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back to article Tales from an expert witness: Prior art and patent trolls

John Watkinson is an expert witness and on many occasions has had to deal with patent litigation. Here he describes the application of ideas in the art of invention both historically and currently from Galileo to patent trolls. A patent is a form of contract between society and the inventor that benefits both. In return for …

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Very interesting read!!

Thanks for that

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Re: Very interesting read!!

Seconded.

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Re: Very interesting read!!

And another. Good stuff

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Re: Very interesting read!!

agreed, very interesting!

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Re: Very interesting read!!

Thoroughly enjoyable piece. Appreciated.

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Holmes

Re: Very interesting read!!

Agreed, however I feel some of the points need further scrutiny.

For example, can it be any coincidence that the renaissance mysteriously ended around the same time as the enactment of the Statute of Monopolies in 1624, and that the subsequent industrial revolution was primarily only of benefit to rich monopolists, leaving us with substandard yet still expensive junk, mass produced by low-paid factory workers and adolescent slave labourers in sweatshops, instead of high quality yet still reasonably priced goods that last a lifetime, made by properly rewarded craftsmen?

Sorry, but whatever the supposed "benefit" of that is, I must have missed it.

I also find it curious that mankind seems to have had no difficulty inventing, creating and discovering things for most of its history, prior to the point where it was mysteriously deemed absolutely necessary to monopolise such things.

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Alien

Re: Very interesting read!!

Eesh. Another who gets his history from Dan Brown.

So, the Renaissance only happened in England? And it somehow wasn't of benefit to rich monopolists long before 1624?

Look, just attribute the Renaissance to the space aliens and be done with it, okay?

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Re: Very interesting read!!

Yes good read but missing the biggest patent fraudster and troll of all time - Thomas Edison.

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Mushroom

Re: Very interesting read!!

One correction:

Having discovered, using his telescope, that the Earth went round the Sun and not vice versa, he [Galileo] was declared a heretic by the Catholic Church and spent the rest of his life under house arrest.

Galileo was not declared a heretic for discovering that the Earth revolves around the sun - that is a common myth. Turns out that Galileo took that scientific fact and tried to incorrectly use it as a basis for changing religious beliefs - to wit, if the Earth with Man (his most important creation) is not the center of the universe, and if God created the Earth and Man, then God is not the center of the universe. For that he was declared a heretic.

Of course, this isn't "fun", it's more fun to promote the myth than the fact (the basis of politics and good marketing).

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Headmaster

Re: Very interesting read!!

Where did I claim the renaissance only happened in England? It ended, everywhere, not just in England, just as intellectual monopoly spread like a disease everywhere, not just in England.

The fact of the renaissance being a benefit to everyone, including rich people, is not in contention. Monopolies, on the other hand, are only of benefit to monopolists. Given a choice, I'm fairly confident I know which is better.

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Re: Very interesting read!!

Has the Renaissance ended? It just means re-birth, so either it is an event rather than a period or it should be considered to last until the re-born thing dies again. Last I looked, that hadn't happened yet.

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Re: Very interesting read!!

One of the ironies here is that in an article about the use of prior art to invalidate a claim, we see the old saw about Galileo and his telescope. That the earth revolves around the sun is a self-evident fact to anyone who spends time observing the night sky for a few years and bothers to consider even briefly the fact that the "cycle" of the stars is slower than the cycle of of the sun. It is simply the simplest way to understand what you see. Ptolemy had to postulate multiple independent shells, a complex view that needed several miraculous elements to operate unseen before it could make any sense. The alternative view is much simpler, since it all can be drawn from everyday experience. Omar Khayyam considered the sun the center of the system long before Galileo and reached that conclusion using only the Mark 1 eyeball.

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Anonymous Coward

Re: Very interesting read!!

> Look, just attribute the Renaissance to the space aliens and be done with it, okay?

That would be unfair. We had very little to do with it, actually.

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Re: Very interesting read!!

And yet using just the Mk1 eyeball the Greeks declared that the moon was a perfect orb, whereas even without my glasses on I can see that it is textured.

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Alien

Re: Very interesting read!!

"Where did I claim the renaissance only happened in England?"

I'm sorry, but you really should get into the habit of reading what you write.

E.g.: "... can it be any coincidence that the renaissance mysteriously ended around the same time as the enactment of the Statute of Monopolies in 1624 ..."

Beyond the fact that the Statute of Monopolies was an improvement over the then-current system of monopolies (or lack of system), there's also the minor detail that it was an English Act. Just how it was supposed to have ended the Renaissance in France, Italy, Spain, Germany, and other countries... well, as before, your best hope is the space aliens theory.

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Ironically, while the Catholic Church was pushing the Earth-In-The-Centre teaching in Europe, in Asia, the very same church was actually teaching that the earth was going around the sun.

How peculiar.

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"In return for making the details of his invention public, the inventor is given protection for a specific time period in which he can exploit his invention."

This feels at odds with the apparently prevalent habit to patent random crap with the hope that sometimes in the future somebody will infringe it unintentionally.

Personally, I feel the main problem of the system is that people who invent something on their own should be allowed to use it, even if somebody else happens to have had the same idea before. In other words, the worth of a patent should be proportional to its inventiveness. As it is, every patent is accorded the same protection, whether the invention is incremental or ground-breaking…

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Go

In my opinion, the solution to the problem comes down to one thing, the patent office should be doing the proper research to check that a patent IS relevant. At the moment, the problem seems to be that you can patent anything, wether or not there is prior art, obviousness or it being relevant.

If the Patent Office did its job properly, a lot of these problems would go away...

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ratfox,

I once had a wonderful idea. And while researching I miserably found out that at that very same moment a start-up company started to market a product based on "my" idea. Bummer.

Part of "inventing"* something is doing research of what's already around. If it's already around, it's not an invention. And no, you shouldn't be allowed to use (i.e. to market) it. I do, however, have sympathy for your feeling but the problem with that is that you would be messing around with legal certainty.

The value of a patent is what the market is willing to pay for - not more, not less (with the limitations/failures well described in the article).

*It actually is research and part of research can be an invention.

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The biggest problem at the moment seems to be that anybody can take an existing idea add the words "on a mobile device" to the idea and it gets a patent!

E.g. How does having a menu "on a mobile device" differ from having a menu on any other device? A menu is a menu!

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I think you'll find

That previous ideas have to be adapted in some way in order to make them work on a mobile device. It's only that method of adaption that is patentable, not just using them on a mobile device.

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@Evil Auditor

The way the system is set, if fifty people invent the exact same thing at the same time, there is only one of them who is allowed to use it. And that is the one who runs fastest to the patent office. For the life of me, I cannot imagine why this guy has more merit or should have more rights than all the others. He does not bring anything to society, since society would have lost nothing if he had slept that day. On the contrary, he takes something from society, as he prevents all the others to exploit the idea in various and possibly more interesting ways. I don't see why society rewards this guy.

The patent system is not an end in itself. It was created to foster innovation, and ultimately to benefit society; not to recognize some moral rights of inventors. If society does not benefit from granting exclusivity to first inventors, it should not be done.

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Re: @Evil Auditor

During the first year after filing a provisional patent it is kept secret by the patent office and you have time to improve it before final submission. There is a reasonable case that any other patents filed during this year should all be granted equally rather than first to file takes all.

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Re: @Evil Auditor

The US used to run a "First to Invent" system, but then you got into long and protracted arguments over who thought of the idea first and it was subject to abuse (something that Edison got up to IIRC). First to file may not be perfect, but it is easy to prove and is the way that the rest of the world's patent systems work.

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Re: @Evil Auditor

> The patent system is not an end in itself. It was created to foster innovation, and ultimately to benefit society; not to recognize some moral rights of inventors. If society does not benefit from granting exclusivity to first inventors, it should not be done.

History is replete with incidents of this happening: still camera photography, moving image photography, electric light bulb....

A lot of inventions come about because the time and technology is right. It is well known that a number of people were working simultaneously on movie photography. In this case it is certainly a race rather than innovation per se. However, in those cases, you could argue that there is insufficient innovation and the invention would be obvious to those skilled in the art if a number of people were pursuing the development.

To be truly innovative, the invention should really come out of the blue without it being anticipated.

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Patent-Worthiness... I wholeheartedly agree, too.

The value of the patent should lie in how the actual, real, verified users are making do with the invention. Imagine if Ford got the patent to autos and KEPT it forever, and no one could improve upon it. What about socks, toothbrushes, hair brushes, drink mixers, TOILET PAPER, and on and on.

Electronics and apps should be accorded no special privs except in the case of BLATANT rip-off and shameless purloining as original.

If someone invents a neutron flux backscatter thingamajiggy, and in functions shittily, and the buyers hate it, and someone analyzes the nfbt's flaws and improves upon it, then good on them. Process and workability should determine whether the improver gets to keep using it, AND without having to pay royalties to a capable but lazy inventor, or a patent-seeking entity looking to screw people and companies should NEVER be rewarded. Such trolls should be nuked, and by DNA and assets connections be forever denied filing for or benefitting from a patent when discovered to have been found a PAE shaking down or booby-trapping well-meaning, legit, active, productive filers of patents that are for products that are factually well-received.

Just my $1.79

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@ratfox 15:46 GMT

I agree with all what you said. I have a question though. What would be better than a patent system?

The current patent systems are not perfect. Sometimes they fail (trivial patents, high litigation costs, etc.) and the system could likely be improved.

I believe, however, that in general society does benefit from granting (temporary!) exclusivity to the patent holder. Without this exclusivity the inventor would probably be better off keeping his invention secret thus preventing others from using this idea for further innovation.

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Empire building

"the patent office should be doing the proper research to check that a patent IS relevant"

Surely an organisation given a license to print money will run the press at full speed ? That's human nature.

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Wish I could up-vote articles because this one surely deserves it.

Like most sane people*, I'm annoyed by the volume of the absurdity that exudes from the patient office, the patient trolls, and the companies who view the patient system as a stick to beat potential competitors with.

As someone more directly familiar with the system, I'm curious about Mr Watkinson's view. Is the patient system salvageable? Or would we be better off tearing it all up and starting over?

* There's whole minutes at a time when I'm lucid!

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Yes, indeed

I, too, would like to hear more from Mr Watkinson on 'is a workable and honourable patent system possible' and perhaps 'most ridiculous examples in the annals of trolling' and even 'how to do it right'.

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Coat

"the absurdity that exudes from the patient office, the patient trolls"

Patient trolls are probably the most vicious adversary you can possibly encounter.

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Patient Trolls

Are those the ones that hide under hospital beds?

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Re: "the absurdity that exudes from the patient office, the patient trolls"

More vicious than a suicide bomber? I don't think so.

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You missed the most common way inventors deal with patents

Don't waste your time reading them because:

You would have to read thousands to find anything relevant.

You would have to learn patent language to understand them.

Even if you understand the patent, your still have to do the research to create a product.

Reading a patent makes you liable for triple damages.

You are going to get sued anyway.

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"and I bought a helicopter. Those were the days."

Best Article Ever. Can you employ/get more from this person? Loved it.

I'm planning to add that sentence to my memoirs too, but it will be one of those £30 toy ones. :D

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DJO
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The world’s strongest industrial nation, the United States, has probably reached that position because its constitution separates the state from churches.

Partially yes but mainly because for the first 100 -150 years of the US they completely ignored foreign patents and copyrights. A tactic that's not so easy now days and see how they whine when other countries try to do the same to the US.

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Partially yes but mainly because for the first 100 -150 years of the US they completely ignored foreign patents and copyrights

.. which is a point that Cory Doctorow has made repeatedly, making the vast patent and copyright industry that exists now (and their whinging at China for principally doing the same) and all the associated chicanery in law and international politics just a tad hypocritical IMHO.

BTW, I second the general upvote of the article - it was interesting, informative and insightful.

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In that case, the constitution can be said to have failed, since judging by the influence that the church currently has over all US politicians.

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... And another thing

It's overstating the case of separation of powers.

It may well say that in the constitution, but it is actually the case that

the US is to Christianity what Pakistan is to Islam.

apart from that, most informative and entertaining article.

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yes, and

The Bill of Rights states that Congress shall make no law, etc. At the time the Constitution and the first amendments were ratified, there were a number of state churches, and in a number of the fastest-industrializing states.

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slight mistake

it is the beliefs that has the infuence not the church per say.

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Ignoring foreign copyrights was an own goal, since it created a situation where US authors were unattractive to US publishers because the latter could reprint new work from across the Atlantic without paying. The likes of Edgar Allan Poe suffered greatly because of this. If the US were still working this way, I doubt there would be a film industry in Hollywood (except, perhaps, for the porn).

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Anonymous Coward

Re: slight mistake

> per say.

"per se" (by itself).

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Anonymous Coward

> If the US were still working this way, I doubt there would be a film industry in Hollywood (except, perhaps, for the porn).

Wouldn't that be a most desirable state of affairs?

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Anonymous Coward

Re: ... And another thing

It is the worst example because of the fundamentalist steering politics?

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err don't you mean...

"Galileo Galilei, who may not have invented the telescope, but who was definitely the first to make it work properly.

Original sinners

Having discovered, using his telescope, that the Earth went round the Sun and not vice versa"

Ptolemy discovered it and Copernicus rediscovered it.

Galileo confirmed it by scientific observation.

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Re: err don't you mean...

*cough* Ptolemy promoted a geocentric model. *cough* Aristarchus of Samos opted for a heliocentric model and did so 400-500 years before Ptolemy. There are even older, non-geocentric models, but they are very strange.

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Re: err don't you mean...

Galileo's contribution was to find four moons orbiting Jupiter. That made it hard to argue for an anything-centric universe.

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Quite probably the best article i've ever read here.

I Wonder if this could be a semi-regular feature?

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