How USPTO's recklessness destroys business, innovation, and competition

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34 Responses to “How USPTO's recklessness destroys business, innovation, and competition”

  1. Jesse Krembs says:

    So who’s the patent holder?

    • Thebes42 says:

      It seems to be Black Rapid, makes of the “R Strap” a ludicrously overpriced camera sling which is both popular and heavily cloned by discount manufacturers.

  2. DaveP says:

    this was previously covered at 
    http://boingboing.net/2011/11/17/patent-strapcutters.html .  it isn’t clear to me from the link if luma labs actually picked up the phone and called the patent holders.  they ought to try it if they’re serious about wanting to continue to produce this product.

    • Aleknevicus says:

      Particularly since the patent holders may not be malicious — they may have applied for the patent simply to prevent a third party from doing so. (Out of a fear of being driven from the market in the same manner as Luma Labs.)

    • Stepan Riha says:

      I saw the BoingBoing post in November, put the R Strap on my Amazon Wishlist, and now have been happily using it since Christmas morning.  FWIW, it totally kicks ass.

  3. That_Anonymous_Coward says:

    There really needs to be a system in place to fix crap like this.
    Like I dunno if you can just submit the prior art they managed to ignore, the patent is nullified, all of the fees for the patent get paid to the submitter of the prior art.
    Then the patent is granted to Mr. Public Domain, so that it eats up that idea and tangents to that idea and hopefully stops another lame patent from being shoveled in.

    • Jorpho says:

      Indeed, I was under the impression that anyone was free to submit a document as Prior Art during prosecution of a patent.  That’s how it works in Canada, at least.  (Perhaps the US is different; I could see the patent office being overwhelmed by useless submissions.)

      As for “granted to Mr. Public Domain”, once the patent application has been published, it can be cited against anything else forever regardless of whether the patent actually gets granted.

  4. Hugh Stimson says:

    Presumably the anti-commerce impact of excessive patent issuance is a well known problem by now, and presumably only legislation can correct that problem. 

    I’m surprised I never hear about campaigns by legislators or trade groups to make that happen. What’s the incentive for sticking with the status quo?

    • MrEricSir says:

      “What’s the incentive for sticking with the status quo?”

      Well, it’s clearly good for lawyers.

      • digi_owl says:

        I find myself reminded that while China have a leadership of mostly engineers (never mind that it seems most terrorists have been engineers), US leadership is mostly lawyers…

        • dnebdal says:

          Reminds me of what often happens to tech companies – they get started by engineers, grow larger, eventually the leadership passes to lawyers and MBAs, and they lose their edge.  (Random example: HP.)

        • Ryan Lenethen says:

          Although I recall hearing that China filed more patents than the US this year…

    • Roger Krueger says:

      Because it’s an excellent weapon for the campaign-contributor class to use against the non-campaign-contributor class. Yeah, yeah, they shoot each other once in a while, but no one wants to disarm.

  5. Joshua Ochs says:

    I believe you meant “How the patent system’s flaws and USPTO’s underfundedness destroys…”. The people at the USPTO are just like the rest of us – overworked and underfunded – and it’s the surrounding legal apparatus that allows bad patents (software) and makes challenging bad patents impossible (Luma Loop) that’s the real problem.

    Or, as usual, blame Congress for the bad system, and the lawyers who abuse the system (who do you think files all those obviously bad patents?).

  6. Roger Krueger says:

    Looks like this is what they’re talking about: http://www.uspto.gov/web/patents/patog/week44/OG/html/1372-1/US08047729-20111101.html

  7. elmward says:

    Why don’t they file for an ex parte reexamination? Why didn’t their lawyers advise them that this is an option? $2520, file your prior art, USPTO looks at the patent again and decides if it should have been granted. Further, they’ve been tracking this application all along. There’s a two month window after a patent application is published during which you can submit prior art to the USPTO. Why didn’t they do that? Why are they blaming the USPTO for missing non-patent prior art which they themselves knew about, yet didn’t call to the USPTO’s attention?

    Also, one suspects that the patent may be quite a bit narrower than they are claiming — people often mistake the general subject area of the invention (sliding camera slings) for the actual invention (a particular type of sliding camera sling, or refinement of existing sliding camera slings). Usually these patent/trademark hysteria stories are written by people with little understanding of the law, or what the trademarks and patents at issue actually cover.

  8. aaronm says:

    This article shows a complete misunderstanding of how the patent system works. It is not the general idea of the sliding clip that is patentable; it is the specific way that the competitor has designed this particular type of clip. The claims define the scope of protection provided by a patent. In order for prior art to invalidate a claim, the prior art must teach or disclose each and every element in the claim. The claims in this case likely have elements that were not taught by the prior art, and thus may deserve a patent, so long as the claims have at least one element that is new. It is likely the small incremental improvement that is patentable.

    Further, no sweeping critique of the patent office can be made without the specific details
    of the case. Why wasn’t the patent number included? The claims of that particular patent must be closely analyzed to determine if the USPTO did a good job. Without this analysis, the opinion that this patent is invalid is a worthless opinion, and yes, a “reckless” opinion.
     
    Also, there are ways to invalidate a patent outside of the court. If the company had some cash to spare (maybe $8,000-$10,000 providing they don’t hire the firm with the nice office) they could file for ex parte reexamination very easily. If they have all this invalidating prior art that they claim to have, granting a request for reexamination is practically a rubber stamp approval (if you can’t tell yet, I have filed many granted requests). By the way, I do not have any special love for the USPTO.

    If Luma Labs was the first to bring this product to market (before the patent was filed),
    they would certainly have a catalog page or a webpage that could be used as evidence of prior publication (publication that occured before the filing date can be used as prior art). I think that either (a) Luma and the competitor thought of this nifty clip independently of one another, which would be a shame for Luma, since they did not think to file a patent application, or (2) they saw their competitor’s nifty design and decided to copy it (happens all the time).

    I see this all the time, some company will come out with an innovation, even just a small, incremental improvement on a product. Maybe this small improvement allows them to manufacture the clip $0.10 cheaper than before; or maybe it slides or locks just a little better than before. Whatever the advantage is, their competitor copies the small innovation and uses to their advantage. Then, the competitor cries about patent abuse and a broken patent system or invalid patent when the patent owner complains. If it was such an obvious improvement, why wasn’t it thought of earlier, and why are they copying it? Why can’t they just go back to an old design if the new, patented design is obvious and no great improvement?

    Again, this case in particular cannot be judged with a cursory glance, even by me. I do not
    know the specifics of this case. If they have a good piece of prior art, then killing the patent is not likely a problem. Otherwise, they are just crying because their competitor has the advantage.

    I really hope Luma designs a much better clip as a result of this. This is one way technology progresses – look at the claims and design around them. They might want to consider applying for a patent themselves. Otherwise they spend all that money on innovation and end up with a great product that is just a common commodity, sold freely by all their competitors.

    Stop crying about patent abuse and accusing the competitor of being a patent troll. Stop making unqualified assessments of the patent system based on limited information and letters posted by a company. According to your definition, every person who owns a patent and tries to defend it is a troll. There are a lot of hard working people with small companies that rely on patents to protect their products. Maybe this “patent troll” competitor is just one of them.

    • west says:

      You have more patients that I, but I know exactly where you’re coming from. 

      That said, the only rejection was very weak with only a few references cited and only 1 considered.   Primarily a double patenting rejection to 7,866,899. (Was Luma asleep for that one?)

    • evilattorney says:

      Thank you aaronm for writing this.  I was about to write essentially the same thing.  This article is clearly based on a misunderstanding of the patent landscape and makes me wonder if Luma really even have a patent attorney advising them.

  9. thebizon says:

    Why didn’t Luma file for a patent in the first place? I’m sorry to say, but it does seem remarkably foolish to come up with an idea, decide not to patent it, introduce it to the market place and expect that no one is going to attempt to steal the it. It’s not as though there has been a lack of precedence for just that sort of thing occurring.

    If you consciously choose not to lock your door when you leave your house, don’t expect the insurance company to compensate you when your home has been cleaned out by thieves.

    • west says:

      There a lot of patent laws that wouldn’t allow this to happen.  Here’s just one: If they’re right, and it was in use for more than a year (1885 certainly qualifies), then patenting isn’t possible under 35 USC 102(b).

    • zyodei says:

      Because patents are expensive, time consuming to acquire, and even if you have a patent they are still murderously expensive to protect.

    • GyroMagician says:

      Not quite. This is more like consciously deciding not to lock your door, coming back home later to find someone else locked it for you, and won’t let you in.

      I (and I suspect a lot of others) would like to see the bar raised on ‘obviousness’. Sadly, until that happens, we all have to play this dirty little game and lawyers continue to act as drag on inventive industries.

    • Stephen Rice says:

      The reason they didn’t patent a sliding buckle on a strap was the same reason they’re surprised that another company could patent that same sliding buckle on a strap — the idea is centuries old.

  10. GadgetGav says:

    Slow news day?
    This open letter was published in November and as others have pointed out, previously covered on BB. The new product is about to launch and has already been soft-launched to people who signed up when the original product was shelved.

    The product and the company seem good, but giving up without a fight was just one option open to them and one they seem to have taken to make a point rather than because it was the only option.

  11. BombBlastLightingWaltz says:

    Moleculon Research Corp vs Ideal Toys 1982. 
    Rubik’s cube.

  12. cm says:

    When trying to obtain the trademark for my TV show “Pariah Island”, we ran afoul of Conan O’Brien’s producer Gavin Palone, whose company is called “Pariah”. The USPTO took the position that the word “pariah” being used in two totally different contexts (one a TV show property, the other a production company) in the entertainment industry was too close for their comfort, even though my title had TWO words, and only one of them was the problem. I contacted Palone to see if we could get a gentleman’s agreement, but he immediately refused any negotiation.

    By the USPTO’s logic, no film or entertainment product could, therefore, ever have the word “Fox” or “Century” or “Paramount” in it. Or, for that matter, Ralph Bakshi’s “Wizards” should have never gotten approved, since “Wizard of Oz” was already trademarked. You get the picture.

    I did some research, and found the name “Pariah” has been used in multiple TV and movie titles over the years, but nothing was swaying the PTO. If we wanted the name, we would have to undergo a lawsuit by Palone, and the PTO was siding with him.

    So we changed the name to “Tossed Off.” The USPTO never got the joke, since it’s largely a British euphemism, and actually gave us a trademark for a term that means masturbating. That’s okay, but stepping on Gavin Palone’s toes? No, that’s off limits.

    Hollywood.

    For more, you can visit http://www.pariahisland.com. I never changed the URL. I’ve also never really spoken publicly about this before, so I bet I get sued in a few weeks and have to change the URL.

  13. Dean Putney says:

    This is really disappointing. I went on their site shortly after this happened in order to buy one, but it was already gone. I bet the eBay market for them is going to go through the roof soon.

  14. hub says:

    Yep, already covered by BB in November. Nevertheless we need a reminder. The patent system is broken, the USPTO is dysfunctional, and the Whitehouse statement on reforming the patent system was horseshit.

  15. wrf1984 says:

    BOUGHT ONE before they went off the market.  I’m an avid photographer and this looks like an excellent idea.

  16. mccrum says:

    Wait, everyone else  went pro and is getting money?  I can’t believe I missed out! 

    I need an agent.

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