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Supreme Court Should Say No to Patents That Take Old Ideas Away from the Public
- dumbfounder 8y agoSo 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.
- deleted 8y ago[deleted]
- ErikVandeWater 8y agoNot new. Turbotax has long lobbied the government to make the tax law convoluted so you have to use Turbotax (or another similarsoftware) so you can avoid fines for submitting the wrong amount of taxes.
- Someguywhatever 8y agoI don't feel like thats quite the same thing but I also hate it.
- craftyguy 8y agoThat has nothing to do with patents and/or patent trolling. You don't need to pay patent royalties to file your taxes.. (for example)
- sfRattan 8y agoBoth are arguably forms of rent-seeking.
- ErikVandeWater 8y agoYou're correct that it doesn't have to do with patents. But the point is about abusing the legal system to extract value from others. What Turbotax does is worse. So it is not a "new level" of abuse of the legal system.
- monochromatic 8y agoThat’s not at all what Ariosa stands for.
- squozzer 8y agoWouldn't an invalid patent still be considered prior art?
- gumby 8y agoNot by the USPTO's peculiar definition of what constitutes prior art.
- isthatart 8y ago... and if in doubt you'd better call Saul!
- monochromatic 8y ago.
- CobrastanJorji 8y agoSo Invalid patents are prior art, but content in valid patents outside of the claims section is NOT prior art?
- monochromatic 8y agohttp://www.cafc.uscourts.gov/sites/default/files/opinions-orders/16-2388.Opinion.12-8-2017.1.PDF http://www.cafc.uscourts.gov/sites/default/files/opinions-or...
- gumby 8y agoThat is not at all clear to me, on two grounds. Indeed 35 U.S.C. 102(a) does say that a prior patent or non-recent application (which would naturally be the case for an issued patent, whether the patent was invalidated or not -- it clearly had an application) count as prior art. However if the patent is invalidated does it count as issued? I'm not sure under _Stalego_ that it does. As for the applications, regardless of the text of the US code, also under _Stalgeo_ cancelled matter in the application (but weirdly, not in the wrapper!) is inadmissible, and presumably the subject of the application is itself cancelled, per code, rather than abandoned. Patent law is super arcane and I do not practice in that area specifically but I would be surprised if the people who down voted my comment (to which you are replying) are really steeped in the peculiar minutiae of the operation of the PTO.
- opportune 8y agoThe 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
- jchw 8y agoIt 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.
- opportune 8y agoThey 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.
- jchw 8y agoNo doubt it hurts small business the worst, but I'd not agree with the notion that all big businesses net gain from this. Lawyer time isn't cheap, and the bigger you are, the more attention you gather. And of course, patent trolls optimize to use the most lawyer time possible, to make it less efficient to defend (sometimes, it legitimately isn't worth it.) Basically abolishing patents would definitely receive pushback from bigger and even smaller companies, but improving case law to be more reasonable really wouldn't.
- howard941 8y agoAnyone have a link to the Fed Circuit's Ariosa opinion? I could only find their amicus brief at the EFF link.
- monochromatic 8y agohttp://www.cafc.uscourts.gov/sites/default/files/opinions-orders/16-2388.Opinion.12-8-2017.1.PDF http://www.cafc.uscourts.gov/sites/default/files/opinions-or...
- ABCLAW 8y agoI 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-application.html 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.
- gowld 8y agoIs EFF mischaracterizing the case (which it often does when blogging about on patent cases)? Is it true that provisional applications are not disclosed to the public? It seems fair that if the invention is never publicly disclosed (only mentioned in private filings), that the invention isn't covered by patent law. That's standard -- only public information is part of the patent system.
- sjrosen 8y agoWhen a patent or patent application is published, all the applications it claims priority to (e.g., provisional applications) become open for public inspection. However, patent applications can act as prior art as of the day they are filed, which is often well before they are published. The justification for this is that, even though the information is not yet public, the applicant has established that they know that information and that it will be disclosed to the public when the patent publishes. The question in Ariosa Diagnostics v. Illumina is whether the provisional application can also act as prior art as of its filing date. The court's decision was that only the material from the provisional application that was later claimed in the published patent counts as prior art as of the filing date. Everything else in the provisional application only counts as of the publication date.
- pitaj 8y agoI haven't seen anything good about patents in years. Maybe the government should just get rid of them, along with copyright. The idea of granting someone a monopoly to an idea is crazy to me.
- bluejekyll 8y agoI agree about software patents. But I disagree about all patents, and I especially disagree about getting rid of copyright. I think copyright needs to be reigned in, the DMCA is horrid, but the concept itself generally protects artists and creators (and gets abused by the likes of Disney, etc.). If I make something, I should be capable of earning money with it if I want to. Copyright protects software in that regard, as well as music and images, etc.
- Endy 8y agoIf you want to make money, offer it to people who consider your work valuable. Establish a patronage and paywall yourself. Those of us who believe in decency and social good will continue to create and distribute for free.
- pitaj 8y agoThere's a lot of evidence that copyright doesn't actually help most creators, and significantly holds back progress. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3198147 https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3198147 The same arguments generally apply to patents. There are monetization models like live shows, subscriptions, Patreon, advertising, sponsorships, etc that work very well for creators. Especially in the internet age, we shouldn't act like copyright and patents do anything to stop people. Creators would likely do better if the publishers weren't in the middle controlling access to their works.
- fipple 8y agoI can say with confidence that >90% of new small-molecule pharmaceuticals would not be created in a patent-free world. Now, not every new small molecule drug is important, in fact probably the majority aren’t. But those that are, save a lot of lives.
- cityzen 8y agoI recently watched the documentary The Patent Scam with the XPlane guy... it was disturbing to say the least. My question is this... With "method" patents being an absolute joke, what would stop me from patenting, "A method of acquiring patents for the sole purpose of litigating infringement without actually creating a licensable alternative"? I'm serious, these patents seems so stupid, I don't see why you couldn't just get that patent and sue all of these people? Then again, if it is patentable, I'm sure some troll owns that one too. Good documentary, though. It's currently on Hulu.
- zeckalpha 8y agoPrior art
- bbcbasic 8y agoYou should at that patent then troll the trolls out of existence.
- komali2 8y agoI really wish I could remember the sci fi book I read this in, but basically there was a guy who forewent currency, instead inventing things, patenting them, then giving them for free to people. In return the oss community supported him. But he'd also do this thing where he'd ddos via patent lawsuit evil companies, filing like hundreds of thousands of lawsuits against a single company in the span of a day.
- noobiemcfoob 8y agoThe hero we need
- amanaplanacanal 8y agoSounds like Accelerando by Charlie Stross.
- bitwize 8y ago> With "method" patents being an absolute joke, what would stop me from patenting, "A method of acquiring patents for the sole purpose of litigating infringement without actually creating a licensable alternative"? I believe that IBM actually has a patent on this, to whip out in case a troll decides to step to Big Blue.
- monochromatic 8y agoThis is basically the result of a poorly drafted statute. More discussion (and less polemic) here: https://patentlyo.com/patent/2018/07/diagnostics-provisional-application.html https://patentlyo.com/patent/2018/07/diagnostics-provisional...
- entwife 8y agoThe Ariosa decision involves whether an invention could be said to be publicly disclosed on the date of a provisional patent application. A provisional patent application is unpublished, although, if it ultimately supports a patent claim, it is made available to public. Details of the court case are better explained by Dennis Crouch in the cited article.
- rayiner 8y agoThis post is really quite misleading. Better coverage here: https://patentlyo.com/patent/2018/07/diagnostics-provisional-application.html https://patentlyo.com/patent/2018/07/diagnostics-provisional... The EFF writeup makes it sound like material appearing only in the specification of an earlier published patent does not count as prior art, that it must appear in the claims. That’s not true in the general case: > In the simple case outlined above, the courts all agree that the disclosures found in an issued patent or published application count as prior art as of the patent’s filing date. Ariosa addresses a very different issue. Generally, patent applications are prior art even before they are publicly disclosed—they count as prior art starting from the day of filing. Ariosa addresses what happens when you have a provisional patent application: > In this case, the Federal Circuit ruled that a published application can count as prior art as of its provisional filing date — but only as to features actually claimed in the application. According to the court, features disclosed in the provisional but not claimed in the published application will only be prior art as of their date of public disclosure. The EFF writeup is in fact completely inaccurate, because it starts by talking about a “published” patent application. Once the application is published, all agree that it is prior art. This case is about what happens between the date if filing of a provisional, and the date of publication.
- Id15eba6u 8y agoSome one file a patent on collecting taxes. Then charge the government for collecting taxes, which in turn bring you profit which are then taxed. You get the point.
- austincheney 8y ago> EFF and R Street’s brief emphasizes the need for the Supreme Court to confirm what should be uncontroversial: to be patentable, inventions must be new. New is not good enough. In theory patents must be novel and this should be applied to practice as well. The difference between new and novel is the degree of originality. New can mean taking an existing idea and putting a fresh spin on it. Novel means the idea never existed before and the current invention is original opposed to a modification or extension. Normally novelty is documented against an inception date, but inception dates are hard to qualify in court. Also, while on this subject patents should be limited to inventions deliberately excluding discoveries. An invention is something a person made or formed with some degree of deliberation. A discovery is something that already existed and that a person merely found for the first time. This distinction would invalidate attempts to protect genetic sequences and organic chemicals present in nature. It would continue to allow protection of drugs that are more than merely chemical isolations.
- combatentropy 8y agoI thought that the reason for the patent system was that otherwise people would keep their ideas secret, and society would not benefit. The very word "patent" means "open" --- like when you say "it's patently obvious" it means "it's openly obvious" (it's like really, really obvious). So a patent is meant to bring an idea into the open. But if the idea is already in the open . . . ?
- chriscappuccio 8y agoWhat if the...patent office...said no??? Wouldn't that be easier?