I appreciated the course because it allowed me to learn not only in class, with Professor Lavian or a guest speaker, but also when searching for online articles to incorporate into my blog or on Youtube and when reading or watching my classmates' works. I liked that the course was interactive. I also liked that it allowed me to freely express myself in a published medium.
I liked that the course avoided discussing legal details that we were likely to forget, like the specifics of the US Code. Instead, it focused on important patent concepts, like novel/obvious or the structure of claims, which would be useful to know if I applied for a patent in the future. I appreciated the focus on smartphone patents because I can relate to them both as a smartphone user and as an engineer.
I was glad that the course emphasized a few, core ideas, including patent trolls, obviousness, and smartphone patents. It allowed for much more depth when I explored these ideas in more detail on my blog posts or Youtube videos. I also was able to look at these ideas from different angles. For example, though I dislike patent trolls, I was able to understand the fine differences between non-practicing entities and patent assertion entities, and judge for myself whether my preconceived notions about patent ethics were reasonable. I liked that I could sympathize with a university non-practicing entity while better understanding why I am so negative towards patent trolls. In short, the focus on a few ideas let me understand them in more detail and from more points of view.
My favorite aspect of the class was the balance between engineering, law, and ethics. We would talk about a technology like cellular towers, then segue to case law on obviousness, and then try to understand these concepts rationally.
Thanks for a great course!
Wednesday, May 21, 2014
Supreme Court expands fee-shifting
On April 29, the Supreme Court issued unanimous rulings on two cases, Octane Fitness v. Icon Health and Highmark Inc. v. Allcare, that make it easier for patent lawsuits defendant, such as those abusively sued by a troll, to collect attorney fees. The Patent Act allows district courts to award attorney fees to the prevailing party in "exceptional cases."
The Octane ruling now gives the district courts more discretion to award attorney fees. The standard for awarding fees has been lowered from "objectively baseless", which is impractical to meet, to "in the case-by-case exercise of their discretion, considering the totality of the circumstances".
The Highmark ruling makes it harder for the district court's discretionary decision to fee-shift to be overturned by the Federal Circuit. Previously, the Federal Circuit would overturn many attorney fee-shifting decisions from the district courts. The Supreme Court ruled that their test was "unduly rigid".
The ability for courts to award attorney fees discourages trolls from flooding the courts with weak or spurious cases. Patent defendants are more likely to defend themselves and less likely to quickly settle.
These rulings are interesting because they are occurring while patent reform legislation is stalling in Congress. They are a poor substitute for legislation, which can address other patent troll issues like challenging bad patents and improving patent transparency, but give us hope for reform from our judicial system.
The Octane ruling now gives the district courts more discretion to award attorney fees. The standard for awarding fees has been lowered from "objectively baseless", which is impractical to meet, to "in the case-by-case exercise of their discretion, considering the totality of the circumstances".
The Highmark ruling makes it harder for the district court's discretionary decision to fee-shift to be overturned by the Federal Circuit. Previously, the Federal Circuit would overturn many attorney fee-shifting decisions from the district courts. The Supreme Court ruled that their test was "unduly rigid".
The ability for courts to award attorney fees discourages trolls from flooding the courts with weak or spurious cases. Patent defendants are more likely to defend themselves and less likely to quickly settle.
These rulings are interesting because they are occurring while patent reform legislation is stalling in Congress. They are a poor substitute for legislation, which can address other patent troll issues like challenging bad patents and improving patent transparency, but give us hope for reform from our judicial system.
Thomas Edison was a patent troll
My last few posts have been anti-patent troll, so I thought I should try to balance them out with a different perspective. Most of us agree that patent trolls are bad. Many of us agree that the words patent trolls and non-practicing entities are equivalent. However, non-practicing entities can include research universities, which we don't necessarily consider "trolls". Or do we? Is there such a thing as a good, legitimate patent troll?
In a previous blog post, Opposition to patent reform, that I wrote in response to "An Examination of the Economics of the U.S. Patent System", I said:
Along similar lines, there is an article in Slate that calls Thomas Edison a "patent troll" and says that patent licensing by "trolls" is nothing new in American history. Adam Mossoff writes:
There is an article at IPWatchdog that that refers to Edison and many modern non-practicing entities as licensing firms but not patent trolls. Unfortunately it does not define what the difference with a patent troll is.
The best clarification I can come up with is from the Electronic Frontier Foundation on trollingeffects.org where they state:
I prefer the phrase patent assertion entity (PAE) because it would appear to exclude universities and other non-practicing entities that do not solely exist for the purpose of patent assertion.
In a previous blog post, Opposition to patent reform, that I wrote in response to "An Examination of the Economics of the U.S. Patent System", I said:
Individuals, small businesses, and universities, can develop ideas into inventions. Although they don't have the ability to manufacture their inventions, surely they should be able to apply for patents and receive royalties from manufacturers. Right?
Along similar lines, there is an article in Slate that calls Thomas Edison a "patent troll" and says that patent licensing by "trolls" is nothing new in American history. Adam Mossoff writes:
Edison would have been wiser to continue to embrace market specialization—inventing in his lab and selling or licensing his patents to others to manufacture and sell his innovative products. It was doing this that brought him his fame and fortune as a young innovator at Menlo Park, and ironically it would have brought him notoriety today as a "patent troll."
There is an article at IPWatchdog that that refers to Edison and many modern non-practicing entities as licensing firms but not patent trolls. Unfortunately it does not define what the difference with a patent troll is.
The best clarification I can come up with is from the Electronic Frontier Foundation on trollingeffects.org where they state:
A patent troll is often more formally referred to as a patent assertion entity (PAE)—an entity that exists solely to assert patents against other actors, i.e., use patents to threaten litigation and extract settlements. A non-practicing entity (NPE), broadly defined, is an entity that owns patents but does not create any products based on them.
I prefer the phrase patent assertion entity (PAE) because it would appear to exclude universities and other non-practicing entities that do not solely exist for the purpose of patent assertion.
Apple rejected Samsung talks
According to Fortune, the settlement talks between Apple and Samsung were apparently bogus. According to The Korean Times, which published the misleading article about settlement talks, Apple rejected a deal with Samsung. According to Florian Mueller of FossPatents:
At this point, I think its best to avoid speculating if there are talks or not. I still believe that litigation will fail all smartphone manufacturers in the long run. Litigation adds risk, uncertainty, cost, and so far hasn't been able to influence market share through an important injunction.
I think it's also worth mentioning that Samsung supplies the processor for the iPhone, and also supplied the flash memory and battery on the iPhone 4. A drawn-out lawsuit does harm to the relationship of the two companies, although arguably their handset and tablet competition will always strain the relationship.
For now, they are unable to agree on formal mediation proceedings; however, I am sure they are talking, just informally
At this point, I think its best to avoid speculating if there are talks or not. I still believe that litigation will fail all smartphone manufacturers in the long run. Litigation adds risk, uncertainty, cost, and so far hasn't been able to influence market share through an important injunction.
I think it's also worth mentioning that Samsung supplies the processor for the iPhone, and also supplied the flash memory and battery on the iPhone 4. A drawn-out lawsuit does harm to the relationship of the two companies, although arguably their handset and tablet competition will always strain the relationship.
Senate kills patent reform
Last December, the House of Representatives voted 325-91 in favor of the Innovation Act, an anti-patent troll bill. The White House strongly supported the bill and Wired called President Obama the Great Slayer of Patent Trolls. Nearly six months later, the bill is still stuck in the Senate. What happened?
Judiciary panel Chairman Patrick Leahy from Vermont has been negotiating behind the scenes. There is opposition to patent reform, as discussed in a previous post, especially from "independent inventors", who, in my opinion, may or may not actually be patent trolls. Politicians, rightfully or not, fear that the reform will make it hard for inventors to capitalize on inventions. Unfortunately, when patent reform stalls, the trolls do not:
Today, Senator Patrick Leahy took patent reform off the agenda of Senate Judiciary Committee, effectively killing the bill for the time being. In a press release, he wrote:
As this is recent news, I'm sure we'll hear more about it. I wonder if this was a deliberate attempt by Senator Leahy to appease the patent troll lobby, which includes respectable entities like universities and pharmaceutical companies. The House passed the bill with an overwhelming majority. It seems odd to kill it the Senate.
While we must respect the rights of "legitimate" patent holders, all too often this is used as a euphemism for the rights of patent trolls.
Judiciary panel Chairman Patrick Leahy from Vermont has been negotiating behind the scenes. There is opposition to patent reform, as discussed in a previous post, especially from "independent inventors", who, in my opinion, may or may not actually be patent trolls. Politicians, rightfully or not, fear that the reform will make it hard for inventors to capitalize on inventions. Unfortunately, when patent reform stalls, the trolls do not:
6092 patent lawsuits were filed in 2013, a 12.4% increase over 2012. Of the top ten filers of patent lawsuits in 2013, every single one was a patent troll.
Today, Senator Patrick Leahy took patent reform off the agenda of Senate Judiciary Committee, effectively killing the bill for the time being. In a press release, he wrote:
Unfortunately, there has been no agreement on how to combat the scourge of patent trolls on our economy without burdening the companies and universities who rely on the patent system every day to protect their inventions. We have heard repeated concerns that the House-passed bill went beyond the scope of addressing patent trolls, and would have severe unintended consequences on legitimate patent holders [emphassis added] who employ thousands of Americans.
As this is recent news, I'm sure we'll hear more about it. I wonder if this was a deliberate attempt by Senator Leahy to appease the patent troll lobby, which includes respectable entities like universities and pharmaceutical companies. The House passed the bill with an overwhelming majority. It seems odd to kill it the Senate.
While we must respect the rights of "legitimate" patent holders, all too often this is used as a euphemism for the rights of patent trolls.
Bizzare Amazon patent on taking pictures
On March 18, Amazon was granted a patent to take pictures against a white background. It's a bit of a strange patent, and on first glance, one wonders if it is novel and non-obvious.
Would the invention be obvious, given prior art, to a person having ordinary skill in the art to which the claimed invention pertains?
Yes, as far as I can tell. A photographer would not find the invention functionally different than what they probably already do. I suspect Amazon would claim that their specific camera settings (lens size, ISO, aperture, etc.) are non-obvious, but it's not clear how those specific settings are useful.
I suspect that this patent would be easily rejected in Europe because it does not contain an inventive step.
Why then would Amazon file such a patent? Surely they don't expect to be able to enforce it? It's a horrendously limited patent because to infringe you'd have to use very similar camera settings. Much of the web falsely believes that Amazon can now sue all photographers, but I am grateful for the knowledge I learned from class, which makes it clear that the patent is not at all broad.
All in all, a bizarre patent. It's not clear why Amazon would want such a patent if not to inflate the number of patents it owns and it's strange that the examiner let the patent be granted. Presumably Amazon wants to protect the way it takes product photos, but this patent looks like overkill.
Steven Colbert has mocked the patent on The Colbert Report.
Would the invention be obvious, given prior art, to a person having ordinary skill in the art to which the claimed invention pertains?
Yes, as far as I can tell. A photographer would not find the invention functionally different than what they probably already do. I suspect Amazon would claim that their specific camera settings (lens size, ISO, aperture, etc.) are non-obvious, but it's not clear how those specific settings are useful.
I suspect that this patent would be easily rejected in Europe because it does not contain an inventive step.
Why then would Amazon file such a patent? Surely they don't expect to be able to enforce it? It's a horrendously limited patent because to infringe you'd have to use very similar camera settings. Much of the web falsely believes that Amazon can now sue all photographers, but I am grateful for the knowledge I learned from class, which makes it clear that the patent is not at all broad.
All in all, a bizarre patent. It's not clear why Amazon would want such a patent if not to inflate the number of patents it owns and it's strange that the examiner let the patent be granted. Presumably Amazon wants to protect the way it takes product photos, but this patent looks like overkill.
Steven Colbert has mocked the patent on The Colbert Report.
Who won the smartphone patent wars?
With the Apple v. Samsung cases in settlement talks, the Apple v. Google cases dropped, Nokia dead, and upcoming anti-patent troll legislation in the works, is the worst of the smartphone patent wars over?
Microsoft's still making licensing deals with Android manufacturers. But it's not really a war. It doesn't make headlines and we don't hear about lawsuits of epic proportions and ferocity.
If the smartphone patent wars are ending, who won? Certainly not Nokia, who pulled the trigger. Did Apple?
According to Steve Job's biography, he once said:
Despite an aggressive Apple, Android is still very much alive, with growing market share, currently at 80%. And before we look at the damages Apple won from Samsung, we must put them into context. In the words of Samsung:
After accounting for litigation costs, the damages paid by Samsung are relatively insignificant. Even before accounting for litigation costs, in the words of one court room spectator:
This is hardly surprising. I quoted a prominent blogger Tero Kuittinen in a previous blog post who wrote that litigation "will never have any substantial impact on the competitive landscape in the phone industry" and that it only benefits IP lawyers.
As Alison Frankel writes:
Microsoft's still making licensing deals with Android manufacturers. But it's not really a war. It doesn't make headlines and we don't hear about lawsuits of epic proportions and ferocity.
If the smartphone patent wars are ending, who won? Certainly not Nokia, who pulled the trigger. Did Apple?
According to Steve Job's biography, he once said:
Our lawsuit is saying, "Google, you fucking ripped off the iPhone, wholesale ripped us off." Grand theft. I will spend my last dying breath if I need to, and I will spend every penny of Apple's $40 billion in the bank, to right this wrong. I'm going to destroy Android, because it’s a stolen product. I’m willing to go to thermonuclear war on this. They are scared to death, because they know they are guilty.
Despite an aggressive Apple, Android is still very much alive, with growing market share, currently at 80%. And before we look at the damages Apple won from Samsung, we must put them into context. In the words of Samsung:
Apple has nothing to show for its years of litigation and hundreds of millions of dollars spent on attorneys' fees.
After accounting for litigation costs, the damages paid by Samsung are relatively insignificant. Even before accounting for litigation costs, in the words of one court room spectator:
Apple just won six hours of revenue.
This is hardly surprising. I quoted a prominent blogger Tero Kuittinen in a previous blog post who wrote that litigation "will never have any substantial impact on the competitive landscape in the phone industry" and that it only benefits IP lawyers.
As Alison Frankel writes:
It has taken five years and untold tens of millions of dollars in legal fees to confirm that competition over high-tech products that make use of hundreds of patents will not — and should not — be decided by the courts. Despite Steve Jobs’ famous description of Android as "a stolen product" that he would destroy through "thermonuclear war," it simply doesn’t make business sense to throw money into a litigation bonfire that will leave you with nothing more than a handful of cold ashes.
I've said this before, but the settlement between Apple and Google makes it manifestly clear: No one won the smartphone patent wars.
Apple and Samsung to resolve disputes
Are the smartphone patent wars coming to an end?
On May 2, the jury returned a mixed verdict in Apple v. Samsung, finding both companies guilty in some respects and not others. Samsung was ordered to pay Apple $119.6 million, while Apple was ordered to pay Samsung a smaller $158,400 sum. This was a smaller loss for Samsung than in 2011, when it was ordered to pay Apple $930 million. Although Samsung was ordered to pay more than Apple, Samsung is likely relieved that it has to pay much less than what Apple asked for (only 5%), and that Apple was also found to be infringing.
Joe Mullin from Ars Technica writes:
Then on May 14, the Samsung's suit against Apple at the ITC, was lost on appeal to the Federal Circuit.
On May 19, The Korean Times reported that Samsung and Apple have agreed to begin talks to settle their patent disputes out of court. Florian Mueller wrote:
Apple's overly aggressive stance did not give it an advantage in the market in the long run. No major sales injunctions that would have affected market share took place. Either its patents were too weak or judges simply could not stomach issuing an injunction that moved competition to the courts rather than the market.
Edit: There are now mixed reports about whether Samsung and Apple are actually holding settlement talks.
On May 2, the jury returned a mixed verdict in Apple v. Samsung, finding both companies guilty in some respects and not others. Samsung was ordered to pay Apple $119.6 million, while Apple was ordered to pay Samsung a smaller $158,400 sum. This was a smaller loss for Samsung than in 2011, when it was ordered to pay Apple $930 million. Although Samsung was ordered to pay more than Apple, Samsung is likely relieved that it has to pay much less than what Apple asked for (only 5%), and that Apple was also found to be infringing.
Joe Mullin from Ars Technica writes:
From the trial's very beginning, Apple lawyers said that the whole purpose of Samsung presenting two patents of its own and asking for the "small" sum of $6 million was a cynical one: to convince the jurors that patents aren't worth that much.
If that was Samsung's goal—today's verdict is "mission accomplished." Considering litigation at this level is something of a war of attrition; Samsung has shown that it can basically fight Apple to a standstill. Considering Apple likely spent tens of millions on this trial alone, $120 million would certainly cover their legal bill, but not much beyond that.
Then on May 14, the Samsung's suit against Apple at the ITC, was lost on appeal to the Federal Circuit.
On May 19, The Korean Times reported that Samsung and Apple have agreed to begin talks to settle their patent disputes out of court. Florian Mueller wrote:
Things should come to an end during the summer. Apple doesn't have an endgame strategy. Its agreement with Google shows that its management is looking for a face-saving exit strategy from Steve Jobs' thermonuclear ambitions that were based on a totally unrealistic assessment of the strength of Apple's patent portfolio...I believe a one-time payment from Samsung to Apple for past infringement of U.S. design patents would be reasonable.
Apple's overly aggressive stance did not give it an advantage in the market in the long run. No major sales injunctions that would have affected market share took place. Either its patents were too weak or judges simply could not stomach issuing an injunction that moved competition to the courts rather than the market.
Edit: There are now mixed reports about whether Samsung and Apple are actually holding settlement talks.
Apple and Google drop suits
On May 16, Apple and Google agreed to drop two dozen patent suits and counter suits between them. Google inherited the lawsuits when it bought Motorola for $12.5 billion.
It would be too optimistic to assume that the smartphone patent wars are nearing an end. For one thing, Google had sold Motorola's handset business to Lenovo. The lawsuits were basically moot. Additionally, the cases, consolidated in a Chicago court, had been dismissed shortly before trial on grounds that neither company had sufficient evidence, although the dismissal was overturned. Neither side had a "killer patent" which could not be worked around.
Apple and Google did not settle; they did not cross-license; they did not even agree to stop suing each other in the future. The news is not as big of a deal as it first appears to be.
Their joint statement together made no important commitments. It only said that "Apple and Google have also agreed to work together in some areas of patent reform". That can mean offering nothing but words or advocating for patent reform that targets non-practicing entities, which is hardly surprising given how frequently both have been sued by patent trolls.
The prominent battle was always between Apple and Samsung. After hundreds of millions of dollars of litigation, those cases may soon be settled, however.
It would be too optimistic to assume that the smartphone patent wars are nearing an end. For one thing, Google had sold Motorola's handset business to Lenovo. The lawsuits were basically moot. Additionally, the cases, consolidated in a Chicago court, had been dismissed shortly before trial on grounds that neither company had sufficient evidence, although the dismissal was overturned. Neither side had a "killer patent" which could not be worked around.
Apple and Google did not settle; they did not cross-license; they did not even agree to stop suing each other in the future. The news is not as big of a deal as it first appears to be.
Their joint statement together made no important commitments. It only said that "Apple and Google have also agreed to work together in some areas of patent reform". That can mean offering nothing but words or advocating for patent reform that targets non-practicing entities, which is hardly surprising given how frequently both have been sued by patent trolls.
The prominent battle was always between Apple and Samsung. After hundreds of millions of dollars of litigation, those cases may soon be settled, however.
Obviousness of design patents
Most of our focus in class, especially as engineers, is on utility patents. However, we often hear about design patents as well in the smartphone patent wars. One example of this is Apple's design patent on a rounded rectangle, which was discussed during the lawsuits between Apple and Samsung. At the time, many tech commentators mocked Apple for filing a patent on something so "obvious" as a literal rounded rectangle.
Without have much knowledge about design patents, I imagine that design patent obviousness would differ from utility patent obviousness. We know that a utility patent is obvious if it is obvious to a person having ordinary skill in the art based on prior art. But does the same apply to design patents? Are design patents more like trademarks and about protecting brand identity than encouraging (non-obvious) innovation?
In MRC Innovations, Inc. v. Hunter Mfg., LLP, the Federal Circuit reiterated that the same obviousness standard used for utility patents applies. If a claimed design is obvious to a designer of ordinary skill who designs articles of the type involved, it is obvious. In the case, the Federal Circuit upheld the district court ruling, concluding that the difference with prior art was a "de minimis change that was insufficient to overcome an obviousness challenge".
Significantly, this ruling rejects the obviousness test in International Seaway Trading Corp. v. Walgreens Corp (2000), which stated "ordinary observer" instead of a "designer of ordinary skill". As one would expect, this new ruling makes it easier to invalidate a patent on obvious grounds because a designer is more skilled, and therefore more capable, than an ordinary observer.
Without have much knowledge about design patents, I imagine that design patent obviousness would differ from utility patent obviousness. We know that a utility patent is obvious if it is obvious to a person having ordinary skill in the art based on prior art. But does the same apply to design patents? Are design patents more like trademarks and about protecting brand identity than encouraging (non-obvious) innovation?
In MRC Innovations, Inc. v. Hunter Mfg., LLP, the Federal Circuit reiterated that the same obviousness standard used for utility patents applies. If a claimed design is obvious to a designer of ordinary skill who designs articles of the type involved, it is obvious. In the case, the Federal Circuit upheld the district court ruling, concluding that the difference with prior art was a "de minimis change that was insufficient to overcome an obviousness challenge".
Significantly, this ruling rejects the obviousness test in International Seaway Trading Corp. v. Walgreens Corp (2000), which stated "ordinary observer" instead of a "designer of ordinary skill". As one would expect, this new ruling makes it easier to invalidate a patent on obvious grounds because a designer is more skilled, and therefore more capable, than an ordinary observer.
Comparison with EU patent system
There are many patent offices outside of the US, including the European Patent Office (EPO), the Japan Patent Office (JPO), the Korean Intellectual Property Office (KIPO), the State Intellectual Property Office of the People's Republic of China (SIPO), and the Eurasian Patent Office. The first two collaborate with the USPTO as the Trilateral Patent Offices.
I was curious about the European Patent Office (EPO) because it represents nearly 40 European nations that are parties to the European Patent Convention (EPC). Surprisingly, despite the existence of the European Union, the patent system is decentralized.. As I understand it, although the European Patent Office grants patents centrally, the patent grants are individually enforceable and revocable in each country. Patent litigation is handled separately in each country and patents can be invalidated in a single country. The patent granted by the European Patent Office becomes essentially "a bundle of national patents". There is a proposal to create a unitary (more centralized) patent system for the European Union.
Nevertheless, there are many consistencies between these patent legal systems, and differences with the US.
Until the American Invents Act came into effect, US patents were granted to those "first-to-invent", while European patents were granted to those "first-to-file". In other words, the EPO granted the patent to the applicant with the earlier filing date, while the US granted the patent to the applicant with earlier evidence of invention. Today, as a result of patent reform, the US is also "first-to-file".
In Europe, inventions which have become publicly available are not patentable. In the US, inventors have a one-year grace period after publishing to apply for a patent grant. Many US inventors still avoid using this grace period so that they can apply for patents outside the US.
To my knowledge, other differences are based on different interpretations. The EPO applies stricter interpretation and scrutiny, in general. For example, the EPC explicitly requires that an invention's improvement not only be novel and useful, but contain an "inventive step". Likewise, many software patents which are allowed in the US are rejected in Europe.
I was curious about the European Patent Office (EPO) because it represents nearly 40 European nations that are parties to the European Patent Convention (EPC). Surprisingly, despite the existence of the European Union, the patent system is decentralized.. As I understand it, although the European Patent Office grants patents centrally, the patent grants are individually enforceable and revocable in each country. Patent litigation is handled separately in each country and patents can be invalidated in a single country. The patent granted by the European Patent Office becomes essentially "a bundle of national patents". There is a proposal to create a unitary (more centralized) patent system for the European Union.
Nevertheless, there are many consistencies between these patent legal systems, and differences with the US.
Until the American Invents Act came into effect, US patents were granted to those "first-to-invent", while European patents were granted to those "first-to-file". In other words, the EPO granted the patent to the applicant with the earlier filing date, while the US granted the patent to the applicant with earlier evidence of invention. Today, as a result of patent reform, the US is also "first-to-file".
In Europe, inventions which have become publicly available are not patentable. In the US, inventors have a one-year grace period after publishing to apply for a patent grant. Many US inventors still avoid using this grace period so that they can apply for patents outside the US.
To my knowledge, other differences are based on different interpretations. The EPO applies stricter interpretation and scrutiny, in general. For example, the EPC explicitly requires that an invention's improvement not only be novel and useful, but contain an "inventive step". Likewise, many software patents which are allowed in the US are rejected in Europe.
The international patent framework
I have family who live outside the US, and was curious how their patent system compares to ours. Most countries in the world are parties to the Patent Cooperation Treaty (PCT) and many are also parties to the Patent Law Treaty (PLT).
As I understand it, these international treaties make it easier to file for patents in different countries by formalizing initial steps, like searching for prior art and the application format. They do not lead to an international patent grant --one must still follow through with each nation for a patent grant. They also do not standardize the requirements for patents that we learn about from our US context, including novelty, non-obviousness, utility, and enablement.
This is a little confusing at first, because the World Intellectual Property Organization (WIPO), a UN agency, refers to the Patent Cooperation Treaty as "the International Patent System", when there is in fact no such thing as an international patent:
Given the complexity of interpretations on ideas like obviousness and software patents, the difficulty of reconciling these differences between countries becomes more clear. For example, Supreme Court cases have established case law for the patent system in the US, like KSR v. Teleflex did for obviousness and "person having ordinary skill in the art". I assume other nations have their own legal codes and legal doctrine, which would make it impossible to standardize an idea like enablement or obviousness without rewriting legal codes and possible invalidating existing patents in a country.
As I understand it, these international treaties make it easier to file for patents in different countries by formalizing initial steps, like searching for prior art and the application format. They do not lead to an international patent grant --one must still follow through with each nation for a patent grant. They also do not standardize the requirements for patents that we learn about from our US context, including novelty, non-obviousness, utility, and enablement.
This is a little confusing at first, because the World Intellectual Property Organization (WIPO), a UN agency, refers to the Patent Cooperation Treaty as "the International Patent System", when there is in fact no such thing as an international patent:
A patent is awarded by the government of a country and is valid only within its territorial boundaries. To obtain a patent that is valid in a particular country, a request must be made in that country's patent office.
Given the complexity of interpretations on ideas like obviousness and software patents, the difficulty of reconciling these differences between countries becomes more clear. For example, Supreme Court cases have established case law for the patent system in the US, like KSR v. Teleflex did for obviousness and "person having ordinary skill in the art". I assume other nations have their own legal codes and legal doctrine, which would make it impossible to standardize an idea like enablement or obviousness without rewriting legal codes and possible invalidating existing patents in a country.
fixpatents.org
Engine Advocacy, a group for technological entrepreneurs (or in slightly less sympathetic words, a lobby group for startups), has published a website, fixpatents.com, that promotes anti-patent troll reform.
The website includes a humorous Youtube video, which I've embedded above. I think the pleasing, funny, and easy-to-understand video makes their argument more effective. The video describes, in simple terms, software patents and them being exploited by an emerging patent troll business model. For example, it suggests that software patents can be overly broad and that trolls prey on vulnerable end users. I agree with both ideas, and talked about them in my last posts on Startups and patent trolls:
Patent trolls target smaller companies more than larger ones. Smaller companies lose more in time, money, and operational impact relative to their size. Startups do not have the financial and legal resources available to larger companies. They prefer settling, to the uncertainty and expense of the courts, even if a ruling would likely be favorable.
and Alice Corp. v. CLS Bank International:
Software patents are a tricky issue. A study from the Government Accountability Office found that a disproportionate share of patent cases concern software patents. James Bessen claimed that this is because software is more likely to have fuzzy boundaries and particularly prone to broad and vague patents. He also claimed that "the patent troll crisis is really a software patent problem".
Non-practicing entities are portrayed as an epidemic, with statistics like them accounting for two-thirds of new patent suits and costing defendants $1 trillion. I'm not sure if the "trillion" number is realistic, but as we've learned in class with the NTP vs. RIM case, the settlements while high, pale in comparison to the (potential) lost revenues associated with injunctions and delayed product development.
The Innovation Act passed in the House last December, but still needs to pass in the Senate.
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