Forbes magazine gives Five Reasons to scrap the patent system, and in the comments section an attorney says his piece.
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Excellent article (other than a few flaws, as others have pointed out). I’m a patent attorney, and though I make my living from the patent system, I think we would all be better off without it.
Patents are supposed to promote invention. They don’t. If they stimulate anything, it’s litigation. And the patent examiners, though some try hard, produce nothing but crap. When you file a patent application, you have no idea what you are going to get from the examiner, but you know it is going to be a joke.
I don’t blame patent examiners and patent attorneys so much. We’re just working for our paychecks. It’s mainly a political issue. Like so many other things in our bloated government, even a patent system that doesn’t do anything productive, but burns up billions of dollars, cannot be laid to rest. Like a zombie, you just can’t kill it.
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4 comments:
Reason 6: Lawyers and applicants will intentionally draft patent claims to encompass an already existing competitors product or process in order to stifle competition - this is government-sanctioned theft. This tactic is actually very common in the IP law field - it is very insidious and evil. It is very common that claims like this get allowed - patent examiners just don't have the time and are not aware of all of the existing prior art out there to catch these things.
Reason 7: Even bad or invalid patents have value to a patent holder - they can extort licensing fees from competitors that would rather pay licensing fees upfront rather than the enormous litigation costs. It costs enormous amounts of time and money to litigate a patent (for reexamination too) - licensing fees are always much less for this purpose. It's cheaper for a target competitor to pay the licensing fees and just move on - this also very evil and wasteful for companies and society.
With regard to reason 7 above, issued patents are strongly assumed to be legally "valid" - until proven otherwise (through litigation or reexamination), this process is generally a high hurdle to beat (the "assumption of patent validity") once a patent is issued. It is very costly and time consuming for a targeted company to go through this process. This is why most companies just give up or pay the demanded licensing fees.
Interesting story from the WSJ about how NOT to do product development, FYI:
http://online.wsj.com/article/SB10000872396390444657804578048483443945820.html?mod=WSJ_hp_EditorsPicks
"... It was a costly effort: A patent attorney alone cost $50,000, and Mr. Maggiore says he spent $300,000 and maxed out seven credit cards before he found a venture capitalist in San Francisco to provide additional support.
But Mr. Maggiore needed at least another $15,000 to fund production in China. In June, he posted a video demonstration of the Bug-a-Salt on Indiegogo, a crowdfunding site that allows artists and entrepreneurs to solicit pledges for their ideas. He offered free shipping to anyone who put up $30 for an advance order. Sales flooded in, raising more than $577,000 by the end of September.
He soon realized he had made a mistake: His free-shipping promise will soak up almost all of his profits, and some foreign sales will put him in the red...." ... Sigh.
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