5 reasons patents are worthless and more

An article entitled 5 Reasons You Should No Longer Bother Getting U.S. Patents (via Invent Blog) crossed my screen today. It would seem more IP protections are trimmed away every day. Consider these trends based on recent US Supreme Court rulings:

  1. You’re no longer guaranteed patent protection. This stems from a recent supreme court decision regarding eBay. Apparently, “there is no longer any assurance that rightful owners of valid US patents have any legal right to prevent unlawful trespassers from infringing his or her patent”. Ouch.
  2. You’re no longer assured reliable patent licensing. “…a patent owner who licenses his or her patent via a legally-binding patent license agreement can no longer prevent the licensor of his or her valid patent license agreement from then suing the patent owner to challenge the validity of the patent…”. Under certain circumstances, people get patents that shouldn’t have been granted in the first place considering prior art or obviousness. Like the guy who patented a ham recently. Really. A ham. Or the bulleted list.
  3. You can’t get patent protection for combining “old elements”. Well, I’m not sure I understand the gamut of what that can mean. In some cases, I’d think it’s valid. In other respects, perhaps not.
  4. Multiple damage sanctions against willful infringers are not increased. Again, I can see this two ways but considering this post was written by a law firm, I can understand their outrage at their livelihoods potentially being restrained. One must prove “objective recklessness” for multiple damages. The latter doesn’t seem like a bad standard to me.
  5. The climate is becoming increasingly disfavorable to patent holders and applicants. The author claims the USPO is trying to limit patent applicants with bureaucratic processes. It is likewise claimed that Congress is attempting to reform patent law with the goal of reducing royalties a patent owner can recover from infringers. While I’m no defender of Congress, I’m sure there’s more to it than that.

More here

In fashion related IP news, Joseph Abboud is being sued by Marty Staff of JA Apparel. Joseph sold his company and name to Marty Staff. After the sale, Abboud launched a new line called Jaz. The point of contention is that Abboud is making liberal use of his name for Jaz, to such extent that Staff claims Abboud’s usage infringes upon the trademarks he purchased. Judging from the evidence, Staff’s suit may have merit, although being the bad-boy of men’s wear, he’s not winning any friends. And Abboud should have had a bit more integrity. Shame shame. You can’t have your cake and eat it too, watch words if you ever decide to sell your name.

The judge is urging the parties to come to an out of court agreement. Probably because it’s so sticky, he doesn’t want to rule on it. I wouldn’t either. DNR (free access) posted two articles on the controversy. Actually, a lot more than that. It’s been a no holds barred full blown cat fight in and out of the court room.

Unrelated: Marty Staff’s JA Apparel, has made significant inroads toward becoming a lean manufacturer.

Last in fashion IP news, the battle over the proposed Design Piracy Prohibition Act aka H. R. 2033, plods forward. Katherine Whistler sends an entry from William Patry’s blog. Patry, who has training and background in fashion design but is now senior counsel for Google, does not support the measure saying:

Tracing rights in fabric design is extraordinarily difficult, and I have tried in private practice to do so. And the bill … also includes a provision on secondary liability, sweeping in even more people as potential defendants. This is why there are references to those who seek to “improve the bill”: the bill is so draconian, so unnecessary, and the consequences so devastating to those 99% of Americans who do not spend tens of thousands of dollars on a single piece of clothing, that one doesn’t know whether to hide in a bunker or try and eliminate the the worst features of a bill that has only bad features… it is a sad day when a bill to benefit the tiniest fraction of an industry will be used to destroy the rest of it.

The garment industry is very divided, and most interestingly, the lines seem to be drawn geographically. Most of the East Coast (NY) seems to support it. The West Coast (and the AAFA) opposes it. Odd when you consider both regions -but not the AAFA- sway left. My vigorous disaccord of the proposed legislation is here. There’s more detail on ApparelNews (free but they rotate material so get it now) and WWD (sub required).

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  1. Esther says:

    Number 3 seems interesting and may have wide interpretation. Fashion is all about combining old elements into something new. I have been tracking various child related designers who have patented their baby accessories – most notably Taggies. I am not entirely sure how some of them, Taggies included, have obtained patent protection on utilitarian products in the first place. Even so the proliferation of copy-cat products that exist on Etsy and Ebay would make it difficult to enforce their patents. They will run out of money or energy at some point making the initial investment in the patent filing a complete waste and the copy-catters will continue unabated.

  2. Shannon G says:

    Kathleen, you are absolutely on target about patents, both for design and utility. I would add two more reasons why a patent is not necessarily encouraged. First, the legal research necessary to be certain your patent is unique might be prohibitively expensive. Second, a US patent only covers the US. A business entity from another country can very easily copy your design and sell it. Experience can be an expensive instructor:)

  3. Lisa Bloodgood in Portland says:

    I know that patents can take a heck of a lot of time to get approved. My husband’s (non-sewn-products) company just got their patent approved, finally, after more than 5 years of the patent examiner constantly sending it back to the patent attorney for some little nitpicky thing that he didn’t mention the previous time. So, yes, it can take a lot of time and money.

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