Originally Posted by Gatorguy
First: Make business methods un-patentable
Second: Require disclosure of the true owner of a patent. If you don't know who owns one how do you contact them for licensing discussions or understand what your options might be?
Third: Make "loser pays" a required and written consideration
by the courts in at least
patent infringement cases (maybe cast a wider net than that to include some other types of damage claims). That might
help avoid some lawsuits from patentees on a fishing expedition.
Fourth: have an honest debate on whether patents as a category should have the period of exclusive use reduced from the current 20 years ( and even longer in certain circumstances).
Fifth: Disallow infringement action over patent claims that would not have specifically anticipated the current use. Tighten claims construction standards, requiring greater specificity during USPTO patent app exams.
Sixth: Enact a "window of opportunity" for patentee's to notify a potential infringer, say for instance within 24 months of the time they become aware of it. Plenty liberal enough. No more sitting on a knowledge of potential infringement until that entity has a successful and/or profitable product or feature that might make use of it. That single requirement would heavily impact the actions of "patent trolls"
Seventh: Limit damages to the period only after
the potential infringer was notified in writing. No going back years to claim damages on something the possible infringer might not and in some cases could not
have been aware of. That's another thing "trolls" won't like.
You're more than welcome to comment on any or all of those points Anant rather than just lobbing the snarky one and two liners "as you always seem to do". I would imagine you disagree with some of them and have supportable reasons for it.
Thank you for a thoughtful post.
I am not sure how any of it applies to the currently ongoing Apple-Samsung case -- pray tell? That said, let me respond to each.
1) Not possible. 'Business methods' is too broad. I can see definitions stretching all the way from the specific process by which Corning makes fiberglass or a specific process for making drugs, to the way a company answers a telephone or compensates an employee. I really don't understand what the phrase means. If you mean the latter variety, yes. But could you be more specific? And where would you draw the line for what is an un-patentable business method?
2) I don't understand. What do you mean by 'true' owner? The person/entity who originally did the research/development that led to the patent, or the person/entity who currently (fairly, legitimately bought the property and) owns it? Again, this is a vague term.
3) 'Loser pays' is not an option in any major aspect of US jurisprudence. It would not be possible to allow it one arena and not another. You can't wish for something like that in just IP law. The entire sub-structure of the practice of law in the US across every aspect of it would have to be changed. Realistically speaking, it's wishful thinking: simply not possible.
The reason? The argument goes that such a system would discriminate against the poor, since, all else equal (and given that all outcome is probabilistic), the poor will be less motivated to bring suits. Indeed, the 'hire a lawyer on a contingency fee' system in the US is seen as a further step towards tilting the playing field in favor of the less powerful.
(Other countries, such as the UK, do have a 'loser pays' system, and they don't allow lawyers on contingency)
4) This is a fair point. Especially in tech, where not just product life cycles, but even product category life cycles, are much shorter.
5) I am sincerely unable to parse this sentence (a triple negative, I think). I just don't follow what you're saying here.
6) I can't quarrel with that. Although, sometimes, building a case -- especially when two well-resourced companies with armies of lawyers are involved, and the case involves a dispute between cross-border entities -- does take time. So there has to be some exceptions.
I tend to think though, that in such rapidly changing industries, the amount of time that the lawyers and judges take to actually bring things to closure is getting to be laughably ridiculous.
7) I can't quarrel with that. Again, there may be exceptions in such rapidly-changing industries as the one we're currently talking about. But more generally, it simply follows the principle that 'ignorance of the law is no excuse.' It is meant perhaps as a deterrent: that someone should take the trouble to scope out what is out there that is already available to license, before just plowing ahead thinking they've invented the wheel.
I am failing to see, however, why/how/where any of the above applies to Apple v. Samsung Round 2? Please elaborate?