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A New Species of Patent Troll

samzenpus posted about 4 years ago | from the easy-money dept.

Businesses 258

Geoffrey.landis writes "According to the Wall Street Journal, there's a new species of patent troll out there. These new trolls sue companies that sell products with an expired patent number on them. That's right, it's against the law to sell a product that's marked with an expired patent number. The potential fine? $500. Per violation. And some of the companies have patent numbers on old plastic molds that have made literally billions of copies. Using whistle-blower laws, 'anyone can file a claim on behalf of the government, and plaintiffs must split any fine award evenly with it.' You've been warned."

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Editors, please clearly define which side to hate. (5, Insightful)

LostCluster (625375) | about 4 years ago | (#33444840)

Who's the troll?

The company that invented the product, got their rightful patent, but their patent rights expired as they should, and is still using old packaging/molds/etc. that display the patent number and are now falsely claiming protection they don't have...

OR...

The lawyer who finds out about this violation of the law, and gets a finder's fee of $250 per product in violation distributed, and raises $250 per product in money for the government who definitely could use some help collecting this fine.

False patent claims can FUD a business away... but we also hate most lawyers here. Editors, please define which side to hate in all arguments. We /. commentators will crash if you execute Story.Comment without the required argument variable "$side".

Re:Editors, please clearly define which side to ha (0, Flamebait)

pookemon (909195) | about 4 years ago | (#33444880)

You could start by reading the Summary where it clearly states that the Troll is the company suing the holder of the expired patent.

Re:Editors, please clearly define which side to ha (3, Insightful)

AdmiralXyz (1378985) | about 4 years ago | (#33444920)

Wooooooosh . Did you even read his post?

their patent rights expired as they should, and is still using old packaging/molds/etc. that display the patent number and are now falsely claiming protection they don't have...

Most of these companies are undoubtedly committing these violations unknowingly, but GP does have a point that the law exists for a reason: otherwise people could go on falsely claiming patent protection indefinitely. Don't why the gov't has to split the money with random third parties, though, that's just asking for abuse.

Re:Editors, please clearly define which side to ha (1, Insightful)

Anonymous Coward | about 4 years ago | (#33445026)

They should simply pay $250 one time. Quickly you would see these "well intentioned" lawyers disappear.

Re:Editors, please clearly define which side to ha (2, Insightful)

Fluffeh (1273756) | about 4 years ago | (#33445110)

They should simply pay $250 one time. Quickly you would see these "well intentioned" lawyers disappear.

That sort of fine means nothing to someone who makes MILLIONS of packages for their products and it may well lead to then knowingly using old patent information to both ward off other potential competitors - and in the worst case, pay a one off $250 fine. The whole concept of the $250 PER OFFENCE (meaning per item showing the false patent information) was to ensure that once it expired, you did no longer actually use it - opening the avenue for competition.

These "well intentioned" lawyers as you so callously put it are in fact doing what the patent offices/government should be doing to encourage diverse competition.

Re:Editors, please clearly define which side to ha (5, Insightful)

Darkness404 (1287218) | about 4 years ago | (#33445200)

Bullshit.

If a company was really interested in making a product, they'd check the relevant patent numbers online (which is pretty easy to do) and see that they had expired. No company that is /seriously/ interested in a product would simply look at it and give up. The company would certainly look up the patent to try to "get around it" and see that it had expired.

Stop making up scenarios that make no sense.

Re:Editors, please clearly define which side to ha (1)

T Murphy (1054674) | about 4 years ago | (#33445288)

I agree it doesn't make a lot of sense to make the patent claim illegal, but a possible compromise is to have products also list the year the patent will expire, and remove all ambiguity.

Re:Editors, please clearly define which side to ha (2, Interesting)

msauve (701917) | about 4 years ago | (#33445440)

" possible compromise is to have products also list the year the patent will expire, and remove all ambiguity."

Until Congress extends or otherwise changes patent terms, as is its wont.

Also, from the summary:"it's against the law to sell a product that's marked with an expired patent number."

Do I smell legislatively forced obsolescence? Does this mean I can't sell old tools in a garage sale, without the mentioned patent trolls coming after me?

Re:Editors, please clearly define which side to ha (1)

DarwinSurvivor (1752106) | about 4 years ago | (#33445792)

I'm pretty sure they mean "new" products...

Re:Editors, please clearly define which side to ha (4, Insightful)

Fluffeh (1273756) | about 4 years ago | (#33445320)

Stop making up scenarios that make no sense.

I am making a simplistic scenario.

Why is it that we here at /. are frothing at the mouth when companies use false DMCA [slashdot.org] takedown [slashdot.org] notices [slashdot.org] but apparently have no such anger directed at other companies using false patent information, we even defend them because of the "evil lawyers"?.

Hypocrisy. You can't have your cake and eat it with this argument.

Re:Editors, please clearly define which side to ha (2, Insightful)

macshit (157376) | about 4 years ago | (#33445412)

Stop making up scenarios that make no sense.

Why is it that we here at /. are frothing at the mouth when companies use false DMCA [slashdot.org] takedown [slashdot.org] notices [slashdot.org] but apparently have no such anger directed at other companies using false patent information

Because the first causes real damage in practice, whereas the second causes none.

Nobody cares about a company's lying if it causes no actual harm.

Re:Editors, please clearly define which side to ha (0)

Anonymous Coward | about 4 years ago | (#33445462)

I almost thought you were a troll. You honestly don't see his point? Your continued argument is that we should be outraged because of a false patent claim. However, the vast majority of slashdot can see that using old molds with old patent numbers on them hurts no one and is in no way an abuse of power. False DMCA takedowns can hurt internet traffic that hurts revenue, and it is a complete abuse of power.
 
Also note that displaying an expired patent number on an invention would only confuse someone without internet access or even a phone to call the USPTO, such as someone living in the 1800's.

Re:Editors, please clearly define which side to ha (1)

Animaether (411575) | about 4 years ago | (#33445530)

Why is it that we here at /. [...] apparently have no such anger directed at other companies using false patent information, we even defend them

Probably because most of us realize that those companies aren't using 'false patent information' that we know of. When I look at some product with its patent info.. I dunno, this DVD case from Amaray (surprisingly few items in my immediate vicinity even have patent info on them)... all it says is "US Pat No. 5788068". It doesn't say that the patent will be valid forever and ever and ever. It's a simple piece of information that they voluntarily (I presume, as otherwise.. why are all these other items around me missing that information?) stamped on there so that others - manufacturers - can look up the patent and reference it directly if they want to license it or build on it or whatever, and so that it is clear that a patent for it -does- exist. Want to know if it's active or expired? Look it up; That number doesn't magically disappear or get re-assigned to something else. Patent #0000001 is still the same patent covering the same invention it did well over 200 years ago. So there is nothing -false- about that information.

The law that says that a patent number is not allowed to be used on the products that are described in that patent as soon as it expires is the real 'troll' here.

Re:Editors, please clearly define which side to ha (1)

king neckbeard (1801738) | about 4 years ago | (#33445588)

Actually, US patent numbering has changed in the last 200 years.

Re:Editors, please clearly define which side to ha (2, Insightful)

Dragonslicer (991472) | about 4 years ago | (#33445590)

Why is it that we here at /. are frothing at the mouth when companies use false DMCA [slashdot.org] takedown [slashdot.org] notices [slashdot.org] but apparently have no such anger directed at other companies using false patent information, we even defend them because of the "evil lawyers"?

Filing a false DMCA takedown notice is intentionally committing perjury. In order to avoid committing such a crime, you only have to do nothing.

Selling a product that's marked as being covered by a patent that expired a month ago is probably just a retail store selling existing stock. In order to avoid committing a crime, the manufacturer would have to recall every store's stock on the day the patent expires and destroy every piece, potentially costing a large amount of money and wasting a large amount of resources.

If a manufacturer continues to produce items marked with patents that expired 5 years earlier, then sure, they should be fined, since it's pretty reasonable to check the production lines once per year, but going after them the day after the patent expires would be ridiculous.

Re:Editors, please clearly define which side to ha (1)

Yvan256 (722131) | about 4 years ago | (#33445902)

I'm telling you for the last time, the cake is a lie!

Re:Editors, please clearly define which side to ha (1)

cpt kangarooski (3773) | about 4 years ago | (#33445218)

Most of these companies are undoubtedly committing these violations unknowingly,

Well, it's possible to infringe on a patent unknowingly, so I have no real sympathies there.

Don't why the gov't has to split the money with random third parties, though, that's just asking for abuse.

The government really can't be bothered to investigate this, much less sue over it. It's easier to provide a bounty to get third parties to do it.

Re:Editors, please clearly define which side to ha (1)

Antisyzygy (1495469) | about 4 years ago | (#33445432)

Whats legal is not necessarily ethical. In fact more often then not ethics are not of concern to people trying to score an easy buck.

Re:Editors, please clearly define which side to ha (1)

afidel (530433) | about 4 years ago | (#33445474)

The solution to the trolls is for the government to settle for $1 and split the settlement with the fine ambulance chaser after taking his filing fee =) Wasting everyones time like this produces nothing of value and nets society nothing, the bright individual should go use his brainpower elsewhere to actually help advance society in some way.

Re:Editors, please clearly define which side to ha (1)

Tanktalus (794810) | about 4 years ago | (#33445504)

How's that any different than any other government contract? The government gets work done, someone else does the work, government pays said other person for the value of their work (not necessarily the same as the cost of the work). Heck, remove "government" from this, and it's still true.

Some private companies also reward their employees with finder's fees for reducing costs ("reduce costs by $1m per year, and we'll give you a $10,000 bonus!"), hiring ("Recommend someone to hire, and if we do, and they accept, and they're still around after x months, we'll give you $5,000"), valuable ideas ("Submit a patentable idea, we'll give you $2,000, with a $3,000 bonus if the USPTO accepts it") or really valuable ideas ("If we license that patent for over $10m, we'll give you $50,000"). Heck, they even give out bonuses if you increase the corporate income (i.e., SALES). Why should the government lose out on it?

Besides, by getting the general public involved, they even get to add a buzzword to their job descriptions: Crowdsourcing.

Re:Editors, please clearly define which side to ha (4, Informative)

Antisyzygy (1495469) | about 4 years ago | (#33445756)

In the case of a mold used to make plastics, stamp metal, ect., its incredibly expensive for a company to get a new mold made. I used to work at a CNC shop as a lowly peon preparing and finishing parts for military contracts, movie cameras and manufacturing molds. The company I worked for routinely charged big bucks for molds simply because it takes a large amount of skilled and unskilled man hours to produce it. An engineer typically did the initial design in some sort of CAD or other program, then the CNC machines were programmed to prepare the part. Then the part typically went through several CNC machines before being finished. After this the part's measurements were rigorously checked to see if there were within specifications. Then little turds like myself (I was a freshman in college) de-burred the sharp edges, put it through various chemical baths and polished the shit out of it before cleaning it one final time. The aforementioned is still a simplification of the process. Generally manufacturing molds were ordered only once. Suppose a patent expires. If a manufacturer chooses to have the patent number included in the mold at the get go, then they need to either modify the mold without decreasing the functionality of their product or they need to get a whole new mold made. A lot of times a company may only have one mold for a particular part, so the cost of any mistake in modification is large since it may mean totally replacing the mold. The point is that the company is not doing anything inherently wrong in using the mold to produce a product that they have been selling under a patent they either owned or licensed if the patent expired. It still references a patent number that can be looked up online to determine if its expired or not if someone chooses to spend the time. My point is ethical considerations need to be taken into account in enforcing this law, because the lawyers are only looking to score some cash at someone else's expense. To be unfair and use a logical fallacy, "Do you think this law is unjust or do you hate small businesses?".

Re:Editors, please clearly define which side to ha (1)

steeleyeball (1890884) | about 4 years ago | (#33444990)

...That, and the fact that any country who's patent office would allow patents on DNA sequences might as well issue a patent for Oxygen. Employees in a Patent office aren't often trained in the thousands of different technical specialties needed to understand most patent applications. Many patents are given out for nonsensical ideas, or worse common practices that have existed for years...

Re:Editors, please clearly define which side to ha (1, Insightful)

Daniel Dvorkin (106857) | about 4 years ago | (#33445182)

You could start by reading the Summary where it clearly states that the Troll is the company suing the holder of the expired patent.

We know who's suing whom. The question is whether it's fair to call the plaintiffs "trolls" when what they're doing is nothing like the type of behavior that usually gets called "patent trolling." GPP seems to believe, and I agree, that it's not trolling at all, but in fact providing a useful service to help prevent abuse of the patent system.

Who's the idiot who marked this as redundant? (-1, Offtopic)

Anonymous Coward | about 4 years ago | (#33445206)

A post that argues against points raised in the summary and is the first to do so is not redundant -- it can't be.

Re:Editors, please clearly define which side to ha (0)

Anonymous Coward | about 4 years ago | (#33445226)

OK - exactly what do these new type of trolls contribute to the economy???

Re:Editors, please clearly define which side to ha (0)

Anonymous Coward | about 4 years ago | (#33445414)

Trolls need lawyers. Lawyers need yachts. Yachts need someone to build, dock, and staff them. It's a cozy little ecosystem.

Re:Editors, please clearly define which side to ha (3, Interesting)

martin-boundary (547041) | about 4 years ago | (#33445284)

The company that invented the product, got their rightful patent, but their patent rights expired as they should, and is still using old packaging/molds/ etc. that display the patent number and are now falsely claiming protection they don't have...

I actually blame the company. Packaging should have an expiry date built-in at a minimum. It's not like this is difficult to do: there are expiry dates on all dairy foods, and for good reason. Society benefits when people don't eat or drink food that's past expiry on a regular basis. Similarly, society benefits when the expiry date of a patent monopoly is clearly marked.

Companies still using an old mold which doesn't have an expiry date is just greedy. They should have put the date in when they went to the trouble of putting the patent number in, or they should bear the cost of a new mold if they're still selling new products from it.

Re:Editors, please clearly define which side to ha (2, Insightful)

digitalunity (19107) | about 4 years ago | (#33445470)

Not greedy, lazy. Most companies don't realize just how inexpensive it can be to get old molds modified.

Depending on whether the patent number is a boss or not determines how easily it can be corrected. In some cases, a skilled machinist can remove the patent markings from the mold with nothing more than a file and a polishing stone set. And yet, most mold shops buy their molds from someone else and don't have the skilled person to do the work.

It's a conundrum to be sure. Companies need to stop marking products as patented when the patent expires, but what these "trolls" are doing isn't socially beneficial.

Re:Editors, please clearly define which side to ha (4, Insightful)

tlhIngan (30335) | about 4 years ago | (#33445622)

I actually blame the company. Packaging should have an expiry date built-in at a minimum. It's not like this is difficult to do: there are expiry dates on all dairy foods, and for good reason. Society benefits when people don't eat or drink food that's past expiry on a regular basis. Similarly, society benefits when the expiry date of a patent monopoly is clearly marked.

Companies still using an old mold which doesn't have an expiry date is just greedy. They should have put the date in when they went to the trouble of putting the patent number in, or they should bear the cost of a new mold if they're still selling new products from it.

A very simple solution is a sticker with all the patents. Since a bunch of stickers are usually applied to some product anyways, it's trivial to apply another sticker with the current patents that are still valid. Those that aren't valid anymore are either inked out, or a new set of stickers are commissioned (cheap).

The question is, though, at what point does it it count to be invalid? If I made a product, and it sits on a shelf for 5 years before it sells, at which point the patent expired, am I infringing? The patents in question were valid when it was manufactured, just it sat in some warehouse for an extended period of time (my warehouse, retailer warehouse, etc). Or what happens if it's the day before the patent expires? Technically it's still patented, but it won't be tomorrow...

Re:Editors, please clearly define which side to ha (0)

Anonymous Coward | about 4 years ago | (#33445662)

Your average product has 50 patents listed on it, do you expect them to replace their packaging whenever one of those 50 expires?

Re:Editors, please clearly define which side to ha (2, Insightful)

Bacon Bits (926911) | about 4 years ago | (#33445418)

Who's the troll?

This is a silly question.

An IP troll is someone who leverages the power of IP law as a means to turn a profit. IP laws are intended to protect creativity in Arts and foster ingenuity in Science and Engineering. The ideal is to protect and nurture those who seek the betterment of all Humanity through the enrichment of our culture or expansion of our knowledge. Anyone who profits from patents and copyrights solely as a consequence of the laws that back the IP and not because of their own creativity and ingenuity of the creation itself is a parasitic troll engaging in abuse of tort.

Re:Editors, please clearly define which side to ha (3, Interesting)

king neckbeard (1801738) | about 4 years ago | (#33445480)

They aren't profiting from patents, they are profiting from abuse of patents, although you could argue that this abuse is generally small. There is some degree of public benefit from this and the only thing this discourages is improper patent labeling, which isn't really a good thing. This could make printing expiration dates the standard, which would actually be beneficial to the public.

Who's the Troll? (0)

Anonymous Coward | about 4 years ago | (#33445744)

You are. You are indeed a master of the art. You have achieved the highest level of trolling, the seemingly impossible task of crafting highminded-sounding rubbish that creates a frenzy of incensed response, while at the same time sounding insightful to modders who can no more recognize a good troll than a patent inspector prior art. Bravissimo!

Activision Hit with Incorrect Markings As Well (3, Informative)

eldavojohn (898314) | about 4 years ago | (#33444862)

Forest Group, Inc. v. Bon Tool Co. in 2009 paved the way [wordpress.com] (rocket docket Eastern Texas, of course) for big fat jerkfaces to go nuts [law.com] . The AP told citizens it's okay to sue [journalnow.com] , hell even on Slashdot I submitted an article way back in Feb of Activision's problems with an incorrectly marked patent [slashdot.org] and because of precedent on incorrect markings we found out in March that this could cost some companies trillions [slashdot.org] . Expired or wrongly marked could cost you $500 per item sold.

Re:Activision Hit with Incorrect Markings As Well (2, Insightful)

LostCluster (625375) | about 4 years ago | (#33444896)

Yep... sell 2 million items with an incorrect patent and you're $1,000,000,000 in debt. Wonder if somebody could catch the business doing that?

Re:Activision Hit with Incorrect Markings As Well (3, Insightful)

mysidia (191772) | about 4 years ago | (#33445268)

That's cool... I think i'm going to go to a few stores and see if I can find any products made by BP that have ancient expired patent numbers stamped on them.

If an expired patent is stamped on a gas pump that pertains to a patent on the fuel formulation, does that count as a separate violation for every gallon of fuel sold? (Evil Grin)

Re:Activision Hit with Incorrect Markings As Well (1)

DarwinSurvivor (1752106) | about 4 years ago | (#33445816)

If that's the case I can do you one better. In Canada we use LITRES!

Re:Activision Hit with Incorrect Markings As Well (0, Redundant)

WrongSizeGlass (838941) | about 4 years ago | (#33445444)

How about the USPTO starts requiring the patent's expiration date in addition to the patent number on the products and packaging? This way the company still gets their "patent protection" but also clearly indicates when the patent expires which would eliminate these "we've found a new way to be greedy bastards" lawsuits?

Helpful. (3, Insightful)

eggman9713 (714915) | about 4 years ago | (#33444864)

Why is this a problem? So what if the patent is expired, it still EXISTS. In fact, the patent numbers are helpful because it leads you right to the source that tells you whether its expired or not, and indirectly, how long you have to wait before you can cash in by making a cheap knockoff.

Re:Helpful. (4, Insightful)

LynnwoodRooster (966895) | about 4 years ago | (#33444992)

Exactly. And - per the reason the patent system was set up - it allows you to more easily find the art to create the invention. You can find the original patent, which is supposed to be enough documentation to teach someone skilled in the art how to build the invention.

Re:Helpful. (3, Insightful)

morgan_greywolf (835522) | about 4 years ago | (#33445064)

Screw that. This is patent lotto. Some company selling a million articles with a wrong or expired patent number and you get to split half a billion bucks with good ol' Uncle Sam! And it only goes up from there!

Why follow the source, be practical, or go through the work of making a cheap knockoff? This is free money. It's the American way, buddy!

Re:Helpful. (1)

DarwinSurvivor (1752106) | about 4 years ago | (#33445844)

I wonder how long it will be until you see informercials on TV about this "new way to make easy money" all filmed on location at a mansion with a giant pool party in the background and testimonials from people all wearing hawaiian shirts and bermuda shorts.

Re:Helpful. (1)

king neckbeard (1801738) | about 4 years ago | (#33445258)

I'm pretty sure they can list expired patents on it if they want, as long as they are marked as such. It is somewhat misleading to the public, although you could argue that the concerns are minor. However, the effect it would have on the ecosystem would be that companies are very careful and proactive in correctly labeling patent marking. That's not a particularly horrible scenario IMO.

Re:Helpful. (1)

ToasterMonkey (467067) | about 4 years ago | (#33445616)

It is somewhat misleading to the public, although you could argue that the concerns are minor. However, the effect it would have on the ecosystem would be that companies are very careful and proactive in correctly labeling patent marking. That's not a particularly horrible scenario IMO.

Look around, in this climate, what is the incentive to clearly mark your products with patent information at all?

This is what I just read:
"Patent marking permits the patent owner to seek monetary damages (in addition to injunctive relief) in a patent infringement action without proof that the infringer had actual notification of the patent."

I only see more patent trolls in the future because of these shenanigans, with the other side playing patent lottery :\

leaches! (1)

Trigun (685027) | about 4 years ago | (#33444866)

See topic.

I will love it when they lose a case. (1)

_0rm_ (1638559) | about 4 years ago | (#33444878)

Because the market is going to come down on them like a Tsunami once they do.

Re:I will love it when they lose a case. (0)

Anonymous Coward | about 4 years ago | (#33445060)

I'm confused. Why are we fighting trolls with lawsuits? Why don't we just do it the old fashioned way--with fire and acid to kill them and -1 mods to prevent them from regenerating.

Re:I will love it when they lose a case. (2, Interesting)

stinerman (812158) | about 4 years ago | (#33445074)

I look at this from a slightly different perspective.

If we step back and take a look at what's happening, we must remember that a patent is a government granted monopoly on an ostensibly "innovative" process or method of doing something. Patenting processes or methods and then stamping the patents on molds or whatever has become so commonplace because getting a patent has become so commonplace. Government-granted monopolies should not be given out lightly and yet a coffee cup lid has umpteen million patents covering it.

The law seems to be a little outdated, but what the molds and such hint at is that patents are being seen as rights rather privileges.

Old news (1)

daedae (1089329) | about 4 years ago | (#33444884)

This is not new. Sure, the WSJ article is dated today(/yesterday depending on where you are), but the Solo Cup case they reference is from last year at the most recent and maybe older than that.

Patented! (-1, Redundant)

Anonymous Coward | about 4 years ago | (#33444894)

In order to stem the tide of various Slashdot posts, please allow me to summarize the replies:

  • I've patented getting a patent
  • I've patented enforcing a patent
  • I've patented replying to this article
  • I've patented replying to this post... now you owe me!
  • Oh come on ... this is really stupid! [Reply: "I've patented stupid!"]

Have I missed any? Or have you already patented missing items in a stupid patent list?

Note: I haven't patented first post, which is why I failed it.
I've patented failing!
Oh yeah, well I've patented succeeding, so you have to fail.
I've patented not even trying... can't use that excuse!
I've patented excuses!
Oh, well excuse me!
Ha! See, you owe me for excusing yourself.
Fuck you!
I've patented fucking!
I've patented you!
In Soviet Russia, patents patent you!
I patented In Soviet Russia jokes!
In Soviet Russia, jokes patent you!
What did I tell you? You owe me!
I've patented owing someone!

Re:Patented! (2, Funny)

SharpFang (651121) | about 4 years ago | (#33445136)

Once your patents expire I'm gonna sue you for this post.

Meh. (1)

drunkennewfiemidget (712572) | about 4 years ago | (#33444930)

Anyone that can help this idiotic patent system implode upon itself is alright by me.

Reminds me of an episode of Andy Griffith Show (1)

davidwr (791652) | about 4 years ago | (#33444958)

Some greedy lawyer tricked Gomer or Goober or someone into suing the city or county for a minor trip hazard.

The moral of the episode was courts are not always the best way to solve problems, and they frequently cause more problems than they solve.

Re:Reminds me of an episode of Andy Griffith Show (0)

Anonymous Coward | about 4 years ago | (#33445034)

And then Barney showed them how to resolve their problems by shooting Opie in the face.

The Andy Griffith Show, teaching bad morals and broken aesops since the 60s!

Weasel Industrial Complex (0)

Anonymous Coward | about 4 years ago | (#33444964)

Increasingly, our "core competence" seems to concentrate on legal maneuvers, marketing, "social medias", financial jigaboo.

In short, weaseling in general.

It's pathetic to see the mighty empire decline. We'll go out with a whimper.

clear enforcement is a good thing (1)

yyxx (1812612) | about 4 years ago | (#33444966)

This should also be extended to copyright and clearly unenforceable license terms: companies should not be allowed to claim "intellectual property" that they don't have the rights to.

This is great. (0)

Anonymous Coward | about 4 years ago | (#33444980)

It's about time there was some risk of negative consequences for abusing the patent system. There should be more.

It seems like you could fight on 1st amendment (0)

Anonymous Coward | about 4 years ago | (#33444984)

It sure sounds to me like this is an infringement on the freedom of speech/press. Sure, it's just a bunch of numbers, but don't those deserve protection, too? I fail to see what serious harm it causes to have this text out there, so I don't see how it can stand.

Re:It seems like you could fight on 1st amendment (1)

SharpFang (651121) | about 4 years ago | (#33445120)

There's a difference between Free Speech (freedom of expression) and Representing the law (claiming certain rights).

If the information has believable semblance of an actual lawfully binding statement then it is not really protected. If the products read "We believe this product is protected by patents ..." all would be right, that's just an opinion. But authoritatively misinforming people about their rights is often illegal. Just like prank-calling 911 is not protected as free speech.

Re:It seems like you could fight on 1st amendment (0)

Anonymous Coward | about 4 years ago | (#33445220)

But if you're simply identifying the patent, isn't that potentially helpful? The number gives you enough information to look it up, and from that you can easily determine whether or not it is still protected by such. Prank calling 911 takes away potential resources from those that need them, while this doesn't.

Re:It seems like you could fight on 1st amendment (1)

king neckbeard (1801738) | about 4 years ago | (#33445360)

You are still making a false legal claim.

Just be glad it doesn't apply to copyright (1)

PatPending (953482) | about 4 years ago | (#33444996)

Imagine if this (stupid IMO) law also applied to copyright: once a copyrighted work expired (e.g., a book), the original owner would have to pay a fine.

Re:Just be glad it doesn't apply to copyright (1)

ZDRuX (1010435) | about 4 years ago | (#33445028)

Why SHOULDN'T someone pay a fine if they claim copyright or patent ownership over something they actually don't?! I don't understand.

Re:Just be glad it doesn't apply to copyright (4, Insightful)

SharpFang (651121) | about 4 years ago | (#33445066)

I wonder if the wording was changed. "This product is protected by patents ######### until they expire"

Re:Just be glad it doesn't apply to copyright (1)

Surt (22457) | about 4 years ago | (#33445150)

He's (ludicrously) claiming the purveyor would be responsible for subsequent copying, rather than subsequent sales of new items without the claim removed, because (in his ludicrous version of reality) you'd be held responsible for the copies other people made, or the existing, already produced copies with the correct-at-the-time claim in them.

Yes, it was quite insanely off-base.

Re:Just be glad it doesn't apply to copyright (0)

Anonymous Coward | about 4 years ago | (#33445160)

Why SHOULDN'T someone pay a fine if they claim copyright or patent ownership over something they actually don't?! I don't understand.

The article is about suing companies that have, for example, put their patent number in blow molds that have been used to make the product since the patent was issued; that would be the equivalent of having "copyright © 1876 Samuel L. Clemens" printed on the flyleaf of copies of "The Adventures of Tom Sawyer". Barring Disney's going back to Congress and buying more legislation to keep the Mouse from falling into public domain, you can extrapolate whether a copyright has expired or not. "Protected by US Patent 2662623443" doesn't give you any idea when the patent was issued.

Re:Just be glad it doesn't apply to copyright (0)

Anonymous Coward | about 4 years ago | (#33445228)

The article is about suing companies that have, for example, put their patent number in blow molds that have been used to make the product since the patent was issued; that would be the equivalent of having "copyright © 1876 Samuel L. Clemens" printed on the flyleaf of copies of "The Adventures of Tom Sawyer". Barring Disney's going back to Congress and buying more legislation to keep the Mouse from falling into public domain, you can extrapolate whether a copyright has expired or not. "Protected by US Patent 2662623443" doesn't give you any idea when the patent was issued.

If only there was some sort of base of data where you could look up patent information and see when it came out, or when it expires. But no, that's too much to ask for anybody actually planning to do anything significant enough to merit a patent lawsuit against. Way too much!

But seriously, if you want to say Patent information should include a date of issuance in it...fair enough, I respect that as a much more reasonable solution than this stupid lawsuit lottery.

Re:Just be glad it doesn't apply to copyright (0)

Anonymous Coward | about 4 years ago | (#33445338)

Posting anonymously because I've already moderated.

"Protected by US Patent 2662623443" does in fact give you an idea when it was issued. Patent numbers are sequential. If you know when patent 2662623444 was issued then you know patent 2662623443 was issued earlier.

Regardless of that, anyone who actually wants to use an existing technology can easily look up a patent number at the USPTO web site.

Frankly, it would be to everyone's benefit if patent holders were required to disclose all relevant patent numbers with their products as it would be much easier to identify when the technology is clear of patents.

Re:Just be glad it doesn't apply to copyright (1)

king neckbeard (1801738) | about 4 years ago | (#33445426)

It's additional effort and a false legal claim. There's a very simple solution that nobody reasonably objects to: put the patent and the expiration date on there. You won't get sued, and the public has more information.

Re:Just be glad it doesn't apply to copyright (1)

ToasterMonkey (467067) | about 4 years ago | (#33445534)

Or they could not print patent information on products at all, since it's optional and that's even easier. No problems with that right? Congrats!

Re:Just be glad it doesn't apply to copyright (0)

Anonymous Coward | about 4 years ago | (#33445062)

Imagine if this (stupid IMO) law also applied to copyright: once a copyrighted work expired (e.g., a book), the original owner would have to pay a fine if copyright was still displayed on copies produced after the said copyright expired.

There, fixed it for you.

I don't give a fuck about this story you dickheads (-1, Troll)

Anonymous Coward | about 4 years ago | (#33445008)

I just wish Zsa Zsa Gabbor would die already.

Fuck you'll whining bitches and your legal mumbojumbo.


Fagtards.

I am 100% for this behavior (1)

mykos (1627575) | about 4 years ago | (#33445036)

Anything that exposes the absurdity of our current and antiquated patent law needs to be done.

Wildly Overblown (5, Informative)

Grond (15515) | about 4 years ago | (#33445050)

The emerging case law on this kind of action is putting the damper on a lot of get-rich-quick schemes. First, the potential damages are up to $500 per violation. Courts are not handing down massive damage awards; quite the opposite, in fact. It's likely that most of these cases will end up with damages assessed at some fractions of a dollar or even fractions of a cent per violation. $500 per violation is a cap on damages, not a target.

Second, the courts are setting a fairly high bar for the 'intent to deceive the public' element of false marking. The majority of these cases are the result of typos or failing to retool an assembly line the moment a patent expires.

Re:Wildly Overblown (0)

Anonymous Coward | about 4 years ago | (#33445612)

The emerging case law on this kind of action is putting the damper on a lot of get-rich-quick schemes. First, the potential damages are up to $500 per violation. Courts are not handing down massive damage awards; quite the opposite, in fact. It's likely that most of these cases will end up with damages assessed at some fractions of a dollar or even fractions of a cent per violation. $500 per violation is a cap on damages, not a target.

Second, the courts are setting a fairly high bar for the 'intent to deceive the public' element of false marking. The majority of these cases are the result of typos or failing to retool an assembly line the moment a patent expires.

Why should this be different than the statutory damages assigned by the RIAA and the music download/upload lawsuits. Why should corporations be allowed to lower the damages?

Re:Wildly Overblown (1)

wvmarle (1070040) | about 4 years ago | (#33445674)

Don't forget old stock.

Producer in China makes product, ships it out a week later, another month or so later it arrives in the US, yet another few weeks to arrive on store shelves. That's already at least two months between manufacturing and arrival in the stores (which is exactly why high season for production is Jul-Oct, to make it in time for the Christmas season - ordering is done even earlier). All in all for most products up to a year between design/tooling/mould making and hitting the shelves.

This not taking into account time taken to actually sell the product. Plenty of time to have your patents expire, and still have it on your products, without any bad intention.

Oh and of course after selling a product for >10 years (a patent lasts for up to 20 years) it's easy to forget about an expiry date...

Good (3, Informative)

harlows_monkeys (106428) | about 4 years ago | (#33445058)

As others have noted, incorrect patent marking stifles innovation.

Letting the public enforce this is efficient. It reminds me of how certain forms of illegal stock trading were discouraged. Certain stockholders are not allowed to engage in something called "short swing trading". If they do, and are caught, they have to give all their profits from the trade to the company. The brilliant way Congress and the SEC came up with to enforce this was to make it so any shareholder can sue on behalf of the corporation. If the shareholder wins (and he always does, because the people who aren't allowed to do these trades are the same set of people that have to report all their trades to the SEC, and so their illegal short swing trades will quickly come to light), the illegal trader has to pay the shareholder's attorney fees. Finally, in the most brilliant part of all, the shareholder only has to be one at the time of filing the suit--not at the time of the illegal trade.

Net result: law firms get the SEC data, run programs to identify short swing traders, go out and buy one share of stock in the company, and sue.

To make it worse, profits are calculated in a way that is very unfavorable to the defendant. Suppose you bought stock at 100/share, later sold that all at 90/share, then later bought the same amount at 80/share, and then sold that at 70/share. You've had a net loss of 20/share, right? That's what you bank account reflects--but that's not how the court calculates it. The court finds the lowest you paid and the highest you sold for and matches them. Repeat until as much is matched as possible. So, the court would just look at that 90/share sale and the later 80/share purchase, and order you to pay 10/share to the company. The remaining 100/share purchase and 70/share sale are ignored. So in addition to losing in reality 20/share on your transactions, and having to pay plaintiff's attorney fees, you also have to pay 10/share to the company!

This has made short swing trading so scary that among those who have to report their trades it virtually stopped shortly after these rules went into effect.

Re:Good (1)

j0nb0y (107699) | about 4 years ago | (#33445138)

incorrect patent marking stifles innovation.

How, precisely? You have to look the patent up anyway to see what exactly it covers. When you do, you will surely notice if the patent is expired. Sure, you wasted a couple minutes, but was innovation stifled? I don't think so.

Re:Good (1)

king neckbeard (1801738) | about 4 years ago | (#33445296)

If a product has no current patents, you could copy any functionality of said product without having to look anything up.

Re:Good (2, Insightful)

Animaether (411575) | about 4 years ago | (#33445634)

If a product has no current patents, you could copy any functionality of said product without having to look anything up.

And how, exactly, are you going to know that it has no current patents without looking anything up?

I have in front of me a DVD case from Amaray (I used it in another comment) that has the patent # in it. I can look that up. Oh hey, it's still valid.

I also have in front of me a wheeled cutter. It says "patent pending". Well I bought that about 2 years ago.. does that have an active patent? I have no idea. I guess I'll have to pay a patent lawyer to figure that out for me.

I also have in front of me a small solar calculator. It doesn't have any patent markings that I can see. Odds are it is, or was, patented... but I see no markings. So can I just duplicate it and go to market with it? Well, I can, but the patent holder (if there is one, with an active patent), upon finding out about my copy, would happily sue the heck out of me. So I'd still have to hire a patent lawyer.

So no.. I can't just copy the functionality and market it without looking anything up.

Having the markings on there is a -good thing-... not just for the patent holders, but also for everybody who's thinking about copying the invention, as they do not need to go through the time and money to figure out what immediate patents apply.

The law in question should be changed to take into account progress made in information retrieval. It no longer requires sending somebody by horse to a remote patent office, having them dig through mounds of paperwork, and return 2 months later, which most certainly -could- "stifle competition".
( above scenario based on an assumption - the law in question isn't cited, so I have no idea when it was actually instated. )

Re:Good (1)

harlows_monkeys (106428) | about 4 years ago | (#33445724)

And how, exactly, are you going to know that it has no current patents without looking anything up?

Patent holders are required to mark their wares with their current patents, if they wish to be able to recover damages for infringement.

Anon Patent Troll (2, Funny)

Anonymous Coward | about 4 years ago | (#33445154)

Live by the Sword, Die by the Sword.

Let me get this straight... (1)

Qubit (100461) | about 4 years ago | (#33445250)

So if you want to protect your shit you just designed, the government encourages you to put a patent number on the device, often formed into the very metal or plastic comprising the casing or body of your thingamajig.

Then, at some time in the future, when the patent expires, you can't use that mold or casting tool anymore and have to build a new one, because otherwise it's false advertising?

Even if the mold says "This item is covered by patent #xxxxxxx," isn't it useful for further innovation that anyone can just type in that number and find the patent that describes the item?

For example: I just bought a weird kitchen tool at the thrift store the other day and was puzzled as to its precise use until I typed in the patent number on it and found out that it was an ice cube chunker (it works pretty well, too -- no, I'm sorry, I forget the patent # off the top of my head). Had it not had a patent number on it, I'd probably still be trying to squeeze citrus with it or something!

So here's the tradeoff as I see it:
A) Keeping the numbers in place, with the big benefit to identifying items AND giving new innovators an easy starting point for further progress in the Useful Arts, versus
B) Mandating removal so that a small handful of people who can't enter a number into Google or do basic subtraction can determine if a patent has expired.

Good job, congress, the law's really protecting us what good!

*shakes head*

Re:Let me get this straight... (3, Insightful)

king neckbeard (1801738) | about 4 years ago | (#33445332)

Why not make a label saying the patent number and the expiration date of said patent? Then there is no misinformation, all of the benefits of patent marking, and no need to remake molds. Everybody wins

Re:Let me get this straight... (4, Insightful)

Anonymous Coward | about 4 years ago | (#33445514)

All these suggestions of "print an expiration" miss one thing: utility patents in the US require maintenance payments, so the expiration date is not set in stone; if a company were to produce goods marked with the latest possible expiration date, then through malice, neglect, or simply a change in business plans, fails to pay a maintenance fee? Now you have products explicitly stating an expiration date some years after the patent has gone out of force.

Re:Let me get this straight... (1)

king neckbeard (1801738) | about 4 years ago | (#33445558)

That does make things a bit more complex. Maybe have a list of possible expiration dates, or just have patent holders adjust their molds, which likely costs less than the maintenance fees.

Re:Let me get this straight... (1)

Qubit (100461) | about 4 years ago | (#33445644)

All these suggestions of "print an expiration" miss one thing...expiration date is not set in stone...

Yet another reason to just print the number by itself. As with most design, K.I.S.S.

Re:Let me get this straight... (1)

mooingyak (720677) | about 4 years ago | (#33445546)

For example: I just bought a weird kitchen tool at the thrift store the other day and was puzzled as to its precise use until I typed in the patent number on it and found out that it was an ice cube chunker (it works pretty well, too -- no, I'm sorry, I forget the patent # off the top of my head). Had it not had a patent number on it, I'd probably still be trying to squeeze citrus with it or something!

I'm going to go out on a limb here and propose that this might just possibly be an edge case and that there's a chance most people are aware of the intended use of the product they are buying.

Re:Let me get this straight... (1)

LiENUS (207736) | about 4 years ago | (#33445562)

I'm going to go out on a limb here and propose that this might just possibly be an edge case and that there's a chance most people are aware of the intended use of the product they are buying.

You'd be surprised. This guy went into a thrift store, found something he had no idea what it was then paid his money to purchase it and bring it home and try to figure out what it was. Sounds stupid right? Try it some time, it's actually quite fun and I know many people who love discovering old stuff and figuring out what it is. Besides, it's a much better use than what the actual purpose of the patent markings are (isn't it just to raise the damages in court when they sue?)

Re:Let me get this straight... (1)

retchdog (1319261) | about 4 years ago | (#33445712)

the government encourages you... Then, at some time in the future...

Gee, all that and what do they get in exchange? Merely an absolute state-enforced monopoly for nearly two decades. Woe be unto them.

Stupid law. Should fix. (4, Interesting)

istartedi (132515) | about 4 years ago | (#33445312)

An expired patent number on a product has positive social benefit. If anything, we should require the manufacturer to continue affixing the patent number to the product for a period after the patent expires. This lets you know how to reproduce the product, which you now have the right to do.

I don't know about the rest of you, but whenever I see a patent number on something interesting, I think, "OK, I can look that up and see when it expires". If they aren't allowed to keep putting the number there, the answer will always be "sometime in the future" as opposed to "x number of years ago".

In other words, if they aren't allowed to put the expired number there, it'll be harder to get the good news.

Re:Stupid law. Should fix. (3, Interesting)

mysidia (191772) | about 4 years ago | (#33445392)

An expired patent number on a product has positive social benefit. If anything, we should require the manufacturer to continue affixing the patent number to the product for a period after the patent expires. This lets you know how to reproduce the product, which you now have the right to do.

Yes. I think the law should be changed, so it's OK to affix an expired patent number, as long as you print the expiration by the number, for example "Pat No 1,234,567. Expires XX/YY/ZZ

Should not incur a fine, as long as the expiration date is included and truthful.

Re:Stupid law. Should fix. (0)

Anonymous Coward | about 4 years ago | (#33445464)

Even simpler solution, have the patent number include the issue date as part of it.

Is 96-1234-5678-9 that bad?

Not really.

Re:Stupid law. Should fix. (1)

wvmarle (1070040) | about 4 years ago | (#33445648)

Often these patents are for just a part of the product - and it's generally easier to figure out how to make it for yourself by looking carefully at the actual product, than to try to learn it from the patents. Patents tend to be quite obfuscated.

Open source projects: this means you (2, Interesting)

mysidia (191772) | about 4 years ago | (#33445340)

Better check any patent numbers in those .C files and .H files for expiration.

I know i've seen patent numbers mentioned in source code before.

I'm not quite sure how the courts would deal with "possibly unlimited numbers" (of copies distributed), uncounted free downloads.

Perhaps it could be the first time a patent troll gets an unlimited damage award? "The court finds in favor of the plaintiff. The defendant is hereby order to hand over all their money, worldly possessions, and all money and worldly possessions they obtain for the rest of their natural live(s)?"

Tell all (1)

NetNed (955141) | about 4 years ago | (#33445354)

Easy, die grinder to the rescue. Sure word will get on and just remove the number from the mold then keep on selling.

In the immortal words of... (1)

DoofusOfDeath (636671) | about 4 years ago | (#33445370)

General Kenobi, Who's the more trollish? The troll, or the troll who follows him?

Warehouse Ploy? (1, Troll)

pentalive (449155) | about 4 years ago | (#33445496)

What happens when a company builds a quantity of units with a current patent number, that then sit in a warehouse for a few years before being sold?

Re:Warehouse Ploy? (1)

king neckbeard (1801738) | about 4 years ago | (#33445524)

That would depend on whether the law governs production or sale. Production would make more sense to me, and thus not harm this hypothetical warehouse.
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