how broken is the patent system

[Gus]

Wow I guess the patent office never used work email
https://www.eff.org/deeplinks/2017/02/stupid-patent-month-ibm-patents-out-office-email

 

[JohnRoberts]

Not exactly a new problem. Patent examiners are generally junior (wet behind the ears) technologists doing on the job training to get enough experience with the patent system until they can change jobs and work the other side of the street as patent lawyers, that get paid a lot better.

A good (? successful) patent lawyer could just about patent a wet noodle using convoluted, tortured, claims language and descriptions. Sometimes using vague obscure names for common things to confuse comparisons with prior art. Sometimes presenting subtle inconsequential changes as something completely new to declare novelty.

Back in the '80s I published a phono preamp design with balanced input. I got a letter from some guy in TX who claimed I was infringing his patent.  :  He indeed was granted a patent for a balanced input phono preamp. I ordered a file wrapper (a copy of all the correspondence between the inventor and examiner). I read where the inventor had to explain to the examiner how a balanced input worked, and how impressed the examiner was with that, since he thought the inventor invented that.  I sent the guy in TX a copy of a transformer input phono preamp from an old tube manual that was balanced, as a decades old example of prior art.
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When Dorough patented their peak/vu meter that they changed the language to describe one of the two terms "persistence" (instead of simple peak and average), and used a curved instead of linear display... presto a whole new invention.  :
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I joke, but it isn't really funny, "All a patent gives you is the right to sue". Those lawsuits get expensive and you don't always win. Peavey sued Behringer over them copying my FLS invention (the LED above GEQ sliders to indicate which bandpass was active). Behringer secured their own patent for a minor variant and then didn't lose in court, which for them was a win. 

I am generally supportive of the patent system and it has undergone a number of changes in the last decade or so. Mostly to harmonize it with international patent norms. Still a deep pockets big company game.

JR

 

[benb]

I echo everything John said. Big companies use patents as bingo cards. They have a lot of patents so when a competitor finds something and says "your product is infringing OUR patent!" they can go through their patents and the competitor's products to find something the competitor is infringing, then the companies can sign a cross-licensing agreement. Otherwise they'd have to go to court to defend against the patent, or worse yet, pay royalties to a competitor.

I learned this while getting two patents at A Big Company. The managers actually decided on what would be patented - since I and the other engineer were the ones who actually designed the circuitry, we got the patents in our name (and of course assigned to the company). I didn't have much to do with getting the actual patents, the attorney sent me his draft of the application for me to go over and correct any errors, and that was it.

I recall writing up a longer post with more details on this about 10-15 years ago on a previous incarnation of Group DIY when the forums were lost in a server move or something. Wish I had that text now, it may well have details that I've since forgot about.

There was a patent seminar at Big Company where the story was told of an engineer who bet his manager that he could get a patent on the simple addition of a resistor to a circuit. The manager didn't believe it so he took the bet. The engineer wrote up the patent, the manager signed off on it, and the patent was issued. I never learned the patent number of that one.

 

[JohnRoberts]

There was a patent seminar at Big Company where the story was told of an engineer who bet his manager that he could get a patent on the simple addition of a resistor to a circuit. The manager didn't believe it so he took the bet. The engineer wrote up the patent, the manager signed off on it, and the patent was issued. I never learned the patent number of that one.

+1.. I don't doubt it....    ;D Even a weak patent like that one resistor special could cost a bunch of money to fight, so could be used by a large company to threaten a small company. A small company friend of mine had to abandon a successful product when he got sued by another company with a weak (probably invalid patent) and he didn't have the resources to fight back, or challenge it. One patent reform could be to make it easier to void weak patents, but this too would probably be abused by big business, and patent trolls.

I have been aware of the patent system for several decades. Back in the 1970s I visited the patent office in VA and performed my own patent search. Back in those days you literally searched through "shoes" (drawers) full of paper patents.  Back then paid searches where you pay humans to search through the patent office files could cost hundreds of dollars, not free like today.

There is a difference between just getting a patent (expensive wall paper) and the patent being effective at thwarting competition. In hindsight (always crystal clear) the FLS patent claims language was not broad enough to stop Behringer competition.  In fact I think it may have been this same patent lawyer who questioned my request to perform a patent search for one of my other inventions. He apparently gets rewarded for how many patents issue, not how strong they are. So he didn't want to know if there was prior art.  : I ignored him and did the search anyhow, which by then was computer based.

The only patent I paid for myself was my last one. I wrote most of the patent myself and even did my own artwork to save money, but I paid a real lawyer to write the claims language because I know that I don't know enough to do that well.  :-\

JR

 

[ruffrecords]

The patent system is really for the big boys. You need a good hand to be able to play the game. Then you can trade with your competitors.

Cheers

ian

 

[JohnRoberts]

https://www.facebook.com/DontBullyMyBusiness/ 

here's a link to a friend testifying to congress about patent abuses.
https://www.facebook.com/DontBullyMyBusiness/?hc_ref=PAGES_TIMELINE&fref=nf

He had his smartphone app business shut down by a patent lawsuit he could afford to defend.

JR

 

[joaquins]

  I have an existencial problem with laws that don't have an automatic application and reinforcement system, usually, as this case, is a benefit for the big guys while the state is supposed to protect smalls guys from bullies, big guys can protect themselves. The only case this things works is between big guys fights and usually are defined by technicality so still not working great.

JS

 

[JohnRoberts]

  I have an existencial problem with laws that don't have an automatic application and reinforcement system, usually, as this case, is a benefit for the big guys while the state is supposed to protect smalls guys from bullies, big guys can protect themselves. The only case this things works is between big guys fights and usually are defined by technicality so still not working great.

JS

As with most laws the patent system has good intentions, to promote sharing of knowledge so other can learn from all inventions. The flaw (IMO) is the cost of dealing with patents in the courts. Patents that can cost a couple ten thousand dollars to get, can cost millions to defend. Or the flip side patent can be used to shut down competition with expensive legal proceedings (what happened to my friend). In that case it wasn't millions of dollars, just more money than he had.

JR 

 

[SIXTYNINER]

.....I recall writing up a longer post with more details on this about 10-15 years ago on a previous incarnation of Group DIY when the forums were lost in a server move or something. Wish I had that text now, it may well have details that I've since forgot about.

.... click on right button mouse and select save all

 

[SIXTYNINER]

.......There was a patent seminar at Big Company where the story was told of an engineer who bet his manager that he could get a patent on the simple addition of a resistor to a circuit. The manager didn't believe it so he took the bet. The engineer wrote up the patent, the manager signed off on it, and the patent was issued. I never learned the patent number of that one.

.....that infamous 2 cents resistor 

 

[JohnRoberts]

.....that infamous 2 cents resistor 

That is not surprising.... Patent examiners are generally wet behind the ears patent lawyers getting their OJT at taxpayers expense, after they get a few years under their belt, they move across the street and charge real money to help others get patents.

I only half joke that patents only give one the right to sue. Until that patent is defended in court, it is just expensive wall paper. Negotiating a patent application with the PTO is a bit of a dance, some patent lawyers add extra claims that they are more than willing to give up, so the examiner feels like he gets a win by denying a few claims. You only need one claim to survive the review process to get the patent approved.

I have worked with several different patent attorneys over the years, one even tried to discourage me from performing a patent search prior to submitting my application, so i wouldn't find a conflict and abandon the application (ruining his payday). This is consistent with the desires of some companies that just accumulate a war chest of patents, that is more about "how many" not "how good" they are.  (I did the search anyhow and IIRC abandoned the application..  8) )

Over the years I have discovered after the fact that at least one of my patents had conflicting prior art, but since I assigned the patent to my former employer I was on shaky ground to spike my own invention that I didn't control. Since my old employer never tried to use that patent against another company it was never tested in court. 

One of my more valuable patents was tested in court and Peavey lost. Actually they didn't win at shutting down the infringing (IMO) competitor.  I was long gone by then so not privy to the court arguments, but I was unimpressed by the expert EE working for Peavey's lawyers.    Patent litigation depends on the quality of the lawyers. First those writing the patent claims prior to application, then the skill of the litigators in court defending or discrediting patents. 

JR

 

[cyrano]

It's a little less broken now:

http://www.reuters.com/article/us-usa-court-kraft-heinz-idUSKBN18I1SZ

This should be a blow to the worst of the patent trolls. Like Prenda was.

 

[SSLtech]

I currently have a patent pending on a product which I came up with at work since getting out of the studio game full-time.

Before now I've never even bothered to apply for anything. I've just shared openly...

Anyhow, patents are still being issued for ludicrous things, somebody not long ago patented making toast:
https://www.google.com/patents/US6080436

Which means I infringed on a patent this very morning.

 

[JohnRoberts]

I currently have a patent pending on a product which I came up with at work since getting out of the studio game full-time.

Before now I've never even bothered to apply for anything. I've just shared openly...

Anyhow, patents are still being issued for ludicrous things, somebody not long ago patented making toast:
https://www.google.com/patents/US6080436

Which means I infringed on a patent this very morning.

Good luck...  a patent is one piece of a multi-part strategy (at least one of the other parts is deep pockets). A patent can keep unsophisticated competitors in check and provide a marketing hook.  If Apple or Behringer likes your idea look out.

These days with short product life cycles there is some merit to hitting the ground running and staying ahead of copiers.

JR

PS: That patent is about making stale bread less stale... I've seen the mechanism before from putting bagels in the microwave for 15 seconds... I speculate it is all about releasing moisture trapped interior to the bread/roll. Microwave seems pretty effective since it is engineered to wiggle water molecules. There may be a similar significance to the specific frequency of IR light/heat, but microwave refreshes the inside of bread products too. 

FWIW I've encountered some silly patents in real life... one guy patented making a phono preamp input balanced. The wet behind the ears patent examiner thought the guy invented balanced inputs.  :

 

[JohnRoberts]

It's a little less broken now:

http://www.reuters.com/article/us-usa-court-kraft-heinz-idUSKBN18I1SZ

This should be a blow to the worst of the patent trolls. Like Prenda was.

Yes saw that... way too many patent suits originate from one small court in TX... It is an improvement but only by degree. Of course raising the expense for patent trolls will slow them down.

JR