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The Symbol/Cognex-Lemelson Patent Battle
Monday, August 22 2005 @ 11:05 AM EDT

This is a story about paper submarine patents and a new equitable defense against patent infringement, prosecution laches, which can loosely be translated to mean waiting too long to try to enforce your patent.

It's the case of Symbol Technologies/Cognex Corporation v. Lemelson Medical, Education & Research Foundation. There is an AP article posted on msnbc.com and pretty much all over the Internet about the case. It explains just exactly how the patent system works, or doesn't, depending on your point of view. I find it satisfying to know that all over America, in Kansas and in NYC, thanks to AP, folks are reading all about submarine patents this morning.

It is a story about Jerome Lemelson on one side, an inventor, a prolific one, with nearly 600 patents to his name. He didn't actually build his inventions; he just thought them up and described them at length in patent applications, and that may explain the number. Back in the fifties, he filed patents for an early machine vision/bar code system. You could call scanners at the supermarket an example of such a system. Today they are everywhere, but back then, they were just in his head. That's impressive in itself, but is it enough for a protectable patent?

What made Mr. Lemelson controversial was his way of sitting on a patent by means of tweaking it, thus prolonging its life and keeping it secret, until others had businesses that actually used similar technology, and then using the threat of patent litigation as a club to get license fees. Pay or I'll sue, and then you'll be sorry. And after watching the discovery process in the SCO litigation, does it amaze you that companies by the hundreds caved and paid rather than endure prolonged litigation? At least, that's my best understanding of the strategy. I gather he more or less brought submarine patents to their pinnacle of expression. Since we are trying to learn how patent law works, let's use this case, which is more interesting than most, to get a handle on it.

Here's an explanation of the expression paper submarine patent:

The patents were "paper" because Lemelson did not practice his inventions. In order to obtain a patent, there must be conception plus reduction to practice. Reduction to practice, however, does not require that the applicant have actually built a prototype or used the method. Reduction to practice can be "constructive" -- by including in the application a written description of the invention sufficient "to enable any person skilled in the art to which it pertains...to make and use the same." 35 U.S.C. § 112, 1.

The patents were "submarine" because they remained pending in the Patent & Trademark Office until the technology allegedly covered by the patents came into widespread commercial use, at which time Lemelson "surfaced" the patents (by allowing them to issue) and then collected royalties.

Now a patent filed in the fifties would normally expire by now, so I couldn't at first figure out how there could be litigation over 1954-1956 patents. This Boston.com article explains:

Ordinarily Lemelson's patent would have long since expired, but Lemelson filed a series of patent continuations that extended the life of the original patents and added 16 others, which were issued during the late 1980s and early 1990s.

It seems Mr. Lemelson would file a "continuation in part" application which added additional drawings and text to the applications, in order to extend the time. Meanwhile companies -- not aware of his patents -- did similar types of inventing and built companies around their technology. Then, finally, the submarine patent would surface. The law on patents was changed in 1995 in such a way that this kind of patent continuation strategy makes less sense today.

According to an article [PDF] in Fortune magazine, "The Patent King," made available by Cognex Corporation, a machine vision company, the US Patent Office examiners called Lemelson Black Box Jerry, because his incredibly long applications were so lacking in technical detail. The Fortune article's author sums up the criticism of the patents by analogizing to Leonardo Da Vinci. Should Boeing have to pay the Da Vinci estate because Da Vinci dreamed up a flying machine long before it could be actually manufactured by anyone? Critics of Lemelson say that is the level of some of his "inventions." But hundreds of companies paid to license them nonetheless. Lemelson had a long history of successfully suing corporations for violation of his patents, large ones too, who mostly paid up rather than fight:

Critics charge that for decades Lemelson manipulated the U.S. Patent Office. They accuse him of exploiting loopholes that forced 979 companies — including Ford, Dell, Boeing, General Electric, Mitsubishi and Motorola — to pay $1.5 billion in licensing fees.

Ford, for one, had fought for a bit, but when it lost on the District Court level and the appeals court wouldn't grant them an interlocutory appeal, they folded too and settled. A lot of companies ponied up for licenses after that. AP on Yahoo's article tells us more about how Lemelson's attorney, Gerald Hosier, eventually chose the wrong targets, the end users of machine vision and bar code technology:

With the licensing campaign in full swing, Hosier and Lemelson decided not to go after the smaller companies that produced the equipment, such as Cognex or Symbol Technologies, of Holtsville, N.Y., which made the bar code scanner.

Instead, they focused on the large corporations with deep pockets, customers of Cognex and Symbol that made use of the technology.

Getting them to pay, Hosier said, was based on a simple premise. “This business is not based on what’s right or what’s wrong,” Hosier said. “It’s based on fear. Nobody would pay you for a patent unless they feared that the consequences of not paying you vastly exceeded the consequences of paying.”

You see? This is the heart of the patent problem. Law is indeed supposed to be about right and wrong, and when the system can be gamed so that right and wrong isn't in the picture any more, it's time to reevaluate the law.

When Lemelson died, his patents went to a not-for-profit foundation, and it was charged with collecting the license fees and going after infringers. They have a page on the litigation too. There's a picture of Mr. Lemelson on the foundation's website.

When its attorneys eventually decided to sue clients of Cognex Corporation, accusing Cognex's customers of infringing the patents, the line was drawn in the sand. Suing end users instead of the manufacturer or vendor is like SCO suing AutoZone while crossing its heart and hoping to die before the judge in Delaware that it never had a thought of suing Red Hat.

Some bar code reader manufacturers, including Symbol Technologies, decided to bring a declaratory judgment action against the Lemelson Foundation, and when Cognex saw its clients being sued, the founder and CEO, Robert Shillman -- who had graduated from MIT and who understood machine vision technology -- decided to do something too, even though his company was not being threatened directly. Eventually, the two litigations were combined, challenging the validity, enforceability and infringement of Lemelson's "bar code" and "machine vision" patents.

This article tells why Shillman decided to sue:

Against the advice of his most trusted associates, Shillman decided to go forward with a lawsuit in September 1998. The suit, filed in Massachusetts, said the Lemelson patents were invalid, unenforceable and not being infringed by Cognex.

"If evil is being acted upon in the world, everybody has an obligation, especially if only you had the power. Only we understood the technology. Only we could defeat this guy," said Shillman.

Here's a bit from the 1998 press release Cognex put out about their decision to file suit:

"No claim is now, or has ever been, asserted against Cognex by either Lemelson or by the Lemelson Foundation…despite the fact that Cognex has for many years been the world's leading supplier of machine vision systems. However, for several years, hundreds of companies around the world, many of whom are Cognex's customers, have been faced with assertions of infringement by Lemelson simply because of their use of machine vision systems in their manufacturing operations," stated Dr. Robert J. Shillman, Cognex's founder and C.E.O. "The Lemelson patents have no bearing on Cognex's state-of-the-art machine vision systems, and, furthermore, we have concluded that the patents are invalid, unenforceable and not infringed by us." Dr. Shillman continued, "Cognex has served this complaint to defend our current and future customers against Lemelson's demands, and we will do whatever is necessary to protect their legitimate rights to use our products and our technology."

Founded in 1981 by three graduates from the Massachusetts Institute of Technology, Cognex pioneered the development of the machine vision industry. Cognex systems use Cognex's proprietary image analysis software together with special-purpose high-speed hardware. "Our technology…more than 1,000 man-years worth over the last 17 years…is the result of our own internal efforts carried out by our large engineering staff which currently includes over 150 engineers, of which 23 have a Ph.D. degree," stated Dr. Shillman. Cognex currently holds 30 patents and has more than 130 patents pending, all covering innovative advances in machine vision technology.

Here's the complaint [PDF]. Cognex wasn't being sued, because it was too small. In fact, if it lost the case, it likely would go bankrupt. But it didn't lose. Lemelson did:

The court found that 14 critical patent claims by Lemelson were unenforceable under a rare defense called prosecution laches — an unreasonable delay or negligence in pursuing a right.

The judge also said the claims were invalid for lack of a written description, and a person of ordinary skill could not build the inventions using Lemelson's patents as his own experts had asserted. He added that "Symbol and Cognex products do not work like anything disclosed and claimed by Lemelson."

The companies did not demonstrate that Lemelson had "intentionally stalled" getting the patents, the judge ruled. But he did say that "decades of delay preceded the assertion of patent claims, and Lemelson has offered no adequate explanation for that delay."

I found the judge's Findings of Fact and Conclusions of Law [PDF] on Cognex's Litigation page. They list it as the decision, but it's actually what accompanies the decision, in which the judge tells you why he decided the way he did. In the Findings of Fact, I learned some things. First, in footnote 4 on page 9, the judge sums up the testimony of an attorney, appearing as an expert for Cognex, who was an ex-patent examiner, who tried to tell the judge about the problems in the Patent Office, but the judge writes that his testimony was given "very light weight" in the present case. Nevertheless, he found against Lemelson. On page 11, he writes this:
Some of the claims asserted by Lemelson in this case will not expire until 2011, fifty-five years after the 1956 application was filed and forty-eight years after the application issued as a patent. The evidence adduced at trial is abundant that during that period, machine vision and bar code technology was developed by many who had never heard of the Lemelson patents. If the defense of prosecution laches does not apply under the totality of circumstances presented here, the Court can envision very few circumstances under which it would. To conclude otherwise would remove from the public domain subject matter arguably disclosed in Lemelson's applications, but not timely claimed in a patent, and by any meaningful standard would unreasonably delay the time when the public would be free to use Lemelson's claimed inventions.
We've been explaining about interlocutory appeals in the context of the Novell v. Microsoft antitrust case, and the Cognex litigation involved an interlocutory appeal over the issue of whether the defense of prosecution laches could even be used. Here's a segment of the timeline from a document on Cognex's site:
March 21, 2000 – In a series of pre-trial motions, U.S. District Court Judge Philip M. Pro consolidates the Cognex and Symbol Technologies lawsuits into a combined case -- Symbol Technologies, et al.

In addition, Judge Pro dismisses Cognex’s prosecution laches defense from being included in the trial on the grounds that the issue had been resolved in Ford Motor Company’s 1997 lawsuit against Lemelson.

September 1, 2000 – U.S. Court of Appeals for the Federal Circuit grants Cognex’s request for an interlocutory appeal to decide whether the prosecution laches is an appropriate defense to bar enforcement of patent claims.

January, 2002 – The U.S. Court of Appeals for the Federal Circuit grants Cognex the right to raise the doctrine of patent prosecution laches as one of its defenses to the Lemelson Partnership’s infringement claims.

The District Court judge thought he couldn't accept such a defense as a matter of law, because of the Ford decision, because Ford had unsuccessfully tried to raise that very defense.

Another case this judge could have thought of is Advanced Cardiovascular Systems v. Medtronic (N.D.Cal. 1996) 41 U.S.P.Q.2d 1770, where Medtronic's affirmative defense was that the patent was unenforceable due to "unreasonable, improper and undue delay" in the prosecution of the patent, but the court disagreed, essentially saying that if a party has followed all the rules, then how can it be too long? They struck down that defense for Medtronic:

Furthermore, since there is no allegation that plaintiff violated any of the statutory or regulatory rules for prosecuting patents, there is no improper delay in the prosecution of this patent to justify a laches or inequitable estoppel defense. The '346 patent issued from a series of "continuation" applications relating back to the original application filed on January 6, 1987. Under 35 U.S.C. Section 120, the prosecution of this patent dates back to the filing of the original application. [citation] By providing this relation back doctrine, Congress evidenced a clear intent to regulate the timing of continuation applications. Accordingly, only Congress can determine what constitutes unreasonable delay in the filing of such an application. It is not for this Court to decide that the prosecution of a patent according to the rules of the PTO is unreasonable and inequitable. Since defendant's laches and equitable estoppel defenses ask the Court to make precisely this determination, the Court strikes these defenses with prejudice. Id. at 1774-75.

So Shillman and the others had a point in time when they too could have folded. Instead, they were willing to pay to appeal the issue, and that issue is eventually what led to the victory. Lemelson took that interlocutory issue all the way to the Supreme Court, by the way, unsuccessfully. Here's another article [PDF] about the case and about the attorney representing Symbol and who earlier had represented Ford, Jesse Jenner, and there is a picture of Mr. Jenner as well. I gather from the article that Mr. Jenner was involved, if not the originator, of the idea of developing the defense of prosecution laches:

Jenner decided to attack the Lemelson patents with the doctrine of prosecution laches. The theory held that Lemelson took an unreasonable amount of time in actively obtaining patents, rendering them unenforceable. Lemelson had submitted his original patent applications for the technology in 1954. His first patent issued in 1963. But Lemelson was able to keep receiving related patents well in to the early 1990s. Lemelson would file so-called continuation applications that kept his claims alive in the patent office. He would amend his applications, according to Jenner, based on technological breakthroughs made by others. At the time, a patent lasted 17 years from the day it was issued. So Lemelson was able to start demanding royalties decades after he had originally applied for a patent.

Jenner believed Lemelson was manipulating the patenting process. “There was something wrong with the way Lemelson seemed to have gamed the system,” says Jenner. “He’d watch what real companies were doing, and craft these claims. Then 30 years later these submarine [patents] would pop out of the water.”

Here's a bit from Cognex's press release when they won at the District Court level in January of 2004:

In summarizing his 30-page decision, which was issued late Friday, Judge Pro wrote, "Having concluded that Lemelson's patent claims are unenforceable under the equitable doctrine of prosecution laches; that the asserted patent claims as construed by the Court are not infringed by Cognex because use of the accused products does not satisfy one or more of the limitations of each and every asserted claim; and that the claims are invalid for lack of written description and enablement even if construed in the manner urged by Lemelson, the Court finds that Judgment should be entered in favor of Plaintiffs."

Since the early 1990s, the late Jerome Lemelson and the Lemelson Partnership…which never built or sold a single vision system or bar code reader…have collected in excess of $1.5 billion in license fees by asserting their patent portfolio and the threat of complex and costly patent litigation against hundreds of companies around the world that use machine vision or bar code readers. As a result of Friday's ruling, every company will now be able to use machine vision systems and bar code readers, anywhere in their operations, without the threat of litigation from the Lemelson Partnership, and without having to pay licensing fees to them.

"This ruling is truly a cause for celebration…for Cognex and for every company around the world that makes, sells or uses machine vision systems or bar code readers," said Dr. Robert J. Shillman, Chairman and CEO of Cognex. "It is also a victory for consumers everywhere, because every one of us has paid a hidden tax to Lemelson each and every time that we made a purchase of virtually any item that was manufactured since the start of Lemelson's licensing onslaught."

Dr. Shillman continued, "Much of the litigation in our society is motivated by greed, but that was not Cognex's reason for suing Lemelson. Cognex has spent millions of dollars on this case, and even though we won, we won't receive a single cent from Lemelson. We pursued this litigation because we knew that what Lemelson and his Partnership were doing was terribly wrong, and only Cognex had both the technical knowledge and the fortitude to put an end to their campaign of legalized extortion. Our only reward is the knowledge that we did the right thing…we stood up to wrongdoing and we triumphed. Our success in this case is a testament to two of Cognex's core values: Integrity and Perseverance…we do the right thing, and we don't quit until the job is finished."

Lemelson appealed the ruling, and it was heard on June 8, 2005 by the Federal Circuit. You can read a transcript of the hearing [PDF], prepared by the Lemelson side from a recording of the event. On my reading, it doesn't sound like the judges altogether agreed with the District Court decision, although you can't always tell what a judge is thinking, just by his questions. One issue they seem to struggle with was where to draw the line. When is it too long to wait to prosecute a patent? One of the judges asks the Cognex side's attorney that very question in the hearing:

Judge Bryson: My problem is that we have already, at least retrospectively I mean, recognize there's been statutory changes that affect this issue. But retrospectively, we have already bought into a systtem in which you can, as long as the applications are copending, you can come back and effectively farm a disclosure for new claims. And we just haven't had cases in which the period is as long as this. Now my question is, if we are going to say well this is just too long, I have a very hard time finding a handhold on what constitutes the measure of too much and where we say, well that's permissable, but this is not.
The answer he is given is that this case is extreme. The District Judge had written this about it:
Applying the foregoing standard to the preponderance of evidence adduced at trial, the Court finds that Lemelson's 18- to 39-year delay in filing and prosecuting the asserted claims under the fourteen patents-in-suit after they were first purportedly disclosed in the 1954 and 1956 applications was unreasonable and unjustified and that the doctrine of prosecution laches renders the asserted claims unenforceable against Symbol and Cognex.

They also assert that although Lemelson filed the tweaks, what they ended up suing over wasn't in the original patents, and that language was not brought forward in the tweaks, which I gather it should have been. The AP stories made it sound like this case is already decided, so I looked and looked, but I found no ruling yet from the court of appeals, and then I checked with the law firm that won the case, and they don't expect a ruling until the fall. I wish I could say it's all over, but until the last piece is in, it's not, and the court of appeals isn't the highest possible court either. I think the articles are preparing the way for the day the ruling arrives from the appeals court. Here's the page where the US Court of Appeals for the Federal Circuit publishes its decisions, if you want to keep track.

Isn't patent law unbelieveably dry and depressing? I'm trying my best to make it readable and understandable for you, but I must say, particularly when reading the hearing transcript, I feel like Alice in Wonderland trying to make sense of the conversation at the Mad Hatter's tea party. And I certainly wish Microsoft would pick another weapon, so we wouldn't have to learn all this patent stuff, but until they tack and choose a different course, we do need to understand patent law, and heaven only knows, I'm giving it my best.


  


The Symbol/Cognex-Lemelson Patent Battle | 171 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
OT Here
Authored by: artp on Monday, August 22 2005 @ 11:32 AM EDT
Examples below text entry box.
Links please.

[ Reply to This | # ]

Corrections Here
Authored by: artp on Monday, August 22 2005 @ 11:33 AM EDT
In case of tpyos.

[ Reply to This | # ]

Pardon me, PJ
Authored by: overshoot on Monday, August 22 2005 @ 11:43 AM EDT
But this is about freaking time!

The Lemelson patents are my fvorite examples of abusive patents, in large part because Lememson didn't actually invent anything. He just anticipated that someday someone would invent things, so he filed submarine applications that described in general the desired feature ("flying car") and then, as others did the real work, amended the application with the details.

End result, someone brings a real flying car to market after huge investment. A few years later, after the market is booming, they get slapped with a suit for infringing Lemelson's "inventions." The Lemelson Trust has several billion dollars (IMHO) fraudulently extorted under color of law this way.

I sooooo want to see them slapped down.

[ Reply to This | # ]

Where will it all end?
Authored by: Anonymous on Monday, August 22 2005 @ 11:47 AM EDT
A gloomy prediction for the US.

As the US economy continues to haemorrhage dollars, as US manufacturing declines
and imports rise, as oil prices rise and rise; all revenue producing activities
are outsourced to India and China leaving US companies with their IP as their
only tangible assets.

As these companies indulge in the only revenue producing activity left to them –
litigation, the money supply is diverted towards the lawyers and those in
positions of power in commerce and government.

As the US becomes poorer and India and China grows richer, those countries now
buy up the IP from US companies.

Finally, US companies are sued in their own courts by foreign companies for
infringing the IP that US companies developed.

Alan(UK)
(feeling depressed today)

[ Reply to This | # ]

The Symbol/Cognex-Lemelson Patent Battle
Authored by: enigma_foundry on Monday, August 22 2005 @ 01:37 PM EDT
A book that gives a quite detailed run down of the Lemelson organization, and
which I would highly reccommend to all at Groklaw is Steal This Idea :
Intellectual Property Rights and the Corporate Confiscation of Creativity by
Michael Perelman. He also describes submarime patents at some length.

Excellent book, although he does not give much coverage of linux as he could
have. It is especially relevant to linux community though to read this book,
because we are far from the only ones who are losing out by the present US IP
regime--there are several examples of medical information being suppressed by
big pharma, for example. Real people, losing their lives because of overly
broad patents, information being suppressed about pharmceuticals, because of
NDA's that big pharma enforces when doling out money for university research.
This isn't somebodies imagination--it has already happened.

Properly applied we can use the information in this book as a spark to turn IP
reform into a broad based "big tent" movement. (I'll get off my soap
box now...)

---
enigma_foundry

[ Reply to This | # ]

The sad thing....
Authored by: tiger99 on Monday, August 22 2005 @ 01:41 PM EDT
.... is that this guy could have had a far more satisfying life, and quite possibly have earned even more money, by actually developing and making the things instead of just manipulating alleged intellectual property and suing others. And that is a lesson that a certain Mr. McBride also needs to learn.....

[ Reply to This | # ]

"You pay your money and you take your chances."
Authored by: Anonymous on Monday, August 22 2005 @ 01:44 PM EDT
I know, it sounds like Darl McBride, but this quote is from Gerald Hosier (the attorney for inventor Jerome Lemelson) when asked if he would refund the patent licensing fees, after he lost the case:
"...he certainly is not about to start handing out refunds to the 900 or so companies that have paid [nearly $1.5 billion in licensing fees]...'You pay your money and you take your chances.' "
Mr. Hosier has been very successful with patent licensing:
"His six airplanes and homes in Aspen, Colorado, and Las Vegas attest to the success of this plan."
(Also like what Darl said...you gotta have your 2nd vacation home...it is a *right* for all!)

Link to story: Breaking the (Bar) Code

[ Reply to This | # ]

Patents applicable to the USA only
Authored by: Chris Lingard on Monday, August 22 2005 @ 01:50 PM EDT

An interesting trend, also working against the USA; is that your patents are often invalid in other parts of the world. Recently Halliburton sued Smith International in the UK.

The patent was ruled valid in a Texas Court; and Halliburton were awarded damages and costs. But in the British High Court, the patent was found invalid, and Halliburton lost. This was reported by ffii

Despite the willingness of the British or European patent office to issue a new patent here, the patent may still be invalid. So whilst American industry sues itself out of existence, the rest of the world will just increase capacity; but how you will pay for the goods is a different matter.

[ Reply to This | # ]

Role of the courts
Authored by: Anonymous on Monday, August 22 2005 @ 01:55 PM EDT
Wow, what a depressing mess.

There seems to be a core legal concept at issue here that PJ's summary didn't clearly address. That is, whether the court decides "right from wrong" or only applies the existing rules. Even though I would love to see Cognex et al. prevail in this case, I don't want the courts making law. It looks like, from PJ's quotes, that the Federal judge basically said "This delay is unfair, so even though they followed the rules, I'm going to reverse the decision and allow this defense."

I'd appreciate it if someone could summarize the legal reasoning the court used in reversing this decision.

[ Reply to This | # ]

Can all the other Co's now sue for damages?
Authored by: MeinZy on Monday, August 22 2005 @ 02:11 PM EDT
If the Foundation extorted license fees under duress (threat of litigation), can
the duped licensee's now go back and sue to recoup their license fees?

---
Zy -- 'Square peg in a round Earth' - But working on those corners

[ Reply to This | # ]

FYI, some background reading...
Authored by: Anonymous on Monday, August 22 2005 @ 02:30 PM EDT

In 1990, Don Lancaster, a famous hardware hacker for at least three decades now, wrote The Case Against Patents. It's written toward the people on the other side of the patent story: the small-time inventors.

Think about it next time you see ads for Invention Submission Corp. or their ilk (who happen to have had some fun times in court themselves...).

[ Reply to This | # ]

Thanks Cognex!
Authored by: Anonymous on Monday, August 22 2005 @ 02:33 PM EDT

It's good to see more companies taking a higher stance against not-so-ethical business practices. My hat's off to you!

RAS

[ Reply to This | # ]

  • Thanks Cognex! - Authored by: Anonymous on Monday, August 22 2005 @ 03:04 PM EDT
Dear US lawyers and judges...
Authored by: Anonymous on Monday, August 22 2005 @ 04:19 PM EDT
... dear US citizens,

if you do not think that your laws and law enforcement are ridiculous, then do
the following:

Listen to the whole world outside of the US (which is a hole lot more than you´d
imagine) laughing about the silly lawsuits in your country and the incredible
outcomes (think hot coffee).

If you think this post a troll, think twice: you got the first two letters
right, but the other three wrong.

[ Reply to This | # ]

And this is why first to file is better.
Authored by: Anonymous on Monday, August 22 2005 @ 04:32 PM EDT
There is no such thing as a secret in such a system. You publish or you patent.
The field can then progress.

CrazyEnginner

[ Reply to This | # ]

Patent continuations
Authored by: cmc on Monday, August 22 2005 @ 04:51 PM EDT
I know I shouldn't be (this is the U.S., after all), but I was shocked to learn
that you could keep filing "continuation" patent applications, and
they are all given the protection duration from the filing date, but they extend
the protection of the original patent. How is it that a system, which is
supposed to protect ideas for 20 years, ends up protecting the ideas forever
(or, in this case, 55 years)?!?

More interesting (to me) is this scenario. Let's say JimBob filed a patent
application in 2003. Then Sam filed a patent application in Jan 2004. JimBob
liked the idea in Sam's patent application, found a way to add it to his
application, and filed a "continuation" application in April 2004.
The question is this: who gets credit, who's application is approved (assuming
they are valid)? Does Sam get the patent (as he should because he came up with
the idea) or does JimBob get the patent because he added it as a continuation to
a prior patent application (thereby giving JimBob the legal right to sue Sam for
patent infringement of his own idea)?

cmc

[ Reply to This | # ]

Tea Party
Authored by: The Mad Hatter r on Monday, August 22 2005 @ 05:21 PM EDT


Yeah, poor Alice.


---
Wayne

telnet hatter.twgs.org

[ Reply to This | # ]

The Symbol/Cognex-Lemelson Patent Battle
Authored by: nofundsleft on Monday, August 22 2005 @ 05:53 PM EDT
Some credit/blame for this kind of patent fiasco can be apportioned to large
companies that seem to cave easily.

It can be a strategic move to pay off a patent troll.

Sure, it cuts into the bottom line, but it can also be a way to encourage the
patent troll to go after a large company's smaller competitors. Depending one
who has the most exposure to the product market covered by the patent, it's
possible to inflict a lot of harm on a small company, one who may be competing
too well in a product space perhaps not even covered by the patent.

[ Reply to This | # ]

A test that should be more stringently applied.
Authored by: Anonymous on Monday, August 22 2005 @ 06:39 PM EDT
" ... by including in the application a written description of the
invention sufficient "to enable any person skilled in the art to which it
pertains...to make and use the same." ... "

There are lots of things you could do if the technology existed. Given the
technology, those things are obvious but nobody patents them because the
enabling technology doesn't exist. So the question is: "Given the state
of technology when the patent was first filed, could such a device have been
built." The answer should be "no" and the result should be
"case dismissed".

Maybe I should go out and patent the nanotube crankshaft. Or, how about
self-healing bearings using nanobots (thus producing an engine that never wears
out). I couldn't actually build either of those things but I might be given the
patent anyway.

Bah, humbug! Well maybe I just put those ideas in the public domain. Does that
preclude anyone from patenting them? Now there's an idea. Publish all the
obvious things you can think of if the enabling technology existed. Would that
work?

[ Reply to This | # ]

Disincentive to actually produce.
Authored by: Tweeker on Monday, August 22 2005 @ 07:48 PM EDT
Actually producing something makes you far more vulnerable to countersuit and/or
requires you to crosslicense. The competitors/targets own patent thicket can
protect itself from you. Patent trolls are loath to do it.

[ Reply to This | # ]

$1.5 billion - says it all
Authored by: Anonymous on Monday, August 22 2005 @ 08:51 PM EDT
"Since the early 1990s, the late Jerome Lemelson and the Lemelson
Partnership…which never built or sold a single vision system or bar code
reader…have collected in excess of $1.5 billion in license fees by asserting
their patent portfolio and the threat of complex and costly patent litigation
against hundreds of companies around the world that use machine vision or bar
code readers."

That this could happen is the clearest simple statement possible that the patent
system is broken. And that tweaking it in favour of big corporations is, in the
words of an old song, "putting out the fire with gasoline".

I like to think of myself as a moral person. My attitude to life is to just live
it, without messing up anyone else's.

But the reason that *GOOD* laws exist is so that I (and especially others)
shouldn't have to find out the hard way that I'm not so moral when it comes to
getting a cool $1.5 billion payoff for stiffing everyone in sight!

Lemelson might have been "morally challenged" - but the system put a
billion-dollar opportunity his way that I can't say for certain that I'd have
passed on. Wish I could.

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US spreads patent disease globally.
Authored by: Anonymous on Monday, August 22 2005 @ 09:48 PM EDT
Since I DONT live in the US, what I find of greater concern is the vigour with
which the US is trying top spread this absurd patent regime to the rest of the
world. It is the price demanded for any kind of trade agreement with the US -
along with the DMCA and other foolishness. This is also being very strongly
pushed by the world's largest multimationals which all adds up to a frigthening
amount of push - as we've seen in the EU recently.

The problem is that once bad laws become entrenched at the level of
international diplomacy they become essentially fixed in stone. The obstacles to
reforming them are almost insurmountable. This is a 21st century problem - up
until now there have been very few laws of truly global scope. What good does it
do to live in a real democracy if your government tells you they cannot change
bad laws because their hands are tied by international agreement.

[ Reply to This | # ]

Patent reform ideas
Authored by: Anonymous on Tuesday, August 23 2005 @ 08:06 AM EDT
I have an idea for patent reform.

1) The patent office (PO) is payed a fee for each filed patent application (not for each granted).

2) The one loosing a patent lawsuit has to pay the legal fees of the winner, if a corporation and a human person litigate, the corporation has to pay the private person's legal costs in advance, no matter who sued whom.

3) The first one to file a patent is the one who gets it in case of simultanous invention. The fact that it was invented simultaneously should be an indication of obviousness. If it is not sure that the invention is truly new, the simultanous invention must be seen as obvious to someone skilled in the art, subsequently the patent should not be granted.

4) Upon filing the patent application (not upon granting), specific information how to build a working implementation must be made public immediately (detailed drawings, compilable and working source code). Regardless if the patent is granted or not, this information goes to the public domain.

5) Any publication of a description of the patentable technology is prior art. Even if the inventor himself publishes. 6) patents which can be used to put restrictions on file formats and network protocols are invalid.

This set of rules would reduce the number of patent filings by 90%, and the patent office would be free to make good examinations again. Additionally most software patents would not be filed because of the risk of loosing the source code to the public domain, or because they could be used to restrict file formats or network protocolls.

Geri (too lazy to remember yet another password)
---------------- This post is copyrighted by Gerald Pichler, Pamela Jones has permission to use it in any way she wants.

[ Reply to This | # ]

The Symbol/Cognex-Lemelson Patent Battle
Authored by: Anonymous on Tuesday, August 23 2005 @ 10:01 AM EDT
here is an idea that the government should do.

Make another law outlawing these kind of patents and call it
the Lemelson law. for the first time this guy would of finally produced
something worthwhile - and he was dead.

[ Reply to This | # ]

The Symbol/Cognex-Lemelson Patent Battle
Authored by: Anonymous on Tuesday, August 23 2005 @ 04:14 PM EDT
In my opinion, a truly just result would be for people to face criminal
penalties for extorting money like this. Until we see corporate bigwigs going
to jail for purposefully manipulating the system to pervert justice, it will
continue to happen.

It's rackateering. It's fraud. It's theft.

There's nothing that perverts the legal system more than things like this, and
I'm sick of waiting for the government to act. What a joke.

And now with the so-called "patent reform" (ha!) underway we'll get to
see Microsoft game the system to squash people who are GIVING AWAY things like
Linux. Bastards!

[ Reply to This | # ]

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