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April 9, 2009

International Feel

Taking a wide-angle lens to patent enforcement, International Patent Litigation is a knowing compendium of litigation practices around the world, including numerous European countries, Japan, and the United States. Alas, China is not covered. Editor David Wilson opens the book on "developing a strategy and managing international patent litigation." From there and onwards, a wealth of information.

Wilson:

[D]ifferent countries approach patent litigation differently, both from a procedural point of view and substantively. As a result, not only are the procedures by which patent disputes are resolved different, but different remedies can be available and the length of time to obtain resolution can vary widely. Moreover, anyone who has been involved in major patent litigation will know that it is not a task to be undertaken lightly.

And so the very premise of the book is rather daunting: a comparative survey of the pros and cons in picking national jurisdictions. Only large corporations could consider this book a hands-on guide to the varieties of jurisprudence and practical hurdles of patent enforcement.

For the rest of us, with nothing but an interest in the nuts-and-bolts of patent litigation around the world, if for no other reason than to better understand the relative merits of different approaches, the book is merely indispensible. The chapter on the United States, for example, is an excellent practical primer, well covering the essential aspects, and so informative to anyone short of encyclopedic knowledge.

Though consistently well written, there is nothing casual about this book. It's not a rip-roaring read, like The Invisible Edge. But if the title intrigues, the contents reward.

Available from Amazon.com.

Posted by Patent Hawk at April 9, 2009 10:33 AM | International

Comments

Many people don't seem to realize that the world takes its' cues for modern litigation from the U.S., the best litigation system in the world. Similarly, the world has historically taken its cues on how to have a great patent system from the U.S., which is why the notion of harmonization is such a joke.

Which leads me to one of the opening lines on PatentlyO's daily dish of anti-patent propaganda.

"This means no more swearing-behind prior art based on the date of the invention."

Apparently, this is what "Professor" Dennis Crouch thinks is the upshot of first to file. I don't understand why this guy is teaching patent law, or is getting any respect from the patent community except that he has a popular blog, e.g. a place where a lot of people come to read. I sincerely hope they do not come to PatentlyO for an education in patent law. Because they won't find it there.

Posted by: Just sayin' at April 9, 2009 11:39 PM

Just, I must agree with you. The idea that the USA might one day harmonise with the rest of the world is indeed a joke.

Why don't you start your own patent law blog?

Posted by: MaxDrei at April 10, 2009 12:46 AM

Just Sayin'

Ease up a bit on Dennis and Patently-O. Some the folks over there (like MM and 6) can drive you nuts. And yes, some of the topics may get off track. But overall, I find the topics there thought-provoking and the discussion spirited, and a quite often, very insightful, as I find those on this blog.

Posted by: EG at April 10, 2009 4:03 AM

"Some the folks over there (like MM and 6) "

I am everywhere that matters.

Posted by: 6000 at April 10, 2009 8:25 AM

Oh, boy, here we go again. Just Sayin', aka STFU, aka JAOTroll(tm) hijacks another thread to start a tirade against Crouch.

OK, STFU, so Dennis axed one of your comments (probably because of your foul mouth). Buck up, boy. Swallow hard and move on. Learn to co-exist.

As the Dude famously said: This aggression will not stand, man.

Posted by: Babel Boy at April 11, 2009 8:28 AM

BTW, as long as we're back on the topic of blog censorship and FTF, here's a post that Quinn censored from his thread on FTF this week. I thought it was pretty good, but then I've got the normal author's ego and bias. I note that only 3 people have raised prior use rights in the PatObv thread of 120 comments on FTF. To my mind, FTF must be linked to strong prior use rights.
____

First to Invent is the Sarah Palin of the US Patent System -- first, it's an embarrassment to the USA, and second it's supported by people who just cannot get it.

Or worse, what a lot of FTI supporters (particularly "small" inventors) want to do is sit on an undisclosed "invention" for which no filing was made, and then try and extort royalties from the diligent inventor who reduced to practice, filed the application, and went to market. FTI is like mother's milk to the trolls.

What possible evidence is there that the PTO would be deluged by applications in a FTF system??? Look around, boys, do you see every other patent office in the world deluged? I don't. I see our foreign filings moving along as well as or faster than our US filings.

And what evidence is there that small inventors are disadvantaged in FTF systems? None, other than they wouldn't be able to torpedo diligent inventors who file timely.

The problem the small inventors have -- and I know because I am one and I am as guilty as the next -- is that they won't get off their butts and file a provisional. Those who snooze should, by all rights, lose. This is the business world, baby; it's not some fairy land where a bright idea, without more, automatically entitles you to a monopoly.

The problem I have (and, I think, most small inventors have) with current proposals for FTF is that the proposals do not secure sufficiently strong prior use rights. Person "A" who invents first but files second -- or doesn't file at all -- should not be cut off from using his invention because "B" files first.

"A", by not timely filing, SHOULD be cut-off from acquiring the monopoly, but he should still be entitled to continue practicing his invention at the same level he was practicing it when "B" filed. Such prior use rights should not be assignable, but should remain personal to the inventor.

Of course, if all "A" has at the time "B" files is an idea that is not in the market or even reduced to practice, then no prior use rights attach, because there was no use. Sitting on an idea is not using it.

This means that "interference" proceedings would move out of the PTO and into the courts as a defense to infringement. The chronological issues would be whether and to what extent "A" was using the invention at the time "B" filed. The prior use defense would not invalidate the asserted patent, it would just obviate its use against a prior use defendant.

Filings, even confidential ones, should be encouraged. A provisional should always be admissible as evidence to support prior use rights even if a non-provisional application is never filed. A confidential provisional should not defeat trade secret rights.

Even better would be a return to the confidential Disclosure Document as a means to secure an inventor's rights to continue using his invention himself after someone else later files.

Posted by: Babel Boy at April 11, 2009 8:47 AM

Babel Boy is right, that a botched introduction of FTF will do more harrm than good. If I were to write "Not Invented Here Syndrome" would that mean anything to an American readership? The complete code which is the European Patent Convention (a fusion of the patent law of common law UK and civil law Europe/Asia) was not invented in the USA. Is it therefore beyond the pale, as a model for patent "reform", even though it contains an explicit mandatory requirement Article 69 and its Protocol) to balance fair protection for first inventors to file with reasonable legal certainty for everybody else? Or is that precise balance too strange and alien for the USA to contemplate? My point is that if you mess with the EPC you will end up with a mess.

Posted by: MaxDrei at April 13, 2009 9:18 AM

Babble Boy,

You are probably one of Dennis's sock puppets trying to come over here to do damage control. It aint going to work. The patent community is on to what's going on over there my little friend.

Since I was the first poster, and my post was germane, you can't really say I hijacked the thread. Which kind of makes you sound like a shrill apologist for Crouch's cute little "let's get along with the rest of the world because I was in the Peace Corps and saw poor people and feel so bad that patent attorneys and entrepreneurs in America actually make money compared to smart African children who can do math" anti-patent puppet show with his hand so solidly far up Mooney's a$$ every day that you just know its really him doing the talking.

And if its not, then he sanctions all the comments because as foul mouthed and offensive as Mooney can be, his posts never get deleted while post after post of mine have been.

White wine any one?

Posted by: Just sayin' at April 14, 2009 9:58 PM

STRANGER: Just one question, Dude.
DUDE: Yeah, what's that, man.
STRANGER: Do ya' have ta' use s'many cuss words?
DUDE: What the fck you talkin' about, man?
STRANGER: OK, Dude. Have it yur way.

Just one question, Troll(tm): Do ya' have to use s'many cuss words?

Also, check your apostrophes. "Dennis's" is "Dennis'"; "aint" is "ain't" and "its" is "it's".

Your lack of education and your profanity give you away as IP blog trailer trash, man.

Posted by: Babel Boy at April 15, 2009 5:13 AM

Ooops, missed an apostrophe. Well, if that's the worst thing that happens to me today I'm a lucky guy - I still have a great career.

And you, Babble Boy, are apparently a connoisseur, vanguard, and spotter extraordinaire of minor punctuation mistakes, "cuss words" and the like, and exactly what it means to be IP blog trailer trash ... "man"

Posted by: Just sayin' at April 15, 2009 8:31 AM

By the way Babble Boy, are you still angry and gay? And what have you got against Sarah Palin besides trite bitter partisanship?

Posted by: Just sayin' at April 15, 2009 8:34 AM

Jebus, is that guy still around prattling on about his conspiracy theories?

Posted by: 6 at April 16, 2009 9:32 AM

"prattling on"

LOL from a guy who thinks atoms fall out of wires...

And when I use the word "thinks," I am being very generous.

I am and will be around in the same way that you are regretfully still around, droning on about nothing that matters. Apparently you haven't figured out how stupid you are yet. Until that happens, there is no hope for your redemption.

Posted by: Just sayin' at April 16, 2009 8:38 PM

"Until that happens, there is no hope for your redemption."

From the man who won't just say he's sorry to DC. /facepalm

Posted by: 6000 at April 17, 2009 9:08 AM

Dear 6

QED

Quod Erat Demonstrandum baby ~ and that ain't French my little air headed friend.

Posted by: Just sayin' at April 19, 2009 9:25 PM

Dear 6,

Here are the stages of knowledge. I would say that, based on my casual observation, you are helplessly stuck between 1 and 2. Good luck. Just tryin' to help.

Stage 1 : you don't know and you don't know that you don't know. (e.g. I insist that atoms fall out of wires)

Stage 2 : you think you know but you don't know. (e.g. well maybe what I meant was that atoms move around in wires)

Stage 3 : you don't know and you know that you don't know. (OK, I'm a complete moron, maybe atoms don't move in wires)

stage 4: you know and you don't care about being right because all the other morons are caught up in steps 1-3. (wow, maybe I was confusing electron mobility with the movement of atoms - I must look like a real idiot to everyone - oh well that BigGulp is lookin' mighty tasty...)

Posted by: Just sayin' at April 19, 2009 9:47 PM