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February 3, 2011

Head In

The patent system hypothetically performs a public notice function, publishing inventions. For drugs, the FDA consolidates patent information into the Orange Book. Meanwhile, computer technology companies spend billions of dollars a year in their own R&D, completely ignoring what's already been done. As a matter of corporate policy, Microsoft and Intel are exemplary - never bothering to look at existing innovation before committing hundreds of millions in research to reinvent. The patent system doesn't work for corporations because corporations don't work the patent system.

Posted by Patent Hawk at February 3, 2011 9:40 PM | Patents In Business


Something about treble damages is a big reason not to work the system.

When the crap coming out of the Office overlaps in claim scope so much, why set yourself up for treble damages?

And then there's the notion that the mere size of the patent portfolio is desired. Not naming names (Micro$oft), but some have been playing a game of "patent the color combination of the input ports and software processes so simple it is mindnumbing that the "inventor" swears that he is the inventor (and yet the Office does nothing in the way of sanctions towards such filers and their attorney stooges). Not only does this serve the purpose of bloating the arsenal, but it's as if they wanted to destroy the credibility of the system.

Posted by: Pedantic Pete at February 4, 2011 4:26 AM


You are correct. The courts very much encourage ignorance. No inequitable conduct AND no treble damages.

Funny thing for me is when I converse with my peers in Europe. They are professionals and treated as such. Here in the US, a patent searcher is the lowest of the low because we bring very little value to the table.

(Heck, even in litigation which should be our bread and butter, we get paltry budgets while the expected attorney fees hit 6 and 7 digits. Heaven forbid that we derail that train...)

Not whining (or at least not trying to), just noting.

Posted by: Public Searcher DIP at February 4, 2011 1:09 PM

The bugaboo of enhanced damages needs to be dispelled. The Seagate standard for willfulness is “objective recklessness.” Seagate, 497 F.3d at 1371 ("proof of willful infringement permitting enhanced damages requires at least a showing of objective recklessness"). If needed, a clearing opinion hoses down the risk.

The point is this: it’s much cheaper to tap into patents. It’s stupidly expensive to come out with a product that is patented by someone else, and then be blindsided with an infringement suit. That happens to Microsoft all the time. I’m not suggesting a black-or-white situation, because large companies like Microsoft are always going to be plagued by lousy assertions. The point is that valid assertions might be sidestepped by a more thoughtful approach. The arrogance, and stupidity, of Microsoft is two-fold: 1) there is no coordination between the patent people and the product development folks; and 2) Microsoft mindlessly fights patents as a rearguard action, with no cost-benefit consideration of a larger perspective (e.g., that is would be cheaper to settle, and tap into the inventive source, if possible).

As to R&D, patents provide a good survey of the state of the art. It’s cheaper to tap into an inventive source than to reinvent from scratch. Using a proper screen (third-party consultant) for surveying the state of the art practically eliminates the risk of enhanced damages.

Public Searcher DIP: “The courts very much encourage ignorance.” That has no basis in reality. Seagate raised the bar for enhanced damages. How is that encouraging ignorance? And what exactly does “inequitable conduct” have to do with this?

As an irrelevant aside, Public Searcher DIP is doing nothing but whining about prior art searching on paltry budgets, while attorneys fees are much higher. Patent Hawk works on paltry search budgets, and gets the job done. If paltry doesn’t get it, more often than not the client ups the budget. Seems like Public Searcher DIP doesn’t know how to manage his business (DIP is doubtlessly a man; no woman writes with such emasculation).

Posted by: Patent Hawk at February 4, 2011 1:38 PM


That looks like a pretty raw nerve there.

Granted, I did not say that it was smart to not work the system, mine was a comment on the reality (the bugaboo is quite real, if you consider perception as reality) of the current situation.

Posted by: Pedantic Pete at February 4, 2011 3:19 PM

Pedantic Pete,

Considering perception as reality is a profound statement of irony and ignorance. Any dynamic, and this topic is of a dynamic, has its cause in false perceptions, ignoring causes and conditions.

There are multiple bad attitudes, based upon false perceptions, that large companies possess, that lead them into the very trap I was writing about. One is the not-invented-here syndrome. Another is the need to act like a tough nut. Which is exactly what these companies are: nuts that act tough.

Intel prides itself on being paranoid, as if institutionalized mental illness, group-think, makes false perceptions acceptable. Intel's patent people have a facile concept of "freedom-to-operate," which has no basis in reality, especially when they ignore the reality that patents exists, and their best course is to deal with the situation, not pretend, by perception, that they can deal with it however they like, and that is the best course of action, because it fits with their mental model that paranoid is good.

Posted by: Patent Hawk at February 4, 2011 4:05 PM

Damages aside, I'm not sure that reviewing patent materials would even help advance software R&D, given the pace of software innovation. Published patent documents are, at a minimum, already a year and a half old. One could reasonably conceive, implement, and bring to market an innovative software product inside of that timeframe. What good would knowing about what other companies had come up with in the past do then?

Posted by: David Sheldon at February 4, 2011 5:58 PM

David Sheldon,

Clearly you are not a software developer.

There are software innovations decades old that have yet to make it into commercial products. Spread spectrum wireless, which is essentially firmware, took almost thirty years from patent to commercialization, and was commercialized by reinvention.

A significant innovation take years for corporations to develop and put into software products. Yet an inventor can patent that in a short time, owing to the nature of patents as simply requiring enabling disclosure.

"What good would knowing about what other companies had come up with in the past do then?" 1) Companies are not the only inventors. Especially in software, single individuals and small companies innovate much more than large corporations. 2) Companies have patents on innovations that they never productize.

Posted by: Patent Hawk at February 4, 2011 7:05 PM

"The point is this: it’s much cheaper to tap into patents. It’s stupidly expensive to come out with a product that is patented by someone else, and then be blindsided with an infringement suit."

Did it ever occur to you that perhaps they really don't give two shts about patents because there total % of their budget dealing with patents comes to about 1% of total bottom line? Excepting when it comes to injunctions, which they now pretty much only have to fear from competitors, people which they can use their own arsenal against.

And might it have additionally popped into your mind that perhaps they don't give two shts about whatever toolbars some yahoo came up with and they'd rather fiddle around with their product themselves, maybe get user feedback and then use/sell their own product which they made?

Nah, it will never occur to you, because you truly believe that fiddling around with a UI and other such nonsense is "inventing" with all the imaginary tapestries that go therewith which you have conjured up in your mind.

In other words, your entire world-view is probably fed beyond recognition and redemption.

Posted by: 6000 at February 4, 2011 7:10 PM

"Considering perception as reality is a profound statement of irony and ignorance"


I will grant you the truth of this statement, but I think it is true in ways you do not intend.

AS with any pithy generalism, there are cases where the saying fits and where it doesn't. Obviously, it can't be universally applied. However, it can be applied in many situations, and in several surprising instances where one would think that the players would be smart enough to understand the difference between perception and reality.

You seem to be agreeing with me in the examples of Micro$oft and Intel, but to those I would also add the patent bar, congress and the courts.

And yes, there are quite a few bloggers who cannot tell the difference either.

Posted by: Pedantic Pete at February 5, 2011 8:01 AM

PH: "DIP is doing nothing but whining", "doesn’t know how to manage his business", and "writes with such emasculation".

Wow. Sorry for stopping by. Have a great weekend.

Posted by: Public Searcher DIP at February 5, 2011 8:43 AM

Public Searcher,

Come on by again soon - let PH be the one who owns the thin skin.

Posted by: Pedantic Pete at February 5, 2011 9:37 AM