Eric Burger wrote:
5. I am now facing US$ 250,000 minimum, US$ 1,000,000 typical, in legal fees
to invalidate the patent issued in step 3.
From what I've been told, $1M is more like the entry fee for this contest, if
the patent holder has any tenacity at all. And if they do, it gets a lot
higher, quickly.
6. I would win the case, because I have the prior art. However, I am not
stupid, so I begrudgingly pay $40,000 for the privilege of using my own
invention and not paying tons of legal fees.
Again, from what I've been told, your assertion is far too optimistic. The
realities of challenging a patent are not nearly that deterministic. At a
minimum, the human frailties of judges and juries makes it a gamble whether
they will agree that a particular piece of prior art is, indeed, prior art.
Let's remember that patents are about technical things, and judges and juries
-- no matter how diligent and well-intentioned, are not classed as 'skilled in
the art'. So their understanding of issues and details is typically going to
be significantly constrained, no matter how well the issues are presented to them.
All of which serves to strengthen your argument in favor of defensively
patenting the prior art.
This is why I call it inoculation. US$ 12,000 in legal and filing fees
today has a 20x - 80x return on investment protection.
But that's real money for an individual to spend. And real hassle. It's
asking rather a lot to expect folks to a) think of their work as prior art, b)
take the time, and c) spend the money just for the greater good.
That's assuming they can afford the time and money.
Is the system stupid? Unquestionably. Is it the system? Yes.
Public review during the final stages of patenting has struck me as a
particularly constructive effort. Whether it works, I've no idea. As noted,
patent officers are human too.
But from what I've seen of patent file wrappers, the patent officers generally
do seem to look for real prior art, albeit not as widely as we would wish.
But, then, they operate under serious time and resource constraints. Input
from the public would help counter this.
d/
--
Dave Crocker
Brandenburg InternetWorking
bbiw.net
_______________________________________________
Ietf mailing list
Ietf(_at_)ietf(_dot_)org
https://www1.ietf.org/mailman/listinfo/ietf