Will Fear Of Willful Infringement Hurt New Patent Peer Review System?
from the questions,-questions dept
There's been a lot of talk about the US Patent Office's decision to test a patent peer review system. Since there are so many complaints about patent examiners not knowing about important prior art, the idea is that actual experts in the space can weigh in on prior art and how "obvious" the idea is. There are some problems with the idea, however -- not the least of which is that making sure the right experts are actually paying attention when certain patents come up is a big task, especially as the USPTO makes it increasingly difficult to follow patent applications. Add to that the fact that damages can be tripled if the court finds "willful infringement," and a number of patent attorneys recommend their clients never actually look at patents -- since it only puts them at greater risk. That has some worried that anyone who participates in the peer review simply opens themselves up to willful infringement charges at a later date. While we like the idea of having experts weigh in on patent validity, it's never going to be useful if the system punishes people for doing so.
Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Reader Comments
Subscribe: RSS
View by: Time | Thread
Mike is clueless
Better read this:
http://www.patenthawk.com/blog/2007/03/toxic_review_1.html
[ link to this | view in thread ]
Re: angry dude is clueless... again
/sigh...
[ link to this | view in thread ]
Re: Mike is clueless
[ link to this | view in thread ]
Re: Mike is clueless
"The Peer to Patent Project: Community Patent Review was always a dumb idea."
From the grammar and language choice of that sentence, I would wager that your a little slower then the other children. Am I right?
[ link to this | view in thread ]
Mike's education
That's all you need to know about Mike.
The guys has 2 BS (that's "bullshit") degrees and dares to offer his shitty analysis to the rest of us
[ link to this | view in thread ]
Re: Mike's education
Noone is forcing you to come to this blog, but SUPRISE SUPRISE, those that do come here to read Mike's blog do so because we like to read his blog.
If you don't, why are you here?
[ link to this | view in thread ]
Don't feed the troll.
[ link to this | view in thread ]
Back to the Subject at Hand
Seems like it would be good for 2 reasons:
1.They would generally be older and so more familiar with prior art.
2.There would be little chance of them working in a field where they may contribute to willful infringement in the future.
[ link to this | view in thread ]
Re: Mike's education
I hate to tell you, but you could be a double doctorate and not matter. Degrees do not equate to intelligence or common sense. All degrees indicate is that you were able to complete a set course, not that you actually know anything, nor do they qualify you to speak on subjects with more authority.
Your so free to throw around Mikes education history, but what of your own? Better yet, are you employed? What makes your blog more authoritative on the subject then Mikes?
[ link to this | view in thread ]
Re: Mike is clueless
A community patent application review is when a company has its own employees review the patent to see if there is prier art or its obvious. (according to Patent Prospector) and is a bad idea because if the employers discover that it is infringing and patent it anyways (agents this community) they won't have the plausible deniability (isn't that the point) and may face triple fines. Did I get it?
So in short: Don't let the companies review there own patents so that the companies can infringe without fear of paying bigger fines.
I don't even have to say how stupid that sounds, since in the links provided point to this revew system being hundreds if not thousands of experts in the field (Noware saying anything about internal employies) reviewing the patents. Bigger fines for knowingly infringing makes sence to me and removing plosible deniablility also makes since.
[ link to this | view in thread ]
Re: Re: Mike is clueless
[ link to this | view in thread ]
There's another problem...
So I'm been around, I've seen a few things, know a few secrets. If I see a patent application that has either prior art in one of the those secrets, or where the secret indicates the practice is obvious to someone skilled in the art, then I can't challenge it without revealing the trade secret.
They should seriously consider whether the Patent office should even be considering some fields that are better protected in other ways.
Even the model market patent market 'pharma' should be reexamined. Where's the AIDs cure? Prion disease cure? Necrotizing fasciitis cure? 50 pain killers but no cure for cancer. Seems to me the pharmaceuticals industry gets patents too easy for minor incremental work and has little incentive to spend on more difficult research.
[ link to this | view in thread ]
actual discussion of the topic
I feel like willful infringement should require the element of "willfulness," (Yes, I know...duh). So if a company has reviewed the patents and doesn't think they're infringing on anyone else's patents, how is that willful? I don't get it.
[ link to this | view in thread ]
A different way it might play out
I could see it being worth the while of any large company to fund 2-4 people who's only job is to keep the competition from getting their patents granted.
They might also come in handy as a resource for legal to use when filing new applications - by figuring out how their own patents might be shot down, they could strengthen them.
I don't know that this is really a fix, but it's probably not a bad thing, overall.
[ link to this | view in thread ]
Problems
I'm not happy with current patent law, but because of this I don't think peer review would be a good thing at all (unless you are a lawyer).
[ link to this | view in thread ]
Re: Problems
[ link to this | view in thread ]
Re: A different way it might play out
every patent hoarding company will hire a "patent team" to shoot down other people's patents. at that point, patenting an idea is only feasible if your idea is either a) truly unique or b) worth buying the best patent team.
either way, frivolous and defensive patents are impossible to get... problem solved.
[ link to this | view in thread ]
Re: Don't feed the troll.
[ link to this | view in thread ]
Peer-to-patent
http://www.ipfrontline.com/depts/article.asp?id=15505&deptid=4
[ link to this | view in thread ]