In researching patents for distributed computing software systems, I have found numerous patents, almost exclusively from large corporations, that make claims of novelty for technology that, frankly, was first invented in similar form many years ago by others.
Are you speaking about issued patents, or patent publications, or some combination of the two? Claims in a published application that has not yet become an issued patent tell you only what the applicant hopes to get, not what the PTO found novel/non-obvious.
As a result, a small startup company that does not hold a patent on a technological innovation would be barred by a preliminary injunction from continuing to market the innovation during the pendency of a suit brought by the patent holder.
Actually, the standard for granting a preliminary requires more than simply a showing of likely infringement. There are other factors that are balanced, e.g, irreparable harm, etc.
But yeah, your basic point that an issued patent gives the owner some leverage is spot on.
This delay can be so destructive as to end the prospects of the startup and put it out of business. It would appear that the only practical remedy would be for the startup to obtain its own patent first, thereby giving it its own presumption of validity and thereby preventing the preliminary injunction from issuing.
Actually, no, having your own patent on similar subject matter doesn't automatically stop an infringement suit or a preliminary injunction. Infringement and validity are two completely separate concepts.
Now, it might be true that the owner of the "must be invalid" patent would hold off on its infringement lawsuit for fear of you filing a countersuit. My point is simply that a patent doesn't automatically
block another patent from being asserted.
Sadly, the startup would be forced into this strategy even if it believes that its technoBad idea!
logy involves innovation yet is not patentable because of prior art or obviousness. In that instance, the startup would be filing a disingenuous patent application simply to counter the disingenuous patent filed by the large corporation.
No patent attorney is going to file a patent appliaction when the client that says "we know this isn't patentable, but we have business reasons for doing this." To do so would be a violation of the patent attorney's ethical duties.
Is there another way to protect innovation, given the presumption of validity that binds the hands of judges? I would like to hear other opinions.
Is there another way to protect innovation, given the presumption of validity that binds the hands of judges
You probably want to look into reexamination. Basically, you tell the PTO about a lot of prior art that you believe invalidates the issued patent and explain why this is so, you pay a really big fee, and you wait for the PTO to go through the examination process again, but this using art that the Examiner wasn't aware of last time. The result of reexamination can therefore be either no claims at all left in the patent, or more likely, claims of reduced scope.
Finally, it's important to point out that the issued patent you're worried about may cover more or less that you think it does. That is, your assessment that the patent blocks your technology may be completely off base. Interpreting claims is a specialized area, and something best left to patent practitioners -- especially if a lot of money is at stake. Therefore, you really should consult with an experience patent practitioner about your concerns and options.