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eric stasik
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Re: USPTO PARTNERS WITH OPEN SOURCE COMMUNITY
« Reply #20 on: Jan 21st, 2006, 3:27am »
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Great discussion.
 
Here is the link to Lemley's paper Rational Ignorance at the Patent Office (pdf file).  
 
http://repositories.cdlib.org/cgi/viewcontent.cgi?article=1021&conte xt=blewp
 
Mr. Ivey is spot on about the problem of lowering the presumption of validity in the face of the Graver Tank decision. As I see it Graver Tank tends to correct, rather than imbalance, the problem of "trash patents." A questionable patent issued by the USPTO only has to be found invalid once.  
 
I'm not familiar with the Kesan paper, but Farrell and Merges give "the party line" rebuttal that more government is the solution. Here's a link to Farrell and Merges criticism: Incentives to Challenge and Defend Patents: Why Litigation Won't Reliably Fix Patent Office Errors and Why Administrative Patent Review Might Help
 
http://repositories.cdlib.org/cgi/viewcontent.cgi?article=1133&conte xt=boaltwp
 
The notion that any government bureaucracy can be 100% accurate all the time is absurd. Some errors will always be made. As a licensing professional, it is clear to me that these errors are not nearly as sustainable in the commercial environment as one might believe.  
 
The presumption of validity is of course legal fiction. The presumption of the accused infringer is that the patent is invalid and/or not infringed. Great exertions - far beyond anything an administrative review might conduct - are made to prove this.  
 
I am skeptical about the Open Source submission of prior art. I have said it before but it bears repeating here. For a patentee THE BEST USE OF PRIOR ART IS IN AN IDS.  
If you are a patent applicant, YOU should perform the prior art searches and YOU alone should be responsible for the quality of your patent.  
 
For a potential infringer, THE BEST USE OF PRIOR ART IS IN FRONT OF THE JURY. Full stop. It is better to let the patent office issue a dodgy patent without your help than to make a mistake with your help.  
 
Too many American critics place unwarranted faith in an "administrative review." EPO style opposition is not the panacea that it appears.  
 
As a final comment, the EOLAS patent is not a poster child: it is a statistical outlier. It is a mistake to re-design the entire patent system on the basis of exceedingly rare situations. To a large extent, the patent system works very well just as it is and continues to provide substantial benefit to society.  
 
/Eric Stasik
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Isaac
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Re: USPTO PARTNERS WITH OPEN SOURCE COMMUNITY
« Reply #21 on: Jan 21st, 2006, 8:11am »
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"All of this discussion ignores most basically that the point of the patent system is to obtain disclosure (not innovation or commercialization)."
 
The point of the patent system is to "promote the Progress of Science and useful Arts"   I don't see why that purpose would be limited to disclosure or why it would exclude innovation and commercialization.  
 
 
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Isaac
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Re: USPTO PARTNERS WITH OPEN SOURCE COMMUNITY
« Reply #22 on: Jan 21st, 2006, 11:32am »
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Of the reference to the US Constitution, the Constitution grants to Congress the power to secure to inventors exclusive rights to the invention for limited periods of time to promote the progress.  The "promote the progress" explains why Congress gets the power.   Congress decides how to use the power.  Congress has decided to grant the right to exclude in return for disclosure of inventions that meet the requirements of the patent law, including novelty, utility, and nonobviousness.  "Commercializability" and innovation are not requirements.  If Congress felt like it, they could make them requirements.
They have not.    
 
Of Graver Tank, I don't see any reference to collateral estoppel in either case.  Perhaps you could explain what text in Graver Tank suggests collateral estoppel to you (or to Lemley or to anyone else).  The law in Blonder-Tongue is a bit different than what you ascribe to Graver Tank.
 
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JimIvey
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Re: USPTO PARTNERS WITH OPEN SOURCE COMMUNITY
« Reply #23 on: Jan 21st, 2006, 10:42pm »
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on Jan 20th, 2006, 5:55pm, Cibola wrote:
When I think of the estoppel effect of a prior determination of invalidity, I think of Blonder-Tongue Labs., Inc. v. University of Ill. Foundation, 402 U.S.  
313 (1971).  
 
The more familiar Graver Tank case, 339 U.S. 605, was limited to the question of infringement of the four valid flux claims and to the applicability of the doctrine of equivalents to findings of fact in this case.  It did not involve invalidity or collateral estoppel.

Duh!  Tongue
 
Sorry, yes of course, Blonder-Tongue.
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Isaac
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Re: USPTO PARTNERS WITH OPEN SOURCE COMMUNITY
« Reply #24 on: Jan 21st, 2006, 11:31pm »
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on Jan 21st, 2006, 11:32am, Cibola wrote:
Of the reference to the US Constitution, the Constitution grants to Congress the power to secure to inventors exclusive rights to the invention for limited periods of time to promote the progress.  The "promote the progress" explains why Congress gets the power.   Congress decides how to use the power.  Congress has decided to grant the right to exclude in return for disclosure of inventions that meet the requirements of the patent law, including novelty, utility, and nonobviousness.  "Commercializability" and innovation are not requirements.  If Congress felt like it, they could make them requirements.
They have not.    

 
Congress has not required commercialization, but certainly Congress might expect the result of granting a monopoly to be commercialization and increased innovation.  The fact that Congress did not require such activity does not mean that they do not desire or intend that it occur.
 
Analogously, the president and the legislature might expect reducing taxes to spur economic growth and might enact laws for the purpose of spurring growth even without requiring that the saved money be invested in any particular activity.
 
« Last Edit: Jan 21st, 2006, 11:33pm by Isaac » IP Logged

Isaac
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