To me the more telling lesson from this paper is that even **if** one
assumes that a patented piece of software actually has some novel feature
worth imitating, allowing it to be patented is still a bad policy from the
policy perspective of encouraging more innovation. When one factors in the
evident problem that prior art may be spuriously patented by patent vultures
(perhaps knowingly, perhaps ignorant of the prior art) the net benefit/cost
ratio to society at large becomes so low, and the harm so great, as to cry
for elimination of all patent protection. (01)
Pat (02)
Patrick Cassidy
MICRA, Inc.
908-561-3416
cell: 908-565-4053
cassidy@xxxxxxxxx (03)
> -----Original Message-----
> From: ontolog-forum-bounces@xxxxxxxxxxxxxxxx [mailto:ontolog-forum-
> bounces@xxxxxxxxxxxxxxxx] On Behalf Of Rich Cooper
> Sent: Friday, September 24, 2010 5:17 PM
> To: edbark@xxxxxxxx; '[ontolog-forum] '
> Subject: Re: [ontolog-forum] [Fwd: Re: More on patents]
>
> 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=151161&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/http://papers.ssrn.co
> m/sol
> 3/cf_dev/AbsByAuth.cfm?per_id=118168>,
> > Mark Lemley
> >
> <http://www.feedblitz.com/t2.asp?/151161/191723/0/http://papers.ssrn.co
> m/sol
> 3/cf_dev/AbsByAuth.cfm?per_id=32215>
> > and Joshua Walker
> >
> <http://www.feedblitz.com/t2.asp?/151161/191723/0/http://papers.ssrn.co
> m/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/http://papers.ssrn.co
> m/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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