So how do you resassure yourself of your work's uniqueness?

A. Impossible to search all IP. Everything recorded, including 1936 Mickey Mouse cartoons counts as IP.

B. Examiners spend an average of twelve hours to search only the records of the US patent system and disregard the rest of human history. Your determined competition has the full arsenal at his disposal. False confidence.

A. Correct.

B. “False confidence.” - Incorrect. My IP has been successfully defended 100% of the time.

I hope your track record continues unabated. Let me re-phrase. The vast majority of patent holders have a false sense of confidence given to them by an inadequate examination system.

92% of patent challenges for re-examination are accepted by the USPTO. Those are a very small percentage of the litigated cases because the majority of patent holders settle to avoid the challenge. The actual percentage would be much higher. A patent is a nice piece of paper

To the OP, if you plan on scouring the world to insure your ideas uniqueness, you have gone down a rabbit hole, you can never know. Further, if you kick out every idea that bears a resemblance to another idea, you can end up in a place where everyone else avoided.

Finally, even if you have a unique idea, it is subjective, someone somewhere could claim derivation or imitation. The natural of the world is derivation, synthesis, re-invention, re-discovery.

getting OT a little bit but this is a fun watch along those lines. Everything is a remix.

I can’t give you good examples, but I’ve seen a lot of design patents and utility patents that were existing technologies or designs. The USPTO and the Chinese patent office seem to grant every patent they receive. Canada is a little better.

IMHO, design patents are very shaky. Change just a couple things and you aren’t infringing. Not to mention that all the patent defense comes down to the amount of cash that the patent holder has to burn.

If you pay them money, the USPTO will re-examine most anything.

Of those re-examined, what percentage was invalidated, what percentage had substantial changes to the claims and what percentage had insignificant changes to the claims?

How far do you get into your design process before you start checking for similar products or patents? Does it influence your design direction? Do you steer away from overcrowded ‘designs’, products, ect or do you work your way around the competition?

I’d love to know the % of designs that are patented. There are a few big players in industries that I’ve been in (lighting, plumbing, HVAC controls) that don’t register anything in Canada and only a 10% of their catalog in the US.

The analysis is your typical market analysis, regardless of IP protection.

We are doing just that now, not very expensive and stopped a lawsuit in its tracks.

As I remember, 80% had claims reduced, 29% of the patents were cancelled.

According to this source, the number is lower, http://www.law360.com/articles/581512/trends-from-2-years-of-aia-post-grant-proceedings

10% of claims (not patents) were invalidated, 10% were narrowed.

Of the claims challenged, 70% were electrical/computer. Probably a lot of junk software patents.

Bottom line, yes, a lot a crap is written in the world. But a lot isn’t and I am fully comfortable using IP. It provides a limited-time monopoly. A little experience on what to do and when can provide a large barrier to entry to ensure “uniqueness” in the market. And as I wrote before, I’m batting 1.000.

The way I read the article that you provided:

Congressional reports stated that the new validity challenge procedures of the AIA were put in place in order to allow bad patents (i.e., invalid patents) that were mistakenly issued by the USPTO to be addressed early and efficiently. To this end, IPRs have already provided a game-changing impact for businesses being accused of infringing a questionable patent — with challengers winning over 70 percent of the final decisions. Indeed, an overwhelming majority of IPRs are filed by defendants involved in concurrent litigation.

Challengers (i.e. the guys fighting the patents) have a 70% win rate.

The first PTAB final decisions on granted petitions came out this year. In the early decisions (first 26), the win rate for cancellation of all claims was 85 percent for IPR and 100 percent for CBM. This has cooled down a bit. In 126 final decisions (as of Sept. 11, 2014), petitioners have succeeded in having the PTAB cancel all challenged claims in 65 percent of the cases.

Cancelled 85% - 65% of all challenged claims.

Talk about a failed gov’t system…

You read it wrong.


It is a multistage process as the graphic shows. If you get to the final stage, your numbers are good. Overall, they are not.

Incorrect.

The final stage is the one that matters, no? 70% of challengers prevail.

If you sue me for infringing a certain claims in your patent, those are the claims I am going to challenge. I don’t need to challenge all remaining claims. So judging the statistics about what percentage of the barricade remains after a hole is knocked in it is less meaningful than the fact that it has been breached.

Typical patent has the independent claims and the dependent claims. The dependent claims fall when the independent claim it is based on falls.

Here is a great post that takes the mystery out of reading patents.

hehe. That’s a great post. I wish I had read it a few months ago. I was researching the claims and how they work for half a day!

Even using only the challenged numbers:

5,045 challenged
999 unpatentable
606 claims cancelled
=32%

Where does your 70% come from?

Also, 70% of the 32% were electronic/software patents. I’m surprised more of those aren’t challenged because the ones I have read have always been a joke.

Patents ain’t rocket science, they are though really, really boring. Anyone of reasonable intelligence can read the claims and have a good understanding if it is way too broad (if not allowed by the examiner, likely to be challenged) or if it is a solid claim.

In one example with one of my patents, the lawyers came back with the first independent claim that I thought was way too broad and thought for sure the examiner would reject it. Lawyers said let them come back and cut us off at the knees. They didn’t.

A few years after the patent was issued, we caught wind of a company infringing. Here’s the kicker, they were not selling the product yet, they were still in development and just showing it. We sued. They countered. Not only did the claim hold, the company was told not to publicly show their product. They have since developed a work-around and I wish them the best of luck selling it. I know they haven’t had a single sale at this point.

So yes, some patents are not worth the paper where they are written. And we challenge those, as we should. But your analysis condemning the entire system at best is short-sighted.

From your article: “To this end, IPRs have already provided a game-changing impact for businesses being accused of infringing a questionable patent — with challengers winning over 70 percent of the final decisions.”

But here are some other sources. Post-AIA: Two Years of Inter Partes Review Proceedings | Mintz Levin




As illustrated in the graphic above, once an IPR has been instituted the USPTO categorizes the outcome of the proceedings on a claim into one of three categories: (i) maintaining patentability (1,739 claims), (ii) cancellation or disclaiming patentability during the proceedings (606 claims), or (iii) finding of unpatentability by the PTAB (999 claims). Based on the currently reported data, once an IPR has been instituted the probability that a claim will not survive is 48 percent, essentially a coin flip.

A very different story is told when one looks at the outcomes of the cases in which the PTAB reached a decision on patentability on a petition basis. The PTAB has reached decisions on patentability in 66 IPR proceedings, of which all claims in six cases — 148 claims in total — were deemed patentable, claims in ten cases met mixed results, i.e., some claims were found patentable and others unpatentable, and all claims in 50 cases were deemed unpatentable. Put another way, when the patentability of claims challenged is determined on a per petition basis, in nine percent of petitions all claims were deemed patentable, in 15 percent of petitions some claims were deemed unpatentable, and > in 73 percent of petitions all of the claims were deemed unpatentable> . It therefore appears that once the PTAB gets involved, the chances that the challenged claims will be struck down rises precipitously.

84.8% CLAIMS CANCELED IN FINAL WRITTEN DECISION
While the initial Final Written Decisions were decidedly in favor of Petitioners (a 96.4% cancelation rate as of March 16, 2014), more recent decisions have increasingly sided with Patent Owners, bringing down the total number of canceled claims to 84.8%.

We can differ on what the numbers mean all day long, what they do not show it that an issued patent is unassailable. To the OP, I would not count on a patent examiner or an issued patent to assure yourself of your ideas uniqueness.

If you want a reality check on uniqueness, use a service like Article One Partners to do a crowd sourced prior art search. Their researchers will compete worldwide to find relevant prior art for you to insure the unique quality of your idea.

Back to the original question. I still don’t buy uniqueness as a measure for success. At least not in the consumer space. Desirability, yes.

To riff off what I just posted in the apple watch thread, there isn’t a whole lot there that Pebble or android wear isn’t doing, it is just fantastically executed and integrated. Touching it makes you want it. Of course you could say that the high level of execution makes it unique, but I don’t think unique was the goal. I think excellence was… And that pursuit resulted in unique.

Interesting question. At this point in my life, I definitely agree with the “nothing original exists” perspective. …whether that’s actually true or not.

I really struggled with this in school. I was beating my head against the wall trying to be original and failing, when I would have grown so much more by just copying and tweaking.

I’ve had the same problems with music making too… somehow I got the idea in my head early on that everything you do has to be new and unique… and challenging. but really, those same 3 chords with a 2/4 backbeat can be just as good or better. It really comes down to the attitude with which you use them.