Patent 'Death Squad' System Upheld by US Supreme Court (bloomberg.com) 90
The U.S. Supreme Court upheld an administrative review system that has helped Google, Apple and other companies invalidate hundreds of issued patents. From a report: The justices, voting 7-2, said Tuesday a U.S. Patent and Trademark Office review board that critics call a patent "death squad" wasn't unconstitutionally wielding powers that belong to the courts. Silicon Valley companies have used the system as a less-expensive way to ward off demands for royalties, particularly from patent owners derided as "trolls" because they don't use their patents to make products. Drugmakers and independent inventors complain that it unfairly upends what they thought were established property rights. "It came down to this: Is the patent office fixing its own mistakes or is the government taking property?" said Wayne Stacy, a patent lawyer with Baker Botts. "They came down on the side of the patent office fixing its own mistakes." The ruling caused shares to drop in companies whose main source of revenue -- their patents -- are under threat from challenges. VirnetX, which is trying to protect almost $1 billion in damages it won against Apple, dropped as much as 12 percent. The patent office has said its patents are invalid in a case currently before an appeals court.
Anyway (Score:5, Informative)
If the patent shouldn't have been granted, then it isn't a taking of property because it was never properly instantiated as IP.
Maybe this addendum to the patent office operation is a bad idea, but that's a different issue. Write to your Congressman.
Here are some ideas;
1. If it is done without computers, migrating a process to computers is not patentable.
2. If it is done locally on a computer, distributing pieces over a network (internal to the computer or external, esp. over the Internet) is not patentable.
3. Doing something already being done, but now "Over the Internet!", is not patentable.
4. Creating a virtual machine similar to a real one is not patentable.
Re:Anyway (Score:5, Insightful)
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Yes, especially that.
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naturally occurring substances
Round-up Ready corn doesn't occur in nature. A new-fangled rocket fuel that's 25% more efficient than any existing fuel doesn't occur in nature, but it's made of substances to do.
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No, it's fine. (Score:2, Insightful)
The patent should not be on the chemical produced (it exists in mature), but in the mehtod used to create it. If someone comes up with a better method (via whatever metric you want), then it will benefit the inventor. And if the process can be carried out by anyone with a still, then why do you deserve a monopoly?
The homily is "build a better moustrap" niot "patent the idea of catching rodents or other small pests for later disposal".
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Then let the lawsuits for patent infringement against nature begin.
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What happens if nature comes up with it on its own later.
Say scientists change a few genes in say a corn seed to prevent a pest.
And nature natrually mutates that same gene.
Is that patent infringement?
Actually, that would invalidate the patent. If you can prove that sequence is naturally occurring then you (well, you, and a lot of money) can get that patent kicked.
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Why do we have patents and copyright? To reward those who invest a lot of expensive effort find and creating new and better things.
As long as its difficult and expensive to invent a new bacteria that converts plastic back into oil, the resulting engineered bacteria should be patentable.
However, if our understanding of DNA becomes sufficiently advanced that anyone who as a bio-engineering degree can create the same bacteria basically at will, then it should not be patentable. At that point there's no effort
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Why do we have patents and copyright? To reward those who invest a lot of expensive effort find and creating new and better things.
Bullshit. Investment in R&D is its own reward. No private concern invests in R&D for the benefit of others. The patent system was created so that people could license the use of patented ideas rather than having to reinvent what was already invented elsewhere but held as a trade secret.
Probably the patent system should take into account the rate of innovation (directly proportional to population) and make the duration of patents inversely proportional to the rate of innovation (since licensing th
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DNA itself may be naturally occurring, but if someone were to invent a novel arrangement that does not exist in nature (rather than taking genes present in some organism and inserting them into another) I don't have any objections to allowing a patent on something like that. If you look at the purpose of patents as allowing a limited duration monopoly on something in order to encourage and reward innovation, then it's hard to see why you'd disallow patents for something like that. If we're going to have patents at all, it should be consistent and not provide special treatment for some domains as opposed to others.
No, it should still be not patentable. The only patentable, which should be patentable, is the "method" which is used in manipulating the gene sequence. The result of gene sequences themselves should NEVER be patentable. Period.
Speaking of oil industry, I believe that they can patent the product because it is related to chemical structures (not directly involve living organism -- biology).
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Doing something already being done, but now "Over the Internet!", is not patentable.
What if it's something like enabling the sense of smell or touch? I'd sure as hell expect a patent on a device that could enable a person to smell something over the internet. Blanket statements like yours are rarely well thought out.
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Re: Anyway (Score:1)
The fees would have paid regardless. A patent search and filing fees are required.
Revealing âoetrade secretsâ? Donâ(TM)t think so as patents are public information. They are designed to protect the inventor of an invention and provide a legal and financial remedy for use or misuse of the invention.
Re: Anyway (Score:5, Insightful)
Agreed. You pay to apply - there's no guarantee you'll be awarded the patent, and you don't pay any more if you are. Nor do you get a refund if it isn't.
Now, if you bought such a patent from someone else then you have paid for it. But perhaps you should have done more research to make sure it was a VALID patent first, instead of assuming that the patent office is infallible, or at least that any challengers would face such an expensive legal process that they'd rather let you fleece them than go through it. If you don't like it, take it up with whoever you bought the patent from.
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There are maintenance fees, I believe. So you do have to pay more if you get it.
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Indeed. The USPTO is in the patent granting business. The more they grant, the more additional fees. And, more importantly, the more applications.
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Well, at least if you want to keep it for more than a few years. But it doesn't change the fact that just because you were granted a patent doesn't mean it's actually valid. If you choose to keep renewing an invalid patent out of ignorance or malice, that's still your problem - no reason everyone else should suffer for it instead.
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While there's no need for everyone else to suffer, I think a good rule would be that the USPTO has to refund maintenance fees (prorated) for a patent is overturned that cover the time the patent is invalid (which may not be when the ruling is made, I don't really follow. But whenever the ability to enforce it goes into effect, retrospective or not.).
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A nice idea, if you could somehow make it come out of the PTO's budget. Or better yet, penalize the particular employee who inappropriately approved the patent. But bureaucracies rarely work that way, and such penalties tend to just come out of the federal general fund, which helps no-one.
Not to mention, the corollary would be that the patent holder should have to refund all the licensing fees they ever collected for it - and that's probably unrealistic if not completely impossible, especially for patent-
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There's no need to penalize the particular employee. The system is designed so that sometimes questionable patents get through... because the ultimate decider in a close call should be a jury, not a patent examiner. That's how the system works.
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Why not? An engineer is personally penalized if they put their stamp on a blueprint with design flaws - is a patent examiner really doing any less damage when they fail at doing *their* job?
Unfortunately, that's the kind of thinking that got us into the current situation - the patent office granted questionable patents under the assumption that "the courts will decide", and the courts presumed the validity of any patent the PTO granted.
And really - a jury is a TERRIBLE judge of patent validity - juries are
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Yes, both ducked their responsibilities. However, only one needs to step up. And I'd rather the courts step up, instead of unaccountable bureaucrats. Esp. since what will happen is like in defense contracts, where the patent examiners who happen to approve of a lot of Google/FB/MS patents and not a lot of little guys' patents will have very l
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Or we could just demand the patent office actually DOES ITS JOB, instead of passing on all the expense to honest people who have to fight expensive legal battles against patent trolls with shoddy patents.
I mean, why else do we even HAVE a patent office? Why not just let anyone claim a patent on anything, and force every challenge through the courts?
Or, if you're really hung up on an open process - have a *technical* jury of experts through the patent office - after all the validity of a patent is a technic
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Some things are clear. Workable cold fusion is patentable. Perpetual motion machines aren't even worth reading (the USPTO I think has that as a standing policy.) Using a computer to do math is clearly non-patentable. I think I made very clear that I was talking about the process for close calls.
I'm fine with creating a technical pool to pull the jury from (prequalified people) and paying them a real salary during the case to incentivize them. I don't t
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I agree about permanent juries being a problem - but not necessarily that they should be paid substantially more than a criminal jury - when your number gets called, you go do your civic duty.
There's also no reason to make a legal case out of it - the validity of a patent is a purely technical issue, and such a jury should be assembled before the patent is actually granted. There is no "other side", or outside arguments to be considered - that all relates to whether a patent has been infringed, which shou
Re:Anyway (Score:4, Insightful)
Before spending $10kUS (average cost to get a patent) the APPLICANT should consider if it's a smart way to spend money.
Spending money on shysters has no guaranteed ROI. Don't expect a god damn lawyer to tell you: 'I'll take your money, but it will be for nothing'. Rather the opposite, like asking your barber if you need a haircut, answer is always yes.
Getting the patent gets you a right to take it to court. Not a guarantee the patent is valid.
Invalidating a patent is no more taking a property than losing a appeal. Yes, you've spent money, but nobody ever told you it was the end of the process.
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If you've tried t
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Regardless of whether the patent was "properly instantiated as IP", whatever that means, the applicant has forfeited property, including fees paid and trade secrets revealed.
By the same token, if a patent is issued inappropriately, then everybody else other than the applicant forfeits their right to use concepts that ought to be in the public domain.
The government has "taken" that right from all of them, and that needs to be rectified.
I bet this whole problem would rapidly disappear if we made patent examiners personally liable for the damages caused by these types of mistakes.
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Are you saying that the USPTO is infallible, or advocating the idea that no patent should be review-able after being granted? Are you saying that the patent examiners at the USPTO are experts in every field and technology, and have a breadth of knowledge that transcends the rest of humanity?
Why the fuck would they work at the patent office if they do?
Your comment seems even less thought out than what you're implying of the other guy.
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If the patent shouldn't have been granted, then it isn't a taking of property because it was never properly instantiated as IP.
Actually, it was instantiated as IP (translating between law and Computerese), which is what makes it more important to fix the mistake. The patent office may reject basically by default, but it still grants (especially after a decent response to their rejection) plenty of things that a smart person who is skilled in the art would consider obvious. People sometimes need a way to challenge a patent that doesn't result in ridiculously expensive and drawn out litigation.
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The path to Congress has already been tread upon over this issue.
Congress debated the issue.
Congress passed the legislation creating the review board and authorizing the Patent Office to administer the board.
The POTUS signed the bill into law.
With the legislative, executive, and judicial branch pathways already exhausted, the options are pretty much nothing.
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With the legislative, executive, and judicial branch pathways already exhausted, the options are pretty much nothing.
Oh I'm sure Mueller will get around to investigating that as well as anything Trump's lawyer...or his cleaning staff...or his limo drivers...or his lawn-care crews...may have been involved in personally.
Strat
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Trump's lawyer's OBVIOUS GUILT is already proving Mueller's investigation fruitful, moron.
You seem to think I would not want Trump to be found guilty and punished appropriately IF he has committed a crime.
You're wrong.
This Mueller "investigation" is not a seeking of justice, it's a Salem witch-hunt reminiscent of McCarthyism. So far after all this time & tax money spent on this fishing expedition, nothing of any substance has been linked to Trump. If anything at all was found it would have already been leaked like a sieve to the public like everything else has been.
I bet if I investigated ju
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And even if you think Trump's entire inner circle during the campaign isn't enough to look into whether Trump himself knew, interfering with an investigation is a crime by itself even if the underlying criminal action never took place.
Just stop lying dude, nobody who repeats Fox News talking points and refers to it as a 'witch hunt' is actually interested in anything other than a
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Ah the classic 'there's no evidence against Trump, therefore no investigation to search for evidence should occur' argument.
Such a wonderful strawman and you knock it down so well. Too bad my post said nothing of the kind. After a year of "investigation" of anything, anyone, and everything possibly linked to Trump there's nothing, nadda that proves Trump did anything illegal. This is Ken Starr all over again.
I don't like Trump. He's an asshole with no fixed ideological principles and doesn't know when to shut up. Still, it's blatantly obvious to all but the blindly partisan that Mueller's "investigation" is purely partisan and a
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Not coming down on either side of this one, but if it quacks like a duck...
Remember the late 90s, with that whole impeachment thing over a blow job? Yeah, that started as an investigation into shady real estate deals, and was being called a politically motivated 'witch hunt' too. Turns out, it was a politically motivated witch hunt. But political witch hunts are as old as the Republic itself, going back to John Quincy Adams.
Sometimes investigations turn things up that justify continued investigation, and
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"the options are pretty much nothing"
Laws enacted by the Congress can be amended / repealed by the same process. Up to and including amendments to the Constitution. See: prohibition.
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If the patent shouldn't have been granted, then it isn't a taking of property because it was never properly instantiated as IP.
I don't see how the one thing follows from the other. Well, to be honest, I have no idea what you mean by "instantiated as IP" - this is not a term that I'm familiar with - but there are plenty of examples of property which should never have been granted.
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What about something along the lines of having to actually use the patent (either by creating a product or licensing it), say within the first 5 years of being granted. Otherwise, you lose the rights.
Also, what about getting back to patenting implementations of ideas and not ideas themselves? My biggest gripe about software patents is that they are all granted at the "a method to do some vague concept" instead of the "a specific method for doing some specific task" level. It would be the equivalent of pa
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Then they have the state's decision against them instead of being backed by the state's decision. Also they can't force companies into settlement with injunctions and import restrictions and trials which can drag on longer than the patent re-review. Also they will be limited to the Eastern District of Virginia to appeal in court. Also of course they still have to finish their original trial too even if they win the appeal.
So they get their time, but the old situation was much better for them.
Disagreeing isn't quite enough. (Score:2)
Partly the efficiency is having the first round not be in court, so the *appeals court* received all the records, and the decision, from the review board. All that process of gathering and presenting the facts and arguments is done through the board.
Secondly, it goes to an appeals court, not a trial court. The appeals court generally doesn't decide who is right, they decide whether the previous tribunal clearly screwed up. The difference may be subtle, but it's important. The question before an appeals cour
some tweaks to the system (Score:2)
1 if your "portfolio" gets gutted by this then ALL of your patents are voided
2 these patents get put on a list of search here first items (to prevent somebody else from doing the same thing)
3 if your business is patents and 1 happens then all the execs should be barred from being an exec for ten years
(and no earning income from "consulting" either)
Re:some tweaks to the system (Score:4, Insightful)
Just end patents, much easier.
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They might as well... (Score:3, Insightful)
They might as well be saying, "We hide our taxes outside the USA [abusing the system], so closing the tax loophole will negatively affect us!"
Not a single tear.
Darn... (Score:5, Funny)
I was hoping the Patent "Death Squad" actually hunted down patent trolls...
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I was hoping the Patent "Death Squad" actually hunted down patent trolls...
Certainly would make for a nice reality show, wouldn't it...
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Re:ELI5 (Score:5, Informative)
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So why not hold USPTO liable for damages they caused by granting the first patent. By invalidating the patent, they are admitting to being at fault for initial grant.
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In many circumstances the Federal government enjoys sovereign immunity [wikipedia.org]. It it very difficult to bring a lawsuit against the government as it has to meet some pretty narrow requirements.
Patents are government issued monopoly... (Score:3)
What the government issues, they can revoke if they believe that it was issued in error.
Will Google, Apple, et al lose patents, too? (Score:2)
Or is this basically a way for dominant corporations to flyswat people claiming infringement?
It's easy to like a system that makes "bad patents" get invalidated without the Eastern District of Texas seeing its income tick up due to court cases challenging patents.
But part of me worries that this will be just a system for big corporations to steal patents from legitimate patent holders.
Re:Will Google, Apple, et al lose patents, too? (Score:5, Informative)
This makes it easier for anyone to invalidate a patent, since there are now two methods for doing so: the traditional and expensive method (through the courts) and the new method (asking the PTO to reconsider their grant).
Basically, all that's happened is that the PTO is now allowed to admit they make mistakes. It doesn't require the courts to decide that they've made one.
Re: property rights? (Score:1)
There are no good patents (Score:2)
Patent Office invalid. (Score:1)