# It pit patent law **URL:** \ **Category:** The BBQ Pit\ **Created:** [April 14, 2006, 7:24pm UTC](https://boards.straightdope.com/t/it-pit-patent-law/352691 "2006-04-14T19:24:14Z")\ **Posts on this page:** 5\ **Page:** 2
**Author:** ![Huerta88](https://avatars.discourse-cdn.com/v4/letter/h/82dd89/32.png) [@Huerta88](https://boards.straightdope.com/u/Huerta88)\ **Post date:** [April 15, 2006, 4:39am UTC](https://boards.straightdope.com/t/it-pit-patent-law/352691/21 "2006-04-15T04:39:12Z")
> [@mazinger\_z](#): > > The law is sound, however, it’s the application which is suspect. The government should hire more patent examiners. The PTO shouldn’t make it so difficult to be a patent attorney (you need a BS or a ton of science credits; the actual test isn’t nice either, then again, depending on what state you’re from, neither is the bar). > > There is of course, a self-correcting mechanism: sue. If you think you’re being infringed, sue their pants off. If you think you’re doing something right, go to court. The injunction should be easily overcome, and is a good indicator if you’re in the clear. (And by “you” I mean the people who are/or about to be embroiled in patent suits). Well, the injunction isn’t always easily overcome or overturned and a declaration that one does not infringe is not always readily forthcoming. Much more importantly, even if I (as defendant to an allegedly-frivolous patent infringement claim) prevail entirely in my defense, who will pay my costs for doing so? In practice (in the U.S.) – I will. (Certainly there are attorneys’ fees and sanctions provisions in principle available against frivolous claims, but take my word for it, they are awarded infrequently enough that you may regard them as almost never being awarded). It’s a hollow victory. Relatedly, I’m not sure the law’s totally sound. For instance, one of the things that makes it hard to defeat even the most bogus patent claim (or recover fees/sanctions for its assertion) is that the law statutorily presumes issued patents to be valid. The practical effect of this (fictitious) presumption is that it’s very difficult to obtain early dismissal of a patnet infringement case on the grounds that, say, an algorithm patent is obvious, and very difficult to prove that the patent-holder acted in bad faith in asserting a (statutoriy-presumed-“valid”) patent. Finally, as noted, one of the reasons a statutory presumption of validity is kind of silly is that patent examination is pretty haphazard. Examiners are underpaid (or overpaid, depending on what you think of their bureaucratic approach to their job) low-level civil servants, often with limited technical or business experience, and all too often far from functionally proficient in the English language in which the claims are drafted and construed. Okay, fine, good enough for government work, but I doubt we need to be placing some papal infaliibility seal on the patents these guys churn our. ---
**Author:** ![DanBlather](https://avatars.discourse-cdn.com/v4/letter/d/f4b2a3/32.png) [@DanBlather](https://boards.straightdope.com/u/DanBlather)\ **Post date:** [April 15, 2006, 6:54am UTC](https://boards.straightdope.com/t/it-pit-patent-law/352691/22 "2006-04-15T06:54:43Z")
> [@cj finn](#): > > When I read stuff like this the word that comes to mind is ‘moran’. The law says nothing about what constitutes technology. Furthermore, if you were to bone up on patent law, you would understand that it is not the idea that is patentable, it is the application of the idea. If someone has a good idea, figures out a useful application for that and is able to patent it, your only option is to suck it. > > If you want to rant about patents without putting in the time needed to understand what is a rather complicated area of the law, go for it. If you want to appreciate what is going on, read the patent, parse the claims, apply the law and figure out what it covers. What you’ll likely find out is that the patent is narrower that you think it is. Furthermore, you’ll likely find out that the patentee was first in line with their invention. If not, perhaps you will put your money where your mouth is and file a re-exam petition. Your assertion that the patent is ‘bullshit’ should be very persuasive. > > CJ You are being quite harsh. There are many well informed people who think that patents are getting out of hand in the computer industry. I hold 6 patents and have several more pending. Software patents and [business](http://cobrands.business.findlaw.com/business_commercial/business_operations/nolo/ency/C2DBFF26-7097-4B7B-AE36DA00499851EE.html) method patents are especially controversial. In the past (ibid), one could have copyright protection on the implementation of an algorithm, but not on the “idea”. I’m not sure where to draw the line, but I think the pendulum has swung a bit too far. Large companies commonly cross license patents to each other. This creates a barrier to entry for smaller companies. Having the mass media using terms like “patenting genes” does not help to provoke a good discussion of a complex topic. ---
**Author:** ![cj\_finn](https://avatars.discourse-cdn.com/v4/letter/c/4bbf92/32.png) [@cj\_finn](https://boards.straightdope.com/u/cj_finn)\ **Post date:** [April 15, 2006, 10:26pm UTC](https://boards.straightdope.com/t/it-pit-patent-law/352691/23 "2006-04-15T22:26:41Z")
> [@DanBlather](#): > > You are being quite harsh. \* \* \* > Having the mass media using terms like “patenting genes” does not help to provoke a good discussion of a complex topic. You are correct on both counts. The OP’s characterization of the patent, without any supporting evidence, works the same as the ‘patenting genes’ line. The funny thing is, I agree with the OP in a general way. In many ways, patent law is out of hand. The OP’s simplistic view of the situation, akin as it is to the shrill, black and white rhetoric applied to politics these days, makes my blood boil. It is unhelpful at best and poisons an otherwise useful discourse. Hey Shag: WOOSH! CJ ---
**Author:** ![Fear\_Itself](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/fear_itself/32/19637_2.png) [@Fear\_Itself](https://boards.straightdope.com/u/Fear_Itself)\ **Post date:** [April 15, 2006, 10:56pm UTC](https://boards.straightdope.com/t/it-pit-patent-law/352691/24 "2006-04-15T22:56:15Z")
I have a patent on dipping toast in a soft fried egg yolk. I’m gonna be rich. ---
**Author:** ![fluiddruid](https://avatars.discourse-cdn.com/v4/letter/f/c2a13f/32.png) [@fluiddruid](https://boards.straightdope.com/u/fluiddruid)\ **Post date:** [April 15, 2006, 11:16pm UTC](https://boards.straightdope.com/t/it-pit-patent-law/352691/25 "2006-04-15T23:16:50Z")
> [@griffin1977](#): > > But when their Blackberry doesn’t work you’d think it would twig (expect I beleive congress made sure they would have been exempt :smack:)… Actually, there was legitimate concern about the government Blackberry fleet. From what I understand, these would have been exempt from any loss of service (though loss of service was not really within scope of the lawsuit at the time; none of the cell phone carriers were party to the lawsuit). [Previous page](https://boards.straightdope.com/t/it-pit-patent-law/352691.md?page=1)