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By Daniel Davidson
The USPTO has been looking to implement an innovative system to remove a few logs from the dam that is backlogging the Patent Office. What has been proposed is a three track program that would allow applicants to choose how fast or slow they would like to push their ideas through the sludge that has become the patent process. If you would like to recap what the three track system has to offer, see Mark Malek’s post here. They have been proposing this system for some time now (I just found a memo I did to Mark Malek in June of 2010 on the subject), and now the wait is over. Of the three tracks, Track 1 (the prioritized track) is being immediately implemented by the USPTO.
The USPTO won't need a cake anymore
Through much discussion, the USPTO has decided that for $4,000.00 (or for some, a kidney) you can be standing at the front of that hot night club that everyone wants to be seen in. The Club 57 I speak of is actually the patent examining office. This cold, hard cash will not be rolled up and, well I won’t go there, but it will be your ticket to a final disposition of your application within twelve months. A great turn around from the years we have seen so many that have written on this topic write of. The $4,000.00 is the apparent amount that will cover all costs to examine applications on this track. It would be nice to see an aggregate of these calculations.
Do beware though, patent applicants. The USPTO will smack your hand and hang you dry if you decide you are going to delay their cranked Orange Blossom Special. They will kick you off that train and keep your money (or kidney) if you ask for an extension to respond to an Office Action.
I think it is great that the USPTO has decided to be proactive in this growing problem and make attempts to resolve the boom of applications. I do have a concern though that they are implementing one Track of a plan that has been
forever referred to as a “Three Track Program.” If it has three tracks, I would imagine that they are supposed to complement each other. Instead, we could see a slower turnaround in the normal application process because of the silver spoon applications. Nonetheless, I don’t have $4,000.00 (and nobody wants these kidneys) or an invention, so not to much of a worry to me yet. Cheers.
; [/exec])
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10% Ain’t Bad – Most Litigated Patents Tend to Lose 90% of the Time
By Aaron B. Thalwitzer
A new study is out concerning patent trolls and software patents. The study found that the most litigated patents tend to lose nearly 90% of the time. When broken down into different categories, patent trolls and software patents lose their lawsuits most often. While some may suggest this means ‘the system is working,’ that is not truly the case. Instead, the data suggests that most companies, when threatened with a lawsuit, end up settling or licensing to avoid the high costs of litigating. The fact that so few software patents and patent trolls do well at trial, however, may be more incentive to fight back.
Even so, as an astute commenter on Slashdot points out: “It’s not completely unlike walking up to many random women and saying, ‘nice shoes, want to have sex?’ Sure, the vast majority will think you are a schmuck and maybe even give you a slap, but to some, having an extremely tiny percentage agree, makes it worth their effort.”
The results must be tempered. Even assuming that 90% of the lawsuits brought by patent trolls lose at final judgment, it does not necessarily follow that 90% of software patents are garbage. It is only after several levels of filtering that a case can be decided. Generally, at each level, if the patent is strong, the likelihood that the litigation process ends is high.
Consider the following possibilities:
Demand letter reviewed –> Strong patent? Settle.
Initial lawsuit filed –> Semi-strong patent? Analyze the cost/risk of defending the lawsuit and license the patent if the numbers don’t work.
Lawsuit continues –> Weak but possible bad judgment? Settle.
This patent is too strong, and this patent is too weak, but this patent is just right!
As with most litigation, the cost of the suit must be weighed against the merits of the case and damages involved. What is the endgame? Does it really make sense to say that only those patent holders whose patents are not too strong or too weak, and in which the patent holder can afford litigation, will a case get to final judgment? Of course not. This almost sounds like a theory set forth by Goldilocks herself.
They are who we thought they were
This study is hardly a basis to declare that all software patents are weak and unenforceable or that trolls are “losing.” More of a reassurance that they are who we thought they were.