposed reforms if not the specific terms. They come out and say, just in the…
I'm not saying they like the bill. They have very little incentive to support it and all else equal change is risk. Releasing a statement to that effect doesn't cost them anything. But somebody leaned pretty hard on somebody yesterday to stop something everybody else thought was happening, and I don't think the smart money is on DuPont or Ford being that somebody.
It wasn't just trial lawyers leaning on Leahy at the last minute to kill a bill that was going to pass. There were five previous attempts in committee to bring the bill up for a vote. Today would've been the sixth attempt. The tech industry was never on the same page about the specific reforms, which hampered the pro-reform side.
The morning the bill was killed, "several groups opposing the bill denounced those provisions, promising they would be united in their opposition to any bill that included them. 'Many of the provisions would have the effect of treating every patent holder as a patent troll,' read a letter sent out by the Innovation Alliance, which was signed by the American Association of Universities and the biotechnology trade group BIO." http://arstechnica.com/tech-policy/2014/05/gridlock-strikes-.... The Innovation Alliance includes, among other members, companies like Qualcomm and Dolby.
Re: Who’s behind the last-minute push to thwart patent reform?
#57Earlier quoted context omitted.
I'm not saying they like the bill. They have very little incentive to support it and all else equal change is risk. Releasing a statement to that effect doesn't cost them anything. But somebody leaned pretty hard on somebody yesterday to stop something everybody else thought was happening, and I don't think the smart money is on DuPont or Ford being that somebody.
That's the EFF's narrative, but I don't think it's very accurate. Here's a more comprehensive article detailing what happened: http://www.politico.com/story/2014/05/patent-reform-senate-1... . It wasn't just trial lawyers leaning on Leahy at the last minute to kill a bill that was going to pass. There were five previous attempts in committee to bring the bill up for a vote. Today would've been the sixth attempt. The…
They're even describing loser pays as the main point of contention, which is of primary concern to trial lawyers. If you have a clear case of infringement then loser pays is irrelevant because you won't lose. But if you have a clear case of infringement then there is no trial anyway, because it's just as clear to the defendant. The large majority of legitimate cases of infringement and licensing are already handled outside of court, which is why loser pays has minimal effect on holders of legitimate patents. But loser pays would stab the trial lawyers in the face, because nobody goes to trial with strong patents, and loser pays would reduce the inclination of plaintiffs to go to trial with weak patents. Which is the whole point of loser pays.
Re: Who’s behind the last-minute push to thwart patent reform?
#58Earlier quoted context omitted.
That's the EFF's narrative, but I don't think it's very accurate. Here's a more comprehensive article detailing what happened: http://www.politico.com/story/2014/05/patent-reform-senate-1... . It wasn't just trial lawyers leaning on Leahy at the last minute to kill a bill that was going to pass. There were five previous attempts in committee to bring the bill up for a vote. Today would've been the sixth attempt. The…
The politico article is consistent with the same narrative. The Republicans are blaming the trial lawyers exclusively. The Democrats aren't even denying their involvement, they're just trying to spread the blame more broadly because the general public is more sympathetic to the plight of biotech researchers than trial lawyers. They're even describing loser pays as the main point of contention, which is of primary con…
> One of the biggest friction points was over fee shifting, the idea of making the losing party in patent lawsuits pay the winner’s legal fees. Republicans on Senate Judiciary and pro-reform groups made it a top goal, but some Democratic members and trial lawyers warned that fee shifting could keep companies from pursuing legitimate lawsuits.
But it goes on to say:
> Earlier this month, Senate negotiators began to coalesce around compromise language from Sens. John Cornyn (R-Texas) and Chuck Schumer (D-N.Y.) that included milder litigation reforms. That effort, however, frayed as universities and other major patent holders argued the measure would have negative consequences for the patent system.
It's Politico saying that universities and other major patent holders also argued against the measure, not Democrats.
> Senate Majority Leader Harry Reid (D-Nev.) played a decisive, behind-the-scenes role in the legislation’s fate, according to sources on and off the Hill. Reid told Leahy he could not put the bill on the floor given the opposition from trial lawyers, pharmaceutical companies and biotechnology giants, the sources said. Reid’s office did not comment for this story.
You characterize this as Reid simply trying to "spread the blame" but it wasn't the trial lawyers that sent a letter to Leahy the morning the bill was killed. From the ArsTechnica article linked above:
> Early this morning, several groups opposing the bill denounced those provisions, promising they would be united in their opposition to any bill that included them. "Many of the provisions would have the effect of treating every patent holder as a patent troll," read a letter sent out by the Innovation Alliance, which was signed by the American Association of Universities and the biotechnology trade group BIO.
Your point about fee-shifting is absolutely wrong. Universities and small patent-holders oppose it, because litigation is always uncertain even when you've got a good case overall. You can never be sure what'll happen in a Markman hearing, or what a jury will do, or whether all your claims will hold up in light of developments that arise over the course of litigation. This is particularly true because the law requires you to bring all your claims at once, or forfeit the ones you don't bring. The plaintiff ultimately bears the burden of proof, and just because he can't meet that burden for every claim doesn't mean he brought any of them in bad faith.
Re: Who’s behind the last-minute push to thwart patent reform?
#59Earlier quoted context omitted.
But we don't have a system in place that a lay person can use to distinguish between legitimate patents and illigitimate ones, do we?
Lay people can't infringe a patent even if you hand them the patent and ask them to create an infringement. Definition of lay. (i.e. if you can create something in the domain you are not lay.) On the other hand, actual practitioners can use their judgment. The standard is supposed to be non-obvious to someone skilled in the art. For most patents, this is going to be fairly simple, just as most cases where we respect…
Re: Who’s behind the last-minute push to thwart patent reform?
#60Earlier quoted context omitted.
But we don't have a system in place that a lay person can use to distinguish between legitimate patents and illigitimate ones, do we?
Lay people can't infringe a patent even if you hand them the patent and ask them to create an infringement. Definition of lay. (i.e. if you can create something in the domain you are not lay.) On the other hand, actual practitioners can use their judgment. The standard is supposed to be non-obvious to someone skilled in the art. For most patents, this is going to be fairly simple, just as most cases where we respect…