Europe Says No Backsies On Patent Infringement Awards If Patent Is Later Rejected
from the sorry,-too-bad dept
One of the issues with the patent system that causes trouble for companies involved in patent infringement lawsuits is that there's often a parallel process going on: you fight the patent in court and you also fight it at the patent office. The process for each is totally independent. Even worse, the patent office process is often much slower, and because you may not even realize that someone thinks you're violating their patent until they've sued you, quite often the case is decided or settled long before the patent office can rule on the validity of the patent. This is what happened in the infamous RIM-NTP case. While the US Patent Office surprised many people by publicly saying it would reject the patents even before it actually did -- solely to let the judge know -- it still didn't prevent RIM from getting pressured by the judge to pay $612.5 million to settle the case. It appears that there's a similar problem over in Europe, where the Court of Appeal has decided that even if a patent is later rejected by the European Patent Office fees paid for earlier infringement on that patent will remain in place. The ruling makes it clear that the court understood the two sides, but somehow decided that "certainty" was more important than "fairness" and "not having to pay for doing something that was perfectly legal." For some, perhaps that makes sense, but being in business is an inherently uncertain state of affairs. If certainty was the most important thing in business then the laws would be a lot different -- and economic growth wouldn't exist. Uncertainty is part of business -- and any exec at any company should know that. Then, of course, there's the flip side of this -- which is that if "uncertainty" is such a bad thing, why is it that the courts keep adding "uncertainty" to lots of innovative companies by letting others spring submarine patents on them after they have successful products?
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You hear that sound?
And yes Rick it would seem that extortion is not legal.
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Re: You hear that sound?
And yes Rick it would seem that extortion is now legal.
Oops.
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Alice in Wonderland
How can the lower court do that without making a complete ass of itself (to paraphrase Dickens' Mr. Bumble).
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I understand it through
Imagine you come up with this idea which you think is great, you patent, and then later on find someone using it. You have a patent that, as far as you are concerned, legitimate- the patent office said so, right? So far no one has argued it.
So you sue, you win, you get some money, you reinvest it into your business.
Five years later someone discovers some prior art, your patent is revoked, and lets say you have to return the money. Now you're stuck liquidating your companies assets and setting yourself back, despite having done everything legally.
If anything, the patent office who didn't do enough research or consider how obvious the patent was should be responsible for returning the money. The problem there though is that it means the tax payers end up footing the bill, because I doubt the patent office will actually change the way it does anything.
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Re: I understand it through
How about this though. Since the patent office would be the ones responsible, it would be much, much easier to place the blame on and remove those in the patent office that had a lot of invalid patents especially those that caused a monetary damage to an individual or company. It could surely encourage better checking of prior art and obviousness.
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Court Arrogance
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Re: Court Arrogance
That's just like in American courts in which a person can be released from prison because of a wrongful conviction but the judge will then refuse to have the conviction wiped from the defendant's record.
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Re: Court Arrogance
Company X sues company Z because their product A infringes on patent Y held by Company X. The court is then asked to judge whether or not product A does infringe on patent Y (and determine "damages").
At no point is the court asked, or expected, to make a judgment about the validity of patent Y...only about the validity of the claim that product A is infringing on patent Y.
So even if after the verdict, patent Y is found to be invalid, the court can not be blamed nor did it make a mistake. Maybe your claim that courts hate to admit mistakes is true, however, this is not a factor here, because clearly even when a patent is revoked, the court's ruling isn't a mistake
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Re: Re: Court Arrogance
Not true. See my comment above.
That would only be true if new evidence came to light later to invalidate the patent that the original court did not have in the original trial. But even then it would still give the appearance of a possible mistake to the public and courts have very easily bruised egos.
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Easily solved
This way, you don't run into what tedivm mentioned in his post titled "i understand it through" which does raise a really good point.
The person calling for the patent review should have to pay up front for them to review it and the patent office should reimburse them if its found to actually be invalid. That way, you cut down on a flood of patent reviews from people just trying to delay the inevitable or trying to abuse the system. Also, penalties should be imposed on the patent office if a growing number of invalid patents are found.
The patent office has to be held accountable as some point. The biggest problem arises from obviousness. I know someone in that works in the patent office and she says they get in trouble if they reject a patent without any prior art. They're basically not allowed to reject something due to obviousness without getting in trouble from their bosses. That's gotta change. The patent office has to do what they're supposed to do and not cut corners.
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