New Breed of Patent Claim Bedevils Product Makers
online.wsj.com
online.wsj.com
The 20 years from filing rule for patent term seems deceptively easy. But there are many caveats. First, the rule is relatively new and there are still many patents out there that are subject to a different older rule. Second, there are various ways that the term of a patent can be modified, such as term extensions and terminal disclaimers.
So, if you want to absolutely certain whether a patent is expired or not you must either hire a patent attorney or spend a lot of time trying to learn patent law and patent practice by yourself.
As a patent attorney I should not complain, I suppose, but I think the law referenced in the article makes sense. False patent markings do discourage competition, and it is not actually that easy for the ordinary potential competitor to determine if a patent is valid or not. Although, the penalty of 500 per item may be a bit excessive.
edit: If I were just to scan them and host them all online would I be doing anything that could be considered infringement? Because as I read it, what they are saying is that this textbook is considered public domain for another two years.
The copyright notice, symbol, and date are advisory only, not magical runes with exotic legal effects. (Registration of copyrights gives you extra bonuses, but it isn't necessary to invoke copyright protection.)
Yes, taking them and hosting them would be infringement. So would republishing this comment, which has no date or copyright symbol but is copyrighted by virtue of existing. The usual rules about fair comment, etc, apply, and courts would hold that I've certainly given PG et al implied license to retain and display the comment as a consequence of writing it here.
I am not a lawyer, but I'm not wrong, either.
I think you're under the impression that copyrights expire at some point, which isn't really the case any more in the US for corporate-owned copyrights, right?
You're probably thinking of the http://en.wikipedia.org/wiki/Berne_Convention_for_the_Protec...
I'll count this a good thing, though $500 per item on the shelf is excessive. As long as those patent numbers are on a product, people won't be as likely to do anything similar for fear of patent violation.
If the retailers are also held accountable, I feel sorry for them. That's a redonkulous amount of fact-checking they'd have to do, especially since some patent numbers are inside the items, on the motor housing.
Mr. Stauffer, who calls himself a "sharp-dressed man," also happens to be a patent lawyer. He sued Brooks Brothers Inc. in federal court, claiming it broke the law by marking its adjustable bow ties with patents that expired in the 1950s.
He figured the retailer would have to pay a nominal amount for violating a law that bars companies from marking products with erroneous patent numbers.
Opening paragraphs, among mentioning other retailers elsewhere (though those seemed to be referring to those retailers' own products).
I don't buy that. At the very least you'll want to look up the title of the patent before getting scared off, which is an easy google request. And those patent documents all have issuing dates - if the data is 50 years ago, why worry?
What really gets me about the article are the claims about misleading customers. Unless I'm mistaken, customers don't care about patents. The numbers are only there so that if there is an infringement case, the patent owners can get more cash. The chilling effects of patents still stand, as you can never know if some product you think you just invented is covered, even a little bit, by some obscure patent. And they are all obscure, because it triples your damages if there is evidence you've read the relevant patents. But now I'm just ranting.
At least these guys have a product to write the patent number on.
At worst, an expired patent might be considered inaccurate advertising that fools a few consumers into thinking a product won't have any generic alternatives available. Not sure it's a $500 per violation level of misleading though...
I'm not really sure how anyone other than the lawyers attempting to extort money (and representing only themselves) benefits in any way.
The companies that suffer the most will be those that have genuinely tried to protect innovative product designs they've actually implemented, rather than those with secret arsenals of vague and broad business process patents that are mainly conceived as an excuse to sue the successful.
http://www.cafc.uscourts.gov/images/stories/opinions-orders/...
In other words, they have to actually prove this at trial, which can be expensive, even if they have a fairly low bar to prove that they meant no harm.
What happens to old stock or whatever? Do retailers have to pull things from the shelves when their patents expire?
Better yet, you could have a product code, that could lead to a web page that has the list of patents (and potentially other information; recalls etc?) on it.
If corporations want their patents to be protected, patents must be protected. Selling an item with an expired patent number is akin to fraud, and undermines the patent system at large.
Congress to the rescue!
When the patent numbers are removed, people can start imitating, introducing competition in the market, and even commodifying things. Basically all the things patents prevent. This allows for increased overall market efficiency.
Since the patent system is in place, perhaps instead of feeling sorry for the poor companies being sued for abusing the patent system, maybe you should try to appreciate that some people will do this. Maybe they are scum, maybe not -- do you actually know anyone who does it? Most likely some are just looking for a quick buck. Some are doing it because it needs to be done. Some may be doing it because it is exciting new lawyering. How is this any different in terms of motives than a random sample of tech startups (replace lawyering with tech...).
Related: Do the people who launch suits to get patents invalidated make you sick also? Do you call them "just another form of patent troll"?
Also, if I'm looking to make a competing product, and I see a patent number on a similar product, would it not make sense for me to check if the patent is still in effect? I'm not just going to see a patent number and say to myself, "oh shoot, they already got it, guess that's the end of that."
And from a consumer perspective, do I really care if there is a patent for this product or not?
My compromise would be to say the company would be required to have the patent numbers taken off and perhaps a fine to the USPTO, but why should this lawyer get money?
"The law on false patent markings is similar to whistle-blower laws. Anyone can file a claim on behalf of the government, and plaintiffs must split any fine award evenly with it. "
Blame the system, not the person.
As for patent number stamped on the product itself, I bet if the company took the stamping tool off the machine, or filled in the patent number part of the mold, it would cost a day or two and a few $K. I bet the law (judges, regulatory agencies, etc) would be willing to make exceptions for "if it was manufactured while the patent was valid, there is no need to retroactively remove the number.
Your other points -- general advice is to not look into patents when creating things, seriously google it. Consumers don't care about the patent, but that is a strawman. Consumers do care about shady business practices, which this falls under.
As for why the lawyer should get money? He is willing to look for the violations of the law, he can get rewarded for it. Further, it is probably far more efficient than the amount tax money the USPTO would waste enforcing this poorly.
And ad-hominem attacks are completely unnecessary.
1) Mislabeling products with fake or expired patent numbers can be pretty hostile. I'm sure it happens by mistake in many cases, but I'm also sure it's malicious in others.
2) A few lawyers might make some cash bringing these lawsuits, but it won't last. Companies will quickly fix these problems if they're on the hook for more-than-tiny damages. It's pretty clear that $500 wrist slaps weren't doing any good.
Intellectual property laws create weird instances of deadweight loss. This one's just obvious and visible. Less obvious and visible are excess profits a manufacturer might take in if they manage to scare would-be competitors off with irrelevant patents.
So yeah, I don't really have much problem with the lawyers who are exploiting this.
Only some. Loads of them are so vague as to match nearly anything in their field.
How much time do companies spend putting patent numbers on their products? They can spend just as much time removing them. I say it is a simple cost of doing business.
Imagine how many laws out there are like this?
This eliminates the problem old left-over stock marked with expired patents. It also eliminates the problem of forgetting.
I wonder how many patents are invalid because of neglect.