Supreme Court Should Say No to Patents That Take Old Ideas Away from the Public
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Re: Supreme Court Should Say No to Patents That Take Old Ideas Away from the Public
#2So this new version of patent trolling is to find old valuable patents that can be invalidated in some way, and patent them again, then sue everyone in the world that "infringes" because they thought the patent was long expired? Wow, that is a new level of scumbaggery.
Re: Supreme Court Should Say No to Patents That Take Old Ideas Away from the Public
#3Wouldn't an invalid patent still be considered prior art?
Re: Supreme Court Should Say No to Patents That Take Old Ideas Away from the Public
#4Wouldn't an invalid patent still be considered prior art?
Not by the USPTO's peculiar definition of what constitutes prior art.
Re: Supreme Court Should Say No to Patents That Take Old Ideas Away from the Public
#5The entire patent system needs to be redesigned. Lawyers always seem terrified at the prospect of throwing away decades of case law but in this case, considering the nature of what patents represent and how they are used has changed so much from their original purpose, it’s probably necessary.
Of course, big business incumbents don’t mind the system because they have corporate lawyer teams that understand how it works and how to play it, so I don’t have any hope that it will ever become a political issue
Re: Supreme Court Should Say No to Patents That Take Old Ideas Away from the Public
#6Anyone have a link to the Fed Circuit's Ariosa opinion? I could only find their amicus brief at the EFF link.
Re: Supreme Court Should Say No to Patents That Take Old Ideas Away from the Public
#7The entire patent system needs to be redesigned. Lawyers always seem terrified at the prospect of throwing away decades of case law but in this case, considering the nature of what patents represent and how they are used has changed so much from their original purpose, it’s probably necessary. Of course, big business incumbents don’t mind the system because they have corporate lawyer teams that understand how it work…
It may balance out over time, but big businesses spend an enormous amount of money defending themselves against patent suits and defensively filing patents. Patent trolls are the only types of businesses that purely see upside from patents.
Re: Supreme Court Should Say No to Patents That Take Old Ideas Away from the Public
#8I think the EFF's note is a bit confusing, because it glosses over a key nuance in the evaluation.
Here's a bit more information about the case: https://patentlyo.com/patent/2018/07/diagnostics-provisional...
Briefly: Granted patents count as prior art from their filing date. The question is what happens to provisional filings. The court has split the treatment of those documents depending on whether or not the prior art is claimed or not.
The Federal court's position is interesting, as it is a compromise position. It recognizes that the documents are not published to the public, and accordingly afford the opportunity to create so-called submarine rights, and limits the scope of these rights to the specific 'stuff' of the patent in question, while preventing the non-public remainder of the filings from popping up and cutting prospective patents down.
What's the right course of action here? Well, that heavily depends on the behavior of filers across an industry.
It is, however, clear that the federal court's position is not borne out of a consistent, principled approach. For some, that's enough for them to claim the baby needs to be tossed out without trying to address the threat of the submarines directly.
Re: Supreme Court Should Say No to Patents That Take Old Ideas Away from the Public
#9The entire patent system needs to be redesigned. Lawyers always seem terrified at the prospect of throwing away decades of case law but in this case, considering the nature of what patents represent and how they are used has changed so much from their original purpose, it’s probably necessary. Of course, big business incumbents don’t mind the system because they have corporate lawyer teams that understand how it work…
It may balance out over time, but big businesses spend an enormous amount of money defending themselves against patent suits and defensively filing patents. Patent trolls are the only types of businesses that purely see upside from patents.
They also benefit from the stability of operating within a pretty known system and the fact that they are able to afford legal expertise. Big businesses may get hurt by patent trolls, but I’d imagine that this is less strategically important to their business than using their patents to prevent competitors from starting up or from taking away their business.
Small businesses get hurt the most by the patent system. A patent troll can bankrupt them or make them unfundable, big business can squash them (perhaps offensively, eg a big business takes a small business to court even though they can’t win, so the small business can’t raise funding and has to pay tons in legal costs), and they still have to pay lawyers for advice on how to protect themselves even if nobody goes after them.