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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.
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Patent 'Death Squad' System Upheld by US Supreme Court

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  • Anyway (Score:5, Informative)

    by Impy the Impiuos Imp ( 442658 ) on Tuesday April 24, 2018 @03:31PM (#56496215) Journal

    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)

      by Anonymous Coward on Tuesday April 24, 2018 @03:33PM (#56496229)
      I would add that naturally occurring substances, DNA sequences, genes, etc are not patentable.
      • by Memnos ( 937795 )

        Yes, especially that.

      • by tomhath ( 637240 )

        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.

      • 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 pat
        • by Logger ( 9214 )

          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

          • 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

        • 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).

      • That one has already been taken care of. AMP vs Myriad killed the idea that merely isolating DNA doesn't make it patentable.
    • by Anonymous Coward

      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.

      • What would be patentable subject matter would be the hardware.
      • The device that generates the smell can be patented, since it's more than just "migrating a process to a computer", it involves a new process. However, once such a device is created (or in the true spirit of patent trolling: before the device is created), you should not be able to patent the use of that device "over the internet", e.g. in an online game played on a server.
    • 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.

    • Maybe this addendum to the patent office operation is a bad idea, but that's a different issue. Write to your Congressman.

      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.

      • 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

      • "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.

    • by pots ( 5047349 )

      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.

    • by SQLGuru ( 980662 )

      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

  • 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)

  • by Chris Katko ( 2923353 ) on Tuesday April 24, 2018 @03:45PM (#56496301)

    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)

    by sconeu ( 64226 ) on Tuesday April 24, 2018 @03:53PM (#56496341) Homepage Journal

    I was hoping the Patent "Death Squad" actually hunted down patent trolls...

  • by Craig Cruden ( 3592465 ) on Tuesday April 24, 2018 @04:23PM (#56496533)
    Patents themselves are a government-issued monopoly to protect the companies from having to compete with others using the results of research without remuneration. It is an invention to try to encourage companies into research and costly development - with the promise that they will have a monopoly for a period of time.

    What the government issues, they can revoke if they believe that it was issued in error.
  • 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.

  • Originally patents were not intended to spur innovation, engineers will always innovate, but to encourage inventors to share their ideas. This was so that we as society would not have to reinvent things over and over. This made sense 500 years ago when a research was minimal and often inventions involved luck and chance. Many societies forgot how to do things. If a good engineer can't invent the same thing that is in a patient in a months worth of work then your invention isn't innovative. 99% of all s
  • And so it would appear that it is the US Patent Office that is invalid, not the patents themselves. The patents may have had merits, but the patent office has none.

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