so what you're saying is, if I get certified with the east texas bar and volunteer to defend patent cases using my rudimentary knowledge of technology at a fraction of the cost other lawyers charge, I will make bank?
so why is one of these cases so expensive? I feel like there are sooo many lawyers in the world. you would think *one* of them would be willing to work for less than $5mil... or does the free market not apply to the legal system? honestly, I have no idea how this stuff works, but the idea of paying so much money to defend against something so frivolous doesn't make much sense to me. I would think that if it was an easy, frivolous case, it would be cheap to defend against.
I was going to type up a long winded reason referencing the tremendous amount of money that could potentially change hands in one of these cases (you've made how much money infringing on my patents for the past 5 years?) when I realized I could answer your question in three words:
Lawyers are bastards.
Yes, why try to be informative when you can be uninformative and trite?
I'm going to walk you through an example of a patent case might go, to give you an idea of how expensive it gets and why. This is going to be a primer on patent law, quasi-technical, and long. So if you're not interested in those things, then simply skip this post.
If you want to learn, though...
Well, first off, here's the usual disclaimer: this isn't legal advice. If you were to try and prosecute a case based on what I'm going to say, not only would you lose, but you'd be humiliated. I'm a law student, not a lawyer. More importantly, I'm just some schmuck on the internet. I just think it's a god damned shame that so few people understand why lawyers are necessary and how their own legal system works, until someone else elects to drag them through it kicking and screaming.
Okay, patents.
Patents are granted by the United States Patent and Trademark Office (USPTO). A typical procedure is that you invent some gadget you want to patent, you go to a patent lawyer, he drafts a patent application for you, and you submit that patent application to the USPTO. In about three years, the USPTO will get back to you and tell you whether your patent is granted or not. This is no exaggeration; average turn-around time at the USPTO is that long. The office as a whole is both understaffed, underfunded, and tangled in a beurocratic mess delivered from on high that almost ensures they are utterly incapable of properly doing their jobs. I'd be happy to talk about why, but that's a bit beyond the scope of this post.
Lesson 1: An enormous number of garbage patents are the fault of the USPTO. Sometimes it's just a lazy piece of crap examiner who grants a patent he shouldn't. Sometimes, the patent is hyper-technical, and the USPTO doesn't have anyone on staff who can actually understand the damned thing. And so you wind up with something like a patent officer who has a 4-year degree in biology from Big State University in 1973 trying to decide if a patent for bleeding edge biotechnology is good or not. I'm not saying that the patent examiners are bad people, it's just that they're not capable of doing their job properly. If you want to blame someone, look at Congress and the White House.
So, what's in a patent? Well, basically, a patent has sub-parts called claims. Think of them as patents within the patent. The actual patent that's granted is a right to exclude others from using that particular arrangement of claims.
Claims Illustration: Say you've got a popcorn popper that you want to patent. It's basically a metal pot (A), with handles (B), a heating element (C), and an agitator (D). Your patent would have claims A, B, C, and D. So, if this patent was granted, you could prevent people from making a popcorn popper with that same arrangement of claims. But bear in mind that each one of these claims is described very technically, with descriptions of the materials, craftsmanship, purpose, etc. This is key. Those are the elements of the claims.
Lesson 2: There are two sort of barriers (or hatchetmen, depending on what side of the litigation you're on) regarding patents, though: novelty, and obviousness.
In short, novelty says the patent has to be on some new thing that hasn't previously been invented, and obviousness says that the patent can't be on something that would be obvious to someone who has ordinary skill in the art. So, if it has been invented before, you can't patent it (obviously, there are exceptions). If you try to patent some sort of mechanical device, and it's obvious to a mechanical engineer, then you can't patent it. These same criteria that are supposed to prevent a patent from issuing are the same things that can defeat it later on if it does issue.
In order for a patent to be defeated on novelty grounds, all of the claims of the patented invention need to be present in prior art. So, say you try to patent that popcorn popper above, with claims A, B, C, and D. Thirty years ago, someone patented a popcorn popper with claims A, B, and D. And Twenty years ago, someone patented a popcorn popper with claims A, B, and C. Your patent still survives the novelty issue because, unless you can find prior art that has claims A, B, C, and D, then the invention isn't anticipated. Novelty is usually easy to prosecute, but it's rare that something is defeated for novelty. The USPTO will catch that, usually.
Obviousness is where litigation gets really expensive.
Under present case law, you can basically combine claims of prior inventions to say that something should be obvious. So, take the popcorn poppers above, we'll call them PA1 (with claims A, B, and C) and PA2 (with claims A, B, and D). What you can argue now is that it would be obvious to a popcorn-maker-designer that there would be an advantage in combining the claims of PA1 and PA2 to create a single popcorn popper with claims A, B, C, and D, and therefore, the patent's bad. It seems simple, but think of the work that goes into digging this up.
A quick aside on lawyers' billing:
If he uses hourly billing, a typical lawyer will charge anywhere from $200-500/hour, depending on experience, expertise, specialization, etc. Various state bar associations have rules about how and what lawyers and charge. Hourly billing sucks. It's a nightmare of book keeping. But given that cases that seem simple tend to balloon way out of control, and that lawyers can lose their licenses (and be sued for malpractice) for giving less than the best representation, most lawyers hedge their bets and go for for hourly, because you don't want to be locked into working 200 hours on a case you only anticipated would take 20 under a flat fee arrangement.
Where lawyers get the big pay is in contingent fee arrangements. This is where you hear about the lawyer getting rich and all that. It's pretty common in personal injury cases and class actions, and rare beyond that. It happens when the plaintiff doesn't have the money to pay for a lawyer. What happens is that a lawyer might take the case on a contingent fee basis: the lawyer doesn't charge an hourly fee, he pays for all the court costs, experts, discovery (which can be horribly expensive), etc. He's basically paying to work. If he wins, though, he gets a pre-determined cut of the winnings. This cannot legally be more than 1/3. If he loses, he's going to have an angry client who may want to sue him, and be out everything he spent on the case.
Here's the setting: it's an infringement case. Let's say you run Poppycorn Co., and you make a popcorn popper with claims A, B, C, and D. But now, Jackass Co. is suing you, because they have a patent on a popcorn popper with claims A, B, C, and D. Poppycorn Co. wants to dig up prior art, and use an obviousness argument to eviscerate Jackass Co.'s patent.
So, now imagine that the prior art - the previous two popcorn poppers - haven't been patented in the past. They aren't just gimmes. You have to actually go find them. PA1 was manufactured in the late 1970s, but Pop Co., the company who made it, went out of business decades ago. PA2 was manufactured by MegaCorp, who is still around and still manufactures PA2.
Well, you're in New York. Pop Co. was headquartered in Oklahoma. So now, you're paying a lawyer to spend dozens of hours researching Pop Co., tracking down its old facilities, previous management, seeing who is still alive that he can talk to. He has to fly out to OK to meet with some former employees. This takes him several days. He finally manages to track down one of the company's old engineers, talk to him, and convince him to come testify in the case about the design of PA1. So you've got travel expenses for the lawyer and the engineer, lodging for both, etc.
Now, you want to get PA2 admitted. Well, you can call an engineer from MegaCorp as a witness, but the problem with that is MegaCorp - or any other company - doesn't want to be on the witness stand. There, information about their suppliers, and their profit margins, and all other sorts of things may come to light. So they're going to fight you. It might be cheaper to hire an expert, buy the PA2 off the shelf, have the expert deconstruct it and testify. Now you're going to have to find him, and fly him in, and pay for his lodging, and pay for his fees, too. And for what it's worth, some experts charge thousands of dollars per hour.
tl;dr: Getting through discovery alone in a patent infringement case is going to cost dozens to hundreds, maybe even thousands of lawyer hours. It's going to cost experts. It's going to cost research, and travel, and lodging. It's going to cost a lot of money and effort.
All of this? This is just about the costs in the most ridiculously simplistic suit imaginable. It's not even beginning to touch on the other problems in patent litigation (some of which Lum the Mad mentions, like juries and uneducated judges). And this is over a bloody popcorn popper! What's the real value of the sort of thing, maybe a few million dollars at most? Are you starting to see why RIM thought a $600 million settlement over a bunch of bogus claims was a deal worth taking?
So yeah, snark all you want about how lawyers are the problem. It's not going to fix the root cause, which is bad law. This legal train wreck comes to us courtesy of the United States Congress.
I'm going to go patent the process of making patents. Every time a government issues a patent, I'll have to be paid a royalty. And every time somebody makes a patents, I get a royalty. And everytime somebody sues somebody over a patent, I get double royalties.
IDEAS ARENT BLACK AND WHITE, YOU CANT GOVERN PATENTS FOR INTELLECTUAL PROPERTY BASED SOLELY ON LITERAL LAW INTERPRETATION.
Welcome to the great failure that is a shitty legal system that isn't checked by common sense. Also, I'm going to sue coca-cola for giving me cavities. Wish me luck.
tehmarken on
0
Just_Bri_ThanksSeething with ragefrom a handbasket.Registered User, ClubPAregular
I'm going to go patent the process of making patents. Every time a government issues a patent, I'll have to be paid a royalty. And every time somebody makes a patents, I get a royalty. And everytime somebody sues somebody over a patent, I get double royalties.
Sorry, there is prior art.
Just_Bri_Thanks on
...and when you are done with that; take a folding
chair to Creation and then suplex the Void.
I'm going to go patent the process of making patents. Every time a government issues a patent, I'll have to be paid a royalty. And every time somebody makes a patents, I get a royalty. And everytime somebody sues somebody over a patent, I get double royalties.
IDEAS ARENT BLACK AND WHITE, YOU CANT GOVERN PATENTS FOR INTELLECTUAL PROPERTY BASED SOLELY ON LITERAL LAW INTERPRETATION.
Welcome to the great failure that is a shitty legal system that isn't checked by common sense. Also, I'm going to sue coca-cola for giving me cavities. Wish me luck.
I'm going to sue the internet for making me stupid. And angry. :P
I'm going to go patent the process of making patents. Every time a government issues a patent, I'll have to be paid a royalty. And every time somebody makes a patents, I get a royalty. And everytime somebody sues somebody over a patent, I get double royalties.
IDEAS ARENT BLACK AND WHITE, YOU CANT GOVERN PATENTS FOR INTELLECTUAL PROPERTY BASED SOLELY ON LITERAL LAW INTERPRETATION.
Welcome to the great failure that is a shitty legal system that isn't checked by common sense. Also, I'm going to sue coca-cola for giving me cavities. Wish me luck.
I'm going to sue the internet for making me stupid. And angry. :P
Well.... You are going to have to prove that you where not stupid before using the internet. Something tells me that is going to be the hard part.
Kipling217 on
The sky was full of stars, every star an exploding ship. One of ours.
East Texas is the mecca for bogus patent claims. Many of which could be solved by requiring the "patent holder" to actually produce something based off of their patent.
East Texas is the mecca for bogus patent claims. Many of which could be solved by requiring the "patent holder" to actually produce something based off of their patent.
I'm fairly certain this requirement does exist, flimsy though it may be.
Eat it You Nasty Pig. on
it was the smallest on the list but
Pluto was a planet and I'll never forget
But, isn't technically being a producer of popcorn machines that use A,B,C,D prior art to the patent anyways? If I use lime to brush my teeth and sell it as a product then some jackass patents it 5 years later, I'm still the owner of prior art just out of being the first producer of it.
bowen on
not a doctor, not a lawyer, examples I use may not be fully researched so don't take out of context plz, don't @ me
But, isn't technically being a producer of popcorn machines that use A,B,C,D prior art to the patent anyways? If I use lime to brush my teeth and sell it as a product then some jackass patents it 5 years later, I'm still the owner of prior art just out of being the first producer of it.
That gets into a back-dating issue which I was trying to avoid.
Basically, the US grants patents to the first inventor, who is not necessarily the first to create and sell the thing. Beyond that, it's a race to the patent filing.
So, to use another example...
X and Y both have the idea for an invention on the same day.
X and Y both create a prototype for the invention on the same day.
X files for a patent in month 1
Y files for a patent in month 1 + 5 days
X gets the patent, not Y
What you get a lot of is a situation like this:
X and Y both have an idea at the same time.
X and Y try to create a product with the idea.
Z sees what they're doing and goes and files a patent.
A year or so later, X and Y have products on the market, having no idea Z filed for a patent.
Years later, Z gets his patent - it's a bad patent that shouldn't have issued because of the prior art, but as far as the USPTO is concerned, he filed first and should get it.
Z sees X is a smaller company, and Y is a huge company. He sues X in court, hoping to either A) extort a settlement, or get a judgment he can then use to give him extra leverage to do the same to Y.
So, basically, because the patent office isn't capable of keeping up with industry trends, they'd commonly issue patents for things that were very clearly failing in novelty (and usually obviousness) because they're absolutely oblivious about it. And then it falls to a very expensive court battle to sort the whole damned thing out, and patent litigation is so expensive that it can easily bankrupt small and mid-sized companies. It's usually safer to settle.
You have X and Y, but X has been in business for years and has been selling their product that does a,b,c,d for years.
Y patents product that does a,b,c,d recently. Then is awarded the patent. Y tries to sue X. Would that even stand a chance? Not even prototyping. It's different if it's a prototype I guess and you're both working simultaneously. But if I have been producing a product for a year and had no intention of filing a patent and then Bogus McFuckerpants sees my product, sees no patent, files one, and then sues me for patent infringement, is that even legal? That's what I'm trying to get away from your post. That's where a lot of this shady shit that happens with patents happens, ultimately.
bowen on
not a doctor, not a lawyer, examples I use may not be fully researched so don't take out of context plz, don't @ me
You have X and Y, but X has been in business for years and has been selling their product that does a,b,c,d for years.
Y patents product that does a,b,c,d recently. Then is awarded the patent. Y tries to sue X. Would that even stand a chance? Not even prototyping. It's different if it's a prototype I guess and you're both working simultaneously. But if I have been producing a product for a year and had no intention of filing a patent and then Bogus McFuckerpants sees my product, sees no patent, files one, and then sues me for patent infringement, is that even legal? That's what I'm trying to get away from your post. That's where a lot of this shady shit that happens with patents happens, ultimately.
That's basically the second example I gave. Would it stand a chance? Legally, or realistically?
Legally, no. It's failing for novelty. That's as easy as patent cases get.
Realistically, maybe. The problem is that once the patent is issued, it's presumed valid. So the weight of proving it to be a garbage patent falls on the "infringer's" shoulders. And what usually happens is that if Y is asking for less money than X thinks it will take to defend itself in court, there will be a settlement, and this bullshit just gets foisted onto the next company down the line.
These are patent trolls. There are a lot of them out there, and because the law is so broken, they're not going anywhere any time soon without significant patent law reform.
GnomeTankWhat the what?Portland, OregonRegistered Userregular
edited January 2009
Someone mentioned this is in the Lum thread, but I wonder if Blizzard and Sony won't offer a little legal hand to NCSoft? If Worlds.com wins this case against NC, they've set legal precedence in the United States that their patent can be enforced, that would be very bad for Blizzard and SoE, as precedence means a lot in our legal system. You can have all the money and lawyers in the world (Blizzard), or some of the oldest prior art available (SoE), but if legal precedence has been set...good luck.
An old online buddy of mine from a few years back told me that when a company's right to manufacture something comes under fire, (through patents,) that company has to stop manufacturing whatever product is currently being challenged.
Now, as it was told to me, companies that both manufacture things that are similar, (i.e. they both have A, B, C, and D qualities,) don't bother each other because neither wants to lose however many millions they'd lose from ceasing production.
Then came patent trolls who don't bother manufacturing the goods in the first place, and exist for little to no reasons besides buying (and suing with) patents.
Is this the law in the U.S., or was he perhaps outlining what happens in some other country?
I ask because, if this is one of the effects brought about by patent litigation, then wouldn't that mean CoH and NCSoft's other MMO servers would have to be suspended until the courts were finished, IF they went to court?
I live in East Texas. Is there a more specific location when they say 'East Texas'? I live in the Beaumont area. If I wind up on jury duty for this, I swear to you all I will vote for the death penalty for any asshole who is associated with world.com. I just despair that the generalization of a majority of people in East Texas is painfully accurate.
Dark Helmet on
And my poor Death Knight that couldn't afford an icon.
An old online buddy of mine from a few years back told me that when a company's right to manufacture something comes under fire, (through patents,) that company has to stop manufacturing whatever product is currently being challenged.
Now, as it was told to me, companies that both manufacture things that are similar, (i.e. they both have A, B, C, and D qualities,) don't bother each other because neither wants to lose however many millions they'd lose from ceasing production.
Then came patent trolls who don't bother manufacturing the goods in the first place, and exist for little to no reasons besides buying (and suing with) patents.
Is this the law in the U.S., or was he perhaps outlining what happens in some other country?
I ask because, if this is one of the effects brought about by patent litigation, then wouldn't that mean CoH and NCSoft's other MMO servers would have to be suspended until the courts were finished, IF they went to court?
It's not automatic, the suer has to sue for it and the judge has to agree, iirc.
I live in East Texas. Is there a more specific location when they say 'East Texas'? I live in the Beaumont area. If I wind up on jury duty for this, I swear to you all I will vote for the death penalty for any asshole who is associated with world.com. I just despair that the generalization of a majority of people in East Texas is painfully accurate.
Ah well. Another silly asinine lawsuit. Call me naive, but I'm trusting in the little reassuring part of my brain that's going, "This shit'll blow over soon, don't you worry son"
Wallhitter on
0
HenroidMexican kicked from Immigration ThreadCentrism is Racism :3Registered Userregular
I live in East Texas. Is there a more specific location when they say 'East Texas'? I live in the Beaumont area. If I wind up on jury duty for this, I swear to you all I will vote for the death penalty for any asshole who is associated with world.com. I just despair that the generalization of a majority of people in East Texas is painfully accurate.
Tyler.
Which is where I live and work. I told my coworkers about this story and none of them denied what was said.
There's a bit more than meets the eye with regard to why Worlds.com is pursuing this lawsuit, why they're targeting NCSoft specifically, and why they're pushing for this to be in an East Texas court system.
So basically, East Texans are too retarded to understand technology and will just go in favor of the plaintiff.
I hate living in retard-central.
I'm from East Texas and I'm mostly not retarded. So do you apparently.
Come off it, if it was East Texas it would be rural SoDak or in the middle of corn country Nebraska. Place the hate on the folks manipulating the system here.
There's a bit more than meets the eye with regard to why Worlds.com is pursuing this lawsuit, why they're targeting NCSoft specifically, and why they're pushing for this to be in an East Texas court system.
So basically, East Texans are too retarded to understand technology and will just go in favor of the plaintiff.
I hate living in retard-central.
I'm from East Texas and I'm mostly not retarded. So do you apparently.
Come off it, if it was East Texas it would be rural SoDak or in the middle of corn country Nebraska. Place the hate on the folks manipulating the system here.
This is a big problem with patent litigation. It commonly devolves into a battle of the experts. That's not quite so bad when you're in an area like Blacksburg or Boulder or Ann Arbor, because you're likely to get a jury that, even if they don't fully grasp the expert testimony, is capable of telling which expert is the bullshit factory compared to the one who's credible.
You go out into areas like the eastern district of Texas, and education rates plummet. Suddenly, your expert isn't trying to explain biochemistry to someone who took college-level chemistry courses a few years ago. He's trying to explain biochemistry to someone who hasn't taken a science class since "earth science" in high school 20 years ago and happens to come from an intensely xenophobic part of the country.
This isn't some sort of senseless bias on Lum's part. There are advantages and disadvantages to filing a lawsuit in any given court. The lawyers know what they are. And the Lum article is spot on.
Oh I completely agree with what was said in the article. However, it's not the fault of East Texans. If not here, it would be in one of the thousands of other areas in the country where people are not as educated or interested in technology. Ranchers and farmers don't give a rat's ass about some idea of bullshit patents or nebulous (to them) concepts of code ownership or intellectual property rights.
They just want the trial to end so they can go back to work.
I think they should make the patent office partially responsible for times like this. If you think technology patents are bad, so some reading on stuff like genetics or biotechnology. Or hell, just go read Next by Crichton.
An old online buddy of mine from a few years back told me that when a company's right to manufacture something comes under fire, (through patents,) that company has to stop manufacturing whatever product is currently being challenged.
Now, as it was told to me, companies that both manufacture things that are similar, (i.e. they both have A, B, C, and D qualities,) don't bother each other because neither wants to lose however many millions they'd lose from ceasing production.
Then came patent trolls who don't bother manufacturing the goods in the first place, and exist for little to no reasons besides buying (and suing with) patents.
Is this the law in the U.S., or was he perhaps outlining what happens in some other country?
I ask because, if this is one of the effects brought about by patent litigation, then wouldn't that mean CoH and NCSoft's other MMO servers would have to be suspended until the courts were finished, IF they went to court?
Your buddy was talking about a preliminary injunction. They used to be, for all practical purposes, automatic. These days, there's a balancing test under Ebay v mercExchange, but they still seem to be granted most of the time.
You might recall RIM had a problem with this in their case against NTP, and it was only through government entities arguing that they couldn't function without RIM's service that got them out of a complete injunction.
Posts
Yes, why try to be informative when you can be uninformative and trite?
I'm going to walk you through an example of a patent case might go, to give you an idea of how expensive it gets and why. This is going to be a primer on patent law, quasi-technical, and long. So if you're not interested in those things, then simply skip this post.
If you want to learn, though...
Well, first off, here's the usual disclaimer: this isn't legal advice. If you were to try and prosecute a case based on what I'm going to say, not only would you lose, but you'd be humiliated. I'm a law student, not a lawyer. More importantly, I'm just some schmuck on the internet. I just think it's a god damned shame that so few people understand why lawyers are necessary and how their own legal system works, until someone else elects to drag them through it kicking and screaming.
Okay, patents.
Patents are granted by the United States Patent and Trademark Office (USPTO). A typical procedure is that you invent some gadget you want to patent, you go to a patent lawyer, he drafts a patent application for you, and you submit that patent application to the USPTO. In about three years, the USPTO will get back to you and tell you whether your patent is granted or not. This is no exaggeration; average turn-around time at the USPTO is that long. The office as a whole is both understaffed, underfunded, and tangled in a beurocratic mess delivered from on high that almost ensures they are utterly incapable of properly doing their jobs. I'd be happy to talk about why, but that's a bit beyond the scope of this post.
So, what's in a patent? Well, basically, a patent has sub-parts called claims. Think of them as patents within the patent. The actual patent that's granted is a right to exclude others from using that particular arrangement of claims.
Claims Illustration: Say you've got a popcorn popper that you want to patent. It's basically a metal pot (A), with handles (B), a heating element (C), and an agitator (D). Your patent would have claims A, B, C, and D. So, if this patent was granted, you could prevent people from making a popcorn popper with that same arrangement of claims. But bear in mind that each one of these claims is described very technically, with descriptions of the materials, craftsmanship, purpose, etc. This is key. Those are the elements of the claims.
In short, novelty says the patent has to be on some new thing that hasn't previously been invented, and obviousness says that the patent can't be on something that would be obvious to someone who has ordinary skill in the art. So, if it has been invented before, you can't patent it (obviously, there are exceptions). If you try to patent some sort of mechanical device, and it's obvious to a mechanical engineer, then you can't patent it. These same criteria that are supposed to prevent a patent from issuing are the same things that can defeat it later on if it does issue.
In order for a patent to be defeated on novelty grounds, all of the claims of the patented invention need to be present in prior art. So, say you try to patent that popcorn popper above, with claims A, B, C, and D. Thirty years ago, someone patented a popcorn popper with claims A, B, and D. And Twenty years ago, someone patented a popcorn popper with claims A, B, and C. Your patent still survives the novelty issue because, unless you can find prior art that has claims A, B, C, and D, then the invention isn't anticipated. Novelty is usually easy to prosecute, but it's rare that something is defeated for novelty. The USPTO will catch that, usually.
Obviousness is where litigation gets really expensive.
Under present case law, you can basically combine claims of prior inventions to say that something should be obvious. So, take the popcorn poppers above, we'll call them PA1 (with claims A, B, and C) and PA2 (with claims A, B, and D). What you can argue now is that it would be obvious to a popcorn-maker-designer that there would be an advantage in combining the claims of PA1 and PA2 to create a single popcorn popper with claims A, B, C, and D, and therefore, the patent's bad. It seems simple, but think of the work that goes into digging this up.
A quick aside on lawyers' billing:
Where lawyers get the big pay is in contingent fee arrangements. This is where you hear about the lawyer getting rich and all that. It's pretty common in personal injury cases and class actions, and rare beyond that. It happens when the plaintiff doesn't have the money to pay for a lawyer. What happens is that a lawyer might take the case on a contingent fee basis: the lawyer doesn't charge an hourly fee, he pays for all the court costs, experts, discovery (which can be horribly expensive), etc. He's basically paying to work. If he wins, though, he gets a pre-determined cut of the winnings. This cannot legally be more than 1/3. If he loses, he's going to have an angry client who may want to sue him, and be out everything he spent on the case.
Here's the setting: it's an infringement case. Let's say you run Poppycorn Co., and you make a popcorn popper with claims A, B, C, and D. But now, Jackass Co. is suing you, because they have a patent on a popcorn popper with claims A, B, C, and D. Poppycorn Co. wants to dig up prior art, and use an obviousness argument to eviscerate Jackass Co.'s patent.
So, now imagine that the prior art - the previous two popcorn poppers - haven't been patented in the past. They aren't just gimmes. You have to actually go find them. PA1 was manufactured in the late 1970s, but Pop Co., the company who made it, went out of business decades ago. PA2 was manufactured by MegaCorp, who is still around and still manufactures PA2.
Well, you're in New York. Pop Co. was headquartered in Oklahoma. So now, you're paying a lawyer to spend dozens of hours researching Pop Co., tracking down its old facilities, previous management, seeing who is still alive that he can talk to. He has to fly out to OK to meet with some former employees. This takes him several days. He finally manages to track down one of the company's old engineers, talk to him, and convince him to come testify in the case about the design of PA1. So you've got travel expenses for the lawyer and the engineer, lodging for both, etc.
Now, you want to get PA2 admitted. Well, you can call an engineer from MegaCorp as a witness, but the problem with that is MegaCorp - or any other company - doesn't want to be on the witness stand. There, information about their suppliers, and their profit margins, and all other sorts of things may come to light. So they're going to fight you. It might be cheaper to hire an expert, buy the PA2 off the shelf, have the expert deconstruct it and testify. Now you're going to have to find him, and fly him in, and pay for his lodging, and pay for his fees, too. And for what it's worth, some experts charge thousands of dollars per hour.
tl;dr: Getting through discovery alone in a patent infringement case is going to cost dozens to hundreds, maybe even thousands of lawyer hours. It's going to cost experts. It's going to cost research, and travel, and lodging. It's going to cost a lot of money and effort.
All of this? This is just about the costs in the most ridiculously simplistic suit imaginable. It's not even beginning to touch on the other problems in patent litigation (some of which Lum the Mad mentions, like juries and uneducated judges). And this is over a bloody popcorn popper! What's the real value of the sort of thing, maybe a few million dollars at most? Are you starting to see why RIM thought a $600 million settlement over a bunch of bogus claims was a deal worth taking?
So yeah, snark all you want about how lawyers are the problem. It's not going to fix the root cause, which is bad law. This legal train wreck comes to us courtesy of the United States Congress.
I hearby patent Ultralime
The harder the rain, honey, the sweeter the sun.
IDEAS ARENT BLACK AND WHITE, YOU CANT GOVERN PATENTS FOR INTELLECTUAL PROPERTY BASED SOLELY ON LITERAL LAW INTERPRETATION.
Welcome to the great failure that is a shitty legal system that isn't checked by common sense. Also, I'm going to sue coca-cola for giving me cavities. Wish me luck.
Sorry, there is prior art.
chair to Creation and then suplex the Void.
I'm going to sue the internet for making me stupid. And angry. :P
Well.... You are going to have to prove that you where not stupid before using the internet. Something tells me that is going to be the hard part.
I'm fairly certain this requirement does exist, flimsy though it may be.
Pluto was a planet and I'll never forget
But, isn't technically being a producer of popcorn machines that use A,B,C,D prior art to the patent anyways? If I use lime to brush my teeth and sell it as a product then some jackass patents it 5 years later, I'm still the owner of prior art just out of being the first producer of it.
That gets into a back-dating issue which I was trying to avoid.
Basically, the US grants patents to the first inventor, who is not necessarily the first to create and sell the thing. Beyond that, it's a race to the patent filing.
So, to use another example...
What you get a lot of is a situation like this:
So, basically, because the patent office isn't capable of keeping up with industry trends, they'd commonly issue patents for things that were very clearly failing in novelty (and usually obviousness) because they're absolutely oblivious about it. And then it falls to a very expensive court battle to sort the whole damned thing out, and patent litigation is so expensive that it can easily bankrupt small and mid-sized companies. It's usually safer to settle.
That seems to be what's going on here.
You have X and Y, but X has been in business for years and has been selling their product that does a,b,c,d for years.
Y patents product that does a,b,c,d recently. Then is awarded the patent. Y tries to sue X. Would that even stand a chance? Not even prototyping. It's different if it's a prototype I guess and you're both working simultaneously. But if I have been producing a product for a year and had no intention of filing a patent and then Bogus McFuckerpants sees my product, sees no patent, files one, and then sues me for patent infringement, is that even legal? That's what I'm trying to get away from your post. That's where a lot of this shady shit that happens with patents happens, ultimately.
That's basically the second example I gave. Would it stand a chance? Legally, or realistically?
Legally, no. It's failing for novelty. That's as easy as patent cases get.
Realistically, maybe. The problem is that once the patent is issued, it's presumed valid. So the weight of proving it to be a garbage patent falls on the "infringer's" shoulders. And what usually happens is that if Y is asking for less money than X thinks it will take to defend itself in court, there will be a settlement, and this bullshit just gets foisted onto the next company down the line.
These are patent trolls. There are a lot of them out there, and because the law is so broken, they're not going anywhere any time soon without significant patent law reform.
Companies should defend themselves out of principle, but I guess "make fast money!!1one1!!twelve" takes precedence.
- The Four Horsemen of the Apocalypse (2017, colorized)
"Go up, thou bald head." -2 Kings 2:23
" Thesis Title: “Complete Description of the Photoionization Dynamics of Nitric Oxideâ€"
Psh - I was writing that thesis's on that stuff in Kindergarten.
ok so precedent already exists and every mmo company will get sued in turn?
I was thinking more along the lines of an infernal summoning ritual.
Didn't infernals have a rather high chance of breaking out and stomping the summoner to death?
That was changed in 3.02. Now they stay in control but leave after one minute.
Well, there goes that lawyer joke. :P
I'm not saying that. I'm just saying that the chances of Sony dropping bank in order to side with NCSoft or anyone else are very remote.
- The Four Horsemen of the Apocalypse (2017, colorized)
Now, as it was told to me, companies that both manufacture things that are similar, (i.e. they both have A, B, C, and D qualities,) don't bother each other because neither wants to lose however many millions they'd lose from ceasing production.
Then came patent trolls who don't bother manufacturing the goods in the first place, and exist for little to no reasons besides buying (and suing with) patents.
Is this the law in the U.S., or was he perhaps outlining what happens in some other country?
I ask because, if this is one of the effects brought about by patent litigation, then wouldn't that mean CoH and NCSoft's other MMO servers would have to be suspended until the courts were finished, IF they went to court?
Pharaohs need to L2P.
And my poor Death Knight that couldn't afford an icon.
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Forgive me for not keeping up, but is it really that bad? I figured Lord British would have another decent game within his lordly sleeve.
Ultima Online 2 should have been the focus, not Tabula Rasa.
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It's not automatic, the suer has to sue for it and the judge has to agree, iirc.
Tyler.
Which is where I live and work. I told my coworkers about this story and none of them denied what was said.
I'm from East Texas and I'm mostly not retarded. So do you apparently.
Come off it, if it was East Texas it would be rural SoDak or in the middle of corn country Nebraska. Place the hate on the folks manipulating the system here.
This is a big problem with patent litigation. It commonly devolves into a battle of the experts. That's not quite so bad when you're in an area like Blacksburg or Boulder or Ann Arbor, because you're likely to get a jury that, even if they don't fully grasp the expert testimony, is capable of telling which expert is the bullshit factory compared to the one who's credible.
You go out into areas like the eastern district of Texas, and education rates plummet. Suddenly, your expert isn't trying to explain biochemistry to someone who took college-level chemistry courses a few years ago. He's trying to explain biochemistry to someone who hasn't taken a science class since "earth science" in high school 20 years ago and happens to come from an intensely xenophobic part of the country.
This isn't some sort of senseless bias on Lum's part. There are advantages and disadvantages to filing a lawsuit in any given court. The lawyers know what they are. And the Lum article is spot on.
They just want the trial to end so they can go back to work.
I think they should make the patent office partially responsible for times like this. If you think technology patents are bad, so some reading on stuff like genetics or biotechnology. Or hell, just go read Next by Crichton.
Your buddy was talking about a preliminary injunction. They used to be, for all practical purposes, automatic. These days, there's a balancing test under Ebay v mercExchange, but they still seem to be granted most of the time.
You might recall RIM had a problem with this in their case against NTP, and it was only through government entities arguing that they couldn't function without RIM's service that got them out of a complete injunction.