I don't think patents are inherently evil; and I also believe that "obvious" patents will get less common with time (relatively speaking we're still in the early days of patent law for many areas).
That being said, I think the big issue we're seeing these days is that some patent categories simply last too long. Technology moves a mile a minute, a patent system with a duration of 20 years is absurd, something that was innovative in 1997 doesn't continue to provide the same level of value in 2007 let alone 2017.
At absolute MOST the patent duration for technology patents should be halved. Ten years is still too long but at least there's a chance the entire industry doesn't overtake the patent too much, five years would be better but realistically patents are fairly expensive to file so the whole system might collapse.
When I was at a start-up and had someone literally rip-off our product (including typos), we would have really liked some faster protection than the patent, which took around 2 years to issue.
As a business matter, we would have happily accepted a shorter lifespan in return for a quicker decision.
You say typos so I assume you are referring to software, which has an automatic copyright on creation, and can be enforced much easier and faster than a patent.
They're a law firm that specializes in _patents_. When all you have is a hammer....
Also, presumably you failed to register your software with the copyright office before the infringement began. In such a case you're less likely to get a fat damages award. Which is actually a good reason to pursue a patent claim, but if we're being cynical it's also a good reason for a firm to _prefer_ a patent claim.
The fact of the matter is that if the case was a slam dunk as you say, you should have been able to get an injunction fairly quickly, depending on when this occurred. Step one to seeking an injunction would have been to register your software (or a component of the software, if you didn't want to divulge the whole thing) with the Copyright Office. Currently their e-filing website says it'd take 6-10 months. It used to be much shorter than that. A few years ago, IIRC, I received a certificate in less than 90 days. In any event, that's much shorter than 2 years.
It's also a good lesson: always register at least some component of your software with the Copyright Office; a component that an infringer would necessarily have to copy. To get through the courthouse doors you need a certificate from the Copyright Office, but it doesn't have to cover the entire, larger work. It's more of a procedural hurdle of the copyright statute that courts construe very liberally, so you needn't be afraid of having to publish all your source code just to get a certificate.
The nice thing about copyright is that it's simple enough that you don't really need to involve a lawyer. Of course, you don't do this to the exclusion of any patent filings, but it's a smart move that is almost zero cost. Paste your software into a TeX document, generate a PDF, and upload it to the Copyright Office website. Easy peasey.
> They're a law firm that specializes in _patents_.
What the fuck. Oh, you got that when you googled them, and you think the fucking top-tier national IP law firm had no other ideas at all because the patent hadn't issued yet.
They blamed it on a rogue employee, and then claimed that they had removed all our typos and that we would need to sue them if there was anything more we needed to demand. It wasn't until the patent came out, two years later, that we could finally get them to stop shipping their crap.
If we had been offered something that lasted half as long but issued twice as fast, we would have taken that in a heartbeat.
I'm personally against patents, but even if I were to assume they do provide the common good used to justify them, the #1 problem with patents is that the people who grant them appear to be either completely unqualified, or under too great a workload. Or both.
I think I'd prefer it if filing for a patent would cost like $500, or even less, but then the USPTO would reject most applications by default, instead of accepting most applications by default, as they do now.
I'd prefer a rejection bias over an acceptance one. And I think a patent costing however many thousands of dollars it does now puts some pressure on USPTO employees to accept most patents.
Even if they did do a better job of reviewing patents in certain countries, people would just shop around until they found the most lenient international patent office and file there.
The US Patent office in particular decided many years ago that they simply weren't qualified to review all patents and just left it to the courts to deal with the fallout.
Realistically a patent examiner cannot be qualified in all areas; so they'd need to gather industry experts which would make patent filing pretty expensive (plus a lot of experts disagree, so where do you set the standard?).
> The US Patent office in particular decided many years ago that they simply weren't qualified to review all patents and just left it to the courts to deal with the fallout.
Right... but then, in the courts, an issued patent has a presumption of validity! This is arguably the biggest problem. I believe that before a patent can be used in litigation, the patentee should have to show its validity in more depth than the PTO requires, including objective evidence of nonobviousness [0].
That being said, I think the big issue we're seeing these days is that some patent categories simply last too long. Technology moves a mile a minute, a patent system with a duration of 20 years is absurd, something that was innovative in 1997 doesn't continue to provide the same level of value in 2007 let alone 2017.
At absolute MOST the patent duration for technology patents should be halved. Ten years is still too long but at least there's a chance the entire industry doesn't overtake the patent too much, five years would be better but realistically patents are fairly expensive to file so the whole system might collapse.