Score One For The Trolls: Supreme Court Says Congress Intended It To Be Very Difficult To Invalidate Patents
from the canada-celebrates dept
This isn't a huge surprise, but in the Microsoft v. i4i case over what the standard for invalidating a patent should be (either the super high bar of "clear and convincing evidence" or the slightly lower bar of "the preponderance of the evidence,") the Supreme Court has now decided that the higher bar is what Congress intended (pdf). This means that it's that much more difficult to invalidate bad patents. The Court's ruling is basically that the common law presumption of validity mostly (but not entirely) used this standard, and when Congress passed the 1952 Patent Act (really written by patent lawyers), it simply meant to codify what the common law had said on that issue. It was an 8-0 ruling (with Chief Justice Roberts not taking part due to Microsoft investments, I believe), though Justice Thomas had some reservations about the thinking, but not the final judgment. The opinion was written by Justice Sotomayor, who got a bit snarky at points:"Squint as we may, we fail to see the qualifications that Microsoft purports to identify in our cases."I recognize the general reasoning of the Court in the case. Basically, it looks like, historically, a higher standard was frequently used, and since Congress didn't specify a different standard, it seems to suggest they were fine with the standard. But I think to some extent that ignores reality. First of all, the 1952 Act was written by patent lawyers and it's not clear Congress even understood all of it, so it seems a bit rich to suggest that it purposely was trying to codify that standard. On top of that, the use of the patent system has changed dramatically over the past few decades, and the entire presumption of validity is increasingly in question given the massive number of ridiculously bad patents approved by the Patent Office. As it currently stands, USPTO examiners rush through applications, spending an average of about 18 hours on each application. To grant patents with so little review and then presume they're valid with a ridiculously high barrier to challenging that presumption seems economically stupid.
In what world does it make sense to grant innovation-limiting monopolies for nearly two decades based on 18 hours of review?
But, in the end, this is really Congress' problem to fix -- which means they won't. Congress could fix this quite easily by clarifying a lower standard to invalidate patents. This makes tremendous sense. The only patents it would impact are bad patents. And no one -- even patent supporters -- should want bad patents. But you know who does like bad patents? Those who have them and those who profit from them -- and those people are really loud in their support of not messing with the system that gives them so much in monopoly rents. So it seems highly unlikely that Congress will even bother to look at making this simple change to the patent system.
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Filed Under: patents, standard, supreme court, validity
Companies: i4i, microsoft
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Will we look back 20 years from now and think "wow, how insane were ACTA/PROTECT IP/Patent laws back then?". or will we look back and think "wow, if we'd done something 20 years ago we might still be a global economic powerhouse... now all the growth and invention is overseas where the trolls and RIAA's never got a foothold"
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Congress could change this
If enough rich and powerful people get negatively by patents (for example VCs), this could change.
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Directly suing the USPTO?
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If the opposite of pro is con...
is the opposite of progress congress?
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Let's say you've got a "good" patent. If you have to litigate over that patent 4-5 times, there's a decent chance that one of those suits might end up with an invalidity judgment under a a preponderance of the evidence standard. Once that happens once, the patent is dead forever.
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Not as bad as it looks (but still not good)
The concurrence draws the line between a question of fact and question of law such that the clear and convincing standard (which applies only to questions of fact) applies only to determining the narrow questions about whether alleged events occurred:
"Thus a factfinder must use the “clear and convincing” standard where there are disputes about, say, when a product was first sold or whether a prior art reference hadbeen published"
The concurrence goes on to state that question of whether these facts amount to public use or can show a lack of novelty or that the patent is obvious is a question of law, and the clear and convincing standard doesn't apply.
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In my opinion, if I can't build it from the drawing, the patent should be instantly invalid. Or, "No screws, you lose."
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Your definition of "good" doesn't match mine.
Besides, at the speed court cases and appeals take, if you're litigating it 4-5 times, the patent should have expired.
Once that happens once, the patent is dead forever.
And that's bad why?
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See the potential RiM shutdown/injunction. This would have had broad impact on many sectors of the economy, including Government operations.
So the solution is to
1. Be a Patent troll.
2. Come up with some insane unreasonable licensing rate.
3. Go after the government/military.
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That's not what happens, but it's how it should be.
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/s
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The first is "Should a lower standard be used in judging these patents?" I do not really know the answer to this question, but I know you have made some very compelling arguments.
The second is "Should the Supreme Court mandate that a lower standard be used?" I believe the answer to this one is a resounding No. Even if a lower standard should be used, Congress did, as the Supreme Court itself points out, seem to ratify the higher standard in legislation. It is not the Supreme Court's place to modify this legislation unless it is in direct conflict with a higher authority such as the Constitution. Whether or not the members of Congress actually understood what they were doing in passing this legislation is largely irrelevant in deciding if The Surpeme Court should be able to change it, it remains Congress's bailiwick, and not the court systems, to change it now that it stands as statute.
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Although lawsuits take a long time, they are not always filed one after another. Rather, they are sometimes filed concurrently, so getting 4-5 judgments doesn't necessarily take an entire patent term.
The detriment of a "good" patent being declared invalid is that the owner no longer gets the benefits of patenting. If you think there are no benefits whatsoever to the patent system, then this is not an issue. But if that's your opinion, the standard of proof is a minor concern.
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A big corporation with a large litigation budget might think any non-nominal sum is "too expensive" if they think the patent owner doesn't have the resources to sue to enforce their patent.
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"None of the eight jurors was even slightly inclined to find for Microsoft, says Cook."
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I don't see how that's possible. If it's a good patent, then the preponderance of the evidence will never show it as being invalid.
Once that happens once, the patent is dead forever
If the preponderance of the evidence shows that it's a bad patent, then that's a good thing.
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As for "No screws, you lose.", I can think of plenty of things that are made with interference fits or similar designs that don't have any screws at all. Or, "broadbrushing the system, you lose".
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The true mother of invention...
ANY patent represents considerable harm to society at large. That damage has to be weighed against it's benefit. When considered against the vast majority of patents that yield no benefit at all, the loss of a few good patents seems like the far better bargain.
The true mother of invention is necessity, not avarice.
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Always disfavor the least desirable thing.
Therefore the tendency should always be against them. It should be harder to get them and harder to keep them.
There is this mythology that patents are an inherently more desirable thing when they really are not. They are the least desirable thing. One's "null hypothesis" a court room should reflect that.
Yes. Patents are harmful. They stifle innovation for the better part of a Human generation. They should be viewed in the same manner as toxic waste or a spent reactor core.
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No. That's just you trying to add your own personal spin to the situation.
No. These "exceptional" cases are constant and unrelenting.
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Re: Always disfavor the least desirable thing.
My only point was that a simple change would not make much difference as Mike likes to extrapolate, and it's idiotic to expect perfection to justify your viewpoint, when imperfection from the opposite side of the coin is what you hate. The Court did what was in the law, and although the law was "written by Patent lawyers"(an aside: aren't most laws written by people who know the most about that area), the tech community has had 60 years to change it but they haven't.
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It was not at all unusual in law school to read two cases on all fours with each other, and yet the outcomes were diametrically opposed.
Such is the nature of law. 2+2 does not always equal 4. Hence, the reason underlying why it is so difficult for one to get a lawyer to say anything other than "maybe".
Only a very few times in my career have I ever predicted an outcome with virtually absolute certainty. i4i is one example, as is Stanford v. Roche, the former because it has been a mainstay of federal common law for since at least as early as the 1920s, and the latter because Stanford was arguing for a construction of Bayh-Dole that would have laid waste to Article 1, Section 8, Clause 8 and Title 35.
Grokster was a case with a fairly predictable outcome, but even it was less of a sure thing than i4i and Stanford.
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You must have never seen a court come to an incorrect decision.
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When you figure it out, you will realize that it better than your doctor or lawyer can ever promise.
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if 18 hours is enough - then why take any more time ?
THE REAL WORLD..
If it only takes 18 hours to asses a patent, then it takes 18 hours, it is not going to 'change' if you spend 36 hours looking at it.. or 3600 hours looking at it.
It it takes 18 hours it takes 18 hours, deal with it..
May be your mind works considerably slower than the patent office.
May be they know what they are doing, but whinning about time how long it takes sounds like a total losing argument.
Next you'll be saying it depends on how long it takes the inventor to come up with the idea !
Or how many 'words' and pictures are in the patent application !!..
What a joke.....
You know you have massive problems when you have to resort to "fighting the system", as opposed to individual issues.
In other words when you run out of any form or "real" or 'specific" arguments to confirm your mantra.
You try to pick holes where none exist, it makes you appear frivilious and petty, and childish...
Next you will be complaining that the patent office allowed a patent that contained a spelling error, or approved a patent that once you heard about it seemed obvious to you..
(after you seen it of course)... which is always the way with you anti-'people have their own right' types.
Here's an idea, why not actually INVENT SOMETHING YOURSELF.
get some first hand experience about what you are talking about, instead of sitting on the sidelines and making pointless and stupid comments about other peoples achievments.
It is clear, all you guys want is to be able to take advantage of everyone elses idea's regardless of your incapacity of coming up with the idea yourself.
But you allready know all this,, but you are now 'fixed' in your ways, you have given up on any possibility of being creative, or in ever inventing something independently by yourself.
That much is clear by your 'writing style' Masnik..
What does you 'writing style' mean ??
You scour the web,, find articles that might relate closely to your internal bias, you then "lift" that work, and you tack on a few of you're own rants to "confirm" you argument.
Then you print away,,
It's always..
"This guy points us to this"
or
"here is a study from someone else, that I will use to my own advantage".
Here is a new article (allthough untrue) that supports my bias therefore I will print it..
You're entire lifes work so far Mike appears to be specilising in taking what others have done and filtering through your bias system, tack on a few comments for effect, put your name on the top.
Then you can be 'fat, happy and stupid' not at all caring about "TRUTH" or "accuracy" or reality..
Just as long as you can steal work from others, and make some profit from that work for yourself. sad really..
When I do contract work for someone I change then between $150 and $200 per hour for my time.
About the going rate for a qualified engineer, so for 18 hours labour for a qualified person to investigate a patent for 18 hours would cost somewhere between $4000 and $5000 dollars in labour along.
And if an experienced engineer could not 'understand' a patent application and determine with database searches whether it was original or not, could NOT DO THAT WITHIN 18 hours then he needs to find a new job.
It appears to take you less than 18 seconds to determine that a 'software patent' has 'prior knowledge' and therefore is invalid, when it is clear you cannot show any example of prior knowledge, (you dont even bother to look).
You are not an engineer, nor are you a patent lawyer, yet you think that you can take SECONDS in a decision that is 'better' than taking 18 hours from professionals who actually know what they are talking about..
You do not appear to be even slightly qualified to comment on this issue (or most others), but yet you do constantly show you're ignorance on all subjects..
But on subjects that disagree with your very warped "world view".
Perhaps if you EVER created anything original all by yourself you would have a different persepective on things.
But so far, I cannot see that ever happening, you appear to be more than happy sitting in a rut, and watching the world go by.
Good luck with that, But it would be nice to see, you apply your brain to doing something GOOD for once..
But I cannot see that happening anytime soon... it appears you are happy to wallow in your own crapulance, and receive your weekly Google cheque, and to continue to use the works of others to feather your own nest..
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A good patent is one in which the invention is truly new, non-obvious and novel.
By definition, it is impossible for any evidence to exist that could be used to support invalidating that patent, because that evidence would not exist. If evidence exists, then there was no need for the patent and it should be rightfully invalidated.
If you think there are no benefits whatsoever to the patent system, then this is not an issue.
I recognize that there can, in theory, be good patents. I am for the complete elimination of the patent system because those cases are rare enough that the inventor should easily be able to profit from their invention because it is new and novel enough for them to have a significant time advantage in marketing it. The current patent system, as seems completely obvious to me, is nothing but a benefit to lawyers who are doing nothing but writing vague and generalized nonsense down on paper and suing productive members of our society for millions of dollars, or other lawyers who are charging hundreds or thousands per hour defending against the first set.
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At any rate, though, it's not just bad patents that would be affected by a lower evidentiary standard.
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Juries are unpredictable and imperfect. You ask 5 different juries the same question on the same evidence, and it's not unreasonable to expect to get different answers from *at least* one of the five.
Juries do things like award millions of dollars in damages for file-sharing under 30 songs.
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Either an invention is new, or it is not. There ain't no middle ground there.
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pleased
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