How To Make The Patent System Even Worse: Make Patent Validity Incontestable
from the are-these-people-serious? dept
There are, as we've noted over the years, all sorts of serious problems with the patent system, especially in how it acts as a toll on innovation, and creates seriously backwards incentives (i.e., you're often better off not developing a product at all, but waiting for someone else to do so, so you can sue them). One of the many problems with the system is the famed "presumption of validity." The argument here is that once a patent is granted, everyone has to presume it's valid. This makes little common sense when you think about it. A patent is generally examined by someone for just a few days' worth of time before they determine whether or not the applicant deserves a multi-year monopoly on the invention. While the examiners may be quite knowledgeable, no single person can accurately understand either all of the relevant prior art on the subject or what is considered obvious to those skilled in the art. In other words, it's common for mistakes to be made. In fact, even the USPTO seems to recognize that it's pretty bad about getting patents right. If you look at the stats, you discover that 92% of re-exam requests are granted, and 3 out of every 4 such re-exams result in adjustments or total rejections. In other words, on the patents that are being asserted regularly (which are the ones where re-exams are requested), the majority of the time, the Patent Office admits it got the original patent wrong.That would certainly suggest that it's not wise to consider a granted patent "valid."
In fact, that's much of what the current Microsoft v. i4i case -- which is on the Supreme Court docket -- is about. That lawsuit is to determine whether or not the standard used to judge patent validity is too high.
So it seems almost laughable, then, to hear a suggestion that things should move in the other direction. However, some of the patent systems loudest defenders are now proposing that patents should become incontestable after a period of five years, meaning that no one would be able to contest the validity of those patents, even if the evidence suggests the patent was granted in error. It's hard to fathom how this possibly makes sense. The only explanation given is that it would make patents more valuable -- as if they weren't valuable enough already. But, of course, that's laughable. It's based on either confusion about economics or the patent system itself. The point of the patent system is to "promote the progress." Focusing on making patents more valuable suggests these people believe the point of the patent system is to get more patents. But the two things are not the same. Making patents incontestable, especially in cases when a patent is not valid does not promote the progress. It does the opposite.
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
Counter demand
[ link to this | view in chronology ]
Re: Counter demand
See you there.
[ link to this | view in chronology ]
Re: Re: Counter demand
[ link to this | view in chronology ]
Re: Counter demand
[ link to this | view in chronology ]
"3 out of every 4"
Hmmm, given the past TechDirt articles on how applicants will arbitrarily keep resubmitting patents until they get approved, I would think that the stats indicate the opposite. Specifically, that the patent office was right in the majority of cases to reject a patent application and that the "3 out of every 4" stat represents cases where they just got so fed up with the repeated submissions, they just went ahead and issued the bad patent to "resolve" the issue.
If you want to put a year limit on the patent process, say that you can only resubmit a patent application up to five years after the original submission date. Then, instead of the lack of resources at the patent office working in favor of patent bloat, it would work against it. "Oh, we were only halfway through your patent resubmission review and it's already been five years? Too bad. Maybe you should talk to your congressperson and ask that they fund the patent office more so that we can review patent applications more quickly."
[ link to this | view in chronology ]
Re: "3 out of every 4"
[ link to this | view in chronology ]
so basically
[ link to this | view in chronology ]
Whoa, wait a minute there.
This is a huge leap. Not every patent that is asserted is one that has a re-exam requested. The statistics cover a little over 9000 (sorry) requests starting in 1981. And of course both the EFF and Techdirt leave out a significant statistic.
The EFF says that the re-exam "often revok[es] the entire patent". Neither mentions the actual percentage when the entire patent is revoked, which is 10%. That's "often"? And why doesn't Techdirt mention that? I'm not surprised re-exams my end up with modifications to the patent. And it would be nice if they got things completely right the first time, but somehow inferring that the patent office is almost always getting it wrong based on a small sample (ex-parte re-exam requests) and making it seem like a large percentage of patents are completely revoked (when the reality is only 10%) is dishonest.
I still hate the patent office though.
[ link to this | view in chronology ]
Re: Whoa, wait a minute there.
[ link to this | view in chronology ]
Re: Re: Whoa, wait a minute there.
[ link to this | view in chronology ]
Re: Whoa, wait a minute there.
I didn't say every patent that is asserted is one where a re-exam is requested. But would you deny that it is much more common for re-exams to be requested on patents that are being asserted?
The EFF says that the re-exam "often revok[es] the entire patent". Neither mentions the actual percentage when the entire patent is revoked, which is 10%. That's "often"? And why doesn't Techdirt mention that?
I didn't mention it because it's irrelevant to the point. Instead, I pointed out, accurately, that in most re-exams, the patent office admits it made mistakes. Those mistakes may result in changes to the patent or a rejection, but both still show errors on the part of the initial approval process.
And that's the point.
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Good idea, if you cant dispute it in 5 years, you should be told to go away.. you are never going to dispute it.
it does not matter a damn that 92% of patents are rejected the first time, it just means that the exact format and wording for that patent does not exactly meet the very specific requirement for an application.
It is quite common that it will take well over 2 tries to get it passed, that does not mean the underlying idea is any different or less innovative.
It simply means you have not framed your invention in a way acceptable to the PTO..
It saying nothing at all about the quality of the final accepted patent, or about it's long term viability..
Again, you allready know this Mike, why are you trying to spin in facts that you well know has no bearing on the argument.
[ link to this | view in chronology ]
Re: Good idea, if you cant dispute it in 5 years, you should be told to go away.. you are never going to dispute it.
[ link to this | view in chronology ]
Re: Re: Good idea, if you cant dispute it in 5 years, you should be told to go away.. you are never going to dispute it.
(though it is still a valid question to pose to darryl, I agree)
[ link to this | view in chronology ]
Re: Re: Re: Good idea, if you cant dispute it in 5 years, you should be told to go away.. you are never going to dispute it.
[ link to this | view in chronology ]
Re: Re: Good idea, if you cant dispute it in 5 years, you should be told to go away.. you are never going to dispute it.
To which I ask doesn't Coward's community college OFFER remedial reading classes, and even more important classes in in science, math and LOGIC.
It is not uncommon for people who excel in technical areas to not be as proficient in writing. That does not mean that they are stupid, quite the opposite, they are usually far more intelligent then those who excel at communication.
[ link to this | view in chronology ]
Re: Re: Good idea, if you cant dispute it in 5 years, you should be told to go away.. you are never going to dispute it.
To which I ask doesn't Coward's community college OFFER remedial reading classes, and even more important classes in in science, math and LOGIC.
It is not uncommon for people who excel in technical areas to not be as proficient in writing. That does not mean that they are stupid, quite the opposite, they are usually far more intelligent then those who excel at communication.
[ link to this | view in chronology ]
Re: Good idea, if you cant dispute it in 5 years, you should be told to go away.. you are never going to dispute it.
You have to consider the sheer number of patents that are granted every year, and the fact that it's almost impossible to know somebody has patented something until they start trying to exercise that patent.
I know you are pro-IP, but you cannot possibly be pro-IP-abuse. Do you not see the huge potential for abuse here? It would be extremely simple for someone to file lots of patents and simply sit on them for five years, doing their best not to draw any attention to them, and then break out the lawyers once they've gained immunity.
[ link to this | view in chronology ]
Re: Re: Good idea, if you cant dispute it in 5 years, you should be told to go away.. you are never going to dispute it.
Actually, the mindset of people like him seems to be that there is no such thing as IP abuse (at least not by IP holders), therefore there's no need to worry about preventing it. Similar to how there's no such thing as an illegal download that doesn't monetarily hurt IP holders.
[ link to this | view in chronology ]
Re: Re: Good idea, if you cant dispute it in 5 years, you should be told to go away.. you are never going to dispute it.
That sheer number of patents covers a very large number of art areas. Since you only need to search a few art areas it is possible, even easy to search and to know what is patented. I suggest that you start studying the classification system. Even a TechDIRT Insider should be able to understand and learn to use the Classification system.
"Do you not see the huge potential for abuse here?"
Of course we see the abuse here, big companies launching wave after wave of unjustified challenges against inventors, their purpose being to bankrupt the inventor.
Ronald J. Riley,
President - www.PIAUSA.org - RJR at PIAUSA.org
Other Affiliations:
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 (202) 318-1595 - 9 am to 9 pm EST.
[ link to this | view in chronology ]
Re: Re: Re: Good idea, if you cant dispute it in 5 years, you should be told to go away.. you are never going to dispute it.
Dude, you are the living incarnation of facepalm.
By the way, if the "inventors" were actually selling a "product" rather than just sitting around waiting to sue someone, they might be more financially stable in the first place.
[ link to this | view in chronology ]
Re: Good idea, if you cant dispute it in 5 years, you should be told to go away.. you are never going to dispute it.
The point is that there are so many patents issued that many people don't even know about the patents until much later than 5 years.
it does not matter a damn that 92% of patents are rejected the first time, it just means that the exact format and wording for that patent does not exactly meet the very specific requirement for an application.
That's not what the 92% number is about. It's not about getting a rejected patent re-examined, it's about getting an *approved* patent re-examined. Funny that you keep insisting you only post factual information, and yet every day you post factually incorrect information that we call you on and you never correct.
The rest of your comment is based on this fallacy.
[ link to this | view in chronology ]
Re: Re: Good idea, if you cant dispute it in 5 years, you should be told to go away.. you are never going to dispute it.
Mike Masnick loves to misrepresent the facts. Anyone who takes more than five years to examine patents relevant to their business is a fool and not fit to survive. There are plenty of FREE search tools.
"That's not what the 92% number is about. It's not about getting a rejected patent re-examined, it's about getting an *approved* patent re-examined. Funny that you keep insisting you only post factual information, and yet every day you post factually incorrect information that we call you on and you never correct."
The problem is that the USPTO grants ridiculous reexamination requests, mainly because they have become a tool of big business as evidenced by the IBM stooge who has managed the office promoting IBM's and the rest of the Piracy Cross Coalition's agenda.
"The rest of your comment is based on this fallacy."
Fallacy about IP is most certainly something TechDIRT is well versed in.
Ronald J. Riley,
President - www.PIAUSA.org - RJR at PIAUSA.org
Other Affiliations:
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 (202) 318-1595 - 9 am to 9 pm EST.
[ link to this | view in chronology ]
Re: Re: Re: Good idea, if you cant dispute it in 5 years, you should be told to go away.. you are never going to dispute it.
You really don't want to bring survival of the fittest into a discussion about people who depend on a government granted monopoly to survive. That's just some friendly free advice for you.
The problem is that the USPTO grants ridiculous reexamination requests
Explain to me what you consider a "ridiculous reexamination request", so we can be sure we're on the same page here.
[ link to this | view in chronology ]
Re: Good idea, if you cant dispute it in 5 years, you should be told to go away.. you are never going to dispute it.
If I was awarded a patent for putting garments designed to cover a portion of a person's lower extremities on by inserting said person's legs synchronously or asynchronously in 2005. Under this proposal, I could sue you for infringement today and you could not contest it because I have had the patent for the requisite 5 years.
[ link to this | view in chronology ]
Re: Re: Good idea, if you cant dispute it in 5 years, you should be told to go away.. you are never going to dispute it.
I think he is trying to push the boundaries of sanity, but who knows what goes on on that little mind of his.
[ link to this | view in chronology ]
Re: Good idea, if you cant dispute it in 5 years, you should be told to go away.. you are never going to dispute it.
[ link to this | view in chronology ]
Re: Re: Good idea, if you cant dispute it in 5 years, you should be told to go away.. you are never going to dispute it.
[ link to this | view in chronology ]
Re: Good idea, if you cant dispute it in 5 years, you should be told to go away.. you are never going to dispute it.
patents think about how it could be unfairly used and if it could be(only about half seem to)
i hire a LARGE legal team to set up a case, ON EVERY L-A-S-T O-N-E
[ link to this | view in chronology ]
Re: Good idea, if you cant dispute it in 5 years, you should be told to go away.. you are never going to dispute it.
[ link to this | view in chronology ]
Money
Inevitably, small inventors are at an extreme disadvantage as are small companies when the other side is either being bankrolled by big money or it's a big busin4ess that is trying to keep a broad crappy patent alive and well by virtue of money. Often, Bankruptcy is a direct or indirect consequence of such a lopsided playing feild.
As a result, the first adjustment they should make , is how to monetarily even the playing feild when a patent dispute arises. Money should never define the validity or invalidity of a patent.
The rest is mildly interesting but it's not even close to the crux of the real problem which ultimately holds down all kinds of innovation which we desperately need right now.
[ link to this | view in chronology ]
Re: Money
[ link to this | view in chronology ]
Re: Money
Money should never define the validity or invalidity of a patent.
What should, then?
[ link to this | view in chronology ]
Re: Re: Money
[ link to this | view in chronology ]
retirement plan
[ link to this | view in chronology ]
Re: retirement plan
http://www.freepatentsonline.com/D243481.html
http://en.wikipedia.org/wiki/Sealed_crustless _sandwich
http://news.cnet.com/8301-13505_3-10106213-16.html
[ link to this | view in chronology ]
[ link to this | view in chronology ]
[ link to this | view in chronology ]
http://c4sif.org/2010/12/patent-shills-want-to-make-patents-incontestable/
Curious why a disclaimer was not made in this article concerning serving on the Advisory Board for c4sif.org?
As for reexams of issued patents, stats paint a highly misleading picture. It is a relatively easy matter to have a reexam request granted, so a large number here is hardly surprising. Once granted, and just like ordinary prosecution associated with newly filed applications, a rejection of one or more, or even all, of the existing claims is likewise hardly surprising.
There are, of course, instances where reexam does lead to the wholesale elimination of a previously issued patent, but these are the clear exception. Many make it through the process unchanged. The remainder have some claims amended if the publication on which the reexam is based is truly more than merely cumulative of what was previously considered.
[ link to this | view in chronology ]
Re:
I suppose a disclaimer might have been okay on a "when in doubt, disclaim" basis, but this hardly seems like a conflict of interest or a bias - especially since c4sif is not directly benefiting from the position espoused here, it is simply a group with similar views.
[ link to this | view in chronology ]
Re: Re:
Of course, there are some, as is their right, to express views concerning incontestability. The likelihood of this ever happening, however, boders somewhere between "none" and "never happen".
[ link to this | view in chronology ]
Re: Re: Re:
What exactly are you referring to here? I ask because the most obvious interpretation of your post is that you're factual wrong in the most trivially-proven way. That is, that the CS4IF post contains a quote from the HailingBlog, and the title of the quote - Making Patents Incontestable - links to the source post on HailingBlog by the same title.
So, to clarify: what is the "linked article" and "source material" you refer to?
[ link to this | view in chronology ]
Re: Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re: Re: Re:
He did both. Not only that, but people above already pointed that out to you and yet you still (falsely) claimed he did not.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re:
I guess I should have gone to the task of resorting to search engines to try and find it on my own. It would have been more helpful, though, if the author of the linked article, a lawyer adept at both linking and citation, had done so.
[ link to this | view in chronology ]
Re: Re:
It is absolutely nutty. Between this and the Larson post today, I have to wonder if TD is running out of valid material to work from.
[ link to this | view in chronology ]
Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re: Re:
[ link to this | view in chronology ]
Re:
Because it was a blog post done by Stephan, not some policy statement of the group. And the crux of the content was Halling's blog post, but I linked to Stephan's version because of his additional analysis.
As for reexams of issued patents, stats paint a highly misleading picture. It is a relatively easy matter to have a reexam request granted, so a large number here is hardly surprising.
Um. Do you not realize this proves my point. It's easy to get a reexam granted BECAUSE patent examiners screwed up the first time.
Once granted, and just like ordinary prosecution associated with newly filed applications, a rejection of one or more, or even all, of the existing claims is likewise hardly surprising.
It's not about whether or not it's surprising. It's the fact that this shows that the patent office GOT IT WRONG the first time around.
That you ignore this point is odd.
[ link to this | view in chronology ]
Re: Re:
The standard for the grant of a reexamination request is the presentation a printed publication never previously considered and which raises a substantial new question pertaining to patentability of one or more claims. Given that potentially pertinent printed publications can easily exist outside the United States, or that a printed publication can be found in well out of the ordinary art areas typically relied upon by persons of ordinary skill in the art to which an invention pertains, it should come as no great surprise that searches for relevant prior art in the first instance might not happen to stumble across them. This is hardly a damning screwup, unless one defines screwup as failing to find everything, clearly relevant or potentially relevant, the very first time around. This is an impossible task.
Merely by way of example, I have previously found and applied against issued patents printed publications that only existed deep within the bowels of DOD classified vaults, locations as to which only a very few with appropriate security clearances even have access. Is it fair to say that the USPTO examiner and the patent application each screwed up because they did not originally consider printed publications for which they had no means at hand to learn such publications even existed? I think not.
[ link to this | view in chronology ]
counterfeit watches
That is not correct. You often state things that are not accurate. Patents are not presumed valid in reexamination proceedings before the PTO. Large infringers who promote the kind of lies and distortions that are published by their lackeys prefer to not submit purported prior art in reexam because if the patentee clears it the infringer is unable to assert that art thereafter in court. Infringers cry about all these things knowing they are distortions and lies. If you are ignorant about patent law (which you clearly are), write about something else. Better yet, stop writing and go back to what you did earlier. My guess is you were selling counterfeit watches on the street in NY.
Patent reform is a fraud on America.
Please see http://truereform.piausa.org/ for a different/opposing view on patent reform.
[ link to this | view in chronology ]
patent law
this statement describes what is commonly referred to aa a patent troll. In their case the patent is similar to a hunting license.
I am a victim of this type of individual. We had an item on the market for two years that was already in the common market place for more than twenty years. I never bothered to think about a patent for thast reason. However, when our product became popular in the market we were servred with papers that stated we were infringing on a patent that was just granted that year.
I called the attorney who served me and told him of my case and he simply said that his client has ordered him to protect his patent and that I should get a lawyer. After calling a few lawyers I got a very quick education in the patent system. After they told me that my case was a slam dunk (I should win easily) they then asked for a $5000,000 retainer and the case would probably cost over $1,000,000 to bring to court!
This is where they know they have you because unless you are Microsoft it is unlikely you will pay the cost to fight the battle. In our case we rolled over and just closed the company as most do or pay royalties forever.
however, I was told that if a patent is not used after five years after granting that it is no loner valid. Does anyone know if there is any truth to this?
[ link to this | view in chronology ]
[ link to this | view in chronology ]