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Patents versus Patents tested in court

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  • User profile image
    DaveWill2

    I'm starting a new thread for the group because EvilDictator brings up a good point about patents that needs to be discussed (without derailing the other thread).  Here is his quote to kick off this thread

     

    14 hours ago, evildictait​or wrote

    *snip*

    At that point, it's not really a jury, it's a panel of experts.

    The "laugh" test already exists in patent law. It's a requirement that patents are a novel, marketable and practical innovation that is non-obvious to an expert in the field.

    I think perhaps the bit that several people are getting confused by, is that having a patent granted doesn't mean it passed that test. That test of a patent's validity is only via a patent lawsuit.

    I could go a patent a "small device that holds a picture and/or witty phrase designed to be attached via magnets to consumer refrigeration devices" (a fridge magnet), but that doesn't mean I get $1 for every fridge magnet sold. To do that I have to bring a patent lawsuit, where experts in fridge magnetism would argue (and succeed) in persuading the court that my patent wasn't valid.

    If you want to complain against these patents, you need to complain about ones that have been tested in court. Patents which haven't been tested in court might not be valid. Hence, all of the patents you're complaining about in this thread might not be valid patents.

  • User profile image
    DaveWill2

    Patents, regardless of whether they have been tested in court, represent a risk for small to medium businesses when they are making day to day decisions about how to proceed.  They don't have lawyers on staff 24/7.  A lot can't afford lawyers at all.  They need to proceed with their ideas but with so many patents they usually opt to drive ahead blindly and hope for the best or they choose to cope with the patents they know about as best they can (i.e. handcuffed).

  • User profile image
    AndyC

    @DaveWill2: Technically, he's correct. Unfortunately the legal system being what it is, it all becomes a bit random. In the eyes of many who'd find themselves in a jury, the mere existence of a patent is seen as evidence it has some sort of validity (you wouldn't have even started the other thread if that weren't the case!) so the jury is more likely to find in favour of the patent holder than to dismiss it on the grounds the patent should never have existed.

    The whole Eolas patent, for example, was something that should have been dismissed as obvious and invalid and yet that's not what happened when put in front of a jury.

    Of course the more cynical amongst us might suggest that encouraging bogus patents by pretty much accepting anything is nothing more than a shameless attempt to bring in cash without thought for how that affects innovation. I'm sure the fact that the patent office clamping down on silly patents and rejecting them outright straight away would probably reduce submissions and thus income is entirely unrelated.

  • User profile image
    DaveWill2

    @AndyC:  Absolutely.  He is 100% correct.  But unless one has pockets deeper than the ocean its almost impossible to par down the collection of patents to a set of enforceable patents to truly base decisions upon.  And your additional comment that ideas granted patent status gain additional leverage during the court process is also great.

  • User profile image
    GoddersUK

    @AndyC: Which is why holding patent cases before juries is crazy. IMHO juries should merely decide guilt in criminal cases - matters of interpretation of the law etc. and civil cases should be left to judges, as in the UK legal system.

  • User profile image
    Bass

    @DaveWill2:

    If you run a software company, you have to live with the fact that you could be sued out of business at any moment.

    It's best to stay as ignorant as possible about patent law and the patents out there, too much knowledge might be used against you as evidence you committed "willful infringement".

  • User profile image
    DaveWill2

    *snip

    If you run a software company, you have to live with the fact that you could be sued out of business at any moment.

    *snip

    Informing the wife now Smiley

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