A lawyer I was working for once described the doctrine of estoppel as “Seriously, now, who are you trying to kid?”
I was working as a non-testifying expert on a high profile patent case, which we won (to the tune of $100 million) because of the doctrine of estoppel. Dictionary says:
the principle which precludes a person from asserting something contrary to what is implied by a previous action or statement of that person or by a previous pertinent judicial determination.
In the case of the patent we were working on, there was an individual who sold his company to a larger firm for several tens of millions of dollars, based (in part) on the value of that company’s patent portfolio. Then, a few years later, the same fellow started another company which did very very well indeed, but it was selling, basically, the same technology that the inventor had patented when he was doing the first company. In a Trump-scale strategic blunder, the founded patented the same concepts again at his new company. So the larger company that bought the inventor’s first company sued his new company for a huge amount of money. The “estoppel” argument came in because the inventor had sold the patent the first time for a lot of money, which means that he felt it was (presumably!) worth something, therefore the inventor had no argument that the patent was invalid the second time, since he already knew it was worth something when he filed for it again.
Usually when I have been involved in patent cases, it’s been digging up “prior art” to invalidate a patent. The idea of a patent is that you’re protecting a new invention, so you invalidate the patent if you can prove that the invention is not actually new. In the case of internet security technology, that has been remarkably easy because most of internet security technology depends on prior computer technology – someone can’t patent anti-virus because it’s pattern-matching, which is something that computers have been doing since shortly after Von Neumann’s team at Princeton built the first one. So if someone tries to enforce a patent against your anti-virus product, your research team goes out and finds where the germ of that idea resides, and you construct an argument that the invention is obvious to a skilled practitioner.
I paid my bills for a couple years off of some of the patent litigation support work I did, so I won’t say “the patent system is broken” but that’s because it only works for large companies, lawyers, and consultants.
that is one of the whitest guys I’ve ever seen
The Trump regime is currently in the process of floundering around in the “census question” case and has run itself into an estoppel situation. Wiser legal heads are shaking, because “this is going to be interesting.” Briefly, here’s what happened:
- Trump regime says “we need a decision really fast on this census question thing”
- Supreme court says “OK” and reviews it, then says “nope.”
- Trump regime says “we are going to delay the census while we spend some time looking for a better reason to have this census question.”
The estoppel comes in because “review this case fast” does not sit with “we’ll get back to you in a couple months.” Basically, the Trump regime has just declared that it was lying the first time when it said it was in a hurry. It’s also saying, in effect, “our first line of reasoning wasn’t good enough, we’ll make up some other stuff.” Essentially, the Trump department of justice is acting like a 10-year-old. [aol]:
The Justice Department abruptly announced Sunday it will replace the legal team that has represented the Trump administration in its efforts to add a question about citizenship to the 2020 census.
“As will be reflected in filings tomorrow in the census-related cases, the Department of Justice is shifting these matters to a new team of Civil Division lawyers going forward,” DOJ spokesperson Kerri Kupec said in a statement. “Since these cases began, the lawyers representing the United States in these cases have given countless hours to defending the Commerce Department and have consistently demonstrated the highest professionalism, integrity, and skill inside and outside the courtroom.”
That reminds me of the lead-in to Monty Python’s Holy Grail: “the people responsible for sacking the previous people have been sacked.” Except that the statement should have read something like, “The team that just pooped in the hot tub has been replaced with a new team, sponsored by Taco Bell and Ex-Lax, who will make your hot tub great again!” Ex-Lax is good for estoppel, right?
This is going to be interesting!
Update: The judge has told the regime “you can’t do that” with regard to switching the lawyers. I find that interesting – basically, the regime said “our first lawyers sucked, so we want more.” It’s just mulligan mulligan mulligan with some people.
The well-timed disclosures (do any of us think that was accidental?) of Thomas Hofeller’s files, in which he makes clear the strategic reasons for the question – are also a bit … awkward. [nyt]
Um, why is not that on the patent office? You’re not supposed to be able to patent existing stuff.
Same.
I’m obviously missing something, because you claim they had valid patents, so whence any alleged wrongdoing, and why attempt to claim they were invalid, since that would entail patent breach?
Hm.
I’m not a lawyer, but that sounds like judge-speak for: “No, you fucking don’t. I’ve had enough of your bullshit.”
But on the other hand:
John Fogerty sued for sounding too much like John Fogerty
Fogerty won the suit, and later successfully counter-sued for legal costs.
The replacement of the Deep State by the Derp State continues apace, as Barr has clearly decided he wants to be known as Trump’s henchman, not the independent top legal officer of the United States of America.
John Morales@#1:
True story about US capitalist law: in the early 90s when the web started to be a big thing, the patent office was inundated with bogus overlapping software patents. The patent office had to either staff up and backlog while they tried to sort out the claims or… Some stable genius said “we’ll look great if we just issue the patents and let the lawyers sort it out!” That genius may have been a lawyer. And that is how it happened.
With software, unless you get into the design and code it’s easy to call a firewall a “network intrusion prevention system” and patent that. It takes time and expertise to do the analysis and why bother when the free market’s invisible hand will rebalance it all eventually? The result is a vibrant industry of patent trolls and lawyers and subject matter experts. What it did not do was spur innovation or any of that nonsense.
John #1, the USPTO no longer makes a large effort to ensure that patents are “good” before issuing, although I think they still do some triage. They rely, I think explicitly and by policy, on industry to sort out the validity of the few patents that anyone cares about in the courts.
It’s win-win-win all round!
Rubbish. It clearly spurred a great deal of innovation in the burgeoning field of patent-trollery.
“Intellectual Property” is not a concept that contacted the digital age with aplomb and grace. It is somewhat past due for a rethink.
Everyone, from Apple to some schlub who took a picture of some strawberries wants their IP to be a money farm, rather than an innovation farm, which is wrong.
Reginald Selkirk@#3:
John Fogerty sued for sounding too much like John Fogerty
Fogerty won the suit, and later successfully counter-sued for legal costs.
Fogerty also wrote some pretty nasty songs about the record label, if I recall. “Vanz can’t dance”
Andrew Molitor@#8:
Everyone, from Apple to some schlub who took a picture of some strawberries wants their IP to be a money farm, rather than an innovation farm, which is wrong.
I used to tell VCs “we won’t need patents because we’re going to innovate fast and hard and anyone that wants to compete will be behind the curve on features. Of course, the competition just said they had the features (“coming in next release, honest, OK?”) and used their patents to threaten to bankrupt us with spurious suits.
It turns out that big companies like Apple and IBM have huge patent portfolios and trade them back and forth, “we’ll let you use our framis if you let us use your potrzebie” – which means that they can refuse to license to, or litigate out of existence, any start-up that challenges them.
The patent system works if you’re a patent lawyer or a consulting expert. Other than that, it’s noise.
To give you an idea of how bad it get, the case I referred to in the posting: I spent 4 weeks (60hr/week) in a hotel room in Newport Beach, reviewing intellectual property and building a claim chart and process charts, at $750/hr. Yeah, the patent system works for consulting experts. And best of all, the intellectual property I was looking at was something that fascinated me and it was tremendous fun and a great learning experience. When I was done I heated my house for a couple days burning all the paper I had to generate.
Thanks for the responses. Informative.
John Morales @#1:
In many (perhaps most) cases the patent office has neither the time nor expertise to fully examine patents, and of course industry has a strong interest in obtaining patents without proper examination, since state-granted and -enforced monopolies are a criticial part of their vision of the “free market.” Industry applies as much pressure as they reasonably can to make this situation come about.
The whole idea of “intellectual property” is massve “unnatural” government interference in the markets. It’s essentially a socialist idea (encourage the build-up of intellectual capital that’s available, at least eventually, free to all of society) that’s been hijacked by the capitalists for their own ends.
Trying to bring back the original socialist aims of the patent system, or at least mitigate to some degree the capitalist distortion of it, is why we have the Ask Patents StackExchange and in particular the prior-art-request tag there.
The patent system is thoroughly capitalist!
As you may be aware, the wealthy will not work unless you pay them very very well indeed. The poor, on the other hand, will not work if you pay them too much.
The patent system allows the wealthy to be paid handsomely, and the poor hardly at all! So very very capitalist!
Extremely unlikely this involved a patent case, but irresistible to mention:
In skimming the comments, I misread “intellectual property” as “ineffectual property”. It’s so obvious that I can’t imagine someone not coming up with it before but I think I’m going to start using it…
Well, only for the duration of the patent. Once that’s over the design is public domain, and so anybody can use it for free. (Which was the original point of patents and copyrights in the U.S.)
I was recently involved a bit with patents at my work (in EU) and the patent system is not only broken, it actualy stymies innovation and hurts the inventors. Companies require their employees, the actual inventors, to waive their rights to the invention, then file for patent, and then in significant portion of cases it does not actualy go into production at all. The company sits on the patent and waits for someone else to independently invent the same thing and put it into production, and then sue them for royalties. In my field of work I have seen patents for about 10 cheap and effective solutions to one specific problem, none of which AFAIK are on the market.
The whole patent system further is in effect a barrier for small manufacturers or private inventors to protect their inventions, because the fees are too high. As a private person, if you invent something patentable, it is probably best to not tell it anyone, because the only thing that probably happens is that someone else will get rich from it.
Charly, this is nothing new. Improvements steam engine technology pretty much stalled in the late 18th century once Watt had gotten his initial set of patents on improvements to the Newcomen engine; he then prevented anybody else from improving his engine until the patents expired, which he worked tirelessly to prevent, even to the point of getting a special act of Parliament to extend the life of the patents from 14 to 30 years.