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FTC Investigates Submarine Patents
Posted by
michael
on Thu Sep 13, 2001 05:04 AM
from the depth-charge dept.
from the depth-charge dept.
Schnake writes: "An article on USAToday talks about how the FTC is investigating Sun Microsystems, Unocal, and Rambus to determine whether they illegally kept patents secret while helping set industry standards! And a quote from the ZDNet article: "It noted that all three companies had filed patent infringement lawsuits against firms they say owed them royalties. But the litigation backfired when those firms countersued, charging them with concealing their patents, and complained to the FTC.""
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FTC Investigates Submarine Patents
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submarine patents... (Score:1, Interesting)
Japan espically... about a year ago, Japanese television had an hour long program about how some patents for robotic assembly and inspection had been granted over 20 years after the patent had been accepted. If I recall correctly, there were some very devistating consequences for Japanese industral conplex.
If Japan had a military, it was the kind of issue that might start a ware.
The point that seemed to fall on deaf Japanese ears was that the paten office is inherently a political tool of the unitied states government and corporate america. This particular patent had been "submarined" for the direct purpose of secrewing the patent filer out of roalties.
So, just remember, patents don't protect the inventer. Patents exist to the benefit of corporate america and the us government... and in a country where the patent generators a systematically screwed as a routine, generic part of the culture, it seems a little disingenuious and completely unnecessary to submarine a patent.
Patents not secret (Score:5, Interesting)
I think that a legally binding 'patent challenge' might be the answer. You should be able to send a letter to Rambus or whoever saying 'I am developing the following... please disclose whether you have any patents or patent applications which cover this area'. The company receiving the letter then has to disclose what they have patented. If they lie or keep quiet, they lose the right to sue you later on. Obviously you couldn't do this for internal R&D, but for standards bodies (where the process is open anyway) this could be a useful tool to reduce threats from submarine patents. The only question is whether it places an unreasonable burden on the patentholding company.
Re:Patents not secret (Score:5, Insightful)
As far as volume goes - maybe there should just be a cap on patents. Something like "x patents a year can be awarded". The patent office would then be charged to award the patents with the most merit, each year. If a patent application doesn't make it in one year, it may make it in the next. If it never makes it... well then it probably shouldn't. :)
Re:Patents not secret (Score:5, Informative)
[stock rant on the subject]
Patents are not about who is right, or who is first; patents are about who will sue.
The US PTO is a money-making service for the government, and this fact is why it operates as it does.
There is a misconception that it is the central duty of the PTO to form a blockade against granting patents. The PTO can and will block applications where there's heavy similarity with prior art or existing patents, but that's really just a guideline to using the service, not the core function.
The PTO's purpose is to grant patents for a fee, and it's wholly suited to do so.
The application vetting process of the PTO is a cost center for the operation of the PTO. This is akin to saying that customer service is a cost center for the operation of AT&T. It is required, but they'll cut costs as much as they can get away with.
To fix the patent application vetting process, two things must happen:
As of 15 March 2001, the USPTO has changed their policies to solve that second problem. They can now publish patent applications before the patent itself is awarded to the applicant. Previously, the patent was hidden while pending, and patent seekers were not required to disclose this unless they had already signed contracts, say, as part of a standards-body. Third parties may now submit "helpful" arguments against controversial applications. The USPTO can then weigh obviousness against challenges without incurring the costs of doing all the searching themselves.
Breaking patents by finding simple prior art is not enough for most cases. Patents already granted are almost never cracked, certainly not by someone using an independent third party's prior art. In the famous Heinlein/Waterbed case [vt.edu], the patent was denied before it was ever granted by the Patent Office. Once a patent has been granted, the Patent Office rarely will get involved in disputes; that is a matter for the courts. (And in this case, the FTC aids the investigation for a countersuit.)
[end of stock rant]
Re:Patents not secret (Score:4, Informative)
In fact, since the DEC case most standards committees have a specific disclosure requirement, for example the IEEE standard [ieee802.org] requires such disclosure. In order to participate, each company must provide the list of patents they hold in this area, as well as guarantee a "reasonable licensing arragement."
Do note that if you want to find patents, because you're writing a standard or for any other reason, go to the USPTO's database search [uspto.gov], and go for it. It's easy, it's cheap, and you can get PDF's for $3.
Thalia
Re:Patents not secret (Score:4, Informative)
Patents aren't secret. Patent applications are secret (for a limited time in Europe, or until a patent was granted under the old American system), because it's unreasonable to ask a company to expose it's new technology a year or two before the patent office grants it legal protection. But it's certainly abusive to join a standards committee without disclosing any pending patents covering items under discussion. Usually it's also a breach of contract.
According to news reports about the Rambus lawsuits, the abuse went far further than that. They would come back from a standards committee meeting and call their patent attorney to amend the claims in applications at the patent office to cover the technology that had just been discussed.
Some others worth investigating perhaps ? (Score:3, Informative)
It seems most (or at least some) of them were requested and granted just when the relevant technology/algorithms got accepted into the standard. (See also this article [advogato.org])
As the article on advogato mentions : why can't ISO/ANSI/whatever enforce policy stating that no patented work should be included in standards released by it ?
Re:Some others worth investigating perhaps ? (Score:5, Interesting)
Patents were designed to do two things. One was to foster innovation by FORCING disclosure of invention (or runing the risk of having secrets stolen) and thus adding to the sum of knowledge. The other was to protect the inventor so they could profit from their invention. This is why patenting is relatively cheap (here in europe the initial patent fees are substantially below the cost to the office of dealing with them) but the recurrent annual maintainence fees increase almost exponentially towars the last few years the patent can be valid - to dissuade the patentee from holding the patent too long, especially if it turns out to be a pointless patent they aren't making money out of.
Hohum
Troc
PS Yes I am apatent examiner
PPS Here in europe you can't patent software or business methods.....
Submarine Screendoor patents (Score:4, Funny)
Sines , et al. August 7, 2001
Submarine chamber door allowing partitionment of exterior from interior while still allowing a beautiful, roomy feel with plenty of fresh air and sunshine.
Abstract
System consisting of wooden frame and screening material used as replacement for airlocks on submarines. After sitting here long enough, we decided that submarines just don't get enough fresh air or sunlight, and that the main problem is that their door is either open or shut. The solution: screen doors for submarines.
Inventors: Sines; Randy D. (Spokane, WA); Kuhn; Michael J. (Spokane, WA); Gregory; Randy A. (Spokane, WA)
Assignee: Digideal Corporation (Spokane, WA)
Appl. No.: 749046
Filed: December 26, 2000
Wonder if they'll check out others (Score:5, Insightful)
How can a patent be secret? (Score:3, Interesting)
Microsoft .NET submarine patents (Score:2, Informative)
Re:Microsoft .NET submarine patents (Score:4, Informative)
If only... (Score:3, Informative)
complete BS, If you ask me, consider one case reported by 20/20 (IIRC) where a guy's blood (hence genes) were resistant to the AIDS virus.
Essentially this comes down to theft and fraud. His Blood, His Genes and a Corp. says they own it? MYHAPPYASS they do.
By that logic, I could let Kingston/Rambus/(whoever) make memory, figure out the tech for it (do all the work)...and go buy a stick of memory (or steal it/whatever) and say "this is my memory company now".
And the courts are *believing* this piffle?
Riiiiigggghhhttt.
Moose.
Losing Karma not to my own stupidity, but bugs in
Submarine patents?!?! (Score:1)
patents, the US way... (Score:1)
In all other system I know of, once there is no longere secret, there is no longer patentability.
On a side note, monopolies are legel, abused monopolies are not. Patents grant legal monopolies, abuse of patent should be prosecutable (think of Brazil against pharmaceutical laboratories, selling remedies 10 times their costs. If it's not an abuse of monopoly, what is?).
NOT a Submarine Patent (Score:5, Informative)
What is being alleged here is a type of fraud/unfair competition. The crux of the claim is that it is unfair for a company to propose its technology be adopted as an industry standard without discloising that it has patents or patent applications on file. If adopted as the standard, the others in the industry will automatically infringe. Options at that point: concede the market to the patent holder, redesign the product so it deviates from the standard set by the industry, or pay a royalty to the patent holder.
To the extent that patents have already issued they are public record, as noted in another post. But currently the law is in flux. The general rule is that until a patent issues, the application and all materials submitted to the PTO is confidential. (The confidentiality allows companies who cannot get patents to still protect the way they do business under trade secret law.) There is a group of applications that fall into this category. However, since the passage of the AIPA (American Inventors Protection Act) and some other tweaks to the law, there is now a publication requirement - applications are published 18 months after filing.
So - in my humble legal opinion, it is unfair for a company participating in standards-setting not to disclose that it has patent applications pending, but as for issued patents, companies should be aware of what their competitors are doing. Especially if it is a public record.
Wrong words (Score:3, Informative)
"Submarine patent" refers to patent applications that were kept in limbo at the USPTO for a very long time by a stream of amendments and other maneuvers, then finally emerged with apparent claims to whole broad areas of technology. For instance, someone filed a patent application about 1960 for several transistors grown on one block of silicon, interconnected by wires soldered between transistors, instead of the then-usual procedure of sawing up the silicon into individual transistors. After 20-some years of amendments, this finally became a patent which claimed to cover _all_ integrated circuits, never mind that there is as much resemblance between the original invention and a modern IC as between a high-wheel bicycle and a modern automobile. But the "inventor" hoped to collect royalties from companies that felt it was cheaper to pay than to fight.
The things talked about in this article aren't submarine patents, but rather are patent applications that became patents in the normal time, but belonged to companies sitting on the committees writing standards concerning the technology in the applications. That's clearly a conflict of interest, and so standards committees usually require members to sign contracts to disclose related patents and patent applications, and to license them at set rates. The three companies are accused of breaching those contracts. Rambus (at least) is also accused of using the standards committee discussions to target technology to add to their patent claims.
The feds seem to be claiming that this breach of contract voids the patents. That might be too far of a stretch under the laws as written by Congress, but it's certainly justice, and the Constitutional clause authorizing Congress to pass patent laws ("To encourage the progress of science and the useful arts...", or something like that) would seem to require voiding a patent like Rambus's that was deliberately written to _impede_ the adoption of new technology.
Re:WTC (Score:1)
Re:That's a scary concept... (Score:1)
Re:WTC (Score:1, Offtopic)
Re:That's a scary concept... (Score:2, Insightful)
Since publication is what the 20-year monopoly rewards, any patent that competitors didn't find and learn from obviously failed to promote progress in the art. This system doesn't work.
Re:taleban.com Hacked (Score:1, Flamebait)
Re:WTC (Score:1, Offtopic)
Re:My own patents. (Score:1, Redundant)
Re:My own patents. (Score:1, Offtopic)
Re:Death to All Muslims. Exterminate All Islam. (Score:1)