LOL same fake company tried to patent the shopping cart

[ioni]

Originally Posted by soxfan

And they might not be dumbasses. When faced with the following options, which would you pick?

A) Sovereign says, pay us $100k and we'll go away; or
B) Sovereign says, ok, you won't pay? Lets fight in court, you'll spend $1+ million, and and then you might lose and pay us a lot more than the $100k we're asking for.

How is that not extortion? I was floored when I learned that even when you win a suite brought against you, you lose because it still costs you money. It would be great if suing someone required a deposit to a 3rd party that covers the cost of the other sides lawyer fees. Of course, there are still issues with that rule, but it seems like it'd be better than the current system.

Originally Posted by soxfan

For the most part, existing U.S. patent law prevents technology that has been previously used from becoming patented. Trade secrets are a limited exception, as the patent law is skewed towards favoring disclosure of technology.

It's supposed to, but there are countless examples of it failing. Some of the more notable and recent ones are slide to unlock and making your product in the shape of a rounded rectangle. Admittedly, I'm not up on the status of the shape one, but how does that get through in the 1st place?

[Sho'Nuff]

Originally Posted by ioni

How is that not extortion? I was floored when I learned that even when you win a suite brought against you, you lose because it still costs you money. It would be great if suing someone required a deposit to a 3rd party that covers the cost of the other sides lawyer fees. Of course, there are still issues with that rule, but it seems like it'd be better than the current system.

Because patents grant the right to exclude others from making and using the claimed invention. By law a patentee can grant exceptions to that right to exclude (i.e., licenses). Likewise, by law they can sue parties that are believed to infringe on their rights.

Originally Posted by ioni

It's supposed to, but there are countless examples of it failing. Some of the more notable and recent ones are slide to unlock and making your product in the shape of a rounded rectangle. Admittedly, I'm not up on the status of the shape one, but how does that get through in the 1st place?

The USPTO is not perfect. And "countless" is a pretty extreme term, particularly when you consider that the USPTO examines hundreds of thousands of applications every year. If someone asked you to comb through a bowl of sand to pick 500 "tan" specks from 499,500 "brown" specks, could you do it with 100% accuracy?

That said, it is true that a few cases get through that shouldn't. But overall the USPTO does a pretty good job with the limited resources it has.

[Sho'Nuff]

Originally Posted by Red Squirrel

Actually I think he's on to something. There definitely needs to be a hammer brought down on all these stupid lawsuits. Not just patents, but all stupid lawsuits in general.

Actually how about this. When you sue someone and lose, you should have to pay the money you were suing for, to the victim! So you want to make some stupid lawsuit? Well the money you ask for better be an amount you are willing to lose if the lawsuit does not go your way.

Would also stop people from suing for ridiculous arbitrarily made up amounts because they'd have to make sure that what they sue for they can afford to lose. Give it a risk element, and perhaps all these stupid lawsuits that happen would stop, or at least slow down.

Interesting idea, but I think that public policy would favor encouraging people to use the legal system. There are already provisions in place for paying the other sides legal fees (e.g., if your lawsuit is so frivolous that it fails to state a claim upon which relief can be granted). Perhaps a better option would be to expand the scope of when the losing party must pay opposing counsel's legal fees.

And for the record, the suit against Newegg was NOT frivolous. Ultimately Sovereign's patents were proven invalid, but it took an awful lot of time, money, and effort to get to that point. The shear amount of effort required to invalidate the patents in question lends some creedence to Sovereigns claims, because if the patents were easy to invalidate, Sovereign likely never would have pressed the issue with Newegg, preferring to go for easier "low hanging" fruit.

[xeemzor]

The irony of it all is that our patents stifle innovation and use here while promoting it abroad. Do you think anyone in China cares at all about American IP?

Soxfan, can you really argue that computer related patents help innovate? The length of time these patents are valid need to be at least halved, if not more, to keep pace with the industry. The only reason no change has happened is because of lobbyist money.

And don't get me started on the stupid length of copyright.

[amish]

Originally Posted by Pamela89

Patents is a complicate thing during the international business.

I'm looking for more detail on international business. Do you have a newsletter that I could subscribe to?

[Red Squirrel]

Originally Posted by soxfan

Everything in the solar system works "because of science," so by your argument no one should be able to patent anything?!?

FWIW, laws of nature and mere ideas are already not patentable in the US. See 35 USC 101. There are innumerable cases on that very point. You are complaining because you don't see any of those cases and your limited understanding of the patent law is based on one case a website happened to post about.



There is quite a bit of litigation ongoing right now that is dealing with what is and is not patentable subject matter. You might want to take a look at some of those cases, and many of them concern software.



For the most part, existing U.S. patent law prevents technology that has been previously used from becoming patented. Trade secrets are a limited exception, as the patent law is skewed towards favoring disclosure of technology.



An interesting idea. But seeing as how congress can't pass a BUDGET in four years I don't see how they would update the patent law to keep up with the whims of the modern world. What would the "trend" be based on? How would something be determined to be "trendy?" What population are we talking about? The US, some country in Africa, etc.?



Do you have any idea what the USPTO does?



Under the America Invents Act (the bulk of which goes into effect March 16 of this year), there are multiple avenues to challenge a recently granted patent without having to resort to full blown litigation. See, e.g., http://www.fr.com/reexam-services-post-grant-pgreview/

* Note - I am not affiliated with Fish and Richardson.

All that stuff is nice, if they would actually follow it, but they don't. This patent almost passed and caused some lawsuits before Newegg came along. Small players would not have had enough money to do what they did. Then look at all the stupid patents like rounded corners and slide to unlock. This shit needs to stop. Patents allow megacorporations to strive and don't allow small players to even have a chance at starting.

I say just throw away the whole system. It does more harm than good. We need to encourage more small businesses instead of continuously protecting the big ones from the small ones, which is what patents do. Small businesses can't afford to patent every possible thing they do nor is it possible to research every possible patent to make sure your business is not somehow infringing on one. A small business trying to make a few grand here and there will end up getting sued for millions because their product has a shape too close to another's or something stupid like that... all this stuff is just ridiculous.

[SSSnail]

Originally Posted by soxfan

Good thing for me (and the rest of us) that you don't rule America.

That's right, you better watch your gonads.

[Brainonska511]

Originally Posted by Red Squirrel

All that stuff is nice, if they would actually follow it, but they don't. This patent almost passed and caused some lawsuits before Newegg came along. Small players would not have had enough money to do what they did. Then look at all the stupid patents like rounded corners and slide to unlock. This shit needs to stop. Patents allow megacorporations to strive and don't allow small players to even have a chance at starting.

If you got rid of patents, you think things would be magically better? Small people would be forever crushed as large corporations could just take their ideas and never pay them a dime.

[Red Squirrel]

Originally Posted by Brainonska511

If you got rid of patents, you think things would be magically better? Small people would be forever crushed as large corporations could just take their ideas and never pay them a dime.

But at least they could still execute their ideas. Now they are forced to stop executing them, and also get sued for it. Competition is the nature of business. Yes big corporations may have resources to compete better, but that's the nature of it. Completely removing the ability for a small business to even try, is what the problem is right now.

For example, I have a custom hvac control system in my house. I could not possibly actually market that to the public due to the risk of it being patented. I'm too small of a player, and if what I did is not already patented by some company, it will get patented in my face and I will get sued just for putting it on the market, or get demanded to pay some ridiculous royalties. Essentially, a product that I made myself suddenly becomes illegal for me to use or sell. That's far from fair.

[Sho'Nuff]

Originally Posted by xeemzor

The irony of it all is that our patents stifle innovation and use here while promoting it abroad. Do you think anyone in China cares at all about American IP?

China businesses care a lot about United States IP if they want to import products into the United States. But sure, China doesn't care about US IP when it comes to activities within Chinese borders. That said, no country on EARTH respects intellectual property that has no legal basis in its jurisdiction. I can't sue a French company for selling a product in France based on a U.S. patent on that product, just like a French company couldn't sue me for manufacturing a product in the US that is protected by a French patent.

Originally Posted by xeemzor

Soxfan, can you really argue that computer related patents help innovate? The length of time these patents are valid need to be at least halved, if not more, to keep pace with the industry.

Computer related? Sure, as that term encompasses all sorts of technology that everyone on this planet would agree is inventive. Microprocessors, 3d transistors, wireless communications protocols, etc. All the stuff we nerds know and love. But to the extent your question pertains specifically to software, my answer is yes and no.

Patent law as a whole incentivizes innovation because it provides an avenue to (temporary) exclusivity, which is important to businesses for a whole host of reasons. But that exclusivity is not the only mechanism that facilitates innovation. Patents also encourage inventors to design around patented technology, i.e., to create new things that do not infringe. Patent law also encourages disclosure of technology, rather than sequestration of it in the form of trade secrets.

Do software patents present issues that patents covering other technologies do not? My opinion is that they do. Do those issues warrant a universal ban of software patents as a whole? I do not think so.

Originally Posted by xeemzor

The only reason no change has happened is because of lobbyist money.

And don't get me started on the stupid length of copyright.

There has been a TON of change to the U.S. patent law recently. Google the america invents act. It is a paradigm shift in the way U.S. patent law operates, and its major provisions go into effect on March 16, 2013.

As for your comment re: copyright, I'm not a copyright lawyer and I don't pretend to know anything about it. I tend to agree with you that copyright term is (way) too long.

[Sho'Nuff]

Originally Posted by Red Squirrel

But at least they could still execute their ideas. Now they are forced to stop executing them, and also get sued for it. Competition is the nature of business. Yes big corporations may have resources to compete better, but that's the nature of it. Completely removing the ability for a small business to even try, is what the problem is right now.

The highlighted part is where you have gone wrong. If a product is patented, the fact that someone develops the same product LATER does not mean that it is "their idea." Exclusivity is granted to the patentee . . . at the expense of later developers of the same technology.

FWIW, this is not a new concept in business. People have been dealing with IP for a very long time. Clearance searches, etc. are simply opportunity costs.

Originally Posted by Red Squirrel

For example, I have a custom hvac control system in my house. I could not possibly actually market that to the public due to the risk of it being patented. I'm too small of a player, and if what I did is not already patented by some company, it will get patented in my face and I will get sued just for putting it on the market, or get demanded to pay some ridiculous royalties. Essentially, a product that I made myself suddenly becomes illegal for me to use or sell. That's far from fair.

1. You don't know if the HVAC system is covered by a patent, so your argument as to fairness is entirely without merit.

2. If in fact the HVAC system is covered by a patent, the mere fact that someone developed the idea before you and sought patent rights does not make it unfair. They took advantage of a legal construct that is designed to enhance innovation, facilitate business development, and encourage disclosure of technology, not pander to later comers who might come into the market after a technology has been explored/developed by the patentee.

3. If you really want to bring the HVAC system to market, speak to a patent attorney and have them do a patent search for you. Its not THAT expensive. Typical patent search is ~$800-1500. Relatively small potatoes if the product is worth pursuing.

4. Finally, if you are a small company doing relatively little business, it is unlikely that you are going to attract much attention. If you sell 5-10 units a year, you probably aren't worth the expense of filing suit. No guarantees, of course.

[Sho'Nuff]

Originally Posted by SSSnail

That's right, you better watch your gonads.

You'll have to fight my wife for them. She's had em in a vice for about 10 years now.

[Red Squirrel]

Originally Posted by soxfan

The highlighted part is where you have gone wrong. If a product is patented, the fact that someone develops the same product LATER does not mean that it is "their idea." Exclusivity is granted to the patentee . . . at the expense of later developers of the same technology.

FWIW, this is not a new concept in business. People have been dealing with IP for a very long time. Clearance searches, etc. are simply opportunity costs.



1. You don't know if the HVAC system is covered by a patent, so your argument as to fairness is entirely without merit.

2. If in fact the HVAC system is covered by a patent, the mere fact that someone developed the idea before you and sought patent rights does not make it unfair. They took advantage of a legal construct that is designed to enhance innovation, facilitate business development, and encourage disclosure of technology, not pander to later comers who might come into the market after it has been explored/developed by the patentee.

3. If you really want to bring the HVAC system to market, speak to a patent attorney, and have them do a patent search for you. Its not THAT expensive. Typical patent search is ~$800-1500. Relatively small potatoes if the product is worth pursuing.

4. Finally, if you are a small company doing relatively little business, it is unlikely that you are going to attract much attention. If you sell 5-10 units a year, you probably aren't worth the expense of filing suit. No guarantees, of course.

My point was, someone can come up with an idea without having heard of it from somewhere else. It's still technically their idea, in the sense that they did not steal it from someone, it just so happens that someone else thought of it before. They still did all the work at putting together the system that uses it, they should be allowed to sell their own system that they used their own time to make.

The concept that only one company can sell a specific product is completely anti competitive. Especially when it comes to patents that are extremely broad.

And even if someone DOES steal an idea. It's just that, an idea. They still need to invest in the capital and time and knowledge required to execute it.

[Wreckem]

Originally Posted by soxfan

Usually the latter.

And they might not be dumbasses. When faced with the following options, which would you pick?

A) Sovereign says, pay us $100k and we'll go away; or
B) Sovereign says, ok, you won't pay? Lets fight in court, you'll spend $1+ million, and and then you might lose and pay us a lot more than the $100k we're asking for.

Most companies pay the $100k. Newegg didn't. While they won, they didn't exactly come out on top financially, did they? And Sovereign's argument of infringement was not terrible, which is why the CAFC did not order them to pay Newegg's legal fees (FWIW - ordering one party to pay the other parties legal fees is generally rare in the US).

You act as if they were only wanting $100k to settle. They wanted more, much more and they also wanted ongoing royalties. Most of the settlements were in the 7-8 figure ranges.

[Sho'Nuff]

Originally Posted by Wreckem

You act as if they were only wanting $100k to settle. They wanted more, much more and they also wanted ongoing royalties. Most of the settlements were in the 7-8 figure ranges.

No, I set forth an example to illustrate a point. I never said or indicated that my example was reflective of what actually happened in the Newegg suit or in sovereign's prior dealings with other companies. It DOES reflect what happens in many instances when a non practicing entity comes knocking.

Where did you get your information re: sovereign's settlements/licenses with other organizations? I only skimmed the CAFC decision so my apologies if that information was presented there.

[Sho'Nuff]

Originally Posted by Red Squirrel

My point was, someone can come up with an idea without having heard of it from somewhere else. It's still technically their idea, in the sense that they did not steal it from someone, it just so happens that someone else thought of it before. They still did all the work at putting together the system that uses it, they should be allowed to sell their own system that they used their own time to make.

The concept that only one company can sell a specific product is completely anti competitive. Especially when it comes to patents that are extremely broad.

And even if someone DOES steal an idea. It's just that, an idea. They still need to invest in the capital and time and knowledge required to execute it.

The entire point of every patent system on Earth is to give the patentee exclusivity over the claimed invention. Without that, a patent system is worth exactly nothing. Indeed, exclusivity is the proverbial carrot that encourages inventors to innovate. You can't have a patent system without exclusivity, and you can't have exclusivity and have multiple parties with the same "exclusive" rights.

But lets run with your theory. Say you have a patent system in which parties that "independently" develop a technology can practice that technology, whether or not another party previously developed the technology and holds a patent over it. Some questions:

1. Won't there be lots of litigation to determine whether party B, a later inventor, "independently" invented the invention in question?

2. Say that party B develops a technology, which was earlier developed and patented by party A. Party A challenges party B's "independent" inventorship of the technology in court. How exactly would party B prove that it developed the technology independently? Seems to me that they would have to prove a negative, i.e., that they did not rely on the patentees disclosure and/or other technology. Pretty hard (and thus, expensive) to prove a negative. Is that better than the existing system?

3. It would seem that there would be a rush of "independent" inventors when there is a spike in interest in a particular technological area. Isn't it unfair to the patentee to allow others to capitalize on that market demand, when the patentee was the first to invent and/or disclose the invention in a patent/application?

Re: your point about anti-competitiveness, I disagree. The fact that one party has exclusivity over a patented technology is not anticompetitive. This is not 1492, where there was one way to accomplish a given task. Now there are substitutes for everything. Just look at the smart phone market . . . hundreds of devices that do the same core functions are released every year, with little tweaks to make them different from the competition. Apple holds numerous patents on various aspects of the iphone, but has that stopped other manufacturers from releasing competing phones? No. Another example (on the trademark side) can be seen in your grocery store cereal aisle. 70-80 different types of cereal, all marked with their very own EXCLUSIVE trademark. The fact that general mills has exclusivity over the Cheerios brand doesn't stop 2-3 other companies from making competing (though potentially inferior) o-shaped cereal.

As to your latter point, abstract ideas are not patentable in the U.S. The specification of a patent application must describe the invention in sufficient detail such that one of ordinary skill in the art can make and use it without undue experimentation. See 35 U.S.C. 112(1). That is a lot more than saying - "I've got this idea for a device - it emits colored light, shoots glitter all over the place, plays music, and . . . oh and yeah, it cures cancer."

[Red Squirrel]

Originally Posted by soxfan

The entire point of every patent system on Earth is to give the patentee exclusivity over the claimed invention. Without that, a patent system is worth exactly nothing. Indeed, exclusivity is the proverbial carrot that encourages inventors to innovate. You can't have a patent system without exclusivity, and you can't have exclusivity and have multiple parties with the same "exclusive" rights.

But lets run with your theory. Say you have a patent system in which parties that "independently" develop a technology can practice that technology, whether or not another party previously developed the technology and holds a patent over it. Some questions:

1. Won't their be lots of litigation to determine whether party B, a later inventor, "independently" invented the invention in question?

2. Say that party B develops a technology, which was earlier developed and patented by party A. Party A challenges party B's "independent" inventorship of the technology in court. How exactly would party B prove that it developed the technology independently? Seems to me that they would have to prove a negative, i.e., that they did not rely on the patentees disclosure and/or other technology. Pretty hard (and thus, expensive) to provide a negative. Is that better than the existing system?

3. It would seem that there would be a rush of "independent" inventors when there is a spike in interest in a particular technological area. Isn't it unfair to the patentee to allow others to capitalize on that market demand, when the patentee was the first to invent and/or disclose the invention in a patent/application?

Re: your point about anti-competitiveness, I disagree. The fact that one party has exclusivity over a patented technology is not anticompetitive. This is not 1492, where there was one way to accomplish a given task. Now there are substitutes for everything. Just look at the smart phone market . . . hundreds of devices that do the same core functions are released every year, with little tweaks to make them different from the competition. Apple holds numerous patents on various aspects of the iphone, but has that stopped other manufacturers from releasing competing phones. No. Another example (on the trademark side) can be seen in your grocery store cereal aisle. 70-80 different types of cereal, all marked with their very own EXCLUSIVE trademark. The fact that general mills has exclusivity over the Cheerios brand doesn't stop 2-3 other companies from making competing (though potentially inferior) o-shaped cereal.

As to your latter point, abstract ideas are not patentable in the U.S. The specification of a patent application must describe the invention in sufficient detail such that one of ordinary skill in the art can make and use it without undue experimentation. See 35 U.S.C. 112(1). That is a lot more than saying - "I've got this idea for a device - it emits colored light, shoots glitter all over the place, plays music, and . . . oh and yeah, it cures cancer."

Sure there are more ways to do something, but the whole system just adds lot of artificial limitations as to what a company can do and it's constantly a cat and mouse game as once they find a way to do something different then another company might patent it again then they have to change it again. One cannot possibly think of every possible thing to patent. Some are just absurd. Like "white phone" or "rounded corners" who the hell would imagine to think about patenting that? Yet, it happened. Now every phone that was white or had rounded corners had to change their own design. This is stupid. Companies should not be forced to change the way they MAKE their OWN product because it looks too close to someone else's.

Then again I have the belief that everything should be open, free and be used and encouraged to be improved. To me, this is how we advanced. Not by imposing all sorts of artificial limitations and red tape.

I do wonder though, does a company from say, Canada, have to abide by US patents? Or do they only have to worry about patents in Canada? I was reading and it looks like Canada patents are more strict. For example, you can't patent software. They also have various proceedures to "test" that a patent is indeed worthy. Basically if the idea would be easy to come up with by someone else (such as making round corners on a phone, or making an interface for people to buy stuff) then it gets rejected.

What makes patents bad is how long they last too. They need to last no more than a year. It gives that company a full year to have full monopoly over that type of product. Then anyone else is welcome to improve on it.

[Sho'Nuff]

Originally Posted by Red Squirrel

Sure there are more ways to do something, but the whole system just adds lot of artificial limitations as to what a company can do and it's constantly a cat and mouse game as once they find a way to do something different then another company might patent it again then they have to change it again.

No, that is not how it works. I represent clients all the time who have freedom to operate "issues" (i.e., potentially infringe one or more patents), but who have developed positions as to why they either do not infringe or why the patents in question are invalid. In those instances, potential IP issues are viewed as "a" risk, which the business may or may not be willing to take. In many instances, companies go forward with products/investments despite the existence of IP risk, because a "risk" is a not a "certainty," and there are several ways to handle IP issues if and when things get ugly.

Originally Posted by Red Squirrel

One cannot possibly think of every possible thing to patent. Some are just absurd. Like "white phone" or "rounded corners" who the hell would imagine to think about patenting that? Yet, it happened. Now every phone that was white or had rounded corners had to change their own design. This is stupid. Companies should not be forced to change the way they MAKE their OWN product because it looks too close to someone else's.

One thing you might not realize is that in the U.S., there are two types of patents. Design patents (such as the rounded corner phone you mentioned) which cover the design of something, and utility patents which cover the technology embodied in a product, machine, process, or article article of manufacture. Among other things, design patents have a shorter patent term than utility patents.

Trademark protection is also available for packaging and non-functional features of a product, which are referred to as "trade-dress." E.g., back in the 70s a dry cleaning company trademarked the use of a particular green-gold color it used for its press-pads. Trademarking the color was allowed because the color itself served the core function of a trademark, namely to serve as an indicator of source.

Originally Posted by Red Squirrel

Then again I have the belief that everything should be open, free and be used and encouraged to be improved. To me, this is how we advanced. Not by imposing all sorts of artificial limitations and red tape.

That is a perfectly fine viewpoint to have. But for the record, the US patent system has been around and leveraged since the constitution was ratified. The first U.S. patent was issued in 1790. Since then, the patent system has facilitated the disclosure and development of countless technologies, including such things as the light bulb, the telegraph, radar, the telephone, the transistor, and other essential tools of modern day life. To say that it did not help us advance is to simply ignore reality.

Originally Posted by Red Squirrel

I do wonder though, does a company from say, Canada, have to abide by US patents?

Only if they want to import a product covered by the U.S. patent into the United States. Note that this assumes that the patentee did not seek coextensive patent protection in Canada.

Originally Posted by Red Squirrel

Or do they only have to worry about patents in Canada?

For activities taking place solely in Canada, my understanding (I'm not a Canadian lawyer) is that a company need only worry about Canadian law and Canadian intellectual property. Once the activity moves outside of Canada, other laws may apply. See my answer to your other question above.

Originally Posted by Red Squirrel

I was reading and it looks like Canada patents are more strict. For example, you can't patent software. They also have various proceedures to "test" that a patent is indeed worthy. Basically if the idea would be easy to come up with by someone else (such as making round corners on a phone, or making an interface for people to buy stuff) then it gets rejected.

I've directed prosecution of hundreds of Canadian patent applications, and my sense is that the Canadian system is, for the most part, very similar to the U.S. system. Contrary to your understanding software can be patented in Canada. The claims just have to be framed in a particular way (typically to tie the software to a machine). As to the procedures you mentioned, please provide more detail. Because in my experience, Canada and the U.S. use very similar examination processes. If you want to point to a jurisdiction with patent laws that are more strict than the U.S., you should look at the European Union, Japan, and China. Japan in particular. Their obviousness standard is based on whether the claimed invention could have been "easily made" by one of ordinary skill in the art, whatever that means.

Originally Posted by Red Squirrel

What makes patents bad is how long they last too. They need to last no more than a year. It gives that company a full year to have full monopoly over that type of product. Then anyone else is welcome to improve on it.

Have you ever done one iota of product development? I don't think so, because if you did you would understand that 1 year is an extremely short time to bring a product to market. Consider medical devices. It takes 3-7 years on average to develop and test a new medical device design. Patent applications are usually filed as soon as the major features of the device become concrete. As a result, the base patents often issue before the design of the commercial product is finalized. THEN the final design has to go through FDA approval, which itself can take years to complete. Under your scheme, by the time the design gets through the FDA the patents covering it would expire. As a result, the company that developed the technology would be out millions of dollars, and would have no mechanism to help them recoup their costs.