Invalidating a patent [LWN.net]

Invalidating a patent

Posted Jun 24, 2008 20:05 UTC (Tue) by smoogen (subscriber, #97)
Parent article: A belated look at the Red Hat/Firestar patent settlement

From my understanding of things.. it is at least 10x as expensive to invalidate a patent as it
is to weaken it via an open license agreement. The burden of proof is put in such a way that
you are most likely going to lose and make the patent stick (building up precedent against
other challenges etc). This can only be fixed by getting Congress to pass true patent reform
which is only going to happen by getting over 10% of the population to be pissed about it.

And then its really easy for one of the parties to delay getting the agreement published..
which I would guess be with the Firestar side since delaying it on Red Hat's side would make
things even worse.

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Invalidating a patent

Posted Jun 24, 2008 22:05 UTC (Tue) by stijn (subscriber, #570) [Link]

From my understanding of things.. it is at least 10x as expensive to invalidate a patent as it is to weaken it via an open license agreement.

Unless this makes other parties think that you are a good target for patent gaming, and you end up making 10 similar deals, and for some of these you are forced to accept worse conditions and or price. I cannot judge the likelihood of that, but it is part of the equation.

Credible threat

Posted Jun 24, 2008 23:28 UTC (Tue) by dmarti (subscriber, #11625) [Link]

You have to be able to make a credible threat that you can get the patent thrown out, so you might have to fight some when the troll doesn't blink. RHT already had a defense (prior art, anticipation, obviousness, all the usual stuff where a software patent is concerned) prepared in this case.

Invalidating a patent

Posted Jun 24, 2008 23:33 UTC (Tue) by iabervon (subscriber, #722) [Link]

Unless you can file some hefty counterclaims (and the other party has the money to pay
damages). I think the easiest way to improve the patent system would be to award automatic
triple damages for money spent licensing badly invalid patents. That makes the best plan if
you're hassled by someone with a weak patent to license it for half their net worth and turn
around and sue them into bankruptcy. (Where "badly invalid" includes widely-published prior
art that the patent doesn't cite.)

Invalidating a patent

Posted Jun 27, 2008 21:13 UTC (Fri) by branden (guest, #7029) [Link]

Given the direction the Supreme Court is going with civil damage awards, I wouldn't bet that your proposal, if implemented, would survive federal appellate review. Exxon Shipping Co. v. Baker, decided this week, is just the latest in a series of decisions that have been taking the teeth out of anything resembling punitive damages against corporate actors in civil suits.