Patent litigation is indeed in the hands of the trial lawyers and has been for the last decade or two. Patent bar attorneys, in general, because of that 'nerdiness" (ie .big intellect egos, poor persuasion/ personal interaction skills) are in the current era most often NOT the litigators in patent cases. This one legal culture change upped the cost of patent litigation and correlated with a marked increase in success of plaintiffs. That curve rate is changing now as the other side is employing more litigation savvy defense but the inconsistency, asymmetric costs and extreme unpredictability remain. Given also that few judges anywhere are patent lawyers, much of litigation exploits naive generalization and misunderstandings of technical details, maybe unwittingly so.
For patent drafting and prosecution (and rexam, divisional crap etc ) the patent bar attorney is required. Hairs are split but vague patents that fail to meet the lawful requirements off pointing to an valid eligible invention with particularity or clarity are somehow still granted by the USPTO. In reality most patent attorneys even those with some practical experience (entry level really) or higher degrees have a limited practical understanding of the actual process and market realities of product development. The typical patent examiner maybe less, and certainly there are ESL and cultural/institutional knowledge difficulties aplenty at the PTO. I regularly read patent specifications and claims that include factually wrong details. Bottom line is as long as the one entity that by law patents are directed to, the skilled artisan (PHOSITA), remains a mere mythical construct (or denounced as in many cases) the system will be remain unjust and be definitionally broken.
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Re: Re: Trial Lawyers?
For patent drafting and prosecution (and rexam, divisional crap etc ) the patent bar attorney is required. Hairs are split but vague patents that fail to meet the lawful requirements off pointing to an valid eligible invention with particularity or clarity are somehow still granted by the USPTO. In reality most patent attorneys even those with some practical experience (entry level really) or higher degrees have a limited practical understanding of the actual process and market realities of product development. The typical patent examiner maybe less, and certainly there are ESL and cultural/institutional knowledge difficulties aplenty at the PTO. I regularly read patent specifications and claims that include factually wrong details. Bottom line is as long as the one entity that by law patents are directed to, the skilled artisan (PHOSITA), remains a mere mythical construct (or denounced as in many cases) the system will be remain unjust and be definitionally broken.
Techdirt has not posted any stories submitted by Sloop.
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