In this thread, Crafter_Man and I got into a dispute over whether patents were worthwhile for individuals and small companies. Rather than carry on an off-topic debate, I’m moving it here.
Crafter_Man cited a site belonging to a man who sells a book on why patents are a waste of time as support for the proposition that 999 out of 1000 patents can be invalidated by doing a thorough prior art search. I dispute that number based on personal experience as a patent agent.
Contrary to this site’s assertions, any reputable patent attorney or agent searches technical literature as well as prior patents when helping a client decide whether to file a patent. I cannot imagine an attorney involved in an attempt to invalidate a patent failing to search the relevant technical literature.
Further, once a patent is issued, there is a strong presumption that it is valid. An attacker does not just have to “find someone somewhere that says it sure would have been obvious to them.” He has to convince a judge that an ordinary person in the field would routinely come up with the idea. And he has a steep uphill battle to meet that standard, since he has to prove that the Patent Office abused its discretion by granting the patent.
I think they are probably necessary when the business model relies fundamentally on the monopoly assured by law, or when they are needed for purely defensive purposes (that is, even with no intent of enforcing the monopoly.)
I believe what you say is correct with respect to how hard it is to invalidate a good patent. Actually, it seems to be very hard to invalidate even trivial patents, at least in the software arena. This makes me wonder how worthwhile are patents for society in general. (I don’t intend to hijack the thread, though.)
First of all, Enugent, unless you or I can produce an independent study on the validity of patents, we must agree that we’re basically arguing about opinions here, not facts.
In the starting thread you estimated 40% of patents are invalidated in litigation. This may be accurate, but what about all of the invalid patents that are never contested?? It should be obvious, therefore, that the actual number of invalid patents is significantly higher than 40%. But what is it? 60%? 80%? 99%? Who knows??
This is where Mr. Lancaster comes in. Based on over 30 years of collecting, documenting and reviewing literally thousands and thousands of patents (have you done this?), it is his estimate that 999 out of 1000 patents can be busted. And Mr. Lancaster ain’t no dummy; he has an MSEE, and has written over 30 books and countless technical articles. Finally, and most importantly, Mr. Lancaster has absolutely nothing to gain with his “anti-patent” preaching; he is about as objective as one can be on the subject. By contrast, and in all due respect, Enugent, you’re opinions are highly subjective due to your profession. Which is why I’ll take Mr. Lancaster’s estimate over anyone else’s who’s bread-and-butter depends on the patent system working.
Bottom line. Unless you can find someone:
Who’s profession is not patent-related,
Has carefully reviewed and documented thousands and thousands of patents over many decades,
Is very technically qualified (academic degree(s), publications, profession, etc.), and
Has nothing to gain or lose concerning the validity of patents
Even if the patent process were a joke, which I will not argue either for or against due to my own ignorance, one must use all the things at his discretion in order to protect his work.
If the patent process is what we have, then that is what we use. If it fails 999 times out of 1000, then so be it! … I will still take that chance instead of the zero chance that no protection allows.
If nothing else, patenting shows due dilligence when pursuing someone for ‘stealing’ your idea.
You are assuming that all unlitigated patents are invalid. It would be equally valid to assume that companies only go down the expensive road of filing suit for patents that are invalid, and that the other 99% are all valid.
In fact, many patents do their job of generating royalties for their lifetimes without ever being contested, because they are sufficiently strong on their faces that it’s not worthwhile to try to invalidate them. Others are never litigated because no one could try to enforce them with a straight face.
Well, your own authority doesn’t qualify either, since he sells a (moderately expensive) book on why the patent system is ridiculous, as part of a suite of information about how to run your business. Such authorities generally have to take some “controversial” position in order to sell - they’re selling you a secret! In his case, it’s that patents are stupid. Also, he’s generally selling to the information technology community, who are currently patent-crazy and in fact are filing for patents that don’t make economic sense. That doesn’t mean that all the chemical and mechanical patents are invalid, or even that the majority of software patents are invalid. It means that sometimes it’s not a good idea for a business to try to patent something, which I’ll agree with. I’ve counseled clients not to bother to spend the money on getting a patent more than once.
If you want to start tossing educational credentials around, I have an S.B. and a Ph.D. in engineering from MIT, and I am currently enrolled in Harvard Law School.
Finally, I have plenty to gain from any particular patent’s being invalid - I get hired to invalidate patents, as well as write them. The former makes my firm a lot more money (and gets me a lot more billable hours) than the latter, in fact.
You are correct that we’re talking about opinions. However, mine is informed by professional experience, and yours is informed by snake oil you read on the web. I’ll stick with mine unless you come up with something a little more convincing, thanks.
While we’re throwing around credentials, I guess that I’ll go ahead and throw mine in… no wait ENugent, screw it. 10th Grader at CCHS all the sudden came to be so much less impressive.
I think the point is that something can be good for this and no good for that.
All a patent gives the owner is the right to sue someone for infringement and even then the patent could be contested.
If you have invented a vaccine for AIDS after investing millions and have millions to gain by protecting your patent rights then spending hundreds of thousands on lawsuits is a worthwhile investment.
If you are an individual who just had a bright idea in the form of a better design for a doorknob I think a patent is a waste of time and money. Even if you tried to sue some manufacturer they would probably bury you in legal bills.
I vaguely remember a story a bout some guy who 30 years ago sued GM because he claimed he invented the blinking turn signals or the intermittent windshield wipers or something like that. He had spent his life and his fortune on this litigation and in the end got some kind of minor victory. I do not think many people would have his persistence or means to do this.
Well, there are some secondary uses for a patent, but I think they all stem from the right to bar others from using the invention, in the same way that the value of a stock ultimately stems from the underlying value of the assets of a company.
Often a patent signals to VCs that your new development is “real” - that is, some independent body, the Patent Office, has determined that you have developed something new. This can translate into mucho bucks.
Some companies file patents on rather speculative inventions in part so they can print “Patent Pending” on their products. The public often sees those words as a signal that this is a cool new gadget, or that they shouldn’t bother trying to shop around, because this must be the only one on the market. This is even more true when the company can list a long string of patent numbers on the side of the product.
Similarly, when a patent like the amazon.com business affiliates program patent issues, it’s good for some significant “free” press.
As an individual inventor, your goal is probably not to see the patent process through entirely on your own, but to file the initial application to establish that it’s yours, and then try to sell the pending application to someone who can afford to pay for getting the patent and enforcing it.
I doubt there are many individual inventors out there selling their patents and I doubt a company would even look into buying them. Not impossible but highly unlikely.
sailor, it’s actually rather common. Most companies don’t want to talk to you about your “great ideas” at all until you’ve filed a patent application, so it will be clearer later what was yours and what they might have developed afterwards. Also, filing an application provides more protection for the inventor since large companies usually don’t want to sign nondisclosure agreements. But when you go in to negotiate some kind of joint development agreement, the option of simply buying out the patent is always on the table, too. And individuals or very small unfunded companies often try to negotiate partnership agreements with big companies in the relevant industry so they can develop their ideas.
Let’s say you do get a patent as an individual. You go out to sell your great idea and some mega corp steals the idea and starts making your product. Now what do you do?
Your recourse is to file suit. Which means that in addition to the $5,000-300,000 you need to get the patent, you also have to have the bucks to sue the company.
YOur patent is only worth your ability to defend it. You are better off having potential buyers sign a solid contract and then enforcing that.