Re: [Patents] technology definition amendments

[Bernhard Kaindl <bernhard.kaindl@gmx.de>]

On Wed, 2 Jul 2003, Russell McOrmond wrote:
> On Sun, 29 Jun 2003, Hartmut Pilch wrote:
>
> > They are playing with the word "technical" because they want back-doors
> > everywhere.
>
>
>   I suspect this language problem would get fixed very quickly if the
> burden of proof was reversed.  Rather than "we aren't going to allow the
> Patent Office to use the terms to deny patentability", it should be "we
> aren't going to allow the Patent Office to use the terms to grant
> patentability".
>
>   The default for patents should be that they are rejected and referred to
> the courts if there is disagreement, rather than granted and (possibly)
> referred to the courts if there is someone rich and interested enough to
> deal with the problem.
>
>   Change the burden of proof in the law (innocent until proven guilty,
> rather than guilty until proven innocent) and you change the nature of the
> law.

I would not only change this but also the effects of patent nullification
allow the patent system to find a balance.

The problem with patent nullification is currently that the party
which achives the patent nullification by going to court currently
gets no specific reward, the public gets the reward that it the
patent is nullifies, but there is no compensation for the risk
of going to court to nullify the patent and thus many patents
survive even if they could be nullified, but they are not, simply
because the risk is too high(compared to a moderate patent fee)
and there is no special reward for taking the risk.

So I think it might help the challenger of the patent to nullify
it to have a sanction in place which causes that on nullification
of a patent at court, that the patent office which granted the patent
has to transfer twice the amount of money rewarded from the patent
since granting the patent to the challenger of the patent as
compensation for taking the risk to challenge it.

This way also the patent offices have to take care what they
grant because of the losses they would have from the penalty
which they have to pay if the court finds that the office has
done a mistake.

I think this is the only way to force a fair balance and
strict appliance of the law.

Bernhard