MESSAGE
| DATE | 2020-05-30 |
| FROM | Ruben Safir
|
| SUBJECT | Subject: [Hangout - NYLXS] Itka working on aptent law
|
http://www.mrbrklyn.com/docs/itka_response_1.pdf
http://www.mrbrklyn.com/docs/itka_response_data.ods
In answering the questions brought up my Itka Shira Safir on Patent Law
and the Inter Partes Review
Patents and Problems:
Ruben Israel Safir
Ms Safir, who is studying law at the University of Chicago, enters the
fray of an area of law which she has deep understanding in. She is well
versed in the principles and legal consequences of patent and copyright
law, and her analysis with regards to he merits of the “Inter Partes
Review process” rightfully looks at whether the implementation of the
Leahy–Smith America Invents Act of 2011 reaches the goals set forth by
the supporters of the legislation. Her assessment is that we need to
review if the Inter
Partes Review stops patent trolls, and she evaluates the side effects of
the law.
I think we need to question what was the cause of patent trolls and what
was the effect. Patent trolling was the natural result of bad patent
policy in legislation and implementation. Trying to solve the problems
of patent trolls was initiated not just from the Free Software and Open
Source movements, but supported by, and pushed by, the large companies
who felt they were being cut by a million paper cuts, with frivolous
lawsuits. They were perfectly happy when they were the ones in control
of the
situation, and perpetrated protracted lawsuits against individual
inventors in order to steal there ideas and patents. The most famous
case of this, of course, was when RCA strong armed Edwin Armstrong into
submission, which contributed to his ultimate suicide. And if that
wasn’t good enough, RCA’s legal vultures also attacked Philo Farnsworth,
in his initiation of employment with Philco. RCA brought frivolous
lawsuits claiming interference against Farnsworth, arguing that another
patent had
priority over Farnsworth's invention, despite the fact it no evidence of
a competing instrument was ever produced within the time frame of the
patent. To this day we are arguing with ventilator manufacturers whether
outsiders can fix ventilators or obtain even standard designs and
diagrams to support them, without the permission of patent holders.
Big companies have swallowed up small competition with quality
inventions since the start of the industrial revolution. Patent trolling
has been an effective means of suppressing competition since Andrew
Carnegie and even before that. The question that we need to ask isn’t
“does the Inter Partes Review process” serve the purpose of preventing
patent trolls. Using the courts to push around inventors and artists is
seemingly inherent to the legal process itself. The real question needs
to be if the process contributes to producing better patents, and good
law. The problem is not that the lawsuits brought by shell companies
holding patents for legal purposes were in some way frivolous. It was
all ok until someone got the bright idea to gather all these patents up
together so that enough financial power could be brought to the system
to defend small patents. This is not an excuse for trolling, but it an
accurate description of the facts. The problem was, and still remains,
that patents were frivolous to
start with and system was, and probably still is, fundamentally broken.
The purpose of patent law is to benefit the public, and not make either
inventors or large corporations wealthy. It says so right in the
constitution in plain language that even a twelve grader can understand.
[Congress has the right to] To promote the Progress of Science and
useful Arts, by securing for limited Times to Authors and Inventors the
exclusive Right to their respective Writings and Discoveries." This
is really the standard by which we need to measure how well any patent
and copyright law measures up. Between 1999 to 2019 the number of
patents approved by the US Patent Office has been steadily increasing.
In Libreoffice Spreadsheet format
http://www.mrbrklyn.com/docs/itka_response_data.ods
As one can see, since 1999 there has been a steady rise on the number of
patent applications and patent grants. And while the number of
applications rise, as well does the grants, the percentage of grants per
application has remained starkly steadfast at rough between 30% and 40%
of granted patents to applications. According to the October 2019 report
to the Congressional committee on the Judiciary, Commissioner for
Patents Andrew Hirshfeld says that the agency has employed more than
8,300 patent examiners to cover all these applications.
Looking back over the data, it would seem that the 2011 Leahy-Smith Act
has had negligible impact over all on the granting of patents. There has
been an upturn in patent applications and patent grants, that largely
follow each other since before the act, starting in 2010. There has been
a steady increase since 2008 on the percentage of grants/application,
when in 2007 it reached a minimum of about 28% and has steadily risen
since them to about 37%. This trend was prior to the act and continues.
The real
question has to be, why is it that after a century of working on
patents, that in review of the USPOs work, a full “81% of instituted
proceedings that result in a decision have at least one claim
invalidated”. Why are we still producing junk patents? Why does this
continue to be more of a business strategy and gimmick rather than a
real stimulus for producing quality inventions for the public good? Can
Americans really trust a patent system that rigs our healthcare market
by distorting drug competition, that impedes hardware standardization
because of patent fears among video card manufacturers, etc etc etc. If
the law was designed to bring parties into negotiations rather than
ratchet up wasteful litigation, then indeed, the rough treatment of bad
patents in the Inter Partes Review is effectively bringing parties to
the table faster and at less cost. Otherwise, it seemingly has no impact
on the overall system. The patent office had been producing bad patents
in the past, and to this day, it still does so.
The most important part of this act, happens to be the alteration of
first invented to first filed. It would be interesting in another
analysis to see how this has affected outcomes in the granting process
and in judicial litigation.
Reference:
https://www.chibus.com/perspectives/2020/5/25/patent-wars-the-trolls-and-the-leviathans-ygmh3
http://www.mrbrklyn.com/docs/itka_response_data.ods
--
So many immigrant groups have swept through our town
that Brooklyn, like Atlantis, reaches mythological
proportions in the mind of the world - RI Safir 1998
http://www.mrbrklyn.com
DRM is THEFT - We are the STAKEHOLDERS - RI Safir 2002
http://www.nylxs.com - Leadership Development in Free Software
http://www.brooklyn-living.com
Being so tracked is for FARM ANIMALS and extermination camps,
but incompatible with living as a free human being. -RI Safir 2013
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