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08.10.2006 (previous | next)
Strong Patents, Strongly Enforced

Today's WSJ Online says:

Vonage Holding Corp., a leader in the Internet telephone business, is facing a bevy of patent-infringement suits seeking billions of dollars in damages -- actions that experts say could hamper the growth of the nascent Web-calling industry if Vonage loses. . . . . Vonage declined to comment on the suits but has said in court filings that the Sprint and Verizon patents are invalid or don't apply to its services. In a court filing, Vonage said some of the patents cited by Sprint are so vague that they are unenforceable.

I have no idea of the merits here, but there is a concern that this is fall-out from the patent quality problem. Patents should represent genuine advances, not simply the obvious froth on the advancing wave of technology, and if they meet this standard then they should be enforced fiercely. But if they are trivial, or represent game-playing efforts at a posteriori constructions of ambiguous claims, or an effort "to watch the advancing wave of improvement, and gather its foam in the form of patented monopolies," then they should go down.

Among the problems created by poor patents is pressure on large companies to slap patents on everything in sight -- in might be patentable, and if you don't act you are derelict in your obligations to your shareholders.

posted by James DeLong @ 8:29 AM | Patents

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Agreed. That's why it is so important that the Supreme Court has granted review in the KSR v. Teleflex case, in which PFF filed an amicus brief supporting review. In KSR, the Court can reinvigorate the nonobviousness standard in a way that helps ensure that issued patents deserve the rigorous enforcement you mention.

Posted by: Joe Miller at August 10, 2006 9:32 AM

I would encourage you to check out my ongoing "software patent of the week" series, which considers the merits of various software patents that have been in the news. To a first approximation, at least, they're *all* "obvious froth on the advancing wave of technology." I've put the Vonage case on my list of patents to profile in future installments.

http://www.techliberation.com/archives/039641.php

Posted by: Tim Lee at August 10, 2006 9:34 AM

Tim, to simply take a software patent, and critique it based on its claim, well, it doesn't seem like you have enough information.

You should look at software patents that have been re-examined by the USPTO, or how an "obvious" patent is interpreted by the courts compared to its actual claim. The fact is that many software patents were issued before software patents formally acquired statutory standing- hence, we probably have a lot of obvious software patents that the judicial process and patent administration processes can still interpret in a way that aligns those patents with rigid patenting standards.

Posted by: Noel Le at August 10, 2006 10:59 AM








 
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