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Hi Lloyd, Most of your message is in-line with my understanding and helpful in the context here. However, the Wikipedia reference to “submarine patent” is not.
Don’t link to the Wikipedia page for Submarine patents to get your message across. It’s misleading. Either the linking, or the page itself.
Even better, as the term Submarine patent is used inconsistently, I avoid it and I recommend others do the same. The Wikipedia page you linked to
https://en.wikipedia.org/wiki/Submarine_patent defines a submarine patent as a patent based on an application whose prosecution has been artificially delayed so to extent the duration enforceability of the patent. That was possible under the pre 1995 US
patent system (and a few other patent systems outside the US), where a patent was valid for 17 years post grant date, rather than 20 years post the earliest priority date, which is common now. Insofar, Submarine patent as defined by the Wikipedia article
are a thing of the past. This definition, AFAIK, is still predominant in the US patent lawyer community, especially their older members. The patent at issue in Dell is not a submarine patent when using above definition—its priority date was in 1989, it was granted in 1991, which was fast prosecution indeed, even for the time.
That said, many armchair lawyers in in the open source community, folks in economics, but also increasingly younger US patent lawyers and patent lawyers outside the US, use the term “Submarine patent” in the context you apparently use it
as well. They associate the term “submarine patent” with a patent that was intentionally hidden from a user community, despite knowledge of its possible applicability to the users, so to exert potentially unreasonable royalties once users are commercially
locked into the technology. That, I believe, was a driving factor in Dell, and its IMO deplorable practice. If using the term “submarine patent” in this context, don’t link to the Wikipedia page. But better, don’t use such an ambiguous term, especially
not when discussing old US case law. Stephan |
