decoration decoration
Stories

GROKLAW
When you want to know more...
decoration
For layout only
Home
Archives
Site Map
Search
About Groklaw
Awards
Legal Research
Timelines
ApplevSamsung
ApplevSamsung p.2
ArchiveExplorer
Autozone
Bilski
Cases
Cast: Lawyers
Comes v. MS
Contracts/Documents
Courts
DRM
Gordon v MS
GPL
Grokdoc
HTML How To
IPI v RH
IV v. Google
Legal Docs
Lodsys
MS Litigations
MSvB&N
News Picks
Novell v. MS
Novell-MS Deal
ODF/OOXML
OOXML Appeals
OraclevGoogle
Patents
ProjectMonterey
Psystar
Quote Database
Red Hat v SCO
Salus Book
SCEA v Hotz
SCO Appeals
SCO Bankruptcy
SCO Financials
SCO Overview
SCO v IBM
SCO v Novell
SCO:Soup2Nuts
SCOsource
Sean Daly
Software Patents
Switch to Linux
Transcripts
Unix Books

Gear

Groklaw Gear

Click here to send an email to the editor of this weblog.


You won't find me on Facebook


Donate

Donate Paypal


No Legal Advice

The information on Groklaw is not intended to constitute legal advice. While Mark is a lawyer and he has asked other lawyers and law students to contribute articles, all of these articles are offered to help educate, not to provide specific legal advice. They are not your lawyers.

Here's Groklaw's comments policy.


What's New

STORIES
No new stories

COMMENTS last 48 hrs
No new comments


Sponsors

Hosting:
hosted by ibiblio

On servers donated to ibiblio by AMD.

Webmaster
Far too expensive | 280 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
But legally the USPTO is required to do this
Authored by: Anonymous on Wednesday, February 20 2013 @ 08:26 AM EST
Seriously. Whether possible or not.

Wayne
http://madhatter.ca

[ Reply to This | Parent | # ]

Lee A. Hollaar (quoted)
Authored by: Anonymous on Wednesday, February 20 2013 @ 09:00 AM EST
Simple solution.

No patents issued unless they actually do what's needed to show that the patent
would be a net gain for society.

No, I don't expect many patents would issue under that rule being applied. That
being a net gain for society is somewhat of a tautology.

[ Reply to This | Parent | # ]

Lee A. Hollaar (quoted)
Authored by: StormReaver on Wednesday, February 20 2013 @ 09:13 AM EST
If patents were issued just for actual inventions that deserve to be called
such, then the patent office would have the time to actually do its job.

No patent should be issued if it cannot be adequately vetted. The current
practice of issue-by-default is a smoking sign that the patent system is
horribly broken.

Actual innovation increases in the absence of this particular form of Communism
(government deciding who will produce what, which is what the patent system has
become), and decreases with the increase in patents.

[ Reply to This | Parent | # ]

Lee A. Hollaar (quoted)
Authored by: DannyB on Wednesday, February 20 2013 @ 10:07 AM EST
It would be far too expensive to conduct a prior art search that includes all relevant art throughout the world, even if such art was somehow available.
That's why I would propose that the fee to file a patent that is rejected should be very high and cover the costs of such research. The fee to file a patent that genuinely benefits society and is granted should be very low to protect even poor individual inventors. It also puts the right incentives in place for the USPTO.

---
The price of freedom is eternal litigation.

[ Reply to This | Parent | # ]

Far too expensive
Authored by: Anonymous on Wednesday, February 20 2013 @ 12:27 PM EST
Research is a waste of money, when it could be going to patent attorneys
instead!

[ Reply to This | Parent | # ]

Lee A. Hollaar (quoted)
Authored by: Anonymous on Wednesday, February 20 2013 @ 12:33 PM EST
If the USPTO can not perform the examinations required to determine the
validity of a patent in a patent application, then the patent should be
automatically declared invalid.

This can be appealed, but with an application of US$5,000,000,000 plus
patent clerk time to be billed at US$500,000,000 for the first 100 hours, or
part thereof. If more time for research, examination, etc is required, then a
further US$50,000,000 for each additional 100 hours. or part thereof, is to be
paid.

[ Reply to This | Parent | # ]

Lee A. Hollaar (quoted)
Authored by: dio gratia on Wednesday, February 20 2013 @ 01:44 PM EST

Lee Hollar's quote (PDF 81.1 KB), Introductory Statement of Professor Lee A. Hollaar for the Panel Discussion on Inter Partes Reexamination at the United States Patent and Trademark Office February 17, 2004.

35 USC § 101 tells us "Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title", which raises the question of what strength 'subject to the conditions and requirements of this title' actually has. The conditions and requirements including novelty (" A person shall be entitled to a patent unless— " and non-obvious subject matter ("A patent may not be obtained ...").

The statutes don't say anything about the patent office giving up because it's too hard and handing out patent's like candy.

Professor Hollaar continues:

And the expense of getting a patent plays an important, but often overlooked, role in the effectiveness of patent examination. If the cost of getting a patent is too high, inventors won’t apply for patents, perhaps keeping their inventions as trade secrets, and descriptions of the state of the art won’t end up in the place where they can be most easily found by examiners and others: the collection of issued (and pending) patents.

We saw the problems this causes when the Office discouraged the filing of patent applications for software-based inventions. (Not by having high costs, but promoting the perception that such patents wouldn’t be granted.) Many techniques remained trade secrets, so that it is difficult now to cite them as prior art when they are reinvented, or find them in a prior art collection.

This is why reexamination is not an admission that the patent system is flawed, but a vital part in keeping its application costs reasonable while weeding out those patents that should not have been initially granted. It substitutes an administrative procedure for lengthy and expensive infringement litigation, and permits the removal of a “sword of Damocles” by somebody aware of a patent suspected of being invalid.

You could note that Professor Hollaar does not hold a law degree and his claim to fame for Intellectual Property law is having been involved in the CONTU Report, the Copyright Act of 1976 as a House staffer and some involvement in the DMCA. Some portion of his involvement in law matters can be discerned from materials at digital-law-online.info.

You could wonder why Professor Hollaar's remarks aren't see as questioning the presumption of validity of patents? From the last paragraph:

The FTC also recommended changing the burden of proof necessary to find a patent invalid should be changed from “clear and convincing evidence” to “the preponderance of the evidence.” Rather than change the burden of proof in litigation, it might be better to require all questions of validity raised in litigation to be first handled in reexamination, where there is no presumption of validity or deference to the past decision of an examiner, allowing the court to review the reexamination decision with proper deference.
You might expect a presumption of validity for issued patents would be incompatible with applicable statute conditions of novelty and non-obviousness, not to mention patent subject matter, being too hard to pursue during prosecution. Perhaps any question of balance should involve Constitutional purpose ("To promote the Sciences and Arts") and ask how the defensive burden of litigation and reexamination of uncertain quality patents promotes any art other than that of patent law practice?

[ Reply to This | Parent | # ]

Lee A. Hollaar (quoted)
Authored by: globularity on Thursday, February 21 2013 @ 02:41 AM EST
I have to love Lee's logic. It is not possible for a large government department
to do a proper job in issuing an individual patent but each and every member of
the IEEE that Lee purports to represent has to do a proper job for every
patentable element of their work tested against all patents.
The guy is a clown who should be removed from the IEEE

---
Windows vista, a marriage between operating system and trojan horse.

[ Reply to This | Parent | # ]

Groklaw © Copyright 2003-2013 Pamela Jones.
All trademarks and copyrights on this page are owned by their respective owners.
Comments are owned by the individual posters.

PJ's articles are licensed under a Creative Commons License. ( Details )