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Netflix Sued Over Fradulently Obtained Patents

Zonk posted more than 6 years ago | from the dirty-pool dept.

Patents 193

An anonymous reader writes "Techdirt has a story about a new class action lawsuit against Netflix, claiming that the patents the company is using to sue Blockbuster were obtained fraudulently. Specifically, the lawsuit claims that Netflix was well aware of prior art, but did not include it in its patent filing, as required by law. The lawsuit also claims that Netflix then used these fraudulently obtained patents to scare others out of the market, in violation of antitrust law. 'Certainly, it makes for an interesting argument. Patents grant a government-backed monopoly -- which should get you around any antitrust violations. However, if that patent is obtained fraudulently, then I can see a pretty compelling claim that you've abused antitrust law. It would be interesting if other such cases start popping up (and, indeed, the lawyer who sent it to us said his firm is looking for additional patents to go after in this manner).'"

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193 comments

LOL PATENTS RULE LOL (1)

LOL PATENTS RULE LOL (903720) | more than 6 years ago | (#19184137)

LOL PATENTS RULE LOL

Please find Madeleine (-1, Offtopic)

Anonymous Coward | more than 6 years ago | (#19184463)

Sorry to be off topic, but this little girl [findmadeleine.com] really needs your help. [bbc.co.uk]

Please keep her in mind, and in the minds across the internet and world. Publicity here could prevent a tragedy. There is already a £2.5m ($5m) reward for information leading to her safe return. [bbc.co.uk]

Thanks for your time.

Re:Please find Madeleine (0)

Anonymous Coward | more than 6 years ago | (#19184935)

I don't think goatse man needs my help.

Re:Please find Madeleine (2, Funny)

Hatta (162192) | more than 6 years ago | (#19185059)

But did they ever find Waldo?

Re:Please find Madeleine (1)

celardore (844933) | more than 6 years ago | (#19185163)

I found Waldo. Again, and again, and again. I hear most the neighbourhood "found" him as well. What a dork, who goes to the beach in a hat and sweater anyways. He deserved it.

Wow, That's Weak (2, Insightful)

MikeyTheK (873329) | more than 6 years ago | (#19184707)

That has got to be the weakest attempt to extort money I've ever read. If you read the claims in the complaint, essentially the amblance-chasers are trying to attack Netflix not by invalidating the patents, but by arguing that the patents are invalid and therefore Netflix is guilty of abusing monopoly power given to it (by the existence of patents that the complaint contends are invalid).

That's pretty weeak. Looks like they're going for extortion and to certify a class all in one shot. Amazing. Only in the 9th Circuit could something like this be perpetrated.

Re:Wow, That's Weak (0)

Anonymous Coward | more than 6 years ago | (#19184807)

>Only in the 9th Circuit could something like this be perpetrated.

Uh, maybe it's in the 9th circuit because this is where the action is in the techy world.

burn netflix (1, Offtopic)

Danga (307709) | more than 6 years ago | (#19184141)

I hope they get punished for this...

Re:burn netflix (2, Insightful)

Danga (307709) | more than 6 years ago | (#19184381)

If netflix did in fact obtain those patents fraduently then they deserve to pay for it. I know if this class action lawsuit results in a loss for netflix that the lawyers will get the lions share of the money which sucks, but at least netflix will have to pay for their wrong doing and other companies may think twice before doing something similar.

I guess since the entity that I want to "pay up" isn't Microsoft, the RIAA, or the MPAA the mods decided to mod me offtopic. Whatever...

About time... (2, Insightful)

astonishedelf (845821) | more than 6 years ago | (#19184175)

that someone found a way to sue the bejesus out of patent trolls and their BS patents...

Re:About time... (3, Insightful)

plover (150551) | more than 6 years ago | (#19184279)

What, because one patent troll sues another patent troll we should celebrate?

Now, if someone were to invalidate all software patents, that would be a reason to celebrate. This is just the (hopeful) invalidation of two patents out of two million, and perhaps the spanking of yet another company acting evil.

In the time it's taking me to write this response, I imagine three other software patents are being granted. Even if this moves forward (which it hasn't yet) we're still moving backwards.

Or, more realistically... (5, Insightful)

Mahjub Sa'aden (1100387) | more than 6 years ago | (#19184567)

Instead of invalidating software patents, we could shorten their term to a reasonable period (two or three years generally ensures obsolescence for most software products), and drastically expand the criteria against which a particular software patent is judged invalid. Would that not be at least a workable compromise?

Re:Or, more realistically... (1)

Qzukk (229616) | more than 6 years ago | (#19184691)

Would that not be at least a workable compromise?

It would be a reasonable thing to do, and doing reasonable things seems to be anathema to most governments.

Re:Or, more realistically... (0)

Anonymous Coward | more than 6 years ago | (#19184785)

It would be a reasonable thing to do, and doing reasonable things seems to be anathema to most people.

There, I fixed your typo.

Re:Or, more realistically... (3, Insightful)

Mahjub Sa'aden (1100387) | more than 6 years ago | (#19185031)

Most governments and most people, it would seem.

Maybe the problem is that lawmakers simply don't understand that software is not an analog to the real world. They don't understand that it moves faster, and that software development often simply doesn't have to bear the cost of traditional inventions and innovations. Not to say that there aren't software products or implementations worthy of patenting, but rather to say that patents in a software world are simply different.

Or maybe, just maybe, non-technical people are so used to being explained things in terms of analogy they tend to lose sight of the fact that simply because an analogy is the most useful or expedient method of explaining a concept the concept itself isn't bound by the realities an analogy might suggest.

lgc-bc4s.nds (-1, Offtopic)

Anonymous Coward | more than 6 years ago | (#19184181)

/Users/acaben/Desktop/Unreal Tournament 2004 for Mac OS X UB.iso

One Click Shopping (3, Insightful)

popo (107611) | more than 6 years ago | (#19184201)

Plenty of video games featured in-game stores with one click shopping. That should constitute prior art. Amazon knew about these but discounted them because the transactions were virtual.

Re:One Click Shopping (1)

nexuspal (720736) | more than 6 years ago | (#19184351)

Very Insightful! I never thought about the one click shopping in games that existed before Amazon's patent. And, since we're all using fiat money, there is little difference between a fiat money transaction in a game using one click, and a one click transaction using real life fiat money.

Re:One Click Shopping (1)

Actually, I do RTFA (1058596) | more than 6 years ago | (#19184687)

This seems like a legitimate distinction to me. After all, just like video games show shrink-rays yet a real one would be worthy of a patent, so would being able to walk into a store and pressing a button under the item you want to buy it.

Obvious guy whispers in ear

What? You mean they're a online (virtual) store..?

Re:One Click Shopping (1)

Slow Smurf (839532) | more than 6 years ago | (#19184727)

You shouldn't be able to patent the idea of a shrink ray anyway, so it's not a good example.

Now if a game detailed how to make a shrink ray, and it worked for some bizare reason, that'd be another issue.

Re:One Click Shopping (1)

Actually, I do RTFA (1058596) | more than 6 years ago | (#19184941)

I would like to amend my previous submission to read as follows.

If a game taught a process by which:

A HUD which consists of a glowing red button. The pressing of said button activates a shrink ray.

And a real life shrink ray operated off of a glowing red button.

Is that analogous? Or should I give up and take a nap.

Re:One Click Shopping (0)

Anonymous Coward | more than 6 years ago | (#19185443)

You shouldn't be able to patent the idea of a shrink ray anyway, so it's not a good example.

Of course you shouldn't be able to patent a shrink ray. Jan Benes already patented it. The Soviets were very angry about it. So angry they tried to kill him.

You must have missed the documentary.

Re:One Click Shopping (1)

hurfy (735314) | more than 6 years ago | (#19185325)

"so would being able to walk into a store and pressing a button under the item you want to buy it."

So like a vending machine then ..... ?

identifying prior art (2, Interesting)

snooo53 (663796) | more than 6 years ago | (#19185191)

The problem with these types of prior art is that you have to prove that it is obvious how a person who is skilled in the art could implement ALL the aspects of the invention that Amazon or whomever is claiming. Yeah, the idea of "one-click to buy" is pretty basic, but the steps they lay out in their claims are more involved:

A method of placing an order for an item comprising: under control of a client system, displaying information identifying the item; and in response to only a single action being performed, sending a request to order the item along with an identifier of a purchaser of the item to a server system; under control of a single-action ordering component of the server system, receiving the request; retrieving additional information previously stored for the purchaser identified by the identifier in the received request; and generating an order to purchase the requested item for the purchaser identified by the identifier in the received request using the retrieved additional information; and fulfilling the generated order to complete purchase of the item whereby the item is ordered without using a shopping cart ordering model.

The way you described the game doesn't teach how to do the client-server part of the claims and proving that it's obvious an engineer skilled in the art could just throw together a system like that from seeing what you descibed is a LOT harder.

A good example: say I invent a warp drive or a phaser or what have you. The fact that it's been shown on Star Trek for the last 40 years doesn't count as prior art because from watching the show it's not obvious how to construct one. But if I tried to patent say a LCARS-style layout of buttons, then you might have a good argument for unpatentability since those layouts are shown all the time.

Re:identifying prior art (1)

nexuspal (720736) | more than 6 years ago | (#19185417)

"The way you described the game doesn't teach how to do the client-server part of the claims and proving that it's obvious an engineer skilled in the art could just throw together a system like that from seeing what you descibed is a LOT harder. "
A LOT harder to code? You're talking about a cookie that is created soon after login with a unique identifier which is used to identify the person when they click on the button (then the server side code that places the order and sends out a confirmation email). I could whip up a one click ordering system in a day... Hardly novel by any standard, and much easier than you think...

Techdirt? (-1, Offtopic)

Anonymous Coward | more than 6 years ago | (#19184215)

I wonder what piece of shit software runs that blog.

Does that make this lawyer a (3, Interesting)

zappepcs (820751) | more than 6 years ago | (#19184227)

patent troll troll?

It would be nice to see this force reasonable patent reform.

Don't care about suing people (2, Insightful)

LiquidCoooled (634315) | more than 6 years ago | (#19184231)

I don't care about suing people or companies, what I care about is the ambulance chacing all these friggin' vampire lawyers do.

Without lawyers I am quite certain the world be a better place.

(Before anyone starts, yes I know there are good decent lawyers who do their jobs really well who practice criminal law, not this corporate bullshit)

Re:Don't care about suing people (2, Interesting)

orclevegam (940336) | more than 6 years ago | (#19184313)

Without lawyers I am quite certain the world be a better place. (Before anyone starts, yes I know there are good decent lawyers who do their jobs really well who practice criminal law, not this corporate bullshit)

This is semi-offtopic at this point, but here's a good start, ban lawyers from holding political office. 90% of the problems we have with lawyers stem from the fact that almost all politicians started as lawyers, and so it's impossible to pass any laws that have a negative impact on the income of lawyers, and laws pass all the time that improve the income of lawyers.

Re:Don't care about suing people (2, Insightful)

scooterjohnson (1042058) | more than 6 years ago | (#19184433)

Ban lawyers from holding political office?? Of course! It makes perfect sense to stop those who spend years studying law from actually making laws. That would be like outlawing doctors from doing medical research. I for one like the idea that most of the people creating and managing our laws are people who are actually certified to do so.

Re:Don't care about suing people (0, Offtopic)

drinkypoo (153816) | more than 6 years ago | (#19184485)

I for one like the idea that most of the people creating and managing our laws are people who are actually certified to do so.

What we should really do is outlaw all campaign contributions and all gifts to elected representatives.

Re:Don't care about suing people (1)

Kickersny.com (913902) | more than 6 years ago | (#19184573)

What we should really do is outlaw all campaign contributions and all gifts to elected representatives.
And who do you think will be passing these laws? Unfortunately, I doubt there is a single politician willing to even suggest this law, let alone get it passed.

Re:Don't care about suing people (2)

drinkypoo (153816) | more than 6 years ago | (#19184771)

And who do you think will be passing these laws? Unfortunately, I doubt there is a single politician willing to even suggest this law, let alone get it passed.

Sure, I agree. Of course, if we were voting with our heads instead of just for the incumbent (who is reelected 95% of the time, at least in congress) then perhaps we would have a better chance at it. Of course, we elect people based on what they look like and how much they spend on their campaign, so it's not going to happen until human nature changes, which is to say, after the rise of skynet.

Re:Don't care about suing people (1)

DragonWriter (970822) | more than 6 years ago | (#19184899)

Of course, if we were voting with our heads instead of just for the incumbent (who is reelected 95% of the time, at least in congress) then perhaps we would have a better chance at it.


Since, generally, the people voting are the same people that voted for the guy 2 years ago, and the opponent is generally of a similar ideology to the opponent from 2 years ago, is it really surprising that, even if people were voting with their heads, the incumbent would be reelected in the vast majority of cases?

Re:Don't care about suing people (1)

drinkypoo (153816) | more than 6 years ago | (#19185107)

is it really surprising that, even if people were voting with their heads, the incumbent would be reelected in the vast majority of cases?

Polls show both that over 50% of the voting population believes we need a change, yet we reelect the incumbent 95% of the time.

So yes, it is that surprising.

Re:Don't care about suing people (1)

DragonWriter (970822) | more than 6 years ago | (#19185347)

Polls show both that over 50% of the voting population believes we need a change, yet we reelect the incumbent 95% of the time.

So yes, it is that surprising.



It shouldn't be. There are 535 (voting) members of Congress, 532 of which were not elected by the voter you are questioning. More than 50% believe we need a change, of course. But vastly more of them believe we need a change in the 532 members of Congress that the person be polled didn't have a vote in selecting than in the 3 that they did.

Try voting in Canada. (1)

Mahjub Sa'aden (1100387) | more than 6 years ago | (#19185447)

While you Americans may vote in incumbents a lot (for whatever reason), don't be too quick to want what we have in Canada, where people rarely vote for anyone, instead opting to vote against them. Neither extreme leads, I think, to particularly informed voting.

Re:Don't care about suing people (1)

loganrapp (975327) | more than 6 years ago | (#19185467)

Why? Does it not occur to you that perhaps the change they want isn't in what the opponent is offering?


Most people keep the incumbent because they haven't done anything to screw things up royally. When that happens, you get the 2006 elections.

Just because I want something different than the incumbent doesn't mean I want to deal with the bullshit the opponent's feeding me.

Re:Don't care about suing people (1)

Trailwalker (648636) | more than 6 years ago | (#19185279)

Most legislatures employ lawyers to look over intended laws before they are introduced into the legislative process. These lawyers make sure the wording of the new law states what is intended and is in good legal form.

If one profession, the law, is forbidden to hold elective office, the other two traditional professions should also be barred, i.e., The Clergy and the Military. All three traditional professions have special privileges and obligations in our society.

Re:Don't care about suing people (1)

DragonWriter (970822) | more than 6 years ago | (#19185453)

Most legislatures employ lawyers to look over intended laws before they are introduced into the legislative process. These lawyers make sure the wording of the new law states what is intended and is in good legal form.


Most legislatures actually employ (some in the narrow sense, some in a broader sense) several sets of lawyers in this process.

The first is the lawyers employed, on paper, by industry or lobbying groups which actually write the laws that some member of the legislature is convinced to introduced. Then there are lawyers on the staff of individual legislators that review the law and advise the member on it, lawyers on the majority and minority party's staff on each committee that the bill goes through that do analysis, and often lawyers on a nominally nonpartisan legislative counsel office that also do analysis available to members.

Of course, all of that illustrates why stopping lawyers from holding elective office would really not reduce the influence of lawyers in the process, whether for good (understanding the law) or bad (conflict of interest).

If one profession, the law, is forbidden to hold elective office, the other two traditional professions should also be barred, i.e., The Clergy and the Military.


The three traditional "professions" are law, medicine, and the clergy, not law, clergy, and the military.

Re:Don't care about suing people (1)

Short Circuit (52384) | more than 6 years ago | (#19185035)

So only rich people can run for office?

"My God...it's full of hollywood stars!"

Re:Don't care about suing people (1)

drinkypoo (153816) | more than 6 years ago | (#19185165)

So only rich people can run for office?

Actually I have a more comprehensive program in mind.

Campaign contributions must be made to a general fund which is to be distributed evenly across all those on the ballot. For every dollar spent on one's own campaign, one dollar must be placed into the fund to be distributed to all candidates. Candidates are placed on the ballot based on petition; the n people with the highest number of signatures may be on the ballot.

Also we would be forcing broadcast media to provide some airtime, in equal portions to all candidates who want some, and at equal prices (all the airtime would be in roughly the same slot, and during a time when people are commonly away and near the television.) Part of the idea behind the FCC was that it should be protecting and preserving the airwaves in the public interest, so with a little stretching this is reasonably part of their mandate - it certainly involves less stretching than to believe that they should reasonably be arbiters of taste on the air.

There are other details to be worked out, such as the problems with PACs which are already very real, and of course, the fact that we could never get politicians to go for any of this.

Re:Don't care about suing people (2, Insightful)

nebaz (453974) | more than 6 years ago | (#19184587)

The difference between law and medicine is that medicine is a discipline of discovery. Law is that of human creation. Lawyers can shape laws for their own benefit, whereas doctors could only discover what actually exists. Being a lawyer only makes you familiar with the current state of law. There is no absolute requirement that
laws be written the way they are. Harder to change the realities of science.

Re:Don't care about suing people (0)

Anonymous Coward | more than 6 years ago | (#19184641)

Well, you have a strong argument, given what a good job politicians have done so far!

Re:Don't care about suing people (1)

orclevegam (940336) | more than 6 years ago | (#19184679)

It makes perfect sense to stop those who spend years studying law from actually making laws.

The problem is you have a conflict of interest. The lawyers make their money by exploiting loopholes in the legal system, so it's in their best interest to keep those loopholes in place. You don't have to be a lawyer to study law, but people seem to assume that politicians MUST be lawyers because they know the law. It's the same principle as banning people on a sports team from placing bets on their games, it's a conflict of interest.

Re:Don't care about suing people (1)

Schemat1c (464768) | more than 6 years ago | (#19184969)

Ban lawyers from holding political office?? Of course! It makes perfect sense to stop those who spend years studying law from actually making laws.
It makes perfect sense to stop those that spend years learning a language that the average person cannot understand and clog the system with libraries of useless laws meant only to benefit the wealthy.

Re:Don't care about suing people (1)

bhmit1 (2270) | more than 6 years ago | (#19184633)

Considering they are supposed to be writing the laws, I don't know how wise it is to have people that don't understand the law in that position. It's like banning economist from holding a position at the federal reserve.

What would help is to end the special interest influence. Law firms are huge donors to political groups. Make it so that people are the only ones able to donate, and put a cap on how much they can donate per year. No golf trips, no vacations, no planes, etc. Make politicians go back to being public servants as a position of honor and service instead of greed and power. Sadly, this will never happen as long as politicians make their own rules, political parties maintain their status quo, and people are afraid of wasting votes on independents.

-1, Threadjack (0)

Anonymous Coward | more than 6 years ago | (#19184557)

that is all

Re:Don't care about suing people (0)

Anonymous Coward | more than 6 years ago | (#19184997)

Did you mean "ambulance caching" for efficiency purposes?

Re:Don't care about suing people (1)

Short Circuit (52384) | more than 6 years ago | (#19185097)

Without lawyers I am quite certain the world be a better place.
The pilot episode of ST:TNG presented one idea of what that would be like. I'm rather inclined to think they're right.

"There will be no legal trickery!"

In fact, if you banned the practice of civil law, things would be much, much worse. Laws like the DMCA would be used by everyone and their brother. Lawsuits alleging libel and slander would erupt from schoolyard fights.

And nobody would be allowed to school themselves in the very laws upon which such lawsuit chaos would erupt. Today, many frivolous lawsuits get recognized and thrown out of court. What happens when the judge is prohibited from learning how to interpret the laws they're supposed to rule on?

OMG I chose the wrong profession... (5, Insightful)

RingDev (879105) | more than 6 years ago | (#19184261)

"and, indeed, the lawyer who sent it to us said his firm is looking for additional patents to go after in this manner"

Forget IT, go to law school.

1) Help company get patents
2) Profit
3) Help company threaten to sue infringers
4) Profit
5) Defend company against other lawyers representing other patents
6) Profit
7) Sue other companies for bogus patents
8) Profit

Heck, even if the company they represent gets burned and goes under, they still walk away with no penalty. It's like all the financial benefits of inventing something, with out the work or risk!

-Rick

Yeah, it's a beautiful racket. (5, Interesting)

Mahjub Sa'aden (1100387) | more than 6 years ago | (#19184363)

I have patented several products and have a patent pending (in manufacturing, not in software, so please no-one try to dissolve me in acid) for products and techniques I think are at least fairly innovative. That said, it's no use blaming the lawyers for the state of affair in the US and Canada. The fact that they're needed at every step of the process -- truly and absolutely needed -- is a testament not to lawyers greed but to legislative bloat.

Now, you can argue that lawyers and lawmakers form a recursive loop, but I'll leave that for people smarter than I.

Hard to prove (3, Insightful)

umStefa (583709) | more than 6 years ago | (#19184297)

While successful lawsuits of this type could result in patent reform, since having a weak patent (with clear prior art) could end up costing company's money instead of being used as corporate weapons, an instantanious problem arises.

You need to be able to prove that the company ignored prior art and if a case comes down to two people saying different things the courts will generally find in favor of the defendant.

I can see it now:

Lawyer 1: "You knew about the prior art before you filed for the patent because your secretary told me so!"

Defendant: "No I didn't!"

Judge: "Case dismissed"

In order for this cases to be sucessful, hard evidence needs to found (i.e. an e-mail saying "Lets ignore the prior art"). Otherwise the only ones who will win are the lawyers (as always).

Re:Hard to prove (0)

Anonymous Coward | more than 6 years ago | (#19184403)

The only problem with what you say is that no knowledge of prior art does not a patent make. IANAL, but I'm pretty sure that it is the job of the person filing a patent to find out if the patent can be valid. If they don't do that, whatever happens is their own stinking problem.

Re:Hard to prove (0)

Anonymous Coward | more than 6 years ago | (#19184695)

Someone inadvertently missing a piece of prior art may still invalidate the patent, but it would not make for a case of fraud.

Re:Hard to prove (2, Insightful)

kebes (861706) | more than 6 years ago | (#19184741)

You need to be able to prove that the company ignored prior art
That's part of patent law I've never understood. I've been told by people (who have patents) that it is in their best interest to *NOT* do a patent search before applying for a patent, since that search could be used against them later, to prove willful infringement, which carries a stiffer penalty (I guess) than mere incidental infringement.

But, why the heck is the system run this way? A patent application is supposed to be a legal document. It's not worded this way, but it is basically meant to convey "Under penalty of perjury, I hereby claim that this is a novel invention, that no other before me has invented. I have no knowledge of any prior art in this regard, and I find it highly unlikely that anyone else could have invented something similar, because it is so unique and novel."

Obviously, that's not how patents are viewed today. No one is afraid of submitting a bogus patent. The worst thing that will happen is that it's thrown out. But shouldn't they be treated as binding legal statements? If it is discovered that you claimed something was "novel and patent worthy" and it is later determined to be "obvious and prior implementations were publicly known" then the penalty should be that for perjury. After all, you filed a legal document with the government where you made some very strong claims, and it turned out that you were very much wrong.

A great amount of patent nonsense could be eliminated if they were treated like the binding legal documents that they are. No other legal document gives so much power with zero accountability the way a patent does. Imagine if an assayer certified that there was oil in a certain area. So a company buys the land in question, and discovers there is no oil. Would it be reasonable for the assayer to say: "Sorry there isn't any oil there--I actually didn't check myself, so you can't hold me accountable." Where is the liability for misrepresentation in weak patents?

Re:Hard to prove (1)

geekoid (135745) | more than 6 years ago | (#19185303)

Those people are wrong.

They take a great risk if they wait to find out later there patent is invalid.

Now, I don't pay for a search, I do it myself. Still risky, but I can claim I did the search.

Re:Hard to prove (1)

VGPowerlord (621254) | more than 6 years ago | (#19185485)

That's part of patent law I've never understood. I've been told by people (who have patents) that it is in their best interest to *NOT* do a patent search before applying for a patent, since that search could be used against them later, to prove willful infringement, which carries a stiffer penalty (I guess) than mere incidental infringement.

I don't know about for patents, but failure to practice due diligence will get you into trouble in other legal circumstances.

bout time, now if only (5, Funny)

LOTHAR, of the Hill (14645) | more than 6 years ago | (#19184299)

Someone would sue the patent office, charging negligence. Maybe get an injunction against them from issuing any patents until they can issue them properly.

now that's an amusing thought.

How would you fix the patent office? (1)

Mahjub Sa'aden (1100387) | more than 6 years ago | (#19184409)

I hear a lot of moaning and bitching about the patent office. I can see where it comes from, as the laws they operate under are pretty broken, all told. But seriously, how would you fix the patent office? These are people that have to deal with patents on subjects they might not even have a tenuous grasp on, much less fully understand. And not just a few patents, lots and lots of them.

The question remains: how would you fix the patent office?

Re:How would you fix the patent office? (1)

Tofystedeth (1076755) | more than 6 years ago | (#19184569)

Well, they generally have something like an idea of what they are doing. At least they are supposed to. They hire people as patent examiners who have degrees in science, like CS, engineering, physics, and experience in manufacturing, and business where it applies. The problem is they have a huge backlog of patents waiting for confirmation; something on the order of 270k expected to increase to 300k next year. It's no wonder that a lot of times things get overlooked by the examiners, not forgetting the oft poorly written and documented patent applications. The patent office is hiring around a thousand new patent examiners every year. Pretty good money too. All info gotten from an NPR interview with some guy in the administration side of the patent office yesterday on All Things Considered.

Re: How would you fix the patent office? (2, Insightful)

Mahjub Sa'aden (1100387) | more than 6 years ago | (#19184613)

So I imagine then that you would want the number of patent examiners increased even further, or the criteria for rejection broadened?

Re: How would you fix the patent office? (1)

Tofystedeth (1076755) | more than 6 years ago | (#19184719)

Yeah, I guess I never actually gave any kind of opinion or commentary there. Those are both good things to have happen. Another that would help is to have patent submitters write clear and easy to prove/disprove patents (or quite filing frivolous patents) thus making the job of the existing examiners easier. I know that isn't improving the patent office itself, but a guy can dream can't he?

Re: How would you fix the patent office? (1)

Mahjub Sa'aden (1100387) | more than 6 years ago | (#19184817)

America is made of dreams, or something :)

One thing I've always wondered is how bad a patent has to be before patent examiners reject it out of hand. Something tells me that if the rules were tightened on just plain bad submissions, a bunch of patents would be tossed in the trash. And maybe the patent office would make some money on the submissions and re-submissions... so a win for everybody?

Re: How would you fix the patent office? (1)

veganboyjosh (896761) | more than 6 years ago | (#19185419)

so a win for everybody?
Except for the broke ass innovative guy with a good idea who's not so much a good communicator.

Re:How would you fix the patent office? (1)

Dog-Cow (21281) | more than 6 years ago | (#19185015)

Actually, your numbers are off. The backlog is 700k+ now and expected to reach 800k by next year. This is according to an interview I heard on NPR the other day.

Re:How would you fix the patent office? (1)

Intron (870560) | more than 6 years ago | (#19185117)

The reason they have the huge backlog is because they approve so many patents. The reason that they approve so many patents is that they get fees for maintenance on patents that they approve, but only filing fees for patents that they reject. Also, if they reject a patent the filer can file objections, so its more work to reject than accept.

Maybe if they stopped granting patents on discoveries (like genes), ideas (like software and business processes), or obvious stuff (like XOR) and just granted them on real inventions, then there would not be a huge backlog.

Re:How would you fix the patent office? (1)

CyberLord Seven (525173) | more than 6 years ago | (#19184611)

#1. Completely eliminate software patents. This would free up examiners for real work.

#2. Test all remaining examiners for competence in the fields they will be examining. Promotion for higher levels would require more stringent testing. Ask if any of the State colleges would be willing to assist in the development of an internet testing and grading process for such use. Select colleges based on the competence of their graduates.

#3. ???? #4 Profit!

Re:How would you fix the patent office? (1)

compro01 (777531) | more than 6 years ago | (#19184675)

These are people that have to deal with patents on subjects they might not even have a tenuous grasp on, much less fully understand.

have you seen the qualifications you need to get a job of that type?

Re:How would you fix the patent office? (5, Insightful)

Mahjub Sa'aden (1100387) | more than 6 years ago | (#19184931)

Yes. I have a cousin who is a patent officer in Canada (and we have some stimulating discussions on patent-related subjects when we see eachother), which I imagine is at least somewhat similar to being a patent examiner in the US. I also have a close friend who is a patent lawyer, though we don't talk about that stuff much because it bums out all our other friends.

But still, there are so many things being patented, in such esoteric fields, that even smart people with training in related fields or tangential field or whatever don't have the technical knowledge to grasp the subject at hand, or -- and this is pretty important -- don't have a way to access the information that would give them a better grasp of it.

I mean, you're probably not a dumb guy, but imagine yourself presented with a sheaf of materials that you only vaguely know about from college five years ago. It's written in technical language that, even though broken down as much as it can be, is still pretty arcane. How are you going to judge if that patent application represents something truly innovative, something truly worth granting a patent for?

We can all say, "Well, they should know," but that's much harder said than done. Another problem is that the people truly qualified to judge the patent's worthiness are often very expensive people. While the patent office may pay a lot of money to their examiners, they still don't, as far as I am aware, pay as well as private industry.

Re:How would you fix the patent office? (1)

intangible (252848) | more than 6 years ago | (#19185133)

Easy, 5 steps.

1. Make a public system for reviewing patents for prior art alongside the examiners process.
2. Don't grant patents on ideas, business-methods, pre-existing systems (like a potato, the human genome), and software (already covered by copyright).
3. Make it easier to invalidate patents.
4. Only allow one re-file for a patent (and have time-limits on the process).
5. (Optional) Require a prototype before granting patent.

Present any argument why my solution wouldn't work.

Re:How would you fix the patent office? (1)

Mahjub Sa'aden (1100387) | more than 6 years ago | (#19185231)

I don't really have any arguments, as I think you points are fairly insightful (had I any mod points and had I not, you know, started this thread, I'd donate some to your most laudable cause). That said,

1. Could you develop this further? How would you incentivise the public -- or more likely, corporations -- to do the legwork on this? Do you see people being interested simply because they don't want a patent to be granted?
2. I like this. Although I disagree somewhat in that I can see cases where things covered by copyright would also deserve to be patented.
3. Absolutely.
4. Why? The patent office makes money every time they invalidate a patent and it is re-filed. It's not really in the patent office or the patenter's best interest to do this, I think.
5. Could work, but could also be infeasible in a lot of cases that I can think of.

Re:How would you fix the patent office? (1)

intangible (252848) | more than 6 years ago | (#19185403)

1. I do think people would volunteer to do this; Corporations themselves could even hire people to monitor patent applications (put the current patent lawyers to good use). The fact is, there are more and more people and more and more ideas every year, unless we expand the size of the patent office tremendously every year, they'll never be able to devote essential time to reviewing each patent thoroughly. Getting the public's help is the only option I can see.
2. Perhaps, but this is something that has to be addressed soon, software in particular shouldn't be able to be patented, the field grows too quick.
3. N/A :)
4. The Patent Office isn't supposed to be a business that provides profit, it's supposed to be a public system to provide a service for the good of the people. Most government agencies should not be thought of as businesses, that blurs the line where "good for the people" and "good for the government" is.
5. Right, that one is one I could concede on if presented with some valid arguments...

Re:How would you fix the patent office? (2, Interesting)

eric76 (679787) | more than 6 years ago | (#19184905)

how would you fix the patent office?

Change the way patents are granted and prosecuted.

1) Make the bar of being granted a patent much higher. The applicant should have to demonstrate significant effort to make the invention. It should take far more effort to invent something than to patent the results.

2) For each patent, give adequate notice to the public to give them a chance to protest the patent. Hold as many hearings as necessary before the patent is granted.

3) Require a demonstration of the patent if there is any doubt over whether or not the applicant has ever actually built one.

4) Make patents non-exclusive. Any inventor should be able to use, sell, and market his own inventions, even if someone invented the same thing first. If he went to substantial effort to invent the item with no knowledge of products containing the same invention or of the patent, either permit him his own patent or add him to the previously existing patent. Reserve licensing of the patent to other parties for the first inventor only.

5) Before a patent lawsuit may be initiated, require the patentee to notify the infringer and give him adequate notice of his patents and ample opportunity to stop using the invention. Enable the infringer the ability to request a hearing over the question of whether or not the patent was rightfully granted.

6) Permit the patent owner to recover damages only from willing infringers. That would be someone who either knew about the patent before using it or who continued to use it more than a year after being given notice of his infringement.

7) Base the damages awarded on the greater value of the invention to the patent owner and to the infringer. That is, if the patent owner and the infringer is only making minor use of the patent internally, than the patent is not worth much and damages would be minimal. If one of them is actively selling devices for which the patent is a major portion of the device, then the value of the patent would be greater.

8) Require the patentee to actually use the patent in order to recover damages.

Re:How would you fix the patent office? (1)

Mahjub Sa'aden (1100387) | more than 6 years ago | (#19185293)

I like #8 a lot. It would prevent submarine patents quite well. But also, you could add to it that if a patent is infringed upon, the patenter must protect his patent. Much like trademarks. If you just leave it lying around, well, your loss.

Re:How would you fix the patent office? (1)

AK Marc (707885) | more than 6 years ago | (#19185219)

But seriously, how would you fix the patent office? These are people that have to deal with patents on subjects they might not even have a tenuous grasp on, much less fully understand.

You asked and answered your own question. Get some subject matter experts in there. Give them only patents dealing with their specialty or of general scope. Then every patent requiring technical knowledge will be handled by an expert. Problem solved.

lolz the writers of family guy are guenious (-1, Offtopic)

Anonymous Coward | more than 6 years ago | (#19184309)

lolz the writers of family guy are guenious

Class action? (1)

Volante3192 (953645) | more than 6 years ago | (#19184365)

I'm curious how this could be a class-action suit. I thought that's when a huge group of people band together to fight a company. This looks like Blockbuster v. Netflix.

Re:Class action? (2, Informative)

DragonWriter (970822) | more than 6 years ago | (#19184445)

I'm curious how this could be a class-action suit.


Probably because the lawyer filing the case is going to claim a wide range of potential victims constituting a valid "class" through the antitrust allegations.

I thought that's when a huge group of people band together to fight a company.


No, when people band together, you get a big direct action suit with lots of plaintiffs (like the one depicted in Erin Brockovich). A class action suit is when a lawyer and a small number of plaintiffs allege the existence of a vast number of victims that are similarly situated, and seek to claim the right to represent all of them.

This looks like Blockbuster v. Netflix.


Its related to the patent issues in Blockbuster v. Netflix, but separate.

Netflix needs to get nailed on this (4, Insightful)

jandrese (485) | more than 6 years ago | (#19184431)

Even as a person who has used Netflix for years now and absolutely love their service, I can say that if this is true they should be nailed to the wall over it. This is the sort of Patent System BS that must not be allowed to stand if we are to maintain our technology superiority as a country.

It's said that no great idea ever comes out of nowhere. All of the greats stood of the shoulders of giants. However, if people get it into their head to abuse the patent system like this, then there will be no shoulders to stand on and in the end no great achievements.

IANAL (1)

Kelz (611260) | more than 6 years ago | (#19184465)

But it seems to me these lawyers have to prove that Netflix "knew something" about the prior art.

So unless they can subpeona some emails from WAY back when they got the patents talking about something like that, all Netflix has to do is claim ignorance.

Re:IANAL (1)

DragonWriter (970822) | more than 6 years ago | (#19184593)

But it seems to me these lawyers have to prove that Netflix "knew something" about the prior art.

So unless they can subpeona some emails from WAY back when they got the patents talking about something like that, all Netflix has to do is claim ignorance.


Sure, direct evidence would be nice, but circumstantial evidence works to. And, in a civil case, the standard of proof is "preponderance of the evidence" (that is, the jury must merely be conviced that it is more likely than not that the charge is true), not the "beyond a reasonable doubt" standard of criminal. Its quite possible to establish, to that standard, that someone "knew" something without producing a document in which they admit to knowing it.

Re:IANAL (2, Informative)

Todd Knarr (15451) | more than 6 years ago | (#19184649)

Actually it's "knew or should reasonably have known". That second part is the kicker. When applying for a patent an applicant's required by law to do certain due-diligence research (including the prior-art search) first and include the results in the application. If a reasonable person doing the research required by law would've discovered the prior art, then whether Netflix actually knew about it doesn't matter.

Or that's the theory, anyway. In practice you get into extended argument about what's reasonable, and things go downhill from there.

Re:IANAL (0)

Anonymous Coward | more than 6 years ago | (#19185309)

From the complaint: Despite the startling breadth of its claims, the '450 Patent Application made no reference to any prior art. Conversely, the '381 Patent Application listed over 100 references to prior art.

So they knew about 100 references to prior art for one patent, but they didn't know about any for another, closely related patent?

More from the complaint: Despite acknowledging that it knew of the NCR Patents, that it had an apprehension that NCR would actually sue Netflix for infringing the NCR Patents, Netflix failed to disclose the NCR Patents to the Patent Office.

It's going to be pretty hard to argue igonrance on this one...

Who's in the class? (4, Interesting)

jfengel (409917) | more than 6 years ago | (#19184469)

I can see Blockbuster suing them, or some other company whom Netflix threatened. But I can't imagine that there are enough of those companies to form a "class".

The article is pretty vague on exactly what the evidence is. The actual lawsuit [scribd.com] is more informative, but harder to read.

The class (as I finally figured out on page 17 of the lawsuit) is Netflix customers, of whom Dennis Dilbeck is the representative sample. They're suing based on the idea that Netflix's prices are higher than they should be, because competition by Blockbuster should have brought prices down. I just can't see a judge buying it; these people all paid for Netflix's service at the asking price voluntarily.

From what I've read so far, I'm just not buying their claim. They are citing one patent in particular, which is about delivery of resources based on people making requests on a computer, but that's considerably different from Netflix's rental queue.

(I'm assuming that patents are not a completely stupid idea. Please, if you're in the "all patents are inherently evil" category, can you just assume that I agree with you and go preach to the choir in some other thread?)

I don't consider Netflix's idea at all obvious. I thought it was pretty neat when I came up with it: the idea of a rental service which doesn't have a due date is pretty cool and I'd never heard of it.

I know we hate patents, but I hate idiot class-action lawsuits even more. I've been involved in dozens of them; I literally throw them away unopened when they arrive in the mail. The lawyers always make money and I always get a coupon for 30 cents off my next bag of Chex Mix.

Sometimes, I'm even suing myself. Some of those lawsuits were shareholders suing the company. Well, I'm still a shareholder, so I'm suing myself.

All the lawyers need to find is one fool member of the class to make a claim, and the company will often settle rather than fight. It's free money for class-action lawyers.

Re:Who's in the class? (1, Insightful)

Anonymous Coward | more than 6 years ago | (#19184673)

I just can't see a judge buying it; these people all paid for Netflix's service at the asking price voluntarily.

You miss the point. That the customers signed up "voluntarily" is not the issue, it's that had Netflix not been engaged in their anti-competitive behaviour, then the prices that were paid _could_ have been lower. The reason customers signed up was that there was no alternative but to sign up with Netflix to receive that type of service. Kind of like the case where people voluntarily purchased PC's with Windows pre-installed, they didn't do it because they liked paying the "Windows tax", for the most part they simply had no choice.

Re:Who's in the class? (1)

Anonymous McCartneyf (1037584) | more than 6 years ago | (#19185065)

Okay. You are suggesting that it's not worth suing to learn whether Netflix holds this patent legitimately (as in "no prior art") because Netflix isn't actually using what it has patented?
I myself am not against class action lawsuits absolutely. In this case, if Netflix loses, we get rid of a pesky patent.
So, if the patented method could be useful for anyone else in Internet DVD rental, then if this patent is (especially) illegitimate, Netflix not using the method makes things worse.

Re:Who's in the class? (1)

DragonWriter (970822) | more than 6 years ago | (#19185123)

You are suggesting that it's not worth suing to learn whether Netflix holds this patent legitimately (as in "no prior art") because Netflix isn't actually using what it has patented?


A class action suit isn't going to find that out. It is going to end up either (a) dismissed, or (b) with a settlement in which Netflix will not admit wrongdoing but will give a pile of money to the lawyers and some token discount or payout to the class members.

Its more likely that Blockbuster v. Netflix will actually end up with a resolution of the validity of Netflix's patents, since the patent is both key to Netflix's business model and such a substantial barrier to Blockbuster that there is a good incentive for both sides to push the issue.

Well, (2, Interesting)

romland (192158) | more than 6 years ago | (#19184489)

this comes as no surprise to any big corporation, I think. There's a reason why, at Microsoft (for instance), you are told to *not* investigate whether something is patented or not. Just do it. That way, should it go to court, they can honestly claim that they had no idea about prior art and thus be in line with law.

Slightly ironic. :)

Isn't that neglagence(sp?) (2, Insightful)

Actually, I do RTFA (1058596) | more than 6 years ago | (#19184607)

IANAL, but...
Isn't there a positive obligation to investigate prior art before filing. Just like you have a positive obligation to keep your walkway free of ice, protect children from attracive nuiscences and pay your taxes?

Wait, I have a car analogy too! If you're driving your car, and you close your eyes and speed through every stop sign, then shouldn't you still be ticketed (AFAIK, not seeing a stop sign is a legitimite, although difficult to prove, defense. But I'm not very sure as I made up the fact for my car analogy as required by Slashdot bylaw 22.45.b)

A useful precedent. (1)

Actually, I do RTFA (1058596) | more than 6 years ago | (#19184491)

I wonder if every linux user/developer will join in a similar case against M$ and it's 235 patents. Hey, at least that way we could find out what they were!

Non including prior art? (2, Interesting)

HaeMaker (221642) | more than 6 years ago | (#19184495)

What company HASN'T done this?

This isn't fraud, this is standard operating procedure.

wha? (0)

Anonymous Coward | more than 6 years ago | (#19184563)

What the hell does Fradulently mean? Is it anything like Fraudulently?

Microsoft claims Netflix' online site violates.... (1)

xtaski (457801) | more than 6 years ago | (#19184653)

And in other news, Microsoft claims Netflix' online site violates 237 of its patents on Windows and Office. And still in other news, Amazon.com says Netflix' one button into the queue feature also violates Amazon.com's one click order patent.

Arguing over software patents has become the "in thing"... everybody's doing it. Prior art is so yesterday.

Shows How Broken the Patent System Is (0)

Anonymous Coward | more than 6 years ago | (#19184947)

Part of the purported advantage of the patent system is to give companies in a market a chance to break into the market despite the existence of established (probably larger) companies. Without protecting the new company's innovative products from rapid duplication by established competitors the barrier to market entry would be huge.

Yet clearly Netflix is the smaller company in the video rental market. Thanks to their patented innovation they successfully broke into this market. Only now they are being sued be the established company (Blockhuckster) in an anticompetitive bid to retake the bits of the market it lost (thanks to shitty pricing and lack of innovation IMHO).

This clearly demonstrates that the patent system is not serving its purpose here. And given the additional problems it creates, it seems the patent system only creates problems and does not solve any.
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