How Reporters Contribute To Misconceptions About Patent Lawsuits
from the we-need-more-accuracy-in-reporting dept
Joe Mullin has another fantastic post, discussing how way too many reporters, in covering patent disputes, mislead the public into thinking that the patent holder is accusing another company of copying its invention. The truth is that it's very, very rare for a patent infringement lawsuit to actually involve a company that copied (or, as the patent system supporters would falsely claim, "stole") someone else's invention. Usually, it's about companies coming up with a similar offering independently. Yet, as Mullin points out, in the recent reporting on Picsel suing Apple for infringement, reporters, such as those at CNN wrote that Picsel claims "Apple's hot-selling iPhone and iPod Touch devices incorporate Picsel-patented technology."That implies much more than the lawsuit really says. It implies that Apple actually took or copied a specific "Picsel-patented technology" and placed it in the iPhone. But the truth is that no such claims are actually made in the lawsuit. Mullin suggests that reporters covering such patent lawsuits should make this much clearer, even suggesting something along the lines of the following:
"Picsel, which does not claim that Apple copied its patent or products, is asking for a royalty to be paid on all iPhones sold in the United States."While that exact wording may not make sense, it does seem important to get more people to realize that patent lawsuits are almost never about the actual copying of inventions, despite what patent supporters and lazy reporters might tell you.
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Filed Under: journalism, patents, reporting
Companies: apple, picsel
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Film at eleven
Journalism used to be a respected profession ... what happened?
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How Reporters Contribute To Misconceptions About Patent Lawsuits
YOU are the one who produced most lies about patents
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Re: How Reporters Contribute To Misconceptions About Patent Lawsuits
Long Time No Read
How's it hangin ?
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Re: How Reporters Contribute To Misconceptions About Patent Lawsuits
lies about patents, is that redundant?
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Picsel files its initial application in the UK
April 14, 2001:
Picsel files a counterpart application in the US
October 18, 2001:
Picsel's US application is published by the USPTO
March 7, 2006:
Picsel granted a patent in the US
January 9, 2007:
Apple unveils iPhone
It looks as if Apple had about 5 1/2 years notice of Picsel's application and its contents. It had slightly less than a year to look at the Picsel patent.
Re "copying", see para. 16 (allegation of willfulness) on page 3 of Picsel's complaint filed 2/13/09.
What will be the outcome of this matter is unknown, but one thing is known...Apple should learn to read its copy of the Official Gazette published weekly by the USPTO. Had it done so back in 10/01 it could have saved itself a lot of grief.
If you feel the need to talk about "copying", this matter is not a good one to to rely upon.
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Who comes up w/ these co names ?
Where is their product?
I guess they do not have a product because Apple fricken stole it !!!
It would be a shame if Pissall errrr Picsel (whatever) actually had a product that was adversely affected by the "theft" of their "intellectual" property
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I'm certain there's lots of reasons to get pissed at the media when it reports/misreports about IP, but this isn't one of them.
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Re: Who comes up w/ these co names ?
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Re: Re: Who comes up w/ these co names ?
Why would I do that ?
What is their product ?
They have no product !
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Call patents what they are, an artifical restriction.
Apple is accused of using the same/a similar idea that Picsel was awarded a patent for.
I think in the vast majority of cases the volume of information and patents has passed the point where we get meaningful returns on 'protecting' (locking up) ideas which we would all probably benefit more from having published directly in to public domain or at the very least being trade secret.
I also agree with other previous Techdirt articles that note about the disparity in areas where NDAs were allowed versus those where they were not. The free exchange of people and ideas enriches, not diminishes, the whole.
Alone we are worth less than we are combined; in fact combined we are worth more than the sum of our singular selves. It is diversity, variety and different viewpoints which lead to the exploration and selection of more optimal paths.
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Re:
So far, all we have is that there was a fairly obvious idea for a function on a small-screen, touch screen device, and Picsel filed a patent first. It also shows that they had nearly 6 years to capitalise on the "invention" but failed to do so, and are attacking a larger company who created the device and had financial success. Despite cries of "protecting" themselves, I doubt we'd be hearing of this if the iPhone had flopped (why else wait 18 months after the device's high profile release to file a patent claim?).
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Picsel's Patent Application Was 11 Years Too Late.
I wish people would learn to cite their sources. Now, I take it we are talking about Patent No. 7,009,626. A cursory review of the patent suggests that it would fail under KSR vs. Teleflex and In Re Bilski. All the other claims depend on Claim 1, which describes what used to be called a "Progressive GIF," or "Interlaced GIF" The interlacing feature appeared in GIF in the 1989 specification. This is a standard borderline-fraudulent "junk patent," in short.
http://www.iphonefootprint.com/2009/02/picsel-technologies-sues-apple-for-patent-infringem ent-related-to-the-scrolling-and-zooming-features-of-the-iphone/
http://patft.uspto.gov/netacgi/nph -Parser?Sect1=PTO2&Sect2=HITOFF&p=1&u=%2Fnetahtml%2FPTO%2Fsearch-bool.html&r=2&f =G&l=50&co1=AND&d=PTXT&s1=7009626&OS=7009626&RS=7009626
http://en.wikipedia .org/wiki/Graphics_Interchange_Format
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Re: Re:
Remember also that all of their customers, who are major players in the industry, licence this product from them. It would be wholly unfair to them if they had to pay for this while Apple use their IP for free.
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Study history and contempory cases.
Most patent lawsuits are about blatant theft of an inventor’s work. Such theft occasionally comes from published applications but more often it comes after an inventor has tried to sell their invention to the company.
Every inventor thinks that they have the most beautiful baby in the world and like a new parent they show their invention to anyone who will listen. Many patent pirating companies (you know the ones who are members of the Coalition for Patent Fairness) take this opportunity to meet with the inventor and extract as much information as possible. Then they tell the inventor that they have decided they are not interested.
Six to eighteen months later they introduce an infringing product knowing that most inventors will not be able to raise millions to tens of millions of dollars that it will take to defend their patent rights.
A small percentage of inventors do manage to connect to patent enforcement companies or contingency litigators. When an inventor does manage to do so then the Piracy Coalition’s (no, they are not about fairness) propaganda machine moves to paint their victims as vicious patent trolls.
It is a fact that there is a long history of companies stealing others’ inventions. Armstrong, Farnsworth, Tesla, Kearns, Lemelson, Gould, Damadian, Campana, yours truly and the list goes on.
So tell me Mike, when are you going to pull your head out of your rectum? There is no shortage of well documented historical and current examples of corporate patent thievery.
Ronald J. Riley,
Speaking only on my own behalf.
Affiliations:
President - www.PIAUSA.org - RJR act PIAUSA.org
Executive Director - www.InventorEd.org - RJR at InvEd.org
Senior Fellow - www.PatentPolicy.org
President - Alliance for American Innovation
Caretaker of Intellectual Property Creators on behalf of deceased founder Paul Heckel
Washington, DC
Direct (810) 597-0194 / (202) 318-1595 - 9 am to 9 pm EST.
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Re: Journalism a respected profession?
Ronald J. Riley,
Speaking only on my own behalf.
Affiliations:
President - www.PIAUSA.org - RJR act PIAUSA.org
Executive Director - www.InventorEd.org - RJR at InvEd.org
Senior Fellow - www.PatentPolicy.org
President - Alliance for American Innovation
Caretaker of Intellectual Property Creators on behalf of deceased founder Paul Heckel
Washington, DC
Direct (810) 597-0194 / (202) 318-1595 - 9 am to 9 pm EST.
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Thank you for your obviously biased opinion. If you are indeed speaking only on your own behalf, then why list all the junk? Are you spamming this board? Looking for a bailout?
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not so
Thanks,
Ben
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Re: Dont play
I will go somewhere else to get informed opinions.
I see this person with a meth pipe in one hand under a single naked light bulb.
"Better to stay silent and appear stupid than open ones mouth (keyboard) and remove all doubt." Mark Twain
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Re: Study history and contempory cases.
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Re: Study history and contempory cases.
When enumerating companies in your list of those who allegedly stole intellectual property, it would be more responsible if you and your related organizations used the specific legal name of companies, if you have a gripe with them. I feel our business name was injured through your list of “anonymous “ names.
I suspect you were referring to a company with the word “Campana” in it, possibly a Canadian Company, and not to my U.S. firm, whose entire legal name is “J. Campana & Associates LLC.” Is that correct?
We are a highly respected professional services firm, and we pride ourselves with our high degree of business ethics and responsibility.
Sincerely,
Joseph E. Campana, Ph.D.
www.JCampana.com
www.PrivacyMakeOver.com
www.PrivacyDiary.com
www.AskDrPrivacy.com
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Reporters and patents
Further, while Mike formerly "pegged" on extreme positions, at times, which is not helpful, his recent posts are much more moderate and thoughtful, and therefore more useful.
However, "Apple's hot-selling iPhone and iPod Touch devices incorporate Picsel-patented technology." was somehow morphed into a presumed "deliberate theft" - it doesn't say that. It says that Picsel thinks technology they patented is in the iPhone and iPod Touch devices. In other words, it says, in effect:
"Picsel, which does not claim that Apple copied its patent or products, is asking for a royalty to be paid on all iPhones sold in the United States." They simply implied that they were not claiming copying, that is why copying is not mention in the news report. BAD BLOG! NO COOKIES!
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Re: Re: Study history and contempory cases.
The "Campana" to which Mr. Riley refers is Thomas J. Campana, an inventor whose work was the subject of the NTP v. RIM litigation.
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Re: Re: Journalism a respected profession?
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Re:
Yes. As the original piece noted, that is technically accurate, but highly misleading. Claiming it "incorporated Picsel-patented technology" is the sort of thing that leads those who are not well-versed in patent law to think that Apple actually TOOK Picsel's tech and put it into their own product... rather than coming up with the same concept separately.
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Re: Study history and contempory cases.
Could you provide an ounce of evidence to support that? Of course not, because the actual evidence shows that (as per usual) Ronald J. Riley makes stuff up:
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1270160
Will Ronald J. Riley admit he was wrong?
Or will he insult me and my family again?
Stay tuned...
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Patents
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Mike is Right
This repeats the very mistake that Mullin is talking about: here AC implies Apple *had notice of* the previous application, that is, that they were actually aware of it, before the iPhone was developed, and therefore that they copied it. But just because a patent application is published and the state's artificial, positive law rules decree that people "are on constructive notice" does not mean that they have actual notice, or knowledge, of it.
Riley, in an incredibly rude and incivil post, wildly asserts that "Most patent lawsuits are about blatant theft of an inventor’s work." Where is his proof of this? The study Mullin reports on carefully examined evidence in this regard and didn't find this. Moreover, Riley uses the loaded term "theft." This is problematic for several reasons. First, even the artificial state patent law system does not label patent infringement as theft--it's just infringement. And no wonder--if they refer to it as "theft," then this implies that if you do *not* copy then it's *not* infringement--that is, that independent inventorship is a defense. And I'm sure that patent socialists like Riley do not want this kind of defense, do they, even though they they harp on the "copying" meme so much for rhetorical and propaganda purposes, further confusing the public, just as Mullin notes.
Second, theft implies taking something from someone--in normal theft, the very problem with the theft is that the thief deprives the owner of his property. But this is the problem with the idea of intellectual property as such--if I use my own property according to a certain technique, design, or recipe--some pattern of information--this does not deprive the originator of that pattern from using it himself. In other words, even if I do copy your idea, I have not taken it from you--you still have it.
so patent socialists are left with the claim that what the infringer is "taking" is not the idea, but the right to profit off of it--but of course, this notion is fraught with difficulty. For one, it is circular because it is only if the state grants an artificial monopoly that one would have the right to collect monopolistic royalties, so one cannot justify this practice by relying on it--that's circular. For another, it implies that there is a right to the value of property--but there is not; only the right to the physical integrity of one's property, not what others think about it or are willing to pay for it. (I explain this fallacy in this post: Objectivist Law Prof Mossoff on Copyright; or, the Misuse of Labor, Value, and Creation Metaphors http://blog.mises.org/archives/007614.asp .)
Masnick: "Claiming it "incorporated Picsel-patented technology" is the sort of thing that leads those who are not well-versed in patent law to think that Apple actually TOOK Picsel's tech and put it into their own product... rather than coming up with the same concept separately."
Masnick is dead-on here. There is a widespread confusion about copying, and this needs to be made more clear.
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Re: Mike is Right
Rather than try and replicate it in its entirety, let me merely suggest that USPTO publications are done for a reason, one that apparently largely escapes the legal staff at Apple. The company had numerous opportunities to learn what Picsel was doing, and failing to avail itself of those opportunities is hardly a good reason to excuse its lack of action in this instance. Please note that I am limiting my comments to the facts concerning this instance, and do not mean to suggest that they apply with equal force in all instances.
Merely as a side note, Mr. Masnick cites a study co-authored by Mr. Lemley. I am well familiar with Mr. Lemley's body of scholarship, and submit that the cited study is not one that by my measure reflects true academic scholarship. In my view it appears to be little more than a "CV filler", an unfortunate consequence of the "publish or perish" pressures faced by current day academics.
In the movie "Jerry McGuire" (sp?) is the oft repeated line "You had me at 'hello'." In the cited study Mr. Lemley seriously undercut the persuasive force of his arguments by suggesting that numerous voices were calling for the creation of an "independent inventor defense" by citing his own work. I expect more than citations to one's own publications.
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Re: Mike is Right
Since, like me, you are a student of the law, I am curious about your views as to the constitutionality of the U.S. Government granting itself patents for work done by it employees in the ordinary course of their employment. The same can be said of state governments. Interestingly, whenever I have posed this question to many of the academics who pronounce themselves as experts in the law, I receive a quizical look that is immediately followed by a resounding "Of course they can." I term such views as "shooting from the lip" that are based on nothing more than a gut reaction, and not based upon any thoughtful examination of the relevant legal issues.
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Re: Re: Study history and contempory cases.
The material he selected, including the venues from which he gathered his material, is a poor choice. Notice pleading under the FRCP does virtually nothing to add substance to his and his co-author's arguments, and the associated court opinions do likewise.
"Copying" is not an element associated with such lawsuits, so it should be expected that its lack of explicit or implicit reference in the materials would be the norm.
It is disappointing that the paper does not address the "notice" function inherent in current patent law. Perhaps this is to be expected from one in academia who has never dealt with the full scope of patent law, the implementing regulations, and the internal guidance issued by the USPTO interpreting the law and regulations. Unfortunately, this is the norm in academia.
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Re: Re: Study history and contempory cases.
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Re: Re: Mike is Right
I'm amazed that MLS would make this statement (and, once again, decide not to sign his name). Lemley isn't some tenure-track nobody. He's one of Stanford's star law professors, and has a very productive ongoing legal career as well.
The idea that he would publish a bogus paper just to publish as CV filler is ridiculous. Lemley has no need to publish as CV filler.
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Re: Re: Re: Study history and contempory cases.
Um. MLS (again failing to sign his name) fails again. Lemley is not merely an academic but has been quite busy working on actual patent cases for quite some time. But, the great MLS (where are you citations, by the way?) has decided that he can ignore all Lemley has to say because he's a mere "academic."
Your ego is astounding.
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Re: not so
If I go out today to my garage and develop some new gizmo to improve the efficiency of a pool pump (or whatever), there's a chance that I will tread on someone's patent even if I have never seen nor heard of a similar gizmo myself. In your words, I will have "incorporated" someone's technology simply by tinkering in my garage??
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Re: Patents
2. The point to this post wasn't about the correctness or clarity of the patent claims, but the accuracy of the reporting of those claims.
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Re: Re: Re: Mike is Right
The paper you have cited is clearly well short of the standard of scholarship associated with much of his work.
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Re: Re: Re: Re: Study history and contempory cases.
Perhaps if these vocal academics were also members of the USPTO Bar and/or practiced all facets of patent law they might have a somewhat different perspective. There are many academics with such credentials, but their voices are rarely heard over those who are so quick to declare as "broken" a system within which they have never toiled.
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Re: Re: Re: Re: Mike is Right
Again ignoring that Lemley is a practitioner.
I'm getting the feeling that perhaps you're just jealous of Lemley's accomplishments. That also might explain why you still refuse to sign your name. Afraid that folks might start comparing your legacy with Lemley's?
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Re: Re: Re: Re: Re: Mike is Right
Actually, he's not. Lemley does still do litigation, and his resume is impressive, but one thing he has not done is prosecuted a patent at the United States Patent and Trademark Office. In fact, he is not even admitted to practice in front of the USPTO. He may know a whole lot about patent law, but he cannot technically call himself a patent attorney.
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Re: Re: Re: Re: Study history and contempory cases.
If this were true, which is most certainly not the case, I would likely find myself in the distinct minority among my peers. However, it turns out that this is not the case. The majority of comments by members of the profession in legal blogs and journals largely mirror my comments, though in the interest of accuracy there are some differences at the margins of the issues constantly railed against by many in academia who have largely abandoned their roles as dispassionate students of the law and crossed over into blatant and quite troubling advocacy.
Perhaps if you were more conversant on these issues, you might have pause for concern before citing many of the studies by law academics upon which you rely as "proof".
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I would hardly call Mr. Lemley a "practitioner", unless by this you mean that any association with the law in a non-academic setting qualifies one as a "practitioner". To date this participation outside of an academic setting has involved the submittal of amicus briefs, and in each instance the amicus briefs were co-authored by other academics and were clearly "advocacy" in favor of a specific party. In the matter of In re Bilski he and his co-authors argued in favor of Messrs. Bilski's and Warsaw's position, and in the matter of Tafas v. Dudas he and his co-authors argued in favor of the USPTO's position.
It is not at all uncommon for amicus briefs to be presented by professional associations (e.g., the ABA, AIPLA, LES, etc.) that take the side on neither party and are clearly non-partisan. Their sole purpose is to assist the court on the law in what I term an "honest broker" fashion. I must admit, however, that some of these briefs are perilously close to the line between "honest broker" and partisan "advocacy".
Once more, I would hardly term legal activities involving but a tiny subset of all relevant "law" (statutes, executive orders, regulations, and internal policy directives) as being synonymous with the term "practitioner".
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The Justices of the Supreme Court are not Patent Lawyers.
For example, at this point, businessmen in established industries commonly expect an internal rate of return on investments of about twenty percent, before taxes, before the cost of supporting top management, etc. That works out to five years payback time. A new machine has to pay for itself within that time, or else the investment has to be made by a governmental or quasi-governmental entity. In the automobile industry, the product cycle is about ten years, and a new automobile loses ninety percent of its market value within five years of use. By contrast, in the late nineteenth century, things moved more slowly. Looking at 1900 and 1909 Sears catalogs, I find that, for watches, foot-treadle sewing machines, and double-barrel shotguns, there was no idea of a model year. The article one purchased was not expected to be demonstrably better than the article one inherited. The notion of model year existed for Winchester repeating rifles, but the product cycle was about twenty to thirty years. The Supreme Court might decide to cut patents back to seven years, on the grounds that technology moves faster than it did in the days of the Framers, and that it was never the intent of the framers to allow patents to extend to articles which had become obsolete.
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Re:
http://en.wikipedia.org/wiki/Yellow_journalism
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Re: Re: Re: Mike is Right
Lemley's paper is hardly definitive, and he admits his paper is not definitive several times, with one significant lapse in his conclusions.
Lemley first assumes that lack of allegation of copying equates to no copying. Later in his paper he points out that it may be that copying could have been alleged, but was not for some [unspecified] reason. Lemley is generally careful to use words such as "may" that point out that his information is in fact not definitive, also suggesting a need for further study.
Lemley's one lapse is in his conclusion where he states clearly that "most defendants are not copiers," when he in fact admits by his use of language that he has not proven that point. I am actually a little surprised that he made this statement considering he said elsewhere such things as "The fact that few, if any, people appear to be copying technology..." and "That doesn't mean that technology transfer from patentees to others - or even copying of inventions - doesn't happen in the patent system..."
I am also surprised that a respected researcher such as Lemley would succumb to using relative words such as "very." To say something is "very low" is meaningless because there is not basis for comparison. Academically, a researcher should state the statistic, state any basis for comparison, and leave it at that. Anything else smacks of trying to influence the audience and is more journalistic than scientific.
What is Lemley's real conclusion? Copying is alleged in about 10% of all cases. Is that "low"? Depends on your definition of low. Is that "very, very rare"? My definition of "rare" in this case would probably be a few percent; very, very rare would probably be under 1%; 10% would seem to be more often than "rare."
Lemley also suggests that copying may not be alleged when it could be. I have asked a few litigators whether they would allege copying if they could (small sample, three), and every one has said no. The reason is that it is hard to get evidence to prove copying, even when it happened blatantly. Patent infringement, on the other hand, is relatively easy to prove in comparison to copying.
Rather than taking Lemley's paper as the definitive answer to whether copying actually occurs in cases of patent infringement, I believe more studying should be conducted to determine whether copying could have been alleged and was not, and why it was not alleged. I also think it would be interesting to see whether plaintiffs thought copying had actually occurred, even though it was not alleged.
Just as someone might well assume from the way the press writes about patent cases that copying has occurred, someone might also read Lemley's paper and believe that copying hardly ever occurs, when Lemley's paper suggests copying might not be occurring, but he admits that he does not know for sure.
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Re:
The large number of patents that exist is not as intimidating as you think. Most patents for a particular invention or type of invention are confined to certain classes and subclasses. Though some art fields, such as biotech, are incredibly crowded, most others have relatively few patent application and patents issued. There are also lots of places to do searching of patents, with the best possibly being Google patents. If there was a "willful ignorance" accusation, not bothering to perform even a cursory check of existing patents would seem to constitute the basis for such an accusation.
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Reporters Don't Understand
Reporters aren't much into history, so they fail to explain to the public that, over time, copyright and patent law has become ever more onerous. Think of it this way, a yellow light at an intersection stays on for five seconds, the grace period is reduced to four seconds. Guess what we have now stolen one second from the public and we now have more criminals to fine!
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infringement
please see http://truereform.piausa.org/ for a different/opposing view on patent reform
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Re:
I am of course assuming there is no conflict of interest here. Obviously a for-profit corporation submitting a brief in a case that could affect its business is a different story.
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Re: Re: Re: Journalism a respected profession?
More like arsehole writer
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Re: Reporters Don't Understand
Dude
what did you drink yesterday ?
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Re: infringement
Huh? And why should a company stop building a product they built by themselves just because someone else claims to have done it first?
Don't you see a pretty serious problem with that?
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Re: Re: Re: Re: Journalism a respected profession?
Heh. I love how angry dude is always quick with an insult, but somehow fails to respond when we point out how he has been caught lying repeatedly -- and when challenged unable to find a single bit of evidence to support his attacks.
Funny how that works.
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Re: Re: Re: Re: Mike is Right
Mullin's original point stands: even if it is difficult to show full copying, in a jury trial, if there is some way to show that some copying was likely, you would absolutely want to do that. The fact that so few patent lawsuits do that suggests a pretty strong likelihood that very few patent lawsuits involve direct copying.
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I love techdirt!
Speaking only on my own behalf.
Affiliations:
President - www.PIAUSA.org - RJR act PIAUSA.org
Executive Director - www.InventorEd.org - RJR at InvEd.org
Senior Fellow - www.PatentPolicy.org
President - Alliance for American Innovation
Caretaker of Intellectual Property Creators on behalf of deceased founder Paul Heckel
Washington, DC
Direct (810) 597-0194 / (202) 318-1595 - 9 am to 9 pm EST.
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Re: Re: Re: Re: Re: Mike is Right
As has been pointed out to me frequently, correlation is not causation. It is interesting that copying is only alleged in 10% of cases. It is interesting that copying is proven in even fewer cases. However, the unanswered question is, why? Mullin has a point, but it is a question asked and unanswered. Further, Lemley has no proof, merely interesting information that has no context.
I should also note that you have brought up a separate issue not covered by either Mullin or Lemley, and that is whether any evidence of copying was brought up at trial, regardless of whether copying was either alleged or proven. Again, neither Mullin nor Lemly covered that point.
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Re: Re: Re: Re: Re: Mike is Right
No, it suggests that so few patent law suits intend to prove copying, likely because it is difficult to prove and not necessary in order to obtain a judgment of infringement. If Path A and Path B lead you to the same destination, yet Path A is easier to travel than Path B, why would one choose to travel Path B?
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Re: Re: Re: Re: Re: Re: Mike is Right
Perhaps because by failing to do so one is likely to be critized by persons unfamiliar with the law and litigation practice.
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Re: Re: Re: Re: Re: Re: Mike is Right
Again, you seem to be blatantly ignoring the treble damages available for willful infringement... Of course, you'd want to show copying. It helps your case so much, you'd be practically committing malpractice to ignore it if you believed it were true.
Considering what sort of ridiculous stuff is often alleged in such lawsuits, copying is hardly a difficult thing to include.
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If only the system worked...
That would make sense, which is obviously why it doesn't happen that way in reality. What really happens is anyone working on a specific idea who happens to look at any related patents can then be charged with 'willful infringement' of any patents they looked at (meaning they looked at an idea and decided to copy it, even if that is not the case). What this means is that R&D departments are often specifically forbidden from reviewing related patents just so that the company can't be sued for 'willful infringement'.
That sounds like it 'promotes the progress' right? Oh well, it promotes something......
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Re: Re: Re: Re: Re: Re: Re: Mike is Right
Regardless of the source of willful infringement, courts have been very reluctant to find willful infringement, even in some cases where copying has been proven. Courts have also raised the willful infringement bar quite high as of In Re Seagate (CAFC 2007).
Even when willfulness is found, a court is not bound to award enhanced damages. Here is a great quote from In Re Seagate
"But a finding of willfulness does not require an award of enhanced damages; it merely permits it."
Considering the increasing standard to prove willfulness, the discretion of the court in awarding damages, and the infrequency with which enhanced damages are awarded, proving willful infringement is generally not worth the effort. The evidence you have cited from Lemley is clear evidence that willfulness is proven infrequently. Further, copying may not be considered willful infringement depending on facts and circumstances.
One should also consider that if one manufacturing company is suing another manufacturing company for willful infringement, their motivation may simply be to get the infringing company to stop, and they may be uninterested in obtaining damages.
While you may feel that "ridiculous stuff is often alleged," the accusations must have some basis, otherwise the accuser is begging for a civil suit for false allegations. Copying may be easy to include, but if the evidence of copying is tenuous, at best, then the accuser is just setting themselves up for an allegation of false accusation and risking having their entire suit thrown out. Why would anyone set themselves up for failure?
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Re: If only the system worked...
In any case, the willful infringement standard keeps being raised. Keeping in mind that courts want people to read patents, they are not obligated to assess enhanced damages. I would be interested if anyone is aware of enahanced damages being awarded as a direct result of reading competitor patents after the In Re Seagate decision.
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Re: Re: Study history and contempory cases.
The court hammered RIM because they committed numerous infractions, not the least of which was foisting manufactured evidence on the court.
Ronald J. Riley,
Speaking only on my own behalf.
Affiliations:
President - www.PIAUSA.org - RJR act PIAUSA.org
Executive Director - www.InventorEd.org - RJR at InvEd.org
Senior Fellow - www.PatentPolicy.org
President - Alliance for American Innovation
Caretaker of Intellectual Property Creators on behalf of deceased founder Paul Heckel
Washington, DC
Direct (810) 597-0194 / (202) 318-1595 - 9 am to 9 pm EST.
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Re: Re: Re: Re: Re: Study history and contempory cases.
They are supplementing their incomes feeding at the trough of the Piracy Coalition.
Ronald J. Riley,
Speaking only on my own behalf.
Affiliations:
President - www.PIAUSA.org - RJR act PIAUSA.org
Executive Director - www.InventorEd.org - RJR at InvEd.org
Senior Fellow - www.PatentPolicy.org
President - Alliance for American Innovation
Caretaker of Intellectual Property Creators on behalf of deceased founder Paul Heckel
Washington, DC
Direct (810) 597-0194 / (202) 318-1595 - 9 am to 9 pm EST.
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Re: I love techdirt!
Ronald J. Riley,
Speaking only on my own behalf.
Affiliations:
President - www.PIAUSA.org - RJR at PIAUSA.org
Executive Director - www.InventorEd.org - RJR at InvEd.org
Senior Fellow - www.PatentPolicy.org
President - Alliance for American Innovation
Caretaker of Intellectual Property Creators on behalf of deceased founder Paul Heckel
Washington, DC
Direct (810) 597-0194 / (202) 318-1595 - 9 am to 9 pm EST.
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Re: If only the system worked...
What really happens is that they do look at the patents, willfully infringe those patents, and then lie, cheat and steal at every opportunity.
Transnational corporations are functionally equivalent to organized crime and many in the software community are functionally equivalent to petty racketeers. Both feel quite justified in stealing others property.
Ronald J. Riley,
Speaking only on my own behalf.
Affiliations:
President - www.PIAUSA.org - RJR at PIAUSA.org
Executive Director - www.InventorEd.org - RJR at InvEd.org
Senior Fellow - www.PatentPolicy.org
President - Alliance for American Innovation
Caretaker of Intellectual Property Creators on behalf of deceased founder Paul Heckel
Washington, DC
Direct (810) 597-0194 / (202) 318-1595 - 9 am to 9 pm EST.
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Re: Re: Re: Re: Re: Re: Study history and contempory cases.
Funny how that works.
See that? Way way way over there? It's your credibility Ronald... and, whoops, there it goes. It's gone.
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Re: Re: I love techdirt!
Perry Mason
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Re: Re:
Sounds more like a reading comprehension issue.
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Re: Re: Re: I love techdirt!
Funny, you also seem to enjoy insulting people without a single reference to facts to support your position.
Also amusing that you are unwilling to respond in your real name. As ridiculous as RJR may be, at least he's willing to stand behind his speech.
And, for your info, no, no one pays me to write what I write. Why would I do that? Besides, if I wanted to be a shill, I'd get paid a lot more money -- and my posts would actually agree with those you accuse me of siding with.
The problem, of course, is that I disagree with all of the companies Ronald and others accuse me of shilling for. I've stated quite clearly that I think their ideas on patent reform will not help and are a waste of time.
And, I like the swipe about my knowledge of patent law. I note, of course (as per usual) you don't point to anything specific. And, also, I'll note that this is the same lame fallback position of others who have no real argument: my position is not based on patent law, but on fundamental economics, and the purpose of the patent system (to promote the progress...). Since the economic evidence shows that progress is not being promoted, I see that as a problem.
It seems that those who support the patent system are always those (especially lawyers) who make the most money from that system... Funny that they then turn around and accuse *me* of being a shill.
Ah, look, it's your credibility running off over the horizon's with Ronald's...
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Re: Re: not so
Yes you will have. You will not have 'stolen' their ideas, but you would still have infringed upon their patent by incorporating the ideas expressed in their patent. If you 'stole' their ideas, you could face treble damages. Whereas for innocently coming up with your own version, you would not face treble damages.
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Re: Re: Study history and contempory cases.
Sue his butt.
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Re: Re: Re: Re: Mike is Right
That sentence sounds like it was written by a pompous ass.
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Re: Re: Re: Re: Re: Re: Mike is Right
Yeah, because nobody would want treble damages, would they?
Get real.
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Re: Re: infringement
Because it's the law? (Well, the owner of the patent can take the infringer to court, and if the court agrees its infringing they can order the infringer to stop producing the product.)
I'm not saying it's a good law, in fact I think it's pretty silly, but until the law changes, that's how it is.
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Re: Re: Re: Re: Re: Mike is Right
I like to compare the human brain to a loosely coupled network of computers with each running a different operating system and all of the subsystems having been modified over time to serve functions different from their original purpose.
Most people's skills are not well balanced because of the way the brain is constructed. For example, in my case I excelled in science and math and have very strong analytical reasoning skills. I am probably a highly functioning example of Asperger and have considerable difficulty connecting letter combinations to their sounds. That in turn leads to mistakes word use and spelling yet my IQ places me at about one in a million.
Now in your case you seem to excel at writing and I am certain that you are also quite bright, but either lack the ability to process diverse sources of information or perhaps you have a financial reason to distort the information. When it comes to intellectual property and economics of such your writings are down right embarrassing.
The bottom line is that you reap what you sow. So you need to start listening to those who actually know something about this topic.
Ronald J. Riley,
Speaking only on my own behalf.
Affiliations:
President - www.PIAUSA.org - RJR act PIAUSA.org
Executive Director - www.InventorEd.org - RJR at InvEd.org
Senior Fellow - www.PatentPolicy.org
President - Alliance for American Innovation
Caretaker of Intellectual Property Creators on behalf of deceased founder Paul Heckel
Washington, DC
Direct (810) 597-0194 / (202) 318-1595 - 9 am to 9 pm EST.
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Re: Re: If only the system worked...
This would seem to be evidence that the patent system isn't working properly...
What really happens is that they do look at the patents, willfully infringe those patents, and then lie, cheat and steal at every opportunity.
Of course, Ron has full proof of this allegation. I mean, he wouldn't post unprovable speculation, would he?
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Re: Re: Re: If only the system worked...
Having dealt with companies in which in-house counsel caution against its engineers reviewing USPTO publications, the conclusion I have drawn is that these companies are being poorly advised by legal counsel who focus entirely on limiting liability across the board in all legal matters and not on actively assisting the companies to successfully implement their business plans. The former are journeymen who tend to practice law in "cruise control" and rarely, if ever, bring anything useful to the "business table", whereas the latter tend to be viewed as both lawyers and businessmen who function as an integral part of the business team.
Sadly, the former seem to predominate over the latter by a wide margin. Small wonder that the majority of in-house counsel are generally viewed as obstructionists and an unnecessary evil.
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Re: Re: Re: Re: Re: Re: Mike is Right
This from the guy who insulted my family and repeatedly tells me I have my head up my ass?
Ronald, I have never insulted you personally or implied anything about your intelligence. You have repeatedly done that to me and others. Hell, I even defended you in that ridiculous lawsuit against you... and for it, I received even more insults.
I can be reasoned with... if you presented a SHRED of evidence.
I will note, for the record, that you have not.
You are not an honest broker
How can you say that? I have NO STAKE in this issue other than seeing American innovation succeed. Unlike you, I do not make my living in any way having to do with the patent system. I'm as honest a broker as there is in this debate.
When it comes to intellectual property and economics of such your writings are down right embarrassing.
Which is why I have numerous IP lawyers and economists each day congratulating me on what I write. Obviously, they're all insane.
So... um.. Ronald, what happened to actually providing evidence to back up your assertion that most patent infringement lawsuits involve big companies stealing ideas from little companies.
We're all still waiting.
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Re: Re: Re: Re: Re: Journalism a respected profession?
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Re: Re: Re: Re: If only the system worked...
Actually, given the current atmosphere, it's hardly poor advice at all. It seems to be increasingly difficult to bring a new innovative product to the market without being repeatedly sued over infringement issues. Apple supposedly filed over 200 patents based on the iPhone, which still didn't serve to stem the lawsuits. Vonage was unfairly targeted by every telco late to the game to the point where they were automatically settling every lawsuit.
Since companies have discovered they can cause significant harm their competitors with these lawsuits, it simply makes sense for a company to cover its bases. Since the damages for willful infringement are significantly higher, purposefully avoiding the chances of it occurring is a logical step.
It's an unhealthy atmosphere stemming from overly litigious companies, weaknesses in the patent system, and the "if you can't compete, litigate" mentality.
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hold on
Nuff said! Mike
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