That is all true. Patents are a lot weaker than most people think they
are. Essentially, they don't prevent anyone from copying anything.
Beg to differ there.
Large companies are usually quite strict about compliance. They
will not put themselves into a position where they willingly fail
to adhere to a law, regulation or, as the case may be, a patent.
They only provide a presumption in court if the patent holder sues for
infringement.
There are a lot of steps that can be taken before going to the courts.
Like I wrote upstream: A "friendly" letter noting the prior art, and
asking for a royaltee-free license, can be quite effective (if that
is what you want).
If someone did get a patent on something in Knuth, in the
suit, smart people like you will testify that there was prior art, and
the patent will presumably be invalidated.
The usual procedure is: If you notice an interesting patent
application that has been published, you put it on a watch list.
If it is granted, you examine the claims (which are often quite
different from the original claims) and then decide if you want to
file an opposition within the correct timeframe, usually 9 months,
for any of the legel reasons (lack of novelty, lack of inventive
step, lack of sufficient disclosure etc). It is usually a good idea
to file many reasons, it is not possible to add them afterwards.
Then there is a lot of submissions to the patent office going
back and forth, citing literature etc.
There may be oral proceedings, and then a decision is arrived at.
If one party does not like that decision, they can appeal. Again
a lot of back and forth, and then also oral proceedings may be
possible.
For somebody with a technical background, these oral proceedings can
be weird. I've been to a few; for the first one I ever attended,
as an expert witness, the patent lawyer from our side had to resort
to slipping me little notes (saying things like "What the other
guy is saying is very good for us" to keep me from interrupting.
You have to have some sympathy for the patent examiner. They can't
possibly be knowledgeable of every development in the field, much less
in all the fields for which they are responsible. So inevitably some
patents that are later declared invalid will get through. That is what
the courts are for.
And the opposition procedure, far before that. I think it was
courts-only before the US started following what the rest of the
world was doing.
Yes, the system is broken, but attempts to fix it have so far not been
successful. :-(
There are things that are not OK, but I wouldn't say it is
completely broken.
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