The court assumes the patents to be valid otherwise the trial would take a lot longer and tons of experts on those patents will have to be involved.
But in short, yes, the patent system in the US is pretty messed up.
In what way is it messed up? It works great. Last time I checked, the US has the most robust entrepreneurial environment in the world. The purpose of the patent system is to encourage entrepreneurs. If anything I think what is messed up is how the media castigates the patent system when it has no clue how the system works. How can people who know so little about the system think they know whether it is messed up?
There is a lot of ranting and raving about how much patents impede technology. If you take a step back I think you see it is absolutely preposterous to say patents impede technology. I mean Really? What technology has been impeded in the U.S. because of patents? There are disputes about how to divide up the money generated by technology, but there is nothing impeding the technology. In fact, the US has the most robust patent system in the world and we are bursting at the seems with technology. The facts just don't support the idea that patents impede technology.
I know correlation is not causation, but you have to admit it is pretty curious that there is a 100% correlation between the strength of the patent system and innovation. Even within the US, the income levels and innovativeness of states are correlated with issuance of patents. Do you want to know the countries with the worst patent protection? It isn't China. It is venezuela, middle eastern countries, and Africa. Their patent systems are horrible to non-existent. Curiously these countries also have no innovation.
Even if you think the correlation is not the cause, why would you risk mucking up the patent system? At a minimum, the correlation proves the patent system doesn't hurt. If you hinder our patent system you run a huge risk of finding out that the patent system really was the cause of our success. We've had a strong patent system since the founding of our country. It really bothers me when people mouth off about how our system is messed up. I truly believe that you are disparaging the very system that has provided you with the standard of living that you have. In the last 10 years the tech world has converted to a bunch of ignorant ingrates.
The patent office does not ever invalidate patents because the invalidity statute does not apply to proceedings before the patent office.
I am well aware of this fact. However, at this point, you are merely arguing semantics. While the USPTO never claims a patent to be invalid legally, a complete rejection of ALL claims pretty much makes it worthless. Most people would interpret this as the adjective 'invalid', synonymous with 'worthless'. You however, are trying to suggest this isn't the case because you are only considering the legal phrasing for 'invalid'. This is what I was suggesting in my original post.
That shouldn't have happened. The court has already upheld the patent in a jury trial which found the patent to be valid and infringed.
I suspect Apple will challenge the USPTO's decision in court.
Actually it has not happened. The patent hasn't actually been invalidated yet. It is just under review because it was found there might be cause to invalidate. AI buried that bit down the article with their 'non final office action' comment
Apples patent is a tad broad but, assuming the patent office trumps the courts and does invalidate, who's to say Apple can't amend the patent like they did in Europe with the swipe to unlock, to show specific gestures and outcomes and still win against Samsung for using the same exact gestures. Anything can still happen in the final half. On the court case and this patent (especially if Apple revealed the prior art in question and it was still approved)
Wasn%u2019t pinch-zooming done on that university demo video
A Uni concept demo isn't the same as an on sale item, so who actually got it first to market. That said, patents are about who invented first (as 'proven' by filing for a patent) not who tried to make a profit first.
If you change something in a claim than what happens to any legal action that was based on the original (now different) claim. Surely that becomes invalidated too.
Not always. Lets say Apple amends their claim to specify a two finger spread/pinch gesture to zoom in and out a webpage, image, camera action etc and that claim is approved. If Samsung used that exact method for to same outcome they are still in violation. Apple would file a motion to certify this and have the judgment stand as a matter of form.
Awwww. I'd be lying if I said it doesn't tickle me everytime Apple loses one. Pinch to zoom is a ridiculous thing to patent anyway, on par with Push to Open. How do you patent a gesture? Ridiculous.
More than 80% of software patents are ultimately found invalid. Get used to this - if the long history of software patents is any indication, there will be a lot more invalidations coming.
You're going to need a citation, an authoritative citation, to back that up. I don't think you can find one.
This absolutely false. No patent lawyer would ever try to improperly influence a patent examiner. You cannot even talk to an examiner unless you schedule an appointment and put an interview summary in record saying what was discussed. Going to lunch is beyond preposterous. Both the patent attorney and the examiner would get fired for offering/taking free lunches where there is a pending case between the two.
There is a lot of corruption in the world, but U.S. Federal judges and quasi-judges like patent examiners are anything but corrupt. Some of them may be stupid and/or stubborn, but they are not corrupt.
Google is one of the most corrupt companies in the world. They may not quite be up to Haliburton levels, but they are close. Given the complete lack of ethics at Google, and among Google management, I wouldn't discount the possibility of "undue influence".
The USPTO is devolving into joke status. It is understaffed and backlogged, taking about 4 years to issue patents. One of the only "profitable" agencies of the government is being milked by the rest of then government to pay for money pits. It is the peak of incompetence for the Office to issue a patent only to have to retract EVERY single claim. Our patent system, which lets people with money support people with ideas because they anticipate a return on investment, is on the verge of collapse.
This case has the stink of corruption to it, too. You may not like that "pinch-to-zoom" was patented, but that is what the law allowed. Evidently, Samsung knows how to make the law irrelevant. With the demise of the American patent system, our entire economy will regress to where innovation grinds to a halt. It will be quite depressing.
Plenty of manipulation gestures have appeared in sci-fi movies over the last twenty years. A prior published work trumps a patent. True, most gestures in movies are with three dimensional projected images, but a gesture is a gesture. That doesn't mean you can't patent a specific mechanism to accomplish pinch and zoom, and I suppose you could patent it within a particular context (even though that really shouldn't be allowed unless that context would somehow be quite unexpected).
The USPTO is devolving into joke status. It is understaffed and backlogged, taking about 4 years to issue patents. One of the only "profitable" agencies of the government is being milked by the rest of then government to pay for money pits. It is the peak of incompetence for the Office to issue a patent only to have to retract EVERY single claim. Our patent system, which lets people with money support people with ideas because they anticipate a return on investment, is on the verge of collapse.
This case has the stink of corruption to it, too. You may not like that "pinch-to-zoom" was patented, but that is what the law allowed. Evidently, Samsung knows how to make the law irrelevant. With the demise of the American patent system, our entire economy will regress to where innovation grinds to a halt. It will be quite depressing.
You're right, the USPTO is a joke. But Apple has taken advantage of this fact, and has been granted many patents which, if the USPTO actually had time to investigate, would have never been granted.
Like it or not, but the USPTO's de-facto behaviour is to grant every patent and then wait for them to get challenged.
By the way, patents are invalidated all the time in various countries. Even more shocking to you I'm sure, is that laws get changed all the time...
The detailed comparisons in that document indicate Hillis covers multipoint input for touch, recognizing gestures, and cites zoom as one of the examples.
Patent number: 7724242 Filing date: Nov 23, 2005 Issue date: May 25, 2010 Application number: 11/286,232
It was filed in 2005.
Some patent group owns it... What was interesting is an older Apple patent for pinch on multitouch, but they were using it for cut, copy, and paste in the embodiments that I read. It hopefully has an embodiment that is more generic. Don't have enough time to go through it. It was filed in 2004.
Patent number: 7339580 Filing date: Dec 17, 2004 Issue date: Mar 4, 2008 Application number: 11/015,434
It's not who makes it first with the patent system. It's who applies for the Patent first that matters.. doesn't matter if someone else 'invented' it.. they have to have a patent, and that patent has to apply to the product in question.. general patents for 'everything' rarely hold up.. so one for tablets/phones. One for a 'desk' are considered different markets from what I understand..
Not true. The US still works on a first to invent principle. At least until end of this year. For those crying out for overhaul of the American patent system, this was part of the overhaul passed in the America Invents Act last year, going into effect at the beginning of next year.
You cannot "understand" whether desks are considered a different market or not. It's all about how the patent disclosure is written.
More than 80% of software patents are ultimately found invalid. Get used to this - if the long history of software patents is any indication, there will be a lot more invalidations coming.
Quote:
Originally Posted by anonymouse
You're going to need a citation, an authoritative citation, to back that up. I don't think you can find one.
Quote:
In fact, software patent holders lose nearly 90 percent of the time in litigation, Stanford law Professor Mark Lemley found in a research paper published last year.
Yet these overwhelmingly invalid patent claims have had dramatic impacts on the industry. They've allowed an entire sector of patent trolls to emerge with the sole aim of strong-arming companies into forking over licensing fees. They've forced tech giants to drop billions on legal fees or defensive patent portfolios, money that might have gone into research and development.
"It's approaching crisis levels," said James Bessen, a lecturer at Boston University School of Law and co-author of "Patent Failure." "In most industries, the patent system has become a disincentive to innovation."
Sadly for you, you are doing what most do here - quickly surf the internet and remember only the highlights that support your presumption. First of all, read your own words - "More than 80% of software patents are ultimately found invalid."
Then read what you cited: "software patent holders lose nearly 90 percent of the time in litigation".
Are they even the same thing? Only if every single software patent is litigated. Do even YOU believe this is true?
But it's worse than that. SF Gate article (highly the authoritative source you are asked to present), like you, also misconstrued (or deliberately obfuscated) their source. And their so-called source in fact quotes yet another source. In the original publication, it states that 90% of the "most asserted" software patents are invalidated, but only if there is no settlement. Guess what - settlement happens nearly 90% of the time!
So, in reality, it is not true that 90% of software patents are invalidated. It is not even true that 90% of litigated patents are invalidated.
Do yourself a favor, abstain rather than ejaculate prematurely.
More than 80% of software patents are ultimately found invalid. Get used to this - if the long history of software patents is any indication, there will be a lot more invalidations coming.
Quote:
Originally Posted by anonymouse
You're going to need a citation, an authoritative citation, to back that up. I don't think you can find one.
Quote:
In fact, software patent holders lose nearly 90 percent of the time in litigation, Stanford law Professor Mark Lemley found in a research paper published last year.
Yet these overwhelmingly invalid patent claims have had dramatic impacts on the industry. They've allowed an entire sector of patent trolls to emerge with the sole aim of strong-arming companies into forking over licensing fees. They've forced tech giants to drop billions on legal fees or defensive patent portfolios, money that might have gone into research and development.
"It's approaching crisis levels," said James Bessen, a lecturer at Boston University School of Law and co-author of "Patent Failure." "In most industries, the patent system has become a disincentive to innovation."
Sadly for you, you are doing what most do here - quickly surf the internet and remember only the highlights that support your presumption. First of all, read your own words - "More than 80% of software patents are ultimately found invalid."
Then read what you cited: "software patent holders lose nearly 90 percent of the time in litigation".
Are they even the same thing? Only if every single software patent is litigated. Do even YOU believe this is true?
But it's worse than that. SF Gate article (highly the authoritative source you are asked to present), like you, also misconstrued (or deliberately obfuscated) their source. And their so-called source in fact quotes yet another source. In the original publication, it states that 90% of the "most asserted" software patents are invalidated, but only if there is no settlement. Guess what - settlement happens nearly 90% of the time!
So, in reality, it is not true that 90% of software patents are invalidated. It is not even true that 90% of litigated patents are invalidated.
Do yourself a favor, abstain rather than ejaculate prematurely.
@Ankleskater: Whether by intention or omission, your argumentation is also confusing rather than clarifying anything. While your comments are probably reasonably accurate, you are omitting some rather relevant factors which need to be taken into account.
One such factor is of course the fact that a huge but hard-to-verify proportion of victims of patent-trolls actually decide not to contest and pay up simply because it is cheaper (or thought to be) to pay up rather than litigate to the end-game. This is one of the fundamental weaknesses of the US legal system. In the EU, the loser pays. In the US there is no financial risk or penalty associated with asserting patents which have a high probability of being invalidated. The key is to set the license demands high enough to make money, but to stay under the line where the defendant will have to let the matter go to court. So these figures are largely unknown and distort the overall picture considerably. I note that you do mention that settlement happens 90% of the time, but that is in itself not germane to the real problem which is that junk patents are regularly issued in the first place. So I think, unless you can produce good data to support your argument, you should acknowledge the fact that the validity or otherwise of noncontested patents is something that is not resolvable.
So that leaves us with those patents that actually do get to court .... and here the picture is quite clear, that the vast majority of software patents seem to get invalidated in the courts.
@Ankleskater: Whether by intention or omission, your argumentation is also confusing rather than clarifying anything. While your comments are probably reasonably accurate, you are omitting some rather relevant factors which need to be taken into account.
One such factor is of course the fact that a huge but hard-to-verify proportion of victims of patent-trolls actually decide not to contest and pay up simply because it is cheaper (or thought to be) to pay up rather than litigate to the end-game. This is one of the fundamental weaknesses of the US legal system. In the EU, the loser pays. In the US there is no financial risk or penalty associated with asserting patents which have a high probability of being invalidated. The key is to set the license demands high enough to make money, but to stay under the line where the defendant will have to let the matter go to court. So these figures are largely unknown and distort the overall picture considerably. I note that you do mention that settlement happens 90% of the time, but that is in itself not germane to the real problem which is that junk patents are regularly issued in the first place. So I think, unless you can produce good data to support your argument, you should acknowledge the fact that the validity or otherwise of noncontested patents is something that is not resolvable.
So that leaves us with those patents that actually do get to court .... and here the picture is quite clear, that the vast majority of software patents seem to get invalidated in the courts.
What are you talking about?
First, to focus on patents that actually go to court in order to say MacR is right and I am wrong by intention or omission is absurd.
Second, it's also not true that 90% of patents that go to court are invalidated. Only 90% of those that are "most asserted".
But this is pointless. I get the game here - keep parsing words and facts until you find a way to satisfy yourself that you weren't wrong in the first place. Few people here would ever have the humility to say - "Damn, I was wrong. Thanks for schooling me, again." Hell, few people here actually read something completely before they comment.
Originally Posted by HakimeRight now these are ex parte reexaminations triggered by a request which were filed anonymously. And by anonymously we all know that at least one of those anonymous parties is Google.
...Or Microsoft? You should have noticed the change in tone towards Apple when Florian Mueller discusses any of the touch patents, particularly with zero evidence these have ever been licensed to anyone but Nokia, IBM and now HTC. IMHO it's a dead giveaway that something opposes MS interests if FOSSPatents doesn't fully support an otherwise frontal assault on anything that harms Google. With multi-touch patents he's found ways to object to some of the claims. Otherwise he's been generally supportive of Apple, particularly when something has the potential to harm Google in any way.
This is all just bad blogging. Here's a real effort to "splain" what's really going on:
"A 2011 law made it easier to challenge Apple's patents By Philip Elmer-DeWitt December 20, 2012: 7:13 AM ET
The Leahy-Smith America Invents Act opened the door to more post-grant reviews
Samsung's court filing. FORTUNE -- On Wednesday, Samsung informed a federal court -- and the Wall Street Journal dutifully reported -- that the U.S. Patent Office had "rejected" all claims of an Apple (AAPL) patent (the so-called "pinch to zoom" patent) that the Journal described as "a cornerstone of its case against Samsung." Two weeks earlier, the Patent and Trademark Office had tentatively concluded that all 20 claims of a second Apple patent -- the so-called "rubber-banding" (or over-scroll bounce) patent -- were invalid. From the headlines, you'd think that the foundations on which a jury awarded Apple $1.05 billion last August were crumbling. The truth is a little more complicated. Both rulings flow from substantial changes in U.S. patent law that Congress passed last year as part of the Leahy-Smith American Invents Act. Key provisions of that act make it substantially easier to challenge a patent after it has been approved. For a filing fee of $17,750, anybody can anonymously demand that the Patent Office initiate a post-grant review on any invalidity ground -- including, according to the National Law Review, "prior art, lack of written description, or lack of enablement, but not failure to comply with the best mode requirement." The new law makes it harder for the Patent Office to deny the review. Or, to put it the other way, easier to initiate a review -- which is what just happened in the case of pinch to zoom. A patent examiner is going to take another look at Apple's patent claims based on the new objections that were filed. That's not quite the same as "rejecting" or "invalidating" them, which is how the Journal described it. In the case of the rubber-band patent -- A.K.A. the Steve Jobs patent -- the situation is more dire for Apple. The Patent Office initiated a reexamination procedure in October, which meant that the review process had passed its first bureaucratic hurdle. What happened two weeks ago is that the examiner announced that he had tentatively rejected all 20 of the patents claims. The burden now falls on Apple to defend those claims. The company may yet prevail, but Steve Jobs' patent has two strikes against it. Bottom line: With the barriers lowered and so much riding on the validity of Apple's patents, we can expect more challenges in the future."
Comments
Quote:
Originally Posted by drobforever
The court assumes the patents to be valid otherwise the trial would take a lot longer and tons of experts on those patents will have to be involved.
But in short, yes, the patent system in the US is pretty messed up.
In what way is it messed up? It works great. Last time I checked, the US has the most robust entrepreneurial environment in the world. The purpose of the patent system is to encourage entrepreneurs. If anything I think what is messed up is how the media castigates the patent system when it has no clue how the system works. How can people who know so little about the system think they know whether it is messed up?
There is a lot of ranting and raving about how much patents impede technology. If you take a step back I think you see it is absolutely preposterous to say patents impede technology. I mean Really? What technology has been impeded in the U.S. because of patents? There are disputes about how to divide up the money generated by technology, but there is nothing impeding the technology. In fact, the US has the most robust patent system in the world and we are bursting at the seems with technology. The facts just don't support the idea that patents impede technology.
I know correlation is not causation, but you have to admit it is pretty curious that there is a 100% correlation between the strength of the patent system and innovation. Even within the US, the income levels and innovativeness of states are correlated with issuance of patents. Do you want to know the countries with the worst patent protection? It isn't China. It is venezuela, middle eastern countries, and Africa. Their patent systems are horrible to non-existent. Curiously these countries also have no innovation.
Even if you think the correlation is not the cause, why would you risk mucking up the patent system? At a minimum, the correlation proves the patent system doesn't hurt. If you hinder our patent system you run a huge risk of finding out that the patent system really was the cause of our success. We've had a strong patent system since the founding of our country. It really bothers me when people mouth off about how our system is messed up. I truly believe that you are disparaging the very system that has provided you with the standard of living that you have. In the last 10 years the tech world has converted to a bunch of ignorant ingrates.
Quote:
Originally Posted by ash471
The patent office does not ever invalidate patents because the invalidity statute does not apply to proceedings before the patent office.
I am well aware of this fact. However, at this point, you are merely arguing semantics. While the USPTO never claims a patent to be invalid legally, a complete rejection of ALL claims pretty much makes it worthless. Most people would interpret this as the adjective 'invalid', synonymous with 'worthless'. You however, are trying to suggest this isn't the case because you are only considering the legal phrasing for 'invalid'. This is what I was suggesting in my original post.
The USPTO giveth and the USPTO taketh away.
Actually it has not happened. The patent hasn't actually been invalidated yet. It is just under review because it was found there might be cause to invalidate. AI buried that bit down the article with their 'non final office action' comment
Apples patent is a tad broad but, assuming the patent office trumps the courts and does invalidate, who's to say Apple can't amend the patent like they did in Europe with the swipe to unlock, to show specific gestures and outcomes and still win against Samsung for using the same exact gestures. Anything can still happen in the final half. On the court case and this patent (especially if Apple revealed the prior art in question and it was still approved)
A Uni concept demo isn't the same as an on sale item, so who actually got it first to market. That said, patents are about who invented first (as 'proven' by filing for a patent) not who tried to make a profit first.
Not always. Lets say Apple amends their claim to specify a two finger spread/pinch gesture to zoom in and out a webpage, image, camera action etc and that claim is approved. If Samsung used that exact method for to same outcome they are still in violation. Apple would file a motion to certify this and have the judgment stand as a matter of form.
Quote:
Originally Posted by MacRulez
More than 80% of software patents are ultimately found invalid. Get used to this - if the long history of software patents is any indication, there will be a lot more invalidations coming.
You're going to need a citation, an authoritative citation, to back that up. I don't think you can find one.
Quote:
Originally Posted by ash471
This absolutely false. No patent lawyer would ever try to improperly influence a patent examiner. You cannot even talk to an examiner unless you schedule an appointment and put an interview summary in record saying what was discussed. Going to lunch is beyond preposterous. Both the patent attorney and the examiner would get fired for offering/taking free lunches where there is a pending case between the two.
There is a lot of corruption in the world, but U.S. Federal judges and quasi-judges like patent examiners are anything but corrupt. Some of them may be stupid and/or stubborn, but they are not corrupt.
Google is one of the most corrupt companies in the world. They may not quite be up to Haliburton levels, but they are close. Given the complete lack of ethics at Google, and among Google management, I wouldn't discount the possibility of "undue influence".
The USPTO is devolving into joke status. It is understaffed and backlogged, taking about 4 years to issue patents. One of the only "profitable" agencies of the government is being milked by the rest of then government to pay for money pits. It is the peak of incompetence for the Office to issue a patent only to have to retract EVERY single claim. Our patent system, which lets people with money support people with ideas because they anticipate a return on investment, is on the verge of collapse.
This case has the stink of corruption to it, too. You may not like that "pinch-to-zoom" was patented, but that is what the law allowed. Evidently, Samsung knows how to make the law irrelevant. With the demise of the American patent system, our entire economy will regress to where innovation grinds to a halt. It will be quite depressing.
Quote:
Originally Posted by macFanDave
The USPTO is devolving into joke status. It is understaffed and backlogged, taking about 4 years to issue patents. One of the only "profitable" agencies of the government is being milked by the rest of then government to pay for money pits. It is the peak of incompetence for the Office to issue a patent only to have to retract EVERY single claim. Our patent system, which lets people with money support people with ideas because they anticipate a return on investment, is on the verge of collapse.
This case has the stink of corruption to it, too. You may not like that "pinch-to-zoom" was patented, but that is what the law allowed. Evidently, Samsung knows how to make the law irrelevant. With the demise of the American patent system, our entire economy will regress to where innovation grinds to a halt. It will be quite depressing.
You're right, the USPTO is a joke. But Apple has taken advantage of this fact, and has been granted many patents which, if the USPTO actually had time to investigate, would have never been granted.
Like it or not, but the USPTO's de-facto behaviour is to grant every patent and then wait for them to get challenged.
By the way, patents are invalidated all the time in various countries. Even more shocking to you I'm sure, is that laws get changed all the time...
deleted
Patent number: 7724242
Filing date: Nov 23, 2005
Issue date: May 25, 2010
Application number: 11/286,232
It was filed in 2005.
Some patent group owns it... What was interesting is an older Apple patent for pinch on multitouch, but they were using it for cut, copy, and paste in the embodiments that I read. It hopefully has an embodiment that is more generic. Don't have enough time to go through it. It was filed in 2004.
Patent number: 7339580
Filing date: Dec 17, 2004
Issue date: Mar 4, 2008
Application number: 11/015,434
The summary is that the patent system sucks!
Quote:
Originally Posted by Adrayven
@nagromme
It's not who makes it first with the patent system. It's who applies for the Patent first that matters.. doesn't matter if someone else 'invented' it.. they have to have a patent, and that patent has to apply to the product in question.. general patents for 'everything' rarely hold up.. so one for tablets/phones. One for a 'desk' are considered different markets from what I understand..
Not true. The US still works on a first to invent principle. At least until end of this year. For those crying out for overhaul of the American patent system, this was part of the overhaul passed in the America Invents Act last year, going into effect at the beginning of next year.
You cannot "understand" whether desks are considered a different market or not. It's all about how the patent disclosure is written.
Quote:
Originally Posted by MacRulez
More than 80% of software patents are ultimately found invalid. Get used to this - if the long history of software patents is any indication, there will be a lot more invalidations coming.
Quote:
Originally Posted by anonymouse
You're going to need a citation, an authoritative citation, to back that up. I don't think you can find one.
Quote:
In fact, software patent holders lose nearly 90 percent of the time in litigation, Stanford law Professor Mark Lemley found in a research paper published last year.
Yet these overwhelmingly invalid patent claims have had dramatic impacts on the industry. They've allowed an entire sector of patent trolls to emerge with the sole aim of strong-arming companies into forking over licensing fees. They've forced tech giants to drop billions on legal fees or defensive patent portfolios, money that might have gone into research and development.
"It's approaching crisis levels," said James Bessen, a lecturer at Boston University School of Law and co-author of "Patent Failure." "In most industries, the patent system has become a disincentive to innovation."
Quote:
Originally Posted by MacRulez
http://www.sfgate.com/business/article/Oracle-Google-case-shows-patent-system-flaws-3507618.php
Sadly for you, you are doing what most do here - quickly surf the internet and remember only the highlights that support your presumption. First of all, read your own words - "More than 80% of software patents are ultimately found invalid."
Then read what you cited: "software patent holders lose nearly 90 percent of the time in litigation".
Are they even the same thing? Only if every single software patent is litigated. Do even YOU believe this is true?
But it's worse than that. SF Gate article (highly the authoritative source you are asked to present), like you, also misconstrued (or deliberately obfuscated) their source. And their so-called source in fact quotes yet another source. In the original publication, it states that 90% of the "most asserted" software patents are invalidated, but only if there is no settlement. Guess what - settlement happens nearly 90% of the time!
So, in reality, it is not true that 90% of software patents are invalidated. It is not even true that 90% of litigated patents are invalidated.
Do yourself a favor, abstain rather than ejaculate prematurely.
Quote:
Originally Posted by ankleskater
Quote:
Originally Posted by MacRulez
More than 80% of software patents are ultimately found invalid. Get used to this - if the long history of software patents is any indication, there will be a lot more invalidations coming.
Quote:
Originally Posted by anonymouse
You're going to need a citation, an authoritative citation, to back that up. I don't think you can find one.
Quote:
In fact, software patent holders lose nearly 90 percent of the time in litigation, Stanford law Professor Mark Lemley found in a research paper published last year.
Yet these overwhelmingly invalid patent claims have had dramatic impacts on the industry. They've allowed an entire sector of patent trolls to emerge with the sole aim of strong-arming companies into forking over licensing fees. They've forced tech giants to drop billions on legal fees or defensive patent portfolios, money that might have gone into research and development.
"It's approaching crisis levels," said James Bessen, a lecturer at Boston University School of Law and co-author of "Patent Failure." "In most industries, the patent system has become a disincentive to innovation."
Quote:
Originally Posted by MacRulez
http://www.sfgate.com/business/article/Oracle-Google-case-shows-patent-system-flaws-3507618.php
Sadly for you, you are doing what most do here - quickly surf the internet and remember only the highlights that support your presumption. First of all, read your own words - "More than 80% of software patents are ultimately found invalid."
Then read what you cited: "software patent holders lose nearly 90 percent of the time in litigation".
Are they even the same thing? Only if every single software patent is litigated. Do even YOU believe this is true?
But it's worse than that. SF Gate article (highly the authoritative source you are asked to present), like you, also misconstrued (or deliberately obfuscated) their source. And their so-called source in fact quotes yet another source. In the original publication, it states that 90% of the "most asserted" software patents are invalidated, but only if there is no settlement. Guess what - settlement happens nearly 90% of the time!
So, in reality, it is not true that 90% of software patents are invalidated. It is not even true that 90% of litigated patents are invalidated.
Do yourself a favor, abstain rather than ejaculate prematurely.
@Ankleskater: Whether by intention or omission, your argumentation is also confusing rather than clarifying anything. While your comments are probably reasonably accurate, you are omitting some rather relevant factors which need to be taken into account.
One such factor is of course the fact that a huge but hard-to-verify proportion of victims of patent-trolls actually decide not to contest and pay up simply because it is cheaper (or thought to be) to pay up rather than litigate to the end-game. This is one of the fundamental weaknesses of the US legal system. In the EU, the loser pays. In the US there is no financial risk or penalty associated with asserting patents which have a high probability of being invalidated. The key is to set the license demands high enough to make money, but to stay under the line where the defendant will have to let the matter go to court. So these figures are largely unknown and distort the overall picture considerably. I note that you do mention that settlement happens 90% of the time, but that is in itself not germane to the real problem which is that junk patents are regularly issued in the first place. So I think, unless you can produce good data to support your argument, you should acknowledge the fact that the validity or otherwise of noncontested patents is something that is not resolvable.
So that leaves us with those patents that actually do get to court .... and here the picture is quite clear, that the vast majority of software patents seem to get invalidated in the courts.
Quote:
Originally Posted by Taniwha
@Ankleskater: Whether by intention or omission, your argumentation is also confusing rather than clarifying anything. While your comments are probably reasonably accurate, you are omitting some rather relevant factors which need to be taken into account.
One such factor is of course the fact that a huge but hard-to-verify proportion of victims of patent-trolls actually decide not to contest and pay up simply because it is cheaper (or thought to be) to pay up rather than litigate to the end-game. This is one of the fundamental weaknesses of the US legal system. In the EU, the loser pays. In the US there is no financial risk or penalty associated with asserting patents which have a high probability of being invalidated. The key is to set the license demands high enough to make money, but to stay under the line where the defendant will have to let the matter go to court. So these figures are largely unknown and distort the overall picture considerably. I note that you do mention that settlement happens 90% of the time, but that is in itself not germane to the real problem which is that junk patents are regularly issued in the first place. So I think, unless you can produce good data to support your argument, you should acknowledge the fact that the validity or otherwise of noncontested patents is something that is not resolvable.
So that leaves us with those patents that actually do get to court .... and here the picture is quite clear, that the vast majority of software patents seem to get invalidated in the courts.
What are you talking about?
First, to focus on patents that actually go to court in order to say MacR is right and I am wrong by intention or omission is absurd.
Second, it's also not true that 90% of patents that go to court are invalidated. Only 90% of those that are "most asserted".
But this is pointless. I get the game here - keep parsing words and facts until you find a way to satisfy yourself that you weren't wrong in the first place. Few people here would ever have the humility to say - "Damn, I was wrong. Thanks for schooling me, again." Hell, few people here actually read something completely before they comment.
Quote:
Originally Posted by Hakime
...Or Microsoft? You should have noticed the change in tone towards Apple when Florian Mueller discusses any of the touch patents, particularly with zero evidence these have ever been licensed to anyone but Nokia, IBM and now HTC. IMHO it's a dead giveaway that something opposes MS interests if FOSSPatents doesn't fully support an otherwise frontal assault on anything that harms Google. With multi-touch patents he's found ways to object to some of the claims. Otherwise he's been generally supportive of Apple, particularly when something has the potential to harm Google in any way.
"A 2011 law made it easier to challenge Apple's patents
By Philip Elmer-DeWitt December 20, 2012: 7:13 AM ET
The Leahy-Smith America Invents Act opened the door to more post-grant reviews
Samsung's court filing.
FORTUNE -- On Wednesday, Samsung informed a federal court -- and the Wall Street Journal dutifully reported -- that the U.S. Patent Office had "rejected" all claims of an Apple (AAPL) patent (the so-called "pinch to zoom" patent) that the Journal described as "a cornerstone of its case against Samsung."
Two weeks earlier, the Patent and Trademark Office had tentatively concluded that all 20 claims of a second Apple patent -- the so-called "rubber-banding" (or over-scroll bounce) patent -- were invalid.
From the headlines, you'd think that the foundations on which a jury awarded Apple $1.05 billion last August were crumbling.
The truth is a little more complicated.
Both rulings flow from substantial changes in U.S. patent law that Congress passed last year as part of the Leahy-Smith American Invents Act.
Key provisions of that act make it substantially easier to challenge a patent after it has been approved. For a filing fee of $17,750, anybody can anonymously demand that the Patent Office initiate a post-grant review on any invalidity ground -- including, according to the National Law Review, "prior art, lack of written description, or lack of enablement, but not failure to comply with the best mode requirement."
The new law makes it harder for the Patent Office to deny the review. Or, to put it the other way, easier to initiate a review -- which is what just happened in the case of pinch to zoom. A patent examiner is going to take another look at Apple's patent claims based on the new objections that were filed. That's not quite the same as "rejecting" or "invalidating" them, which is how the Journal described it.
In the case of the rubber-band patent -- A.K.A. the Steve Jobs patent -- the situation is more dire for Apple. The Patent Office initiated a reexamination procedure in October, which meant that the review process had passed its first bureaucratic hurdle. What happened two weeks ago is that the examiner announced that he had tentatively rejected all 20 of the patents claims. The burden now falls on Apple to defend those claims. The company may yet prevail, but Steve Jobs' patent has two strikes against it.
Bottom line: With the barriers lowered and so much riding on the validity of Apple's patents, we can expect more challenges in the future."