As initially reported by the SEO By the Sea blog, Google has purchased more than 1,000 patents from IBM. According to the article, the patents cover a large range of technologies including fabrication of memory and processing chips. The article also claims that some of the patents are for relational databases, object oriented programming and even business methods. The motivation / strategy for buying these patents, as well as the cost, is a anyone’s guess.
When may an inventor place the words patent pending on a product? The answer is that the product may be marked patent pending as soon as the patent application is filed. However, care must be taken to remove this marking if the patent application is later abandoned — or the patent is issued but no longer is in force (e.g., expired).
Under 35 U.S.C. 292, whoever falsly marks a product can be fined up to $500 per offense. And the Federal Circuit has ruled that an “offense” means each false marking. Thus, if a company makes a million products marked falsely with an expired patent number, it can (at least theoretically) incur a fine of $500 million. Furthermore, the law allows private individuals to sue the manufacturer. If the plaintiff prevails, the proceeds are split with the government.
In the last year, a cottage industry has been formed to sue manufacturers for false marking. According to one source which closely tracks such lawsuits, the law firm of Mcdonnell Boehnen Hulbert Berghoff, [s]ince January 1, 2010, hundreds of qui tam lawsuits have been filed for false patent marking.” However, not all manufacturers accused of false marking are forking over money. Case in point is Wham-O, the makers of the Frisbee, sued for allegedly including expired patent numbers on their product . Now Wham-O is appealing the constitutionality of the false marketing statute itself. The Federal Circuit heard arguments this week … but most likely, the U.S. Supreme Court will have the final say.
An Appeals Board at the European Patent Office (EPO) has ruled that Amazon.com’s 1-Click patent is “obvious” in view of the prior art. 1-Click buying refers to a technique in which online purchases can be made with a single click, using payment information entered by the user previously.
The 23-page decision is available here.
There is an interesting opinion piece in today’s Silicon Valley Mercury News arguing that the Patent Office ought to create a regional office in Silicon Valley. At present all patent examiners are located in the Washington DC area (the headquarters of the Patent Offce is in Alexandria, Virginia). A previous attempt at starting a Detroit office was put on hold.
The article notes that
With Silicon Valley accounting for 12.5 percent of the nation’s patents last year, this region’s claim for one of the two other offices is unsurpassed. Plus, this area has ample experts who would bring critical knowledge to the patent office. And being closer to a place constantly minting new companies and technologies would keep the patent office on top of the latest innovations.
The main problem with a Silicon Valley is the higher cost of living.. which would mean that it would be difficult to recruit and retain qualified examiners without a pay differential. And what type of pay would be required? The average home in Palo Alto is $1.63 million and in Mountain View is $957.500, for example.
Furthermore, the author seems to think that the central issue with the patent system is that examiners have insufficient knowledge of current technology. However, as almost all patent pracitioners can attest, the main problems stem from fee diversion (in which Congress takes fees away from the Patent Office) and the irrational “count” system which rewards quantity over quality… neither of which is addressed in the article.