Perhaps you can explain how "all does not mean all" is a reasonable
position.
The problems that are being created are being created by the
unreasonable people. For example, those that insist math is patentable
no matter how many times the Supremes state:
Math is not patentable
subject matter!
I agree - the solution will cause extra, and in some cases
unnecessary, work for those that are being reasonable. But it does seem to be
required to try and get too many of the Lawyers constrained so they don't keep
arguing every little word. For example, to constrain those Lawyers who are
willing to argue the narrowest definition to the USPTO in order to get a patent
grant and then argue the widest definition when enforcing said patent.
As
keeps getting said:
The defense can point out that narrow
definition.
The problem that line of reasoning ignores is that:
it can
be done, but only at a significant cost to the defense
A potential starting
cost of $2 million if it is taken to trail. A cost that should never
have had occurred to the defense in the first place.
The Markman hearing
should occur before any further discovery into the case with regards what
products might infringe. The first discovery item on the list in patent
litigation:
List all patents involved
The second:
Markman hearing
requiring:
- the plaintiff and defendant to work together to identify words in
dispute
followed by:
- the USPTO providing clear definitions of those
words which support a grant of the patent
Until the terms of the patent are
settled, no further discovery is allowed!
That would certainly help cut
significant costs to the defendant. It may also be sufficient that the
plaintiff could decide - well before any significant costs are spent by either
party - to drop the case with a recognition that the defendant doesn't actually
infringe after all.
It would be even better if that "Official Federal
definition" then sets a precedent. A precedent that the patent owner, Legal
representation and other equal-level Courts must abide by in the
future.
If the Legal representation attempts to expand said definition
once settled, the Law should consider it a clear-cut case of Patent Abuse. In
such an instance, it's time to establish penalties. I think the following are
reasonable - extreme situations demand extreme penalties:
The patent should
immediately be termed with the invention entering the public
domain.
The full costs*3 of the defense should be required
compensation. The responsibility of which to be on both the patent owner
and the Legal representation. A record of which is kept for all Federal
Courts and above to have available. This is to be attached to the specific
Lawyers as well as the senior most members of the Law Firm that actually
practice Law.
If the Legal representation is involved in 3 such
situations, upon recognition of the 3rd instance - License to Practice Law is
revoked. If the senior most members are found guiding 3 such instances of Law
Firm(s) found in said activities - they also have their License to Practice Law
revoked.
Of course, these solutions are only a problem for those who built
a business model on threatening litigation against those who do not actually
infringe with the expectation that they can acquire licensing fees they don't
deserve in exchange for the defendant avoiding the costs of protracted
litigation. In other words, it's only a problem for those Lawyers engaged
in:
yas gots a nice shop 'ere... t'would be too bad for sumphin to 'appen to
it
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