It is not a perfect world. Tankers spill oil. Innocent people land in jail. Bad calls cost the home team a championship. And as almost anyone in the intellectual-property game will tell you, the U.S. Patent and Trademark Office continues to grant patents that are, well, patently invalid. I’m talking about patents for things that have either already been invented or are so straightforward and apparent they don’t meet the patent’s law requirements for being novel and nonobvious.
For years, people have griped about these bogus patent claims. Rightfully so, since firms shell out millions in needless licensing fees as a result. And the patent office has long promised to do better. But now two Web-based ventures, IP.com and BountyQuest, are taking their own steps to rein in bad patents-either by stopping them before they are granted or by knocking them out after the fact. What makes these startups really interesting is that they are attracting support across a broad spectrum of intellectual-property players-from patent system boosters to open-source programmers. In the polarized IP field, that is no small feat.
The nub of the problem is that a U.S. patent affords the holder a 20-year monopoly on an idea, whether it’s
granted on valid grounds or not: that is, unless the patent office is convinced to reexamine its decision, or the patent is invalidated in court. Both procedures take some effort, however. And the average patent case that goes to trial now costs millions, with unpredictable verdicts. The result: even when someone wielding a blatantly invalid patent demands royalties, your lawyer will often advise you to pony up rather than fight.
Of course, it isn’t supposed to work that way. If a concept is obvious to practitioners in a given field or has previously been published in almost any fashion, that should invalidate the application. Practically speaking, however, it’s a tall order for the U.S. Patent and Trademark Office to scour the universe of publications to determine whether your software code or concept has already surfaced. So mistakes are made-eroding confidence in the system and feeding the problem by encouraging firms to apply for dubious and overly broad patents of their own.
Easing this patent pollution is where the new Web-based firms come in. IP.com, of West Henrietta, NY, offers a low-cost registration system that allows inventors to place their work in the public domain and prevent others from patenting it. A document submitted to IP.com becomes part of a database that both the U.S. and European Patent Offices have promised to search before issuing patents. And while it can only be used defensively-to protect against bogus claims and not as a means of collecting royalties-an impressive list of firms, from Abbott Laboratories to United Technologies, has begun using IP.com to guard against patent infringement lawsuits.