Thanks for the articles, Kelce, nice to know I’m not utterly in left field with thinking obviousness is underrated. Learned a bit too.

Can’t imagine why nanotechnology offers any issue. In my opinion that’s a battle to be won in manufacturing, process development, and novel power sourcing not in product execution. The simple mechanicals that do the same job as they do now shouldn’t be patentable, how to make them at scale should be as well as novel and inobvious applictions. There has to be a thread or a dozen out on the internet where people talk about using nanotech to sort blood or isolate bacteria. So much ripe speculation should spoil obviousness. Now more interesting stuff might be where there are quantum effects to abuse. But ultimately it just all sounds the same to me as anything else whether it be dog toys or cluster bombs.

The most brilliant aspect of Thomas Jefferson and all our nation’s founding leaders was how they anticipated change, growth, and development that happens in the shadow of greed and envy. They smartly devised ways for our systems of government and commerce to be continuously updated by the powers of amendment. Greed and envy are not always bad things because they can most always be predicted and anticipated so that needed changes become obvious without a lot of needless debate on the issues!

OK. Your comment makes sense in light of that explanation.

I hope you are correct about the self-correction. Thomas Jefferson was a genius, and is perhaps my favorite historical character. But when he set up the patent office, the technology arena was much different than it is now. He was only aware of the “single patent products” in his time, and envisioned patents primarily being used for product differentiation. He didn’t foresee the financial incentive that is driving patent trolls, nor the products that would be cumulative of so many simultaneous patents.

Regarding nano technology. I have seen titles from lots of writings on that very subject. And some of the (relatively few) abstracts that I have read for those articles (basically previews of the main idea) could very well match quotes from your comments. Perhaps you have read some of them yourself? If not, then you seem to have an intuitive grasp of the issues in the current debate.

But alas, nanotechnology is not my field. I am more into cryptography and radio technologies. So I have tried avoiding forming opinions on that debate.

kelce, what I meant to portray was how you’re looking at the patenting system in relationship to how it affects commerce at this point in time just as Charles Duell was looking at the patenting system in relationship to inventing in 1899. We look back now at Duell’s assertion and smugly say his claim had no concrete basis only because the patenting system did what it was supposed to do, which was to move past the intellectual boondoggle of that era. The explosion that has taken place in new technology over the last 100 years has been remarkable and it has obviously overwhelmed the patenting legal process of today. But I say the patent process is magnificent and brilliant because by its own very nature, it has built-in devices to alleviate precisely the problems you are seeing as insurmountable. So my prediction is the patent boondoggle of today will heal itself simply because patents have a limited life and they eventually expire. In the meantime, the US Patent Office has hopefully learned a good lesson about the effects of allowing broad claims for business method and process inventions. In other words, I believe the new first-to-file law keeps all the needed tools so business and commerce will eventually move out of the mess you have identified because the patents that give the trolls their teeth will certainly expire in due time! There’s another problem on the horizon that I can see though and I’m wondering if we’ll end up in the same boat in ten years with the explosion in ‘nanotechnology’ inventions that’s occurring right now. A lot of nanotechnology inventions are the same as macro-scale inventions except for the physical dimensions involved. And worse yet, what if an inventor is smart enough to define and identify a novel physical effect that’s prominent only at nanometer-sized dimensions and then is issued a patent for the first device that works on that principle? Claims that are very broad in scope will rightfully be allowed. The effect that particular patent would have on commerce surrounding nanotechnology would have the same controlling effect as patents related to business methods in the computing world of today. And if I happen to be the independent inventor who owns the patent for the newly-defined physical effect, then that’s not a bad thing from my point of view! As far as the system as a whole is concerned, however, it will still be working long after my patent has expired (and after I’m filthy rich!)

Sorry – “As with any new LEGISLATION …” My fingers seem to have their own agenda, sometimes. I typed the word “litigation” too many times.

If you have the time, you should ready some of Lemley’s articles, including “Ignoring Patents” and “The myth of the sole inventor”

Chappy,

Thanks for the compliment (and I’m glad you’re still around – I have learned quite a bit from you). Patent Litigation Weekly isn’t me. It might be someting that someone named Joe Mullin writes for – or a title he uses for his articles. I have quoted him quite a bit, both here and in the article I hope to have published later this year. But I doubt that he knows me. He is far more prolific writer than I am, so it’s much more likely that I would have stumbled upon hs name than the reverse.

Howeer, I have seen some of my articles listed in the same lists of recommended reading as some of his articles. Perhaps that’s where your internet search turned up a relationship between me and the Patent Litigation Weekly articles.

As with any new litigation, there are intentions and expectations before passage, and then actual consequences afterward. I am reluctant to make any predictions, and actually, I haven’t been srudying the new law in detail, yet. Some people seem to live and breathe every word of it. I figured I would wait until a number of them provided summaries, and then go sit through the “continuing legal education” (CLE) classes.

For most states (actually, all that I know about), lawyers have to get a certain number of CLE hours per year. The theory is that the lawyers risk becoming obsolete and unable to represent clients properly, if they don’t keep current on the changes in the law. So, since I need to get CLE, and many CLE classes will be offered on the topic of the new law, I’ll let someone else wade through the specific language for now, get my needed CLE hearing other people’s opinions, and then – with knowledge of their interpretations – go read the law for myself. It’s more productive use of time, that way.

So for now, I haven’t any opinions, except for a few of the provisions.

Mark Lemley, a Stanford Law professor who publishes a lot on patent law, has a summary of issues to concentrate on. It’s things that he thinks will have the most significant impact. I started reading it last night. I’ll bring it as a checklist to some of my CLE classes over the next few weeks (I’m already signed up), and see how much different teachers overlap in their thinking.

I have a layer of primordial sludge at the bottom of my coffee this morning… I think it is a little thick… :-) Blue Skies at the Jersey Shore.

Kelce, your knowledge is unsurpassed in patent law and the fact that you have a magazine called “Patent Litigation Weekly”; that says something. I am so thankful that Charles Duell was not correct as Jim quoted.

We have discussed all of the downside of the bill with the earmarks and advantage to large companies. How can we work this bill in our favor? Seems to me that the fee structure and the recognition of micro-entities would have some sort of positive effect on the “Micro-Inventor”… is that demeaning?

What about this law is going to make inventing better in the US? Obama seems to be moving us to be more like the rest of the world instead of setting us apart. I won’t use a stale colloquialism like “One world order” but seems to fit his communist agenda, let’s not dive to deep into that. In order to get this law past congress and the senate there has to be some benefit. What would that be?

Do the math.

$11 for an iPod connector. Go look around your car for other conveniences. GPS, sound system, engine management, brakes, … Can you even list all the subsystems?

Each improvement, as ground-breaking as an iPod connector, at $10+ each, and before long you won’t be able to afford a car.

Websites? EN runs one. Do you have any idea how many patent assertions can be made against EN? Just for running the same webserver software as everyone else, EN is susceptible to an incredible number of assertions.

So whereas simple products themselves might not infringe, the computers and software needed for manufacture, advertising, and distribution create a vulnerability to a high number of assertions of patents you cannot find ahead of time.

Jim,

I had no idea my posts could have been interpreted that way. I didn’t think I mentioned anything about no room for future innovation or patents. I intended to convey an issue faced by existing products and future products I including those that are patentable.

Compare the complexity of the products from here versus an automobile. How many different components are there in a Gyro Bowl or Eggies versus an automobile or the number of components and processes (executable algorithms) in a PC? Whereas relatively simple consumer products may have to be concerned with only a single patent, many of the things you use in your everyday life have a degree of complexity that is significantly higher.

Any changes to these complex systems are likely to be improvements, and a market-ready product will be susceptible to thousands of patent assertions that the manufacturer is unaware of. For example, Hyundai and Kia put a connector in their cars to enable people to play their iPods through the car stereo. They were then sued for doing so. They now have to pay $11 per car to have the connector in their cars. Guess who pays for it? You do, in the end, with higher prices.

Kelce, the Commissioner of Patents, Charles Duell, said in 1899 that “Everything that can be invented has been invented”. So what you seem to be saying now is that just about everything is a thousand-patent product and therefore “Everything that can be patented has been patented”! That’s a pretty grim assessment!

One moe thing, and then I have to go.

Here at EN, you are likely working with “single patent products”.. That’s my term for them, anyway. You won’t see that language anywhere else, until I have an article in a trade magazine published later this year. I describe the problem mentioned above in that article. I have some “single patent product” ideas myself. Such products do exist. (I use the term even when a handful of different patents might apply, but when the number is far below the 1,000’s that apply to computer products.)

So you may or may not get sued on your actual product itself, infringing another’s patent. But it could happen. Don’t dismiss that possibility. Some people specifically hope their patents will be infringed unknowingly, so they can spring an ambush on a succesful product that became successful based on someone else’s risk, investment, and efforts.

What is more likely to happen is that your website will be the basis for a lawsuit. You see, your website will involve the “thousand patent products” that are being sued by patent trolls. The patent trolls target small companies that can’t afford to defend themselves, and must pay a royalty demand, or else face the prospect of going bankrupt by trying to defend themselves by what they believe to be a meritless accusation. The median cost for patent infringement defense – even if the accused infringer is innocent, is $5million.

Sorry it’s 4/10ths of 1% rather than 1/4th of 1%. But you should get the point.

Most people tend to think of “one neat new product = 1 patent” But reality is “one typical hi-tech product = 10,000 patents by hundreds of different owners” The laws assume the first, but the patent trolls exploit those laws against the reality that the latter is more prevalent.

Scott,
You have hit the nail on the head regarding the problem with the patent system, as it currently is. Your statement:
“But if I spend 100k developing a product and start generating sales and establishing a business, PLEASE, don’t come knocking on my door 10 years later telling me you invented first and want the IP. I’ve done all the work etc. Why should someone locked in fear, afraid to move forward, after seeing a product become successful under someone else labor, risk , and investment have any right to that invention.”

This describes 90%+ of patent litigation in this country, and is exactly what is lurking around the corner for anyone of us that starts a manufacturing business based upon one of our inventions. I won’t go into specifics, but your potential exposure to this “amush invention” tactic is unbelievable high. Take a look at “Patent-Litigation Weekly: The Photo-Sharing Files” by Joe Mullin.

Here are some interesting quotes:
“This week: A snapshot look at how the surge in infringement suits by patent-holding companies is causing big woes for small companies, and potentially affecting the ability of many people to engage in a popular pastime.”
“But patents are certainly on their minds now that they’ve been sued for infringement by a company they’ve never heard of, in a place they’ve never thought about, in a case that illustrates how the surge in lawsuits by patent-holding companies isn’t just taking a bite out of big companies—it’s hitting small businesses too.
You can’t imagine the stress this caused, me thinking the company I put 10 years of effort into could have folded because of this,” says Jeff Kelling, …"
“In its suits, FotoMedia’s lawyers have asked E.D. Texas Judge John Ward to shut down any photo-sharing website that won’t pay for a license to its patents. Those range from services run by the world’s biggest camera makers to small, family-run startups. The the majority, including FotoTime, fall on the latter end of the spectrum.”
""All our hard work and dreams were almost ruined in the summer of 2008, when we were sued for alleged patent violations by a company called FotoMedia," FotoTime co-owner Karl Swierenga wrote."
“It took the three software developers five years to where they could quit their full-time jobs and devote themselves entirely to their new business. It was four more years before FotoTime began to thrive.”
""We couldn’t afford a real law firm to fight this or even settle for us," Kelling says. "We’re a small company of three guys. IP law firms charge $500-800 an hour… It would have bankrupted our company so quickly. … He and his partners decided they had no choice but to settle. … Without getting into specifics, Kelling does say the settlement hurts FotoTime’s prospects in an already difficult economic climate. "

There are industry practice tips that tell patent owners that when they see infringement starting, don’t tell the alleged infringer right away. Because if you do, they might make a change (called a “design-around”) to implement a non-infringing version, while it is still inexpensive and practical for them to alter their design. A designaround is a version of a product that has the same benefits that the alleged infringer wants, but does not read on the patent claims. It is easier for someone to design around a patent to avoid the need to pay for a license when the patent claims A way to do something new (one of many possible routes), rather than THE way to do something new (the only practical route).

Instead, as the advice goes, wait until after the accused infringer has invested so heavily in the design that it is too expensive to make any changes, not because of the value inherent in the patented idea itself, but instead because of production issues. Things such as supply chain stability, compatibility needs, and other design configuration issues, can make it prohibitively expensive for a company to make a design change after production has started, that would have been trivially inexpensive to have made during the design process, before configuration was frozen for production. The patent owner can leverage these costs to maximize royalty demands. Plus, if they wait for 6 years after an indavertently infringing product has become succesful, they can collect a percentage of significant revenues at that point. Had the patent owner warned the accesed infringer early, less money would be available. So the patent owners have a financial incentive to “ambush” manufacturers.

Now lest anyone insist that people should search out patents ahead of time to find out whether they would be infringing, here is an eye opener:
You are a patent infringer yourself.

Yes, that’s right. By operating your PC to log onto this website, and read my posts, you are infringing over 1,000 patents. How many of those did you know about? Don’t you have an obigation to find out ahead of time, so you can stop it?

The companies in the news article I quoted above didn’t know about the patent. And you have probably never seen this analysis:

There are about 250,000 patents that read on computing devices that are used by consumers. The patent claims call into two rough classes: apparatus and method of use. Each of those types has a sub-category as explained below.

1 apparatus
1.a. apparatus from a single manufacturer, infringing as it sits in the box on the store shelf.
1.b. apparatus from multiple manufacturers, as assembled to be operable, that doesn’t infringe until the consumer connects them together to form a complicated system.
1.c. apparatus that is only used by companies to provide consumer services, rather than used by consumers themselves.
2 method
2.a. internal method of operation, hidden from the user, but in the user’s apparatus.
2.b. method of use that involves interaction with the user
2.c. method performed on a service provider’s side of a computer network, rather than the consumer side.
2.d. method performed by both consumers and service providers (a divided claim).

Patents can have claims from multiple categories, and often have both apparatus and method claims.

The issue is that, for categories 1.b. and 2.b., the only person who CAN infringe those is you – the consumer. And if even 1/4th of 1% of the computer patents have a claim from either category 1.b. or 2.b., and those patents are unlicensed (as te overwhelming majority of them are), then you infringe over 1,000 patents.

So let’s see how sincre anyone is in their assertions that people have a responsibility to find out whether they infringe patents ahead of time, by whether they do it for themselves.

The root of the problem is this: People think in terms of “single patent product”, when in reality most of the things we use are what I call “thousand patent products”. Does this distinction make sense?

To all who receive the Inventors Digest magazine: Read the article “Time is Not On Your Side” (page 30 Oct, 2011). For all who don’t see the issue with this new ‘First To File’ change, you may understand after reading it. It’s not about obiviousness or the lack therof- it’s about the upper hand being handed over to those with the money… again. Business and politics as usual I say and so does the article. I hope I’m wrong, but don’t think I am.

Scott-
As far as the concept of what is considered ‘obvious’ any good attny can make the argument of ‘Lack of Prior Art (if it is true they should)’. My first patent was challenged and granted due to this. There was no prior art… we were the first. That’s the difference between an explorer and a hiker- the explorer goes off the beaten path and makes their own. And it is as you say…. once people see something for the first time, they smack their foreheads and say…“Why didn’t I think of that?”. If something was so obvious or obvious to someone skilled in the art, then it would have already been invented long ago, esp when the technology to do so has been in place for years. Somethings are not obvious…but are very simple. ; )

The obvious to one skilled in the art… I really dislike that, but I also think the USPTO does a good job in discerning what it takes to qualify that argument. How many inventions are so simple, that once you see it, you say “why didn’t I think of that? it’s so simple!” Well, once you see it, it is. But to the inventor that discovers it, that’s his ticket. So obvious that anyone could have figured it out if you merely identified the problem. The USPTO has, will, and should award patents to the inventor who solves the obvious.

I guess I’m not really seeing how this “first to file” benefits any particular business or inventor unreasonably. If I invent and want to do something with the invention, by filing I get the protection if I’ve earned it meeting all the same criteria as always. I go into development, production, sales and if someone else invented prior to me, they have the 1 year grace period to stop me and contest. Correct? If they invented before me they have the right.

But if I spend 100k developing a product and start generating sales and establishing a business, PLEASE, don’t come knocking on my door 10 years later telling me you invented first and want the IP. I’ve done all the work etc. Why should someone locked in fear, afraid to move forward, after seeing a product become successful under someone else labor, risk , and investment have any right to that invention. If it’s a stolen idea, take care of it right away. The new law is merely establishing a statute of limitations and to protect the investment of the inventor that files. Not the guy who was afraid.

Greg,
You’re not alone in your thinking. From techdirt.com/articles/20090212/1251553749
“In fact, I still contend that if you can show multiple people invented the same thing, independently, around the same time, you’ve established a pretty clear case that the concept is obvious to a person skilled in the art — and thus, unpatentable.”
Do a search on “If Patents Are Supposed To Support The Independent Inventor, Why Isn’t There An Independent Invention Defense?”

Also, take a look at: thepriorart.typepad.com/the_prior_art/2009/02/copying-in-patent-law

I’ll post this here in this thread also…

“The new program emphasizes Green Technology developments and accelerates patent applications for that sector.”

I don’t believe any sector should be push faster along than other’s. Plus Using the new patent law and basically calling
it a job bill by saying it will help create more jobs (Green Technology) is just plain old politics.

Here’s the final bill ( H.R.1249 ) for your viewing..Have fun wading thru it :(

http://thomas.loc.gov/cgi-bin/bdquery/z?d112:HR...;

http://thomas.loc.gov/cgi-bin/query/D?c112:5:./...:

“Defines the term “micro entity” as a certifying applicant who: (1) qualifies as a small entity as defined in regulations issued by the Director; (2) has not been named as an inventor on more than four previously filed patent applications, as specified; and (3) has gross income below a designated level without having transferred ownership interest in the application to an entity with gross income exceeding such limit. Authorizes the Director to impose income, annual filing, and other micro entity qualification limits under provisions related to institutions of higher education."

I am a little shocked here in the uk it as always been first to file. I have always done PP on all my products asap. This as worked in my favour.

One thing bugs me with the concerns of a gold rush concept on filing and trying to protect and box-in inventions:
If there are that many rushing to file and protect a particular innovation, then doesn’t it inherently fail the inobviousness test?

Jim-

Thanks (everyone) for the the thoughts and prayers, much appreciated! : ) I’m hoping I’m only out of commission for a few days and back in action. This Sept 26th Innovation Fund approaches quickly however, and like you said- It is a good idea (if you can) to file a good PPA as soon as possible. One thing people should remember is that any included claims in your PPA can actually hurt you later (as in limit you) so consider leaving claims OUT of your PPA unless you feel very strongly about them. I hope and pray you are right about EN’s stance on swift patent protection as it is even more important now to us all. The world is always changing, for better or for worse. I guess the main thing is to be aware and adjust accordingly.

Hi Ralph, first you should know we are praying for you on your upcoming surgery. The thing I want to believe is that EN is on top of the first-to-file matter and they fortunately have the resources and staff attorneys to adequately protect the intellectual property offered by its member inventors. However, I also believe it can’t hurt for members to do a little work in filing the PPA themselves. As I said, who can know your invention as well as you do? A PPA filed as early as possible will benefit the inventor as well as EN.

Jim- You bring up some excellent points! However, some of my concerns with EN taking ‘A long time’ (and other companies) to bring an idea to market are reinforced by what you just said. It is the ‘Gold Rush’ or even Internet domain name race all over again. The swift and the funded will win this race. Those who drag their feet, get beat. Correct me if I’m wrong, but many of the items here at EN can be just ideas with no patent protection or even a PPA in place. As the Oct 2011 Inventors Digest article states- “Time is Not on Your Side” (page 30) I highly suggest EVERYONE here read that article ASAP. Alot of wisdom shared there. The scenarios they depict there may be considered fiction, but will take place. Mark my words. I worked for the government long enough to know a bad deal when I see one. ; )

Correct me if I’m wrong, but with the newly enacted first-to-file law every serious independent inventor should file a provisional patent application (PPA) as soon as possible in the inventing process. You can be sure a predicted flood of PPAs will arise as anyone and everyone tries to protect as much of the intellectual property universe as they can get their clutches on. Big companies with access to staff attorneys will file PPAs in large numbers for projects they currently have in the R&D works as well as probably any and every possible invention even remotely on the minds of their employees! Why wouldn’t a wise large company with unlimited resources do this? That’s why I say it’s imperative for the independent inventor to learn how to write and file a PPA. Doing it yourself is a practical way of saving money, but in my opinion it’s also a great way to really get to know your own invention and to stake an early claim on it! It seems now it’s more a matter of ‘first-to-learn-to-file’ than anything else for the independent inventor, especially if you don’t have unlimited resources like your competitors do! We should be seeing a lot more in the near future how good or bad this new law really is because we’ll get to see how greed and big money play games with an already overwhelmed Patent Office! I think I’ll remain guardedly optimistic and get to work on a few PPAs I’ve been putting off for awhile. There’s only so much of the intellectual property universe left to go around and it’s now a Monopoly game of who can buy and place the most hotels first!

Gizmo-

You basically echo my thoughts on this one as well. Change for the sake of change is not good for anyone. There has to be a bonafide positive end result to justify the means. I posted a link in an earlier thread from the USPTO site which specifically stated that even though the Presdient would sign the bill into law, the USPTO has a short timeline to get it all enacted as well. Apparently, the speed of our government operates at 2 speeds! Stop and slow.

And you are correct about the golden rule: “He who has the gold makes the rules”. This is no different. Basically, those with the resources will always try to out-muscle the little guys (read: most of US). Keeping a lawyer on retainer is not always possible for the little guys, but standard practice for the big corps. Also don’t forget large XYZ Corp thinks nothing of fabricating ‘evidence’ to defend their position, I have seen it done. Thomas Edison is rolling in his grave right now. May God help us.

First to File: The patent system of today is a first-to-invent system, “meaning that whoever aims to prove to a court that they invented something first can easily force another party into a protracted legal battle”. However, the first-to-file system put into place by the America Invents Act would make things much clearer. In its most general terms, if you filed for the patent first, you get the protection. While the new rule is more clear-cut, some small businesses and entrepreneurs say it favors big businesses that have the money and lawyers to quickly file for patents, and have pointed to lobbying on behalf of major tech companies as evidence of this.

This bill was pushed entirely by large corporations who don’t want to pay the real innovators for their inventions. People/Inventors who have no resources to actually create their idea may be subject to someone else capitalizing on it even with a well documented Inventors Notebook/Journal.

In the end we will all find out this new system isnt as sweet as it looks… IMO.