> But so many people have to jump through the process just as a defensive act so they have a sliver of reassurance that using the novel thing they came up with will not lead to immediate cease-and-desist injunctions from IP-fortified competitors.
Having a patent is not a defense to an allegation of infringement and if that's what your legal counsel told you, then you should seek new counsel.
The point is that patents are commonly used as a defensive tool, and any good counsel would tell you such. While having a patent is not a defense to an infringement allegation, patents can act as a deterrent to others suing you. The idea is that having your own patents discourages competitors from bringing suit because they will fear that you will turn around and counter-sue them for infringement of your patents. This, of course, does not however address the problem of non-practicing entities.
I'm not sure why you make the assumption that in a patent infringement suit, either parties both have the same practice, or one of them is a NPE. There's no basis for such an assumption. I'm a patent litigator and this doesn't match my experience at all. It is true for very large companies with broad business practices that could be susceptible to a large IP portfolio from a similarly-sized competitor, but to talk of it like it is a practical defense is unrealistic and reflective of a lack of understanding of how patents are usually asserted. It's something for a GC to keep in mind, but isn't really relevant to what would be common advice to anyone running a business that wasn't one the largest in the world.
This assumes the entity suing you actually performs some business other than litigating patents. You could have the largest patent portfolio in the world but if a laywer who owns a single patent files suit against you that "IP war chest" will be completely worthless.
> It's just a way to get a seat at the negotiation table.
It's not needed at all. Valid prior art is a defense to patent infringement because it outright invalidates their patent. Full stop. That's the best leverage out there. It's better than being able to prove non-infringement, because the patent remains in that scenario. So when you have good prior art and they threaten to sue, you say "okay, I'll invalidate your patent in a motion to dismiss". If you want to countersue, now you risk your patent being invalidated and still being found liable for infringement.
> If they sue you, you could potentially countersue them for patent infringement.
Maybe? It depends on the patent and their practice. Just because someone accuses you of infringing doesn't mean their practice infringes your patent. It doesn't even follow at all, actually.
>Yes, it's all a bunch of bullshit, but that is what you get when you have a flawed notion of how inventing works.
I disagree and I'm not going to take your word for it considering that everything wrong I've pointed out about your posts. It is ironic that you use the phrase "flawed notion."
It's not needed at all. Valid prior art is a defense to patent infringement because it outright invalidates their patent. Full stop. That's the best leverage out there. It's better than being able to prove non-infringement, because the patent remains in that scenario. So when you have good prior art and they threaten to sue, you say "okay, I'll invalidate your patent in a motion to dismiss". If you want to countersue, now you risk your patent being invalidated and still being found liable for infringement.
The patent is beside the point of the business of inventing and bringing products to market. It's a legal weapon, not a tool to encourage commerce.
Maybe? It depends on the patent and their practice. Just because someone accuses you of infringing doesn't mean their practice infringes your patent. It doesn't even follow at all, actually.
It's not about protecting your inventions. It's a legal weapon.
>The patent is beside the point of the business of inventing and bringing products to market. It's a legal weapon, not a tool to encourage commerce.
I'm not sure how this is responsive to my comment, which was directed at correcting your misconceptions about how patents work and are used. I think some people would disagree that it doesn't encourage commerce. Were it not for patents, many inventions would be trapped under trade secrets and would never have been disclosed to the public at all. It's also an odd point to make to me as I never suggested that a patent was a "tool to encourage commerce."
>It's not about protecting your inventions. It's a legal weapon.
Yes, a patent is a legal tool. You were the one that suggested owning a patent was a defensive tool, which I explained to you is not really true, most especially in the context you provided of countersuing.
It's a legal weapon because if people use patents, you should have a patent portfolio just to be able to conduct business if money is no object.
I'll concede that it's not really viable for individual inventors and entrepreneurs, especially since lawyers are expensive and energy and effort are better spent elsewhere. Better hope you slipped by unnoticed and never get sued then.
You're looking at one single case while the person you're responding to is looking at this in the context of a legal strategy.
For the individual lawsuit, sure, owning a separate unrelated patent does nothing for you. The lawsuit will be decided based on the facts of the case and the claims of the patent.
But in terms of applying leverage to get the plaintiff to drop their lawsuit, saying "We'll countersue you for billions in damages. You wanna go, let's fight it out in court and we will ruin your business" can be pretty effective. It's sorta like if your car gets scratched by a mafia don in the parking lot, you insist on taking him to small-claims court for a few hundred in damages, and then a few thugs show up on your doorstep, hold a gun to your head, kill your dog, and are like "Do you still want to continue the lawsuit? It's your right, but we can make very bad things happen to you."
Yeah, that works if one company is Apple and the other is Samsung, I don't think that's a relevant discussion because it's far from the norm of what actually happens in patent litigation. Acting like posters on HN are going to accrue billion-dollar patent portfolios is one of the more ridiculous things I've seen here bandied as a "strategy."
Many posters on HN work for companies like Apple or Samsung. The solo inventor with a patent is a rarity, and they usually don't have the resources to enforce their patent rights anyway. The path to becoming a patented inventor these days usually involves becoming an employee of a large institution in R&D, signing over all your rights to the patent, talking with a lawyer, letting the lawyer write the patent, and then letting your employer litigate (or not litigate) its defense.
So what they work for Apple or Samsung, they aren't here getting advice on how Apple or Samsung manage their portfolios nor do they have any involvement in it so I'm not sure why that renders my criticism inapplicable. I'm not describing the solo inventor either, so I have no idea why you bring that up.
This entire conversation is in the context of general advice regarding patents and you are here insisting that the strategy of two of the largest companies in the world serve as model advice because some of their employees work here.
Here's the post I was responding to:
> But so many people have to jump through the process just as a defensive act so they have a sliver of reassurance that using the novel thing they came up with will not lead to immediate cease-and-desist injunctions from IP-fortified competitors. What a collective waste of human creativity.
So many do not have to do this. For so many people this is beyond the practical. It's only relevant to the people running Apple or Samsung to collect these portfolios. It's not practical advice for so many people.
No, the "so many people" are the rank & file engineers and researchers who are actually applying as inventors on those patents. They don't make the policies, but they are the ones who have to put up with the bullshit. That's what the "collective waste of human creativity" is - hired researcher types who would rather be, well, researching rather than doing a song-and-dance of describing their inventions in legal terms that will make it past a patent examiner but don't actually work once communicated in those terms, all so their employer can put up legal minefields in the dance of mutually assured destruction.
Having a patent is not a defense to an allegation of infringement and if that's what your legal counsel told you, then you should seek new counsel.