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"Patent Markings" Lawsuits Could Run Into the Trillions

kdawson posted more than 4 years ago | from the who-you-callin'-a-qui-tam dept.

Patents 193

bizwriter writes "The latest legal bugaboo facing manufacturers is the false patent marking suit. Using what has been until recently an obscure type of legal action, individuals and enterprising law firms have targeted large manufacturers with lawsuits that can easily run million of dollars — in a case involving a drink cup manufacturer, over $10 trillion — for incorrectly including patent numbers on products. Some companies named in such suits are 3M, Cisco, Pfizer, Monster Cable, and Merck. Even expired patent numbers can be actionable." Sounds like a perfect opportunity for some enlightened appeals court to inject some sense into the debate. What do you think the chances are? Note: if ever there were a page that cries out for the Readability bookmarklet, this is it.

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193 comments

How about.... (0, Offtopic)

Darkness404 (1287218) | more than 4 years ago | (#31324426)

How about we look over patents carefully and allow -anyone- to file a prior art question without going to court but rather put all patent applications online for say ~30 days and open it up to debates for anyone to say that its had prior art which gets looked through before it becomes approved.

Re:How about.... (2, Interesting)

FooAtWFU (699187) | more than 4 years ago | (#31324460)

How about this is completely unrelated and if I really care about the list of patents on a product I'm probably treating them as a warning, not an ad, and I'd rather they be too-inclusive than super-exclusive?

Re:How about.... (1)

Koby77 (992785) | more than 4 years ago | (#31324556)

Even better, rather than limiting lawyers to sue for false patent marketing for expired patents or patents which were never filed, we allow lawyers to sue current patents which are obvious or already covered by prior art?

Re:How about.... (4, Insightful)

JaredOfEuropa (526365) | more than 4 years ago | (#31324962)

How about reforming the law to do away with the moronic idea of awarding "punitive damages", or whatever it is called in cases like these, to claimants? In some countries, like the one I live in, payments to claimants are pretty much limited to actual damages and legal fees, maybe with a small bit added on top for things like mental anguish or redress. That lady who sued McDonalds over scalding coffee should at most have gotten her medical and legals bills refunded, with perhaps a couple thousand thrown in for her trouble. That's what she'd get over here (and if I remember correctly, that's what she originally sued McD for). Make no mistake though, actual damages in case of severe injuries can run into millions as well... but we do not reward people for a bit of bad luck or for finding some obscure legal technicality that does not affect anyone. Slipping on the pavement in front of a fancy restaurant should not turn into a windfall, neither should this new form of patent trolling.

If a claimant can prove actual damages caused by improper patent marking, then by all means should they be able to sue for these damages. And if another company has been naughty and put incorrect markings on their products, they should received reasonable punishment. Some of these amounts sound excessive, and in any case, they should be treated as fines and go to the state, not to some random claimant.

Re:How about.... (1)

micheas (231635) | more than 4 years ago | (#31325294)

Well the US has been privatizing almost everything for a long time. San Francisco even had a private police station in North Beach funded by the merchants for the merchants, for most of the city's history.

The huge awards in the US courts tend to be around the idea of disgorgement of profits from the illegal act.

The biggest problem with the US legal system is that the wealthy know that to successfully litigate a case of 25k in damages is probably going to run 80k plus, as the cost of a deposition is about 5-10k for each side and you probably need at least six depositions. He said, she said is just out of reach for the lower middle class and the poor.

Also factor into inflation, and the $500 per item fine in the 1800's when the law was passed was real money. I doubt that those numbers would have shown up if the fine was closer to $300,000 per item, which is probably what the original fine was in an inflation adjusted basis. Patents used to mean something, now they are for peanut butter sandwiches with the crust cut off [google.com].

Copyrights (4, Interesting)

KC1P (907742) | more than 4 years ago | (#31324464)

I wish (US) copyright law worked this way around ... right now there's essentially no risk in tacking on a questionable copyright notice.

Re:Copyrights (5, Insightful)

peipas (809350) | more than 4 years ago | (#31324548)

Exactly. I'd like to see those NFL motherfuckers pay some coin for "prohibiting" descriptions of games they broadcast.

Re:Copyrights (0)

palegray.net (1195047) | more than 4 years ago | (#31325432)

I'll be sure to encourage your local prosecutor to find a way to charge you with something the next time you tell a lie of any kind. Oh, wait... that isn't what you wanted? Consumers are responsible for knowing the law, and we don't need any more legislation designed to protect people from themselves. The networks can say anything they please; it doesn't make it true, and it doesn't mean it stands a chance in hell of being the basis for a successful lawsuit. Joe Blogger isn't gonna lose in court because he wrote about a football game.

Re:Copyrights (2)

palegray.net (1195047) | more than 4 years ago | (#31325760)

Wait, so I'm being modded down for calling BS on the suggestion that double standards are okay? That's just doubly wrong.

Re:Copyrights (2, Interesting)

Foobar of Borg (690622) | more than 4 years ago | (#31325974)

Consumers are responsible for knowing the law, and we don't need any more legislation designed to protect people from themselves. The networks can say anything they please; it doesn't make it true, and it doesn't mean it stands a chance in hell of being the basis for a successful lawsuit.

Perhaps you missed the part where the NFL basically says "Do what we say or we'll file baseless lawsuits that will bankrupt you in legal costs even if you win." You shouldn't be able to threaten people with legal action unless you actually have a reasonable claim. I guess you've never had to deal with the stress of a lawyer bombarding you with legal claims, hoping one of them will stick. Or, do you propose that everyone must get a law degree to be able to do anything in life?

In short, STFU. You have no idea what you are talking about.

Re:Copyrights (1)

mysidia (191772) | more than 4 years ago | (#31324564)

There's no such thing as a questionable copyright notice, since copyrights are automatic and don't have to be registered, it is almost always possible for a legitimate copyright claim to be made by the manufacturer (even if in reality, their only creation is cover art and their process of selecting public domain material to fit in the middle --- their choices of which public domain materials to include in an anthology or collection are in fact copyrightable).

Re:Copyrights (0)

Anonymous Coward | more than 4 years ago | (#31324646)

Unless it's plagiarism, in which case... it's plagiarism.

Re:Copyrights (1)

nasch (598556) | more than 4 years ago | (#31325218)

Organizations are always claiming 1) copyright on stuff they don't have the copyright to and 2) rights that copyright law does not actually accord them. Like the NFL example given above - "pictures, descriptions or accounts of the game without the permission of the NFL are prohibited." Copyright does not give them the right to prohibit descriptions or accounts of the copyrighted broadcast, so that copyright notice should be illegal and they should be substantially fined for it. CDs would commonly prohibit lending on the copyright notice, which is also not permitted. There are many other examples.

Re:Copyrights (1)

mysidia (191772) | more than 4 years ago | (#31325370)

Well, the situation is not the same unless they're claiming copyright for someon else's exclusive work. It can happen, but I doubt it is nearly as common as accidentally stamping the wrong patent number on a product.

Copyright does give them the right to prohibit descriptions or accounts of the game. It's part of the contract terms to buy a ticket, that NFL gets assigned those copyrights. When NFL owns the copyright to your description or account, they are in a position to dictate the terms under which that account or description may be used.

Copyright also does allow them to prohibit lending the item, and other things that are 'performance of the work'. Unless your activity falls under the library exception, you are prohibited by that from setting up a rental store and lending the CDs without proper licensing..

The only way you can do those things is through fair use, which essentially means you admit to copyright infringement, according to copyright law you infringe: but you are protected from liability for that infringement by the fair use doctrine.

Re:Copyrights (1)

b4dc0d3r (1268512) | more than 4 years ago | (#31325534)

Copyright does not work that way. What happens during a football game is just a collection of facts. Collections of facts are not copyrightable in most circumstances. For example, if I photocopied the phone book, that's infringement. If I OCR the whole thing, that's probably infringement. If I OCR just the names and phone numbers, and present them in any other format, it's not copyright infringement.

When you give an account of the game, as long as you're not repeating something the announcer said, you're reciting facts. Doesn't matter what the contract says - contract law usually limits contracts to something reasonable. Especially when the only way to see a game is to buy a ticket, making the contract required. The requirements are at that point subject to a test of reason. It is perfectly reasonable for me to go home and tell my friends what happened at the game. It is reasonable that I discuss it at work the next day, where many people could overhear it. Where do you draw the line?

So now I'm reprinting a play-by-play of the game. Using just facts, I create my own artistic work and publish it on a blog. Is that fair use? Or is fair use not a question, because it's based on non-copyrightable facts? Now I'm earning money from my blog. Now ESPN posts my account without asking me. Did they violate my copyright or the NFLs'? The answer is, mine.

Now, what I've said depends on the contract being only partially enforceable. If you can show me any case where this has been upheld, I'll have to retract this comment. But what you'll find is a lot of heavy-handed take-down requests which never materialize into actionable legal situations. Threaten a lawsuit, point out the ticket contract, and hope you don't get challenged.

To put it another way, if you're right, everyone who repeats any detail about the game, including the scores or player stats, could be sued, even though copyright is assigned at the moment of creation and facts re not copyrightable.

Re:Copyrights (1)

mysidia (191772) | more than 4 years ago | (#31325732)

What happens during a football game is just a collection of facts. Collections of facts are not copyrightable in most circumstances.

No. But the moment you fix that collection of facts into a tangible form, your fixation of those facts becomes copyrightable, and your contract with the NFL (as included on the ticket) automatically confers the exclusive ownership to the NFL, the moment you fix or state your account of those facts.

contract law usually limits contracts to something reasonable

Not really. As long as the contract cannot be taken as unconscionable or unenforable, it can be as unreasonable as they desire it to be.

A mere test of reason alone won't make a contract term unenforceable.

It is perfectly reasonable for me to go home and tell my friends what happened at the game. It is reasonable that I discuss it at work the next day, where many people could overhear it. Where do you draw the line?

You going home and telling your friends doesn't cause a work fixed into tangible form.

So now I'm reprinting a play-by-play of the game. Using just facts, I create my own artistic work and publish it on a blog. Is that fair use?

It could be fair use of the copyright you were forced to transfer to NFL. But you posting it might (or might not) be in breach of your admission contract.

Now I'm earning money from my blog. Now ESPN posts my account without asking me. Did they violate my copyright or the NFLs'? The answer is, mine.

If your ticket conferred copyright to written accounts of the events witnessed to the NFL, then they have the rights to post it. And probably the rights to send DMCA takedowns against your blog hosting provider.... (unfortunately)

Re:Copyrights (1)

Retric (704075) | more than 4 years ago | (#31325840)

Use of a ticket is not a binding contract with the NFL. If someone hands you a ticket which you did not buy and you show up at the game at no point did you agree to anything.

Re:Copyrights (1)

mysidia (191772) | more than 4 years ago | (#31325894)

You certified the agreement by taking the ticket and presenting it for admission.

The NFL received consideration (cash for the ticket), and you received consideration, access to the game. The fact that an agent of you paid the fee is irrelevent.

The meeting of minds occured when you went there and presented the ticket to gain entry, and by seeking that they honor their end of the agreement, you confirm your own obligations.

Why Couldn't They? (1)

Greyfox (87712) | more than 4 years ago | (#31324700)

Specifically if the RIAA issues a DMCA takedown notice because they noticed that your garage band's website has MP3s on it, but they were your garage band's songs, you should be able to sue them for $500 for every file they claimed was infringing! I wonder if you could get away with it under this law...

Re:Copyrights (0)

Anonymous Coward | more than 4 years ago | (#31324736)

That's because under US law, every work(piece of art, music, etc) is automatically copyrighted. if you make something, you can copyright it simply by putting a copyright notice on it.

Re:Copyrights (1)

DaveV1.0 (203135) | more than 4 years ago | (#31324942)

Please explain in detail what a "questionable copyright notice" is.

Re:Copyrights (1)

interactive_civilian (205158) | more than 4 years ago | (#31325108)

A copyright notice which claims more rights/restrictions than the law allows. For example, "no portion of this may be used without direct written consent" would impinge on fair use, as it is entirely legal to use portions for eduction, review, or criticism.

Re:Copyrights (1)

palegray.net (1195047) | more than 4 years ago | (#31325322)

It's the consumer's responsibility to know the law. I can put a sign on my front door saying it's illegal to walk past it between the hours of 0300 and 0500. That doesn't make it true, and I don't see the need for any law preventing me from posting such a sign. In fact, I'm generally not in favor of nanny state legislation designed to protect people from their own ignorance when it comes to such matters.

Re:Copyrights (1)

palegray.net (1195047) | more than 4 years ago | (#31325338)

As an additional note, I'd like to point out that your sig seems to contradict your stated position:

"Empathise with stupidity, and you're halfway to thinking like an idiot." - Iain M. Banks

Amen! (1)

Weezul (52464) | more than 4 years ago | (#31325342)

All these qui tam actions might be lawyers trying to make a buck, but I feel they are basically beneficial because :
(a) they help out small producers that actually know their own patents, and
(b) they highlight the underlying meaninglessness of the patent system.

We must also remember that judges will weigh the social costs for the various violations. For example, I'd expect that the 21 billion Solo Cup lids case is rather "open and shut", as all those lids were falsely market, but the actual damages are rather small. How many people were wrongfully dissuaded from creating competing lids? I'd hope the court awards Attorney Matthew Pequignot a couple million dollars, but not more.

Re:Amen! (0)

Anonymous Coward | more than 4 years ago | (#31325560)

If the lawyers were suing on behalf of you and me against a company that was abusing patents, I'd be all for this. But you know who gets screwed in the end? Yup - you and me. Do you really think none of these costs will be passed on to us? And the lawyers will laugh all the way to the bank. Ain't it great?

I agree, but .. (1)

Weezul (52464) | more than 4 years ago | (#31325396)

.. copyrights never expire.

I'm sure you can sue for false DMCA takedown notices, but tracking down all those false ones will require more than $500 per incident. Imagine a false DMCA takedown notice earns the victim $10k just like abusive collections practices do. We'd most likely still see most victims just sit around and suffer quietly rather than fight.

Re:I agree, but .. (1)

mattack2 (1165421) | more than 4 years ago | (#31325848)

Are you just using hyperbole or what? (e.g. the "Disney gets copyright extensions forever" meme.) Copyrights can and do expire.

Don't "lose track". Don't "forget". (4, Insightful)

John Hasler (414242) | more than 4 years ago | (#31324496)

> The problem for companies is that they might have lost track of what patents
> cover a given product, or might have forgotten to update packaging to remove
> numbers of patents that had expired.

Don't "lose track". Don't "forget". Or don't mark (it isn't required). Problem solved.

Re:Don't "lose track". Don't "forget". (1)

s-whs (959229) | more than 4 years ago | (#31325068)

> The problem for companies is that they might have lost track of what patents
> cover a given product, or might have forgotten to update packaging to remove
> numbers of patents that had expired.

Don't "lose track". Don't "forget". Or don't mark (it isn't required). Problem solved.

Nonsense. Materials may be made before the patent expires. What about stuff a few years old that didn't sell at the regular price and is now being sold off for a low price? CD players for example. Should patent numbers be removed before selling? Of course not.

In any event, this whole suing because of patents no longer being valid is nonsensical. Anyone who cares about the patents in a product, will look them up. No need to be pedantic about some patent not being valid any more.

Re:Don't "lose track". Don't "forget". (0)

Anonymous Coward | more than 4 years ago | (#31325706)

If you are generating IP reading other peoples patents is a liability because you risk making the infringement "willful" which carries significantly higher penalties... I would wager that they are marked to make it harder to argue for non-willful infringement.

Re:Don't "lose track". Don't "forget". (1)

eggnoglatte (1047660) | more than 4 years ago | (#31325746)

Or don't mark (it isn't required).

Yeah, but is that really what we want? At least if they include markings, they let you know that they think this product is covered by a patent. That is much better than a submarine patent that is hidden somewhere in the bottom drawer of a filing cabinet.

Since you have the relevant patent numbers, any semi-competent competitor can go online, look up the patent, and see what exactly is covered by it. If the patent is expired, or simply doesn't apply to your competing product, you'll be able to see it right there. Basically, there is no harm done, so I don't see how you could ask for millions or billions of damage.

Silly editor (4, Insightful)

Anonymous Coward | more than 4 years ago | (#31324500)

Why is it that editors around here seem to think that laws are made by the courts? This one is a great example - saying it is an opportunity for the Federal Appeals court to do something. Like what? They get to rule based on law. If we need the law changed, the court can't do that - it needs to go to the legislative branch for that.

Re:Silly editor (5, Informative)

MillionthMonkey (240664) | more than 4 years ago | (#31324724)

Yes but judges can create precedent by presenting a finding where existing law is vague. The legislature can respond to that by further legislation. Judges can also find laws to be unconstitutional, and these rulings might require passage of an amendment to overcome.

You hear a lot about "legislating from the bench" but this is part of the job. Judges are supposed to "legislate" by filling in gaps as cases present themselves which might have no clear precedent or no clear interpretation within existing law. (The legislature certainly can't be expected to think of everything.) And judges of both persuations do it, as they are supposed to.

The catch is, they're supposed to do it well. When you're nominating or confirming judges, and you absorb yourself with fetish issues like abortion or gun rights, you can end up with the sort of foolish judiciary we have today.

Re:Silly editor (1)

Bysshe (1330263) | more than 4 years ago | (#31325076)

Legislative creates the law
Judicial interprets the law
Police enforce the law
Executive(s) break the law

Re:Silly editor (1)

phantomfive (622387) | more than 4 years ago | (#31325216)

The catch is, they're supposed to do it well. When you're nominating or confirming judges, and you absorb yourself with fetish issues like abortion or gun rights, you can end up with the sort of foolish judiciary we have today.

Heh....can you think of any time in US history where one group or another wasn't trying to stack the bench with people favorable to their cause? I'll bet it's a technique that comes into use historically any time the time-honored technique of bribing fails to work.

Re:Silly editor (0)

Anonymous Coward | more than 4 years ago | (#31324786)

> Why is it that editors around here seem to think that laws are made by the courts?

Because the USA, like its progenitor culture in Britain, is a [Common Law](http://en.wikipedia.org/wiki/Common_law) system and the vast bulk of the law is [Casuistry](http://en.wikipedia.org/wiki/Casuistry) ?

Re:Silly editor (1)

Martin Blank (154261) | more than 4 years ago | (#31324844)

They can impose limits based on common sense, as allowed by BMW v. Gore.

However, you're right in that there should be a legislative fix. California used to have a mechanism whereby someone could be sued by an unaffected person when that suit was "in the public interest." As an example, places of business were sued because the restroom door was perhaps one-half of an inch too narrow according to statute for wheelchair-accessible restrooms. Thousands of others were filed asking for damages of a few hundred to a few thousand dollars. Most settled, because the costs of going into court were too high. In virtually all cases, the suits were filed by someone who was not in any way disabled, and in many cases settled out of court. The plaintiff was also often an attorney, meaning every dime awarded was personally kept.

This seems like one of those things that should be able to sail through Congress on voice vote in about an hour for each house. Maybe the $10 trillion maximum price tag will gather someone's interest there and spark the necessary bill.

Re:Silly editor (1)

TubeSteak (669689) | more than 4 years ago | (#31325056)

Why is it that editors around here seem to think that laws are made by the courts? This one is a great example - saying it is an opportunity for the Federal Appeals court to do something. Like what? They get to rule based on law. If we need the law changed, the court can't do that - it needs to go to the legislative branch for that.

I don't think the law is bad, it was just never written to take into account 21 billion counts of false marking.

So while I can't see how any court would strike down the law as unconstitutional,
a judge could certainly declare the statuatory damages to be unconstitutional.

Re:Silly editor (1)

jedidiah (1196) | more than 4 years ago | (#31325470)

Of course they will only ever declare excessive punitive or statutory damages to be wrong when it is a corporation that's being punished.

For individuals it will be business as usual.

Still... (2, Insightful)

Anonymous Coward | more than 4 years ago | (#31324510)

I still say Monster Cable deserves to be sued to bankrupcy. Same with Best Buy (Worst Buy) and Microsoft.

See? The system works (1, Funny)

overshoot (39700) | more than 4 years ago | (#31324528)

Patents do produce innovation!

I'm just wondering who patented this business method. Sheer brilliance, proving that American ingenuity still leads the world.

Oh, and you people who think a court is going to shoot this down? Only of the judges aren't lawyers.

Great math in TFA (0)

Anonymous Coward | more than 4 years ago | (#31324530)

"At $500 each, that would be $500 million. Get to 10 million and you’re at $1 billion."

I never knew that 5,000 million was 1 billion.

No (3, Interesting)

DigiShaman (671371) | more than 4 years ago | (#31324538)

Sounds like a perfect opportunity for some enlightened appeals court to inject some sense into the debate. What do you think the chances are?

Never going to happen.

In the eyes of the Federal Gov, upholding patents and IPs are so important, it would be considered National Security to protect them. Seriously, what the hell does America have that's worth selling? Nothing except services and IP. We hardly manufacture anything anymore.

all this patent chaos (1)

crazybit (918023) | more than 4 years ago | (#31324544)

Let's hope all this patents chaos in the US (and the US trying to push their patents in other countries) doesn't end up in war in some years. I'll like to see US enforcing their patents this way on Russia / China / etc.

Not the court's job. (4, Insightful)

John Hasler (414242) | more than 4 years ago | (#31324554)

> Sounds like a perfect opportunity for some enlightened appeals court to
> inject some sense into the debate.

No, it's a perfect opportunity for an enlightened Congress to correct the law. Oh. Wait...

Re:Not the court's job. (1)

phantomfive (622387) | more than 4 years ago | (#31324918)

I'm going to have to say that the law is already sensible in this case. Here is the summary from the article:

The type of suit is called a qui tam action and is part of the False Claims Act, 31 U.S.C. 3729: The statute, first passed in 1863, includes an ancient legal device called a "qui tam" provision (from a Latin phrase meaning "he who brings a case on behalf of our lord the King, as well as for himself"). This provision allows a private person, known as a "relator," to bring a lawsuit on behalf of the United States, where the private person has information that the named defendant has knowingly submitted or caused the submission of false or fraudulent claims to the United States. The relator need not have been personally harmed by the defendant's conduct.

Basically, don't claim patents you don't own. Does anyone really have a problem with that? The damages are 'up to' $500 per incident (or per product), but I don't think any judge is going to fine a company trillions of dollars, and if he did, I don't think it would be constitutional.

Re:Not the court's job. (1)

GIL_Dude (850471) | more than 4 years ago | (#31325022)

Thanks for calling that out. I do hope that these provisions require that someone be damaged in order for there to be a judgment. I'd also hope that the damaged party (if indeed there is one) would get the judgment and not the "relator". Otherwise it seems likely that many of these cases would have merit (on the grounds that fallacious patent protection was claimed) but really be poorly veiled attempts to grab money when there was no actual injury.

Re:Not the court's job. (1)

phantomfive (622387) | more than 4 years ago | (#31325176)

Otherwise it seems likely that many of these cases would have merit (on the grounds that fallacious patent protection was claimed) but really be poorly veiled attempts to grab money when there was no actual injury.

My understanding is that this is exactly the purpose of this type of law. We don't want our police to be chasing every silly law (and they won't do it anyway, they don't have the resources), so we (or, our representatives) arrange the law so that there is motivation for someone else to chase violators of the law. They get rewarded, and the system stays fixed.

You may not like that system, and that is ok, but that is my understanding of the legal theory behind this type of thing.

Re:Not the court's job. (1)

nasch (598556) | more than 4 years ago | (#31325270)

How would you ever prove actual damage? Seems to me this law is in place to discourage companies from falsely claiming patents because it would be nearly impossible to demonstrate actual damage to an individual from such fraud, yet it's clearly in society's interest to prohibit it.

Monster Cable? (1, Insightful)

Anonymous Coward | more than 4 years ago | (#31324612)

You mean you can patent snake oil?

Wikipedia entry," In one experiment, audiophile listeners could not distinguish between short Monster cables and ordinary coat hangers.[8] Another reviewer concluded that "16-gauge lamp cord and Monster [speaker] cable are indistinguishable from each other with music."[9]

Re:Monster Cable? (1)

tepples (727027) | more than 4 years ago | (#31324658)

I bought Monster's component video cable for Wii because it was actually $10 less expensive at Best Buy than Nintendo's own Wii component cable.

Re:Monster Cable? (1)

Grishnakh (216268) | more than 4 years ago | (#31324734)

And you could have gotten it for a tiny fraction of that price by getting it online instead of getting ripped off at Worst Buy.

Re:Monster Cable? (1)

tepples (727027) | more than 4 years ago | (#31324806)

And you could have gotten it for a tiny fraction of that price by getting it online

And blown most of the savings on postage.

Re:Monster Cable? (2, Informative)

h4rr4r (612664) | more than 4 years ago | (#31324850)

Monoprice sells those cables for below $4 so that would have to be a lot of postage charges to burn that.

Re:Monster Cable? (0)

Anonymous Coward | more than 4 years ago | (#31325318)

Monoprice ships many of their cables by first class mail, which is pretty cheap for a small connector. The last thing I got from them was a $5 HDMI cable and I paid a buck and a quarter for the postage.

It's actually pretty cheap to send small light things, if you're not wasting resources by putting them in a 24 inch box.

Isn't this more like anti-patent trolling? (2, Insightful)

lennier (44736) | more than 4 years ago | (#31324626)

From the article, these are suits against companies claiming patent protection on products when they don't in fact have it.

That's the opposite of claiming patent protection for something you don't have rights to, ie, patent trolling.

Not trolling. (1)

azenpunk (1080949) | more than 4 years ago | (#31324678)

The problem for companies is that they might have lost track of what patents cover a given product, or might have forgotten to update packaging to remove numbers of patents that had expired.

I see no reason to claim this is trolling as the article does (yeah i read it, find the guy that patented RTFA and have him sue me). Marking a product with a patent number is a claim not that you will sue someone for producing a similar item, but a claim that you clearly have legal grounds to do so. Marking a product with an irrelevant patent number then is essentially extortion (i'm unsure if the term 'extortion' can apply to pressuring one into inaction. If there is a more appropriate term, let me know please). Any company putting a patent number on a product has a responsibility to make sure their claim is valid. Not updating packaging perfectly on time should certainly be a more forgivable offense, but totally forgetting what patents cover your products is just unacceptable. How many seperate patents or products could any given company have? I realize the number could get quite high, but nothing a simple database even such as SQlite can't handle. Patents are a legal construct designed to give an innovator a monopoly long enough to capitalize on innovations. I don't know why it would ever need to even be said explicitly but if you are unsure, don't make claims that have legal implications.

The real trolls here are the companies putting false numbers on products.

Re:Not trolling. (0)

Anonymous Coward | more than 4 years ago | (#31324780)

That would be fine and dandy if these lawyers informed the US government about the company's malpractice, and possibly make a small profit from doing so. Once you're doing this for a big payout you're a troll.

Not so bad.... (2, Insightful)

Improv (2467) | more than 4 years ago | (#31324698)

I have no sympathy with those who claim intellectual property - sure, these lawsuits are filed by scum, but they're filed against people who claim to own ideas. I hope these are long, plentiful, painful lawsuits for both sides.

Re:Not so bad.... (1)

joe_frisch (1366229) | more than 4 years ago | (#31324948)

Do you really see no value in patents? It seems to me that as a society that we want to reward people who invent things. If we reward people for inventing things, it seems logical to punish people who lie about inventing things (eg false patent claims).

Certainly one can argue that the way we implement this is badly broken ( I think it is), but the basic idea seems sound.

Re:Not so bad.... (2, Insightful)

jedidiah (1196) | more than 4 years ago | (#31325488)

We want people to invent things. Whether or not we NEED to "reward" people in order to encourage this is disputable.

Re:Not so bad.... (1)

joe_frisch (1366229) | more than 4 years ago | (#31325896)

It often takes resources in addition to manpower to invent things. If you are developing new software, all you need is a couple of thousand dollars in computer hardware. If you are developing a more efficient turbine blade design, or a process to make inexpensive biodegradable drinking glasses you may need to spend a lot on hardware.

If you spend a lot developing something, I think you should expect some return.

Re:Not so bad.... (1)

Improv (2467) | more than 4 years ago | (#31325632)

I have a bit of sympathy for Lessig's idea that we could make do with weaker protections, provided we make it clear that it is not actually property and we stop treating it so similarly.

Re:Not so bad.... (1)

joe_frisch (1366229) | more than 4 years ago | (#31325924)

I think "intellectual property" is very different than physical property. The classic difference is that if I give you my IP, I still have it.

I also think the IP needs some protection - some types of IP are very expensive to produce. I don't think in needs the SAME protection as physical property.

I don't have a good idea of how to manage intellectual property - I hope someone smarter than me will think of something. What we have now seems to work very badly.

Readibility (1)

RichardJenkins (1362463) | more than 4 years ago | (#31324740)

Note: if ever there were a page that cries out for the Readibility bookmarklet, this is it.

Just skimmed over this: looks pretty awesome.

Re:Readibility (1)

ghasyus (1755866) | more than 4 years ago | (#31324838)

Note: if ever there were a page that cries out for the Readibility bookmarklet, this is it.

Just skimmed over this: looks pretty awesome.

Just tried it too. Sadly, it does not hide that ugly troll image from the article.

Re:Readibility (0)

Anonymous Coward | more than 4 years ago | (#31325394)

Click it when viewing this page ... the comments disappear! It's perfect!

expired? (1)

TheSHAD0W (258774) | more than 4 years ago | (#31324742)

I don't understand the hubbub about expired patent markings. (1) It costs $ to create new dies for production, so such a requirement just costs companies more, which they have to pass along to customers. (2) Someone looking up the patent can see that it's expired, or is going to expire soon, and hey, here's a large part of the engineering behind the product, we can copy this instead of re-engineering it. That's part of why patents exist, to make that information public.

Re:expired? (1)

h4rr4r (612664) | more than 4 years ago | (#31324802)

Because it says those items are covered by said patents, when those patents are either expired or not applicable. They could just leave them off the product to begin with or remove them when the times come. Costs are not directly passed to customers, if prices could be increased at will the company would have already done that.

Re:expired? (1)

langelgjm (860756) | more than 4 years ago | (#31325458)

So what happens to all the products that have already been sold and are marked with patent numbers after those patents expire? Should the manufacturer contact all the buyers to inform them the patent has expired? Should they file off the patent numbers?

One could actually argue that marking a product with an expired patent number serves the public interest: that way, anyone who wants to duplicate it can simply look up the patent number and follow the process!

Re:expired? (1)

Lehk228 (705449) | more than 4 years ago | (#31326016)

you don't have to make new dies, just have someone dremel the existing die to scratch out the number.

What's wrong with this? (2, Insightful)

martin-boundary (547041) | more than 4 years ago | (#31324756)

I don't see what's objectionable here?

If a company falsely labels its products with imaginary patent numbers, they deserve to be sued into oblivion. It's outright lying to the public, and an attempt at intimidating would-be competitors. It's wrong and should be punished harshly.

Patents are overused as is, and one of the reasons they are often misused (eg against open source) is because it's easy and relatively risk free. If the costs of misuse can be increased dramatically, many companies may think twice before doing it.

Re:What's wrong with this? (1)

h4rr4r (612664) | more than 4 years ago | (#31324816)

I agree, those who employ fraudulent patent markings should be glad these are only civil cases. If I had my way they would be looking at fraud charges too.

So we have your blessing (1)

Nimey (114278) | more than 4 years ago | (#31324766)

to read Slashdot with an ad-blocker, then? That's basically what you're advocating with your "readability" bookmarklet.

Note: I agree that their site is unbearable to read as-is.

This could stop patent trolls (1)

WarpedMind (151632) | more than 4 years ago | (#31324768)

These suits are against companies asserting patent rights over things that the DO NOT own patents for. The basic defense being offered is "I've done it so much, I couldn't possibly pay the penalty. So the only option is to not hold me accountable!" That basically says that if a robber robs enough people he shouldn't be put in prison. (Sort of the like the banks in America.)

This puts a penalty on asserting patent rights all over the place when you don't have them. Asserting a patent right, blocks competitors who might produce the same thing cheaper.

If companies have to pay a penalty for not keeping track of their patent assertions, then they will be more circumspect in asserting them. That means less frivolous patents.

Substantive, meaningful patents actually work well. The problem is incentives to overwhelm the system which is what is currently being done.

Yup, this is NOT an issue people (5, Interesting)

SmallFurryCreature (593017) | more than 4 years ago | (#31324856)

This is simple a case of false advertising. The companies that are being sued labelled their products wrong. "Oh I forgot". Yeah, likely story. I see they did NOT forget to put the patent claim on the product. How odd is that eh?

If it is going to cost the likes of Monster Cable a few millions or even bankrupt them to get false patent claims of products, then I am all for it, and the people bringing these cases making a fortune? Well sometimes the person who cleans up the system gets paid.

Say that someone found a way to make serious money of prosecuting companies sending fake copyright take down notices, would we be against that as well? No.

Sometimes you need to cheer on the slime to get rid of the scum.

Re:Yup, this is NOT an issue people (1)

shutdown -p now (807394) | more than 4 years ago | (#31325526)

If it is going to cost the likes of Monster Cable a few millions or even bankrupt them to get false patent claims of products, then I am all for it, and the people bringing these cases making a fortune? Well sometimes the person who cleans up the system gets paid.

Why not have the govt sue them, and use the collected money to finance the expansion of USPTO, so they can actually look at the patents they rubberstamp?

fags eat shit (-1, Flamebait)

Anonymous Coward | more than 4 years ago | (#31324772)

their tongues swirl around their fuck buddy's anus and they eat shit. you know it's true and if you're a fag you're a shit eater.
 
just remember the next time you talk to a fag that his mouth has been in contact with another man's ass. eating all that shit up.

So award damages to the government not lawyer (2, Insightful)

140Mandak262Jamuna (970587) | more than 4 years ago | (#31324946)

Since the premise of the whole thing is that the plaintiff is a friend of "our Lord the King" or the US Government and the defendant submitted false claims to it, and the plaintiff is not personally harmed, there is no need to award the plaintiff any damages. Problems solved, just rule that any damages awarded will go to the aggrieved party, or the US government in this case. Once the lawyers know they are not going to be getting a piece of the award, they will go find some one else to screw^h^h^h^h^h sue.

Re:So award damages to the government not lawyer (0)

Anonymous Coward | more than 4 years ago | (#31325138)

I want to make a competing product. Product says "Patent Pending", even though no patent was filed. I don't make competing product for fear of being on the receiving end of a patent lawsuit.

The intent of this law was to allow individuals to bring a lawsuit under the legal theory that they have been harmed by restraint of trade. I, as a consumer, have in fact been denied competition by a bad actor.

We want this, people. If we only had some kind of similar defense against false copyright claims...

wrong (1)

Weezul (52464) | more than 4 years ago | (#31325474)

All these qui tam cases actually benefit society by making companies comply with the laws, the only problem is lawyers are going after poorly labeled cups instead of Amazon's 1-click patent.

That's the whole point of qui tam (2, Insightful)

langelgjm (860756) | more than 4 years ago | (#31325482)

The whole point of qui tam actions are to encourage people to bring the suits in the first place. They do this with Medicaid fraud in many states, for example. The state might not have the resources to closely examine all possible instances of fraud, or private parties might have better information. So by giving people a cut off the award, you give them an incentive to look for the fraud and to bring it to the government's attention.

Claim a patent (pending or issued) when it's not? (5, Insightful)

Whuffo (1043790) | more than 4 years ago | (#31325030)

That's what us old-timers call fraud. It's not OK, no matter how the apologists here may try to spin it. Yes, sometimes it's not cheap or easy to comply with the law - but that doesn't make complying with the law optional no matter how much you wish it was.

Sometimes I wonder if the people who post here think about what they're saying - or if they just scan the article enough to formulate a (weak) opposing point and rush to post it. There's only one thing worse than a patent troll and that's corporations trolling with patents they don't own. If corporations can destroy people for violating their patents, what do you think should be the proper punishment for claiming patents that you don't own?

Reasonable Fees (1)

Dthief (1700318) | more than 4 years ago | (#31325198)

As seems will be the case with the Tennenbaum vs RIAA case, these companies will probably be able to argue that the amounts are unreasonable and unconstitutional, so although these values seem ridiculous and inflated there are some nets in place to manage the claim amounts. And although this may require large legal fees, the companies that are shipping millions or billions of a product should be large enough to absorb this, or have legal teams on hand already.

$10 trillion? (1)

abshnasko (981657) | more than 4 years ago | (#31325314)

in a case involving a drink cup manufacturer, over $10 trillion

Fact checking please? Do we really think it's possible that a lawsuit against a drink cup manufacturer can equate roughly 3/4ths of the GDP of the United States economy?

Re:$10 trillion? (4, Informative)

RabidRabb1t (1668946) | more than 4 years ago | (#31325466)

Those are the maximum damages allowable under the statute. Actual damages may be much lower; a reward of $0.01 or even $0.10 per cup might not be so unreasonable for committing a billion counts of fraud. What is interesting to note, however, is that one must prove both that either the cups were never patented, or if they were that they were manufactured after the patent expired.

Re:$10 trillion? (1)

RealGrouchy (943109) | more than 4 years ago | (#31325468)

Anybody can sue anybody for anything, and seek any amount in damages. The issues are: will the case be accepted by the courts, is the defendant found guilty, and are the damages awarded as highly as sought?

- RG>

the answer (0)

Anonymous Coward | more than 4 years ago | (#31325464)

since the slave script is all worthless unbacked stuff anyway why not have the Solo cup company issue a "10 trillon" note and give it to the us treasury. better a worthless note from a reputable us company than from that IMF/UN cabal. Solo goes about business as usual, the "national debt" gets paid off and everyone walks away happy.

Some more details about the Solo case (2, Interesting)

bartwol (117819) | more than 4 years ago | (#31325576)

Here [patentlyo.com] is a link to the court's decision. It is not a judgment against Solo, but a denial of their request to dismiss the case.

The judge argues the problem of incorrect markings here:

Congress has given to the inventor opportunity to secure the material rewards for his invention for a limited time [...] Patent markings are an essential component of this system. The "Patent No. XXX" imprint is, in effect, a "no trespassing" sign.

The plaintiff, i.e. the "troll", has not yet made his case. In order to prevail he has to prove that Solo used the incorrect markings "for the purpose of deceiving the public." That remains to be determined.

But therein, it is not clear to me what's really going on here with Solo (for example). It seems that laziness about cleaning up one's patent markings has a distinct reward, i.e. to scare off copy-cat competitors (which is exactly the kind of subsequent activity that the publicly filed/expired patent is intended to encourage). I'm not so sure that these are just mistakes, and in fact, I find it unlikely that there isn't some willfulness here. The corporate counsels that insist on taking advantage of adding the patent markings don't consider the correctness of removing them once they are no longer valid???

It may take a crack of the whip to clean up the rampant "laziness" that leaves these wrong and discouraging markings in use.

It Has Merit (1)

b4upoo (166390) | more than 4 years ago | (#31325830)

If I intend to produce a product and decide not to or to alter the product due to someone falsely claiming they own a patent I should be able to sue and recover both real and punitive damages.
          Recently our sour Supreme Court declared that corporations would be treated as real persons. Lies and false claims make real persons liable to punishments. Bailiff! Wack their peepees!!!

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