Rich,
To me the most telling lesson from this paper is that, even **IF** one
assumes that that a patent covers some true innovation, there is net negative
social benefit from allowing patents for software. If one adds the fact that
vultures have successfully patented prior art (from the ignorance of the patent
office, and perhaps the ignorance of the patenter as well), then the net social
benefit is so negative as to cry out for elimination of the possibility of
patenting (or copyrighting, for that patter) software. (01)
Pat Cassidy
>----- ------- Original Message ------- -----
>From: "Rich Cooper" <rich@xxxxxxxxxxxxxxxxxxxxxx>
>To: <edbark@xxxxxxxx>,
> "'[ontolog-forum] '"
><ontolog-forum@xxxxxxxxxxxxxxxx>
>Sent: Fri, 24 Sep 2010 14:16:58
>
>Lovely paper, thanks, Ed!
>
>Great math model, though overly simple in its
>assumptions. Just having
>looked it over quickly so far, I also find the
>projected value judgments to
>be nicely theoretical, but likely unsupportable by
>the existing evidence.
>But that may be my own bias in then end. As I look
>deeper into it, that
>view will likely change.
>
>But with proper interpretation, the math model
>should be very useful in many
>applications trading off investment and tactics
>with strategy.
>
>So I'll give it a good read, which will take me a
>while to respond in depth.
>
>
>Thanks,
>-Rich
>
>Sincerely,
>Rich Cooper
>EnglishLogicKernel.com
>Rich AT EnglishLogicKernel DOT com
>9 4 9 \ 5 2 5 - 5 7 1 2
>
>-----Original Message-----
>From: ontolog-forum-bounces@xxxxxxxxxxxxxxxx
>[mailto:ontolog-forum-bounces@xxxxxxxxxxxxxxxx] On
>Behalf Of Ed Barkmeyer
>Sent: Friday, September 24, 2010 9:31 AM
>To: [ontolog-forum]
>Subject: [ontolog-forum] [Fwd: Re: More on patents]
>
>
>A colleague of mine contributed an additional
>reference to Rich Cooper's
>contribution.
>
>-------- Original Message --------
>Subject: Re: [Fwd: [ontolog-forum]
>(Software) Patent litigation]
>Date: Thu, 23 Sep 2010 17:24:56 -0400
>From: Guillaume Radde <guillaume.radde@xxxxxxxx>
>Reply-To: msidtechtalk@xxxxxxxx
><msidtechtalk@xxxxxxxx>
>To: Multiple recipients of list
><msidtechtalk@xxxxxxxx>
>References: <4C9BBC97.8050205@xxxxxxxx>
>
>
>
>Here is another interesting paper to reference when
>talking about
>software patents, from american economist and Nobel
>price laureate Eric
>Maskin:
>
>http://www.researchoninnovation.org/patent.pdf
>
>Guillaume
>
>
>> -------- Original Message --------
>> Subject: [ontolog-forum] More on patents
>> Date: Thu, 23 Sep 2010 12:43:08 -0400
>> From: Rich
>Cooper<rich@xxxxxxxxxxxxxxxxxxxxxx>
>> Reply-To:
>[ontolog-forum]<ontolog-forum@xxxxxxxxxxxxxxxx>
>> To: '[ontolog-forum]
>'<ontolog-forum@xxxxxxxxxxxxxxxx>
>>
>>
>>
>> Hi Ontologizers,
>>
>>
>>
>> Since we have recently been discussion patents
>wrt ontologies, this
>> statistical study of patent litigation might be
>of interest to many
>> readers of this list. Please see below for news
>item posted on a patent
>> list I subscribe to.
>>
>>
>>
>> HTH,
>>
>> -Rich
>>
>>
>>
>> Sincerely,
>>
>> Rich Cooper
>>
>> EnglishLogicKernel.com
>>
>> Rich AT EnglishLogicKernel DOT com
>>
>> 9 4 9 \ 5 2 5 - 5 7 1 2
>>
>>
>---------------------------------------------------
>---------------------
>>
>> *Bombshell Study: Heavily Litigated NPE Patents
>Overwhelmingly Lose at
>>
>Trial<http://feedblitz.com/r.asp?l=50410480&f=15116
>1&u=191723&c=0>***
>>
>> To date, litigated patents were viewed as
>"strong" patents - the types
>> that defendants were supposed to avoid taking to
>trial. Moreover,
>> litigated patents were seen as more valuable,
>since they managed to
>> survive an all-out attack on validity by a
>presumably well-financed
>> defendant. Earlier studies (John R. Allison
>/et al/., /Valuable
>> Patents/, 92 Geo. L.J. 435 (2004)) looked
>at litigated patents,
>> and found that they differed from non-litigated
>patents in that they (1)
>> include more claims, (2) cite more prior art, (3)
>are cited more often
>> by later patents, and (4) come from larger
>"families" of
>> patents/continuations. Each of these factors are
>now used in
>> conventional methodologies to determine the
>private value of patents.
>>
>> John Allison
>>
><http://www.feedblitz.com/t2.asp?/151161/191723/0/h
>ttp://papers.ssrn.com/sol
>3/cf_dev/AbsByAuth.cfm?per_id=118168>,
>> Mark Lemley
>>
><http://www.feedblitz.com/t2.asp?/151161/191723/0/h
>ttp://papers.ssrn.com/sol
>3/cf_dev/AbsByAuth.cfm?per_id=32215>
>> and Joshua Walker
>>
><http://www.feedblitz.com/t2.asp?/151161/191723/0/h
>ttp://papers.ssrn.com/sol
>3/cf_dev/AbsByAuth.cfm?per_id=1533021>
>> recently took on the task of identifying every
>patent that was litigated
>> eight or more times between 2000 and February
>2009, including cases
>> still pending, and compared the outcomes of the
>cases against patents
>> that were litigated only once. In the course of
>their analysis, they
>> found 106 such patents, which have been litigated
>in a total of 2,987
>> different patent assertions in 478 different
>cases, often against
>> multiple defendants.
>>
>> What did they find? Serial patent litigants, and
>particularly NPE's
>> (aka "trolls"), for a lack of a better phrase,
>"get creamed" when they
>> go to trial:
>>
>> [T]o our great surprise, *we find that the
> willingness of
>> these patentees to litigate their cases to
> judgment is a
>> mistake*. Far from being stronger than
>other litigated patents,
>> the most---litigated patents that go to
>judgment are far more
>> likely to be held invalid or not
>infringed. The differences
>> are dramatic. Once--litigated patents win
>in court almost 50%
>> of the time, while the most--litigated -
>and putatively most
>> valuable - patents win in court only
>10.7% of the time.
>>
>>
>>
>> The results are equally striking for
>patents owned by
>> non--practicing entities (NPEs), and for
>software patents. NPEs
>> and software patentees overwhelmingly lose
>their cases, even with
>> patents that they litigate again and
>again. Software patentees
>> win only 12.9% of their cases, while NPEs
> win only 9.2%.
>>
>>
>>
>> [S]tatistical tests bear this out. We
>compare the proportion of
>> win rates, testing the null hypothesis
>that there is no
>> difference between the most--litigated and
>once--litigated patent
>> outcomes. We test the proportions in
>several ways, both
>> including and excluding settlements in the
> denominator of
>> decided cases, and both including and
>excluding default
>> judgments as plaintiff wins. *No matter
>which test we use, the
>> differences are highly statistically
>significant - the
>> most--litigated patentees were more likely
>to lose*.
>>
>> Also,
>>
>> Considering only the patents themselves,
>the proportions of
>> initial ownership by large and small
>entities are almost equal
>> in the most-- and once-litigated data
>sets: 53.5% of
>> most--litigated patents and 47.8% of
>once-litigated patents were
>> issued to large entities. The picture is
>quite different,
>> however, when one looks at the proportion
> of actual assertions
>> in litigation, where large entities
>account for a surprisingly
>> small percentage of the most--litigated
>patents. Because small
>> entities are disproportionately represented
>in the actual
>> litigation of most--litigated patents . . .
>patents that were
>> initially issued to large entities
>represent only 22.4% of the
>> assertions in the most--litigated group,
>compared to 47.8% of
>> the once--litigated group.
>>
>>
>>
>> [W]hen the cases do not settle, large
>patent plaintiffs are
>> significantly more likely than small ones
>to win, without
>> regard to how the data are sliced. When
>we combine the two
>> data sets, large entity plaintiffs win
>53.1% of the cases
>> decided on the merits (55.9% if default
>judgments are
>> included), while small entity plaintiffs
>win only 12.3% of
>> their cases (23.1% if default judgments
>are included).
>>
>> Other interesting findings:
>>
>>
>>
>> - Just 16.7% of the assertions of the
>most-litigated patents were made
>> by product-producing companies.
>>
>>
>>
>> - Software patents constituted 20.8% of the
>once-litigated patents but
>> 74.1% of the most-litigated patents.
>>
>>
>>
>> - Owners of non-software patents are far more
>likely to win their cases
>> than are software patent owners (37.1% versus
>12.9% overall)
>>
>>
>>
>> - The number of defendants per case is a negative
>predictor of
>> settlement - the more defendants there are per
>case, the less likely the
>> case is to settle. Also, the more defendants
>there are per case the
>> more likely those defendants are to win.
>>
>>
>>
>> The study concludes:
>>
>> We designed this study to explore the
>effects of repeat play
>> on litigation behavior, contributing to a
>literature on the
>> economics of civil procedure as well as
>the substance of
>> patent law. But what we found was
>dramatic and unexpected:
>> The patents and patentees that occupy the
> most time and
>> attention in court and in public policy
>debates - the very
>> patents that economists consider the most
>valuable - are
>> astonishingly weak. Non--practicing entities
> and software
>> patentees almost never win their cases.
>That may be a good
>> thing, if you believe that most software
>patents are bad or
>> that NPEs are bad for society. But it
>certainly means that
>> the patent system is wasting more of its
> time than expected
>> dealing with weak patents. And it also
>suggests that both our
>> measures of patent value and our theories
> of litigation
>> behavior need some serious reconsideration.
>
>>
>> Read/download "Patent Quality and Settlement
>among Repeat Patent
>> Litigants" (link
>>
><http://www.feedblitz.com/t2.asp?/151161/191723/0/h
>ttp://papers.ssrn.com/sol
>3/papers.cfm?abstract_id=1677785>)
>>
>>
>>
>>
>>
>
>
>--
>Guillaume Radde
>Software and Systems Division
>National Institute of Standards and Technology
>guillaume.radde@xxxxxxxx
>(301) 975-6145
>
>
>
>
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