patent question

[Winfield Hill]

Paul Hovnanian P.E. wrote...

Evidently not. Microsoft has been granted a patent for something that
MIT and IBM developed _and_published_ (I can recall an article on the
topic) about 10 years ago.

Evidently, the USPTO has devolved into a clerk with a rubber stamp.

Yes, someone else can be granted a patent on your published idea.

True, this patent may not stand up in court. But that really doesn't
matter, since most of us can't hope to persevere against someone
with a $56 billion war chest.

While you may not have a desire or resources to directly attack
and take down the offending patent, you will have the resources
to hold them at bay if they come after you for using your own
published technology. Once they see the evidence you would show
in court to defend yourself / attack their patent, they'll want
to avoid a serious chance of their patent being overturned, and
they'll grant you a free license or something else acceptable.

Thanks,
- Win

(email: use hill_at_rowland-dot-org for now)

 

[Guy Macon]

Evidently not. Microsoft has been granted a patent for something that
MIT and IBM developed _and_published_ (I can recall an article on the
topic) about 10 years ago.

Evidently, the USPTO has devolved into a clerk with a rubber stamp.

True, this patent may not stand up in court. But that really doesn't
matter, since most of us can't hope to persevere against someone with a
$56 billion war chest.

Having a prior patent in your hand rather than proof of prior publishing
art helps you win against this $56 billion opponent ... how?

Having a prior patent in your hand rather than proof of prior publishing
art stops the clerk with a rubber stamp ... how?

Please show any situtaion where having published your invention gives
you any worse protection than having a patent does. Situations where
both methods are equally ineffective don't count.

 

[Paul Hovnanian P.E.]

Paul Hovnanian P.E. wrote...

Yes, someone else can be granted a patent on your published idea.


While you may not have a desire or resources to directly attack
and take down the offending patent, you will have the resources
to hold them at bay if they come after you for using your own
published technology.

Odds are that they'll never come at me directly. And , no, I don't have
the resources to hold them at bay. A patent isn't like the title to an
automobile, where I can call the cops if its missing and they will incur
the costs to apprehend the thief and recover my property. With a patent,
I'm on my own.

Once they see the evidence you would show
in court to defend yourself / attack their patent, they'll want
to avoid a serious chance of their patent being overturned, and
they'll grant you a free license or something else acceptable.

I don't want to set one foot in court. A well funded adversary can
bleed a small developer dry with the initial paperwork.

What will happen in all probability is that the well funded adversary
will wave their ill gotten patent under the noses of your customers
(look at who SCO is going after). Customers (particularly those in very
cost sensitive markets) don't want to incur any additional costs related
to the products that they purchase, so they will be highly motivated to
go with the supplier that holds the patent. It indemnifies them against
possible legal action. Even if the patent is subsequently ruled to be
invalid, they can claim to have acted in its good faith while it was in
force.

 

[Paul Hovnanian P.E.]

Having a prior patent in your hand rather than proof of prior publishing
art helps you win against this $56 billion opponent ... how?

Having a prior patent in your hand rather than proof of prior publishing
art stops the clerk with a rubber stamp ... how?

Please show any situtaion where having published your invention gives
you any worse protection than having a patent does. Situations where
both methods are equally ineffective don't count.

If I have a patent, I can go to the smaller customers of the big outfit
and threaten action against them for their use of my IP. Of course, if
the bigger outfit seeks to drive me out of business, they can always
offer to pick up the legal tab for these customers. In addition, I have
now created ill will between myself and those customers that might have
been willing to do business with me.

 

[Guy Macon]

What will happen in all probability is that the well funded adversary
will wave their ill gotten patent under the noses of your customers
(look at who SCO is going after). Customers (particularly those in very
cost sensitive markets) don't want to incur any additional costs related
to the products that they purchase, so they will be highly motivated to
go with the supplier that holds the patent. It indemnifies them against
possible legal action. Even if the patent is subsequently ruled to be
invalid, they can claim to have acted in its good faith while it was in
force.

The defense against this is to publish all of your schematics,
mechanical drawings, source code, etc. in your manual. (Any customer
who thinks that it isn't enough will also think that a prior patent
is not enough.) If someone with a patent dated 2000 says you violated
it, showing that you published all of your schematics, mechanical
drawings, source code, etc. in your manual in 1995. Is a far more
convincing defense than even a patent from 1995. A patent is simply
a license to file a lawsuit, and is of little use if you are not
willing or able to file the lawsuit. Even threatening to file a
lawsuit is a waste of effort if nobody believes that you have the
resources to follow though on your threats. For lawsuits against you,
publishing full technical details is the answer.

 

[Paul Hovnanian P.E.]

The defense against this is to publish all of your schematics,
mechanical drawings, source code, etc. in your manual. (Any customer
who thinks that it isn't enough will also think that a prior patent
is not enough.)

This is getting to sound a little like a broken record, but here goes:

It appears that the USPTO is issuing patents regardless of prior art or
publication by the original developers. Has the USPTO ever made a
request of you (or any other practitioner in your field) to identify
prior art or publications while reviewing another parties application?
No. They don't even know that you exist.

If someone with a patent dated 2000 says you violated
it, showing that you published all of your schematics, mechanical
drawings, source code, etc. in your manual in 1995.

That doesn't matter. If the USPTO issues a patent to your competitor,
you must incur the legal costs to have it invalidated. If you think that
you can just send a package of documentation to some court clerk and
have someone else's patent invalidated with no further cost to yourself,
you are dreaming. If your competitor has budgeted, lets say $100 million
for legal expenses, even just to stall in court knowing that their
patent will be found worthless, do you think that it will cost you
nothing? If you are lucky, it might only cost your side 10% of what your
competitor spends.

Is a far more
convincing defense than even a patent from 1995. A patent is simply
a license to file a lawsuit, and is of little use if you are not
willing or able to file the lawsuit.

At this point, your competition has a patent (a license to sue) on
something you developed in 1995. They have just sent your most valued
customer a letter requesting that they cease and desist from using your
product and must pay them licensing fees or risk being sued.

Even threatening to file a
lawsuit is a waste of effort if nobody believes that you have the
resources to follow though on your threats.

Your competitor has a patent, $56 billion (wait, it went up to $57
billion while we were posting back and forth) and is willing to lose a
significant fraction of it in order to corner the market in this
technology.

For lawsuits against you,
publishing full technical details is the answer.

You will never be sued. Your customers will simply disappear when your
competitor threatens to sue them. Your customers may just stop returning
your calls. You must take the legal initiative to get your competitor's
patent overturned.

 

[Winfield Hill]

Paul Hovnanian P.E. wrote...

You will never be sued. Your customers will simply disappear when your
competitor threatens to sue them. Your customers may just stop returning
your calls. You must take the legal initiative to get your competitor's
patent overturned.

This is wrong. Assuming one disclosed the details of his invention
with his product shipments (as I always did), or otherwise, there are
two relatively-simple and "inexpensive" yet *powerful* complementary
legal steps one can take at this point to protect himself and his
small otherwise-fragile business. Anyone worried he might be slipping
into such a scene should contact his friendly local IP lawyer to learn
all about them. Things are bad, but they're not that bad. IANAL. :>)