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Topic: Submarine patents

	The Problem of Software Patents in Standards
		Such patents arise in two ways: they are knowingly embedded in the standard as it is being created, or they are submarine patents, unknowingly part of the standard until they "surface" after the standard is already in wide use.
		The standards organization may require the patent holder to license the use of the specific claims within the patent that are necessary to implement the standard, rather than all claims of the patent.
		Non-disclosure of a patent or patent application with intent to collect a royalty or license in a discriminatory fashion later on should be both a felony and a tort.
	perens.com /Articles/PatentFarming.html (6733 words)

	[No title]
		The term submarine patent first appeared in a Japanese publication and it is used to describe a patent which is issued after a long delay in the patent office that catches everyone in industry by surprise.
		The patent office's claim that submarine patents are caused by individual inventors is proof that they are not adequately aiding Inventors as mandated by law.
		The end result of the patent offices attempt to lay blame for submarine patents on inventors is that they have been maneuvered by the foreign multinationals into a position where they had to back measures that are contrary to America's interests.
	www.uspto.gov /web/offices/com/hearings/reexam/comments/rriley.txt (3367 words)

	Prosecution history laches in the case of Lemelson vs
		When Lemelson first applied for his patents on machine vision in the 1950’s, he was focused on its use as a quality control tool for manufacturing, not for the grocery and retail uses that are widespread today.
		Submarine patents may, upon a cursory analysis, seem to be a beneficial aspect of the patent system.
		Additionally, if submarine patents are enforceable, a situation is created where an inventor would have an incentive to intentionally delay issuance of his patent.
	www.jmls.edu /ripl/vol1/issue2/sutthiwan-middle.html (4960 words)

	Patents - An Alternate View (Site not responding. Last check: 2007-10-07)
		Software patents are being abused, but patents are important and useful, and with sensible reform to patent laws, patents could encourage innovation, which is the fundamental purpose of patent law.
		If a patent holder discovers infringement, royalties could only be collected once the infringer has been notified and given reasonable opportunity to remove the infringing code, or enter into a royalty agreement with the patent holder.
		Patents could not be used as a speculation commodity, and innovators would be free of unknown and unknowable legal traps.
	www.moonviewscientific.com /essays/patents.htm (1261 words)

	Navigating the patent maze: Court Decisions (Site not responding. Last check: 2007-10-07)
		In U.S. patent law practice, an "opinion" is either a "non-infringement opinion" (you are not infringing the patent in question) or an "invalidity opinion" (the patent in question is invalid because of prior art) and serves a singular purpose: to protect the client against charges of willful infringement.
		For several reasons, the number of submarine patents is diminishing: the U.S. now has a patent term of 20 years counted from the date of filing, and for the most part, patent applications are published 18 months after filing.
		Patent applications he filed in the mid-1950s and that were granted between 1978 and 1994 are now being asserted against manufacturers of bar code readers and machine vision systems.
	lorac.typepad.com /patent_blog/court_decisions (3169 words)

	Submarine Patents Surface in Aftermarket Litigation: (Site not responding. Last check: 2007-10-07)
		Patents are often asserted as a tremendous barrier to entering the markets in which remanufacturers want to compete.
		A submarine patent is one kept submerged in the patent application process for years while the owner of the patent waits for market trends to develop.
		When those trends become clear to the owner, the patent surfaces in the way most favorable to the owner, who has a priority from the date it was first filed.
	www.rechargermag.com /article.asp?id=199802053 (299 words)

	Wray & Associates (Site not responding. Last check: 2007-10-07)
		Until recently it was the situation in the United States that the specification of a US patent application was maintained confidential by the Patent Office and that the specification only became public when a patent was granted on the application.
		In addition US patent law enabled an applicant to keep an application pending for an unlimited period of time (and keeping the original application from proceeding to grant) by filing a series of continuing applications which all have priority to the original application.
		Therefore it was possible for a patent applicant to maintain a US patent application for an invention pending and secret for a considerable period of time before the patent issued.
	www.wray.com.au /article_26.htm (362 words)

	DEPO.com, Atkinson Baker - Nationwide Court Reporters and Deposition Reporting: reporters, rooms, video and translation ...
		These are patents which "remain 'submerged' during a long ex parte examination process and then 'surface' upon the grant of the patent," allowing the patent holder to "demand high royalties from non-patent holders who invested and used the technology not knowing that patent would later be granted." DiscoVision Assocs.
		By the time these patents finally issued between 1978 and 1994, bar-code devices had been developed and were in widespread use in retail establishments, in factories for inventory management and many other applications.
		Although Lemelson's patents did not contribute to the development of these devices, and in fact were issued after these devices were broadly in use, under pre-1994 patent law he was able to take advantage of the 1954 and 1956 filing dates to claim his devices predated other patents.
	www.depo.com /torpedoing.htm (596 words)

	"Down But Not Out," Feature Article, October 2004
		At times, his applications were given restrictions by the patent examiner, which meant that the application contained claims to more than one invention and therefore must be divided up in multiple patents.
		The patent had been decades in prosecution because of delays caused by restrictions, continuations, and interference proceedings (which are essentially interparty contests within the patent office between patent applicants to determine the first inventor of a claimed invention).
		The patent shows a filing date of Dec. 31, 1990, but in the "related applications" section, there are 20 other Lemelson applications, dating back as far as July 1954, of which this is a continuation-in-part.
	www.memagazine.org /contents/current/features/downbut/downbut.html (2120 words)

	InventorEd's Inventor Resource Internet Pages. Information about inventing, inventors, obtaining a patent, and ...
		The patent submariner does not disclose _anything_ to the public until the public has been lead to believe it is _public domain_.
		In sum: A first "machine vision" patent was published (thereby meeting the "exchange") in 1963, but a reticent examiner prevented issuance of additional claims, and L was required to appeal twice to the Board of Appeals.
		The "submarine patent" idea was invented by Japanese litigation opponents, and American companies like Ford have "run with it." L is repeatedly offered as the "poster boy" of submarining.
	www.inventored.org /inventors/Lemelson/hoffman-submarines.html (1350 words)

	IP & the Internet - Patents pg. 2 (Site not responding. Last check: 2007-10-07)
		In general, submarine patents can be especially hazardous and expensive when a simple program can contain a million lines of code, and if even a few of those lines are similar to what is eventually protected by a patent, the whole program can be found to be infringing.
		The man most associated with the “submarine patent” was Jerome Lemelson, who died in 1997 at the age of 74.
		Patent infringement lawsuits can be very expensive, with the average suit costing about $2-5 million or more to prosecute or defend.
	www.elywsluder.com /IP_patents_2.htm (2000 words)

	Rambus in Court
		Patents derived by submarine tactics may or may not be enforceable depending upon the situation.
		In the case of Rambus Inc.'s SDRAM patents, a strong argument can be made that the patents will be rendered invalid by the current court case.
		It was not until the year 2000 that Rambus began to flex its patent muscle in the marketplace.
	www.kickassgear.com /Articles/rambus_in_court.htm (710 words)

	FTC 2002: Hearings on Anti-Competitive Effects of Patents (Site not responding. Last check: 2007-10-07)
		Patent scope is adequate, antitrust laws should not "artificially" restrict patent rights, the courts should be free to decide, PTO should be given more money, etc.
		For software it agrees than patents do not incentivate innovation, and competition does, but it says the patent system should not be changed, instead antitrust law should be applied to software patents (and other).
		Proposes abolishing patent examination and shifting to a registration system with penalties for patents which are invalidated in court.
	swpat.ffii.org /papers/ftc02/index.en.html (982 words)

	W3C makes patent ban final \| Tech News on ZDNet (Site not responding. Last check: 2007-10-07)
		Patents have been a flashpoint in a battle between the open-source community and proprietary software companies.
		Bruce Perens, a prominent patent foe and a participant in the W3C's deliberations, applauded the move, while warning that the consortium had left its process vulnerable to "submarine" patents.
		One such threat is the so-called submarine patent, which is a patent filed, but not granted, at the time a W3C technical recommendation is under construction.
	news.zdnet.com /2100-3513_22-1008800.html (942 words)

	Wired News: New Quest: Mapping Gene Patents
		That was the consensus of genetic patent experts Monday at the Genome Tri-Conference in San Francisco.
		The biggest enemy of scientific progress, the experts said, are so-called "stealth" patents -- those which are filed on genes that researchers have located, but haven't discovered their function.
		In January, the U.S. Patent and Trademark Office finalized guidelines forbidding stealth patenting, but finding these patents will be a long process.
	www.wired.com /news/technology/0,1282,42214,00.html (705 words)

	[No title] (Site not responding. Last check: 2007-10-07)
		!100594 Another Lemelson "submarine" software patent For those of you who have fans of Jerome Lemelson, here is yet another of his "submarine" patents that issued, with a continuation/division chain back to 1954.
		For those of you who hate submarine patents, your fears of lawsuits will be well fed by the claims to this patent, which are infringed by most of US industry.
		The detector generates analog image signals resulting from the detected radiation, and an electronic computer process and analyzes the analog signals and generates digital codes, which may be stored or employed to control a display.
	www.ibiblio.org /patents/txt/100594.txt (266 words)

	Overlawyered: Submarine patents run aground
		Big news from federal court in Nevada: U.S. District Judge Philip Pro ruled that the estate of deceased inventor Jerome Lemelson "can't enforce 14 patents relating to machine vision and bar-code technologies because the prolific inventor and his estate waited too long to pursue the alleged infringers.
		The so-called 'submarine patents' are invalid, Pro ruled, and are not infringed by products made by Symbol Technologies Inc. and Cognex Corp." (Brenda Sandburg, "Judge Torpedoes Dead Inventor's Patent Claims", The Recorder, Jan.
		Jesse Jenner, a Fish & Neave attorney who represents Symbol and Cognex, told The Reporter that defendant companies have paid Lemelson interests an estimated $1.5 billion in the face of threatened or actual litigation.
	www.overlawyered.com /archives/000769.html (170 words)

	Patents (Site not responding. Last check: 2007-10-07)
		In an ideal situation, a patent promotes cooperation because the inventor is protected from exploitation, compensated for use of their invention, and therefore does not have to keep their invention secret - can even 'advertise' what they have to offer (This is one function of a Tech Transfer Department at a University).
		Among the patent’s claims is the invention of a monoclonal antibody that bind to a cell surface receptor called c-erbB-2, also known as HER-2, the same target that Genentech’s Herceptin binds.
		In the past, patenting of a gene sequence was allowed based on general claims such as using the sequence as a probe; now, such a general claim would be insufficient.
	www.biology.iupui.edu /biocourses/Biol540/11patents2k1.html (1568 words)

	definition of submarine patent from Double-Tongued Word Wrester Dictionary
		D2: Occasionally, patents take a decade or two to be granted because they are held up in appeals and amendments in the Patent Office.
		Such patents are sometimes referred to as submarine patents.
		Special attention is paid to the lending and borrowing of words between the various Englishes and other languages, even where a word is not a fully naturalized citizen in its new language.
	www.doubletongued.org /index.php/submarine_patent/P30 (390 words)

	H.R.400 / S.507, PATENT & TRADEMARK OFFICE AND MULTINATIONALS HAVE SIMILAR GOALS: AMERICAN PATENT SYSTEM ABOUT TO BE ...
		The Japanese patent office held up the issuance of his patent for 29 years and after it's release Japanese courts ruled that the patent does not apply to current chip design.
		For important patents the majority of the income is generated near the end of the patent term.
		A GAO report of 1995 patent pendancy showed that slightly over thirty percent of all patent applications have continuations, and that the average pendancy of that group of patents was 47.2 months.
	riley.rjriley.net /multinationals (7845 words)

	MassLawBlog.Com » Submarines Sunk, Again
		Lemelson, perhaps the greatest exponent of what became known as “submarine patents” (since the applications stayed below the surface, unasserted and unseen until they matured into patents many years later and then used to attack others) was able to garner an incredible amount of patent royalties.
		Ask the dozens of companies he sued over the years for alleged patent infringement, and observers of developments in patent law, and they may tell you that Lemelson’s most significant (and lucrative) invention was how to game the U.S. patent system.
		So it may be that the era of “submarine patents” was already drawing to a close, thanks to a change in the patent statute, but the Federal Circuit has now declared it officially dead.
	www.masslawblog.com /?page_id=29 (916 words)

	Patently-O: Patent Law Blog: Submarine patent
		George Graff and Adam Kraidin have written a concise article for the Washington Legal Foundation that neatly summarizes current law on submarine patents.
		Submarine patents use successive continuation applications to claim previously disclosed but unclaimed features of an invention many years after the filing of the original application.
		Lemelson systematically extended the pendency of his applications by sitting on his rights, and sequentially filing one application at a time, so that he could maintain their pendency while waiting for viable commercial systems to be designed and marketed; and
	patentlaw.typepad.com /patent/2004/05/submarine_paten.html (373 words)

	Lackenbach Siegel today! Fall 2004 Newsletter (Site not responding. Last check: 2007-10-07)
		Submarine Patents are those patent applications intentionally prosecuted for long periods in secret by filing a series of “continuation” applications, to delay ultimate grant and add additional claims.
		The patents were held unenforceable under the doctrine of prosecution laches, a seldom used equitable remedy recognized first by the Supreme Court over 150 years ago in Kendall v.
		The Patent Office has now recognized that when the Board “remands” noting the weakness of a final patent rejection, the Examiner often sua sponte decides to withdraw the rejection and allow the patent to issue rather than respond to the issues raised by the Board.
	www.cyburban.com /~tarbeaty/ftp/Lackenbach/LS-FALL04NL-1.html (3432 words)

	Technocrat.net \| The Problem of Software Patents in Standards (Site not responding. Last check: 2007-10-07)
		--> Patents, originally created to stimulate innovation, may now be having the opposite effect, at least in the software industry.
		Which is not to say that we should not be fighting software patents tooth and nail.
		Then, when Europe is able to "innovate" more and really create a competetive system that causes the US software industry to lose its market domination, I expect that you may see some of those lobbyists working to get the patent laws changed to something the F/OSS community would like more.
	technocrat.net /article.pl?sid=04/11/08/1640206 (7241 words)

	patents: case 7 (Site not responding. Last check: 2007-10-07)
		Lemelson has filed around 500 patents and spends most of his time finding ways that companies may have infringed on his patents.
		Litigation such as Lemelson's has caused patent lawyers to seek a change in patent terms to start from the date of application rather than issuance of the patent.
		Lemelson's case against Ford was dismissed on the grounds that Lemson was producing "submarine" patents.
	www.me.utexas.edu /~me179/topics/patents/case7.html (217 words)

	They Claim The Workings of The Web
		Unicast executives refused to be interviewed for this story, but when the patent was awarded, CEO Richard Hopple boasted to news media that the patent covers the method used to serve all rich media and Flash-based content.
		Such gotchas are inherent in the U.S. patent system, said Douglas Kline, chair of the Patent and Intellectual Property Practice Group at the Boston law firm Testa, Hurwitz & Thibeault, because a claimant doesn't need to prove intent to infringe.
		In some situations, patents can have a destructive effect on commerce, according to William Abrams, co-chair of the intellectual property group of the law firm Pillsbury Winthrop.
	www.internetnews.com /bus-news/article.php/3318751 (888 words)

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