Federal Circuit Finds Software Patent Claim Patent Eligible

By Gene Quinn
December 5, 2014

Judge-Ray-Chen-10-2014

Judge Ray Chen

Earlier today the United States Court of Appeals for the Federal Circuit issued a ruling in DDR Holdings, LLC v. Hotels.com, L.P. The appeal was brought by defendants National Leisure Group, Inc. and World Travel Holdings, Inc. (collectively, NLG), who appealed from a final judgment of the United States District Court for the Eastern District of Texas entered in favor of DDR Holdings. Following trial, a jury found that NLG infringed the asserted claims of U.S. Patent Nos. 6,993,572 and 7,818,399. The jury also found the asserted claims of the ’572 and ’399 patents were not invalid and awarded $750,000 in damages.

On appeal to the Federal Circuit, in an opinion written by Judge Chen and joined by Judge Wallach, determined that the asserted claims of the ’572 patent were anticipated under 35 U.S.C. § 102(a) and, therefore, vacated the award of damages and prejudgment interest to DDR, which had been collectively premised on infringement of the ’572 and ’399 patents and without apportionment.

Of particular interest, the Federal Circuit found that the ‘399 patent constituted patent eligible subject matter, was not invalid and was infringed. This is big news because in the wake of the Supreme Court’s decision in Alice v. CLS Bank software patents have been falling at alarming rate. Assuming this decision stands any further review we finally have some positive law to draw from that will provide clues into how to tailor patent claims to make them capable of overcoming what has become a significant hurdle to patentability— namely the abstract idea doctrine.

 

A Patent Eligible Software Claim

The ’399 patent’s claims address the problem of retaining website visitors. In the routine scenario, a website visitor who comes across a hyperlink they wish to follow would click on the link and would be instantly transported away from a host’s website. With the invention at issue deployed, a user who would activate a hyperlink would not be transported away, but rather would be directed to an “outsource provider” having a web server which directs the visitor to an automatically-generated hybrid web page that combines visual “look and feel” elements from both the host website and the third-party merchant’s website. Therefore, the host website does not instantly losing visitors to the third-party’s website.

System claim 19 of the ’399 was deemed to be representative and recites:

A system useful in an outsource provider serving web pages offering commercial opportunities, the system comprising:

(a) a computer store containing data, for each of a plurality of first web pages, defining a plurality of visually perceptible elements, which visually perceptible elements correspond to the plurality of first web pages;

(i) wherein each of the first web pages belongs to one of a plurality of web page owners;

(ii) wherein each of the first web pages displays at least one active link associated with a commerce object associated with a buying opportunity of a selected one of a plurality of merchants; and

(iii) wherein the selected merchant, the outsource provider, and the owner of the first web page displaying the associated link are each third parties with respect to one other;

(b) a computer server at the outsource provider, which computer server is coupled to the com- puter store and programmed to:

(i) receive from the web browser of a computer user a signal indicating activation of one of the links displayed by one of the first web pages;

(ii) automatically identify as the source page the one of the first web pages on which the link has been activated;

(iii) in response to identification of the source page, automatically retrieve the stored data corresponding to the source page; and

(iv) using the data retrieved, automatically generate and transmit to the web browser a second web page that displays: (A) information associated with the commerce object associated with the link that has been activated, and (B) the plurality of visually perceptible elements visually corresponding to the source page.

According to Judge Chen, the claims of the ‘399 patent stand apart from other software patent claims because these claims “do not merely recite the performance of some business practice known from the pre-Internet world along with the requirement to perform it on the Internet. Instead, the claimed solution is necessarily rooted in computer technology in order to overcome a problem specifically arising in the realm of computer networks.”

This broad statement seemingly stands in contrast to the Federal Circuit’s recent ruling in Ultramercial v. Hulu. Obviously mindful of this fact, Judge Chen quickly cautioned that this ruling was not to be interpreted as saying that all patent claims that address an Internet-centric problem are patent eligible. Judge Chen then attempted to distinguish the ruling in Ultramercial, saying:

The ’399 patent’s claims are different enough in sub- stance from those in Ultramercial because they do not broadly and generically claim “use of the Internet” to perform an abstract business practice (with insignificant added activity). Unlike the claims in Ultramercial, the claims at issue here specify how interactions with the Internet are manipulated to yield a desired result—a result that overrides the routine and conventional sequence of events ordinarily triggered by the click of a hyperlink… When the limitations of the ’399 patent’s asserted claims are taken together as an ordered combination, the claims recite an invention that is not merely the routine or conventional use of the Internet.

It is also clear that he claims at issue do not attempt to preempt every application of the idea of increasing sales by making two web pages look the same, or of any other variant suggested by NLG. Rather, they recite a specific way to automate the creation of a composite web page by an “outsource provider” that incorporates elements from multiple sources in order to solve a problem faced by websites on the Internet.

While I agree with the ruling on patent eligibility in this case, I’m not entirely sure how one could reach different outcomes in this case versus Ultramercial. The representative claim in Ultramercial was claim 1 of U.S. Patent 7,346,5455, which reads as follows:

A method for distribution of products over the Internet via a facilitator, said method comprising the steps of:

a first step of receiving, from a content provider, media products that are covered by intellectual property rights protection and are available for purchase, wherein each said media product being comprised of at least one of text data, music data, and video data;

a second step of selecting a sponsor message to be associated with the media product, said sponsor message being selected from a plurality of sponsor messages, said second step including accessing an activity log to verify that the total number of times which the sponsor message has been previously presented is less than the number of transaction cycles contracted by the sponsor of the sponsor message;

a third step of providing the media product for sale at an Internet website;

a fourth step of restricting general public access to said media product;

a fifth step of offering to a consumer access to the media product without charge to the consumer on the precondition that the consumer views the sponsor message;

a sixth step of receiving from the consumer a request to view the sponsor message, wherein the consumer submits said request in response to being offered access to the media product;

a seventh step of, in response to receiving the request from the consumer, facilitating the display of a sponsor message to the consumer;

an eighth step of, if the sponsor message is not an interactive message, allowing said consumer access to said media product after said step of facilitating the display of said sponsor message;

a ninth step of, if the sponsor message is an interactive message, presenting at least one query to the consumer and allowing said consumer access to said media product after receiving a response to said at least one query;

a tenth step of recording the transaction event to the activity log, said tenth step including updating the total number of times the sponsor message has been presented; and

an eleventh step of receiving payment from the sponsor of the sponsor message displayed.

I suppose it is somewhat fair to say that the claim language used in the ‘545 patent is more typical, generic method language (i.e, selecting, providing, offering, allowing, etc.) and the claim language used in the ‘399 patent is at least marginally more specific (i.e., “in response… automatically retrieving”), but this seems like a very thin difference and a difference that is not at all likely to lead to a repeatable and consistent test that can be applied in a predictable way. I don’t think it is fair to say that the claim language describes “how interactions with the Internet are manipulated to yield a desired result.” That level of detail would require code, or at least detailed algorithms. Therefore, I think the difference Judge Chen is seeing is more about philosophy than about anything else.

 

Judge Mayer in Dissent

There was a dissent filed in this case, authored by Judge Mayer, who continues to make a name for himself as the most anti-patent Judge on the Federal Circuit. His considered opinion was that the claims asserted are not patent eligible because they cover no more than “an abstract concept—that an online merchant’s sales can be increased if two web pages have the same ‘look and feel’—and apply that concept using a generic computer.”

Mayer also further wrote: “Alice made clear that claims untethered to any advance in science or technology do not pass muster under section 101.” This is not the first time that Judge Mayer has taken a similar stand. In his concurring opinion in I/P Engine, Judge Mayer wrote: “Alice thus made clear that abstract ideas untethered to any significant advance in science and technology are ineligible for patent protection…” Recently in The California Institute of Technology v. Hughes Communications (Case No. 2:13-cv-07245-MRP-JEM), Judge Mariana Pfaelzer of the United States Federal District Court for the Central District of California, Western Division, pointed out that the Supreme Court Alice decision said nothing of the kind. Judge Pfaelzer correctly wrote:

[Judge Mayer’s] view overstates Alice’s holding. Alice held that an abstract business method remains abstract even if it is implemented on a generic computer performing generic functions. But Bilksi refused to hold that business method patents are ineligible, and a technological requirement seems to contradict [the Bilski] holding. At the very least, reading a technological requirement into § 101 is inconsistent with the section’s plain language.

Put aside for a moment that there is absolutely no support for what Judge Mayer writes in the statute, which I realize doesn’t mean much because it is apparent from Supreme Court decisions that they don’t actually read the statute before interpreting it. That notwithstanding, if you actually take the time to read Bilski you should reach the inescapable conclusion that the Supreme Court specifically left open the possibility that a business method that did not satisfy the machine-or-transformation test could still be patent eligible. This is significant because the transformation prong dealt with real-world tangible methods, which could not be applicable to business methods. Thus, the Supreme Court explicitly explained that a business method may be patent eligible even if not tethered to a machine! Thus, Judge Mayer is simply incorrect when he says the Supreme Court has required a technological requirement. They have not. Not in Bilski and not in Alice. In fact, if there were a technology requirement at least the system claims in Alice would have been found to be patent eligible because the inventor created a system to solve a problem.

 

Conclusion

While this decision today will hardly settle the law as applied to software patent claims and computer implemented methods and associated system claims, one thing we can know with great certainty is that Judge Mayer will rule against the patent owner and say that the claims in question are patent ineligible. He might as well have a rubber stamp made. We also know that he will continue to say that there is some scientific and technology requirement that only he seems to see. Even the Judges who otherwise agreed with him in Ultramercial weren’t willing to go out on that limb, which is telling. So no matter how many times he writes it won’t make it true.

The Author

Gene Quinn

Gene Quinn is a Patent Attorney and Editor and founder of IPWatchdog.com. Gene is also a principal lecturer in the PLI Patent Bar Review Course and an attorney with Widerman Malek. Gene’s specialty is in the area of strategic patent consulting, patent application drafting and patent prosecution. He consults with attorneys facing peculiar procedural issues at the Patent Office, advises investors and executives on patent law changes and pending litigation matters, and works with start-up businesses throughout the United States and around the world, primarily dealing with software and computer related innovations. is admitted to practice law in New Hampshire, is a Registered Patent Attorney and is also admitted to practice before the United States Court of Appeals for the Federal Circuit. CLICK HERE to send Gene a message.

Warning & Disclaimer: The pages, articles and comments on IPWatchdog.com do not constitute legal advice, nor do they create any attorney-client relationship. The articles published express the personal opinion and views of the author and should not be attributed to the author’s employer, clients or the sponsors of IPWatchdog.com. Read more.

Discuss this

There are currently 28 Comments comments.

  1. in-house December 5, 2014 4:41 pm

    Judge Chen seems to be of the opinion that Alice stood for [old idea] + generic computer /= satisfy 101, but [new enough idea] + generic computer can be enough to satisfy 101.

    I agree completely that this doesn’t seem at all consistent with Ultramercial.

    I shudder to think what would happen en banc – I fear another CLS like opinion.

    In any event, software is alive and well.

  2. in-house December 5, 2014 4:45 pm

    Another important part of the decision is that software functionality can be the “something more” in Part 2 of the test. As much as some mouthpieces beat the drum, we are a long way away from requiring “novel hardware” to satisfy 101.

  3. Gene Quinn December 5, 2014 4:53 pm

    in-house-

    I agree with you, we are a long way from “novel hardware” being required to satisfy 101. Clearly the Supreme Court envisioned the possibility in Bilski that even a naked business method could be patent eligible. Truthfully, I don’t think they had any idea what they were saying when they left open the possibility, which is more about killing a bright-line test that wasn’t invented by the Royal 9.

    -Gene

  4. Anon2 December 5, 2014 5:13 pm

    There should still be room for adapting a generic computer in a novel way to solve a known problem or bring an old idea into practice in a new arena.

    Iron and copper are generic and can “do anything” mechanical… the same way a generic computer can do anything information technology wise. Inventions from the industrial revolution solving old known problems or addressing the abstract with a new configuration were not dismissed as “only metal”.

    It should not matter what a computer CAN do, it matters what you ACTUALLY DO WITH it.

  5. Curious December 5, 2014 5:17 pm

    I’ll raise a glass to Chen’s (and Wallach’s) health sometime tonight.

    Somewhere (perhaps on the blog that stars with a P and ends with an O), teeth will be gnashing furiously.

  6. Anonymous December 5, 2014 7:01 pm

    Interesting choice of case as well. Low enough damages that the parties may just settle instead of pursuing the 101 issue en banc or in the supreme court.

  7. Anon December 5, 2014 7:33 pm

    Would I ruin the party if I were to remind everyone that the Court has already ruled that novel hardware is not enough under 101?

    The meeting of the machine prong of 101 was a stipulation made by both parties in the Alice case. The Court basically said “We don’t care” and ruled the machine ineligible.

    (and yes, they did this as a “rise and fall together” with any associated other statutory categories – bottom line being that meeting a statutory category in and of itself is meaningless; even if doing so is done with ‘the item’ being novel)

  8. patent leather December 5, 2014 8:57 pm

    Gene, thanks I hadn’t heard about this one until now. Chalk one up for Gene for covering an important case before the “other” patent blog. I’ll have to read this carefully tonight, but I am excited that apparently software isn’t dead yet. Considering his age, Mayer may die before software patents do, hehe

  9. Curious December 5, 2014 9:25 pm

    Chalk one up for Gene for covering an important case before the “other” patent blog
    No coverage yet … although the whining (from the whiner-in-chief) has already begun. Time to get my popcorn ready.

  10. patent leather December 6, 2014 12:56 am

    The dissent is more interesting than the majority opinion. Mayer says, “Alice made clear that claims untethered to any advance in science or technology do not pass muster under section 101. 134 S. Ct. at 2359. ”

    The portion of Alice Mayer refers to (I think) on page 2359 is, “In light of the foregoing, see supra, at 11–14, the relevant question is whether the claims here do more than simply instruct the practitioner to implement the abstract idea of intermediated settlement on a generic computer. They do not. ”

    Did Alice really make it clear that a claim must recite an advance in science or technology to pass 101? NO IT DID NOT.

  11. Rick December 6, 2014 9:07 am

    I do not see this as inconsistent with Ultramercial. Judge Chen clearly explained the difference the DDR claims “do not merely recite the performance of some business practice known from the pre-Internet world along with the requirement to perform it on the Internet. Instead, the claimed solution is necessarily rooted in computer technology in order to overcome a problem specifically arising in the realm of computer networks.”

    The DDR claims address an issue that is specific to the operation of the internet (i.e. preventing eyeballs from leaving a website when a user clicks on a link that would typically take the user to a new website, without changing the user experience) whereas the Ultramercial claims are directed to merely using the internet as a vehicle to perform a function that can be performed without a computer (e.g. making someone read or watch something before allowing them to make a purchase – this is SOP for timeshare sales and many other types of sales).

  12. EG December 6, 2014 10:31 am

    Gene,

    It is good to finally have a decision like DDR that says where the patent-eligibility “zone” is finally. But the problem still lies with the utterly broken Alice test which provides no guidance on: (1) what is an “abstract idea”; and (2) what “more” needs to be added to reach the eligibility zone. Also, the Royal Nine saying that simply implementing a process/method on a generic computer isn’t enough for patent-eligibility is technologically absurd; without software making that generic computer perform that process method, that generic computer is nothing more than a glorified “desk ornament.”

  13. Eric P. Mirabel December 6, 2014 5:00 pm

    The problem I’ve experienced post-Alice in prosecution is that any computer reference in a claim becomes the focus of the Examination, and everything else is called “routine and conventional” or “insignificant post-solution activity.” In the current system, the Examiner’s risk and their art unit’s and SPE’s risk, is in issuing a patent that turns out to be invalid — not in getting reversed on appeal to the PTAB. Hopefully this will help a lot. We should try to get updates to the examination guidelines based on it.

  14. patent leather December 6, 2014 10:01 pm

    Wallach surprised me here. I don’t know much about his views on 101 (other than he was on the Lourie side in Alice) but he doesn’t have much experience with these sorts of things. I don’t think he has the experience and knowledge to chart his own course in these complex 101 waters, so he had a choice to make: 1) side with an old, anti-patent senior judge who probably puzzles some other Fed Circuit judges with his extreme anti patent views, or 2) side with a new, young, highly respected and well qualified judge who came from the PTO and obviously knows these waters. Wallach made the wise choice here.

    This could have easily gone the other way depending on who was on the panel. As we all predicted, the panel dependency of 101 cases continues. The best thing would be for the Supreme Court to grant cert. and then affirm this ruling with an articulate test. Problem is, the Supreme Court is much more likely to grant cert when they want to reverse, so that will probably not happen.

  15. Richard L December 8, 2014 11:49 am

    Nice Job Louis H

    And , I wonder if Mayer and Schumer are good friends

  16. Anon December 8, 2014 1:37 pm

    I do not think that we will see a “bff” letter from Mayer.

  17. Curious December 8, 2014 2:00 pm

    I wonder if Mayer and Schumer are good friends
    Doubtful. Mayer was appointed by Reagan in 1987 and has been on “senior status” for the last four years. I hate to say it, but Mayer is a dinosaur that came to age when computers were more science fiction and less reality … a time when the economic engine of the US was driven by coal-filed blast furnaces making “technological stuff” that one could put his hands on — very unlike the economic engine of today which is driven by electrons in semiconductors (and uses thereof). This is where Mayer’s anti-patent bias is derived from.

    From Wiki, “Schumer’s top nine campaign contributors are all financial institutions.” Financial institutions are squarely in the realm of “business method patents” and have every incentive to destroy patents in this realm. Obviously, this is where Schumer’s anti-patent bias comes from.

  18. Richard L December 8, 2014 2:02 pm

    Clearly is Correct!! I think he is trying to secure his retirement plan

  19. Ray M. December 8, 2014 9:48 pm

    The majority opinion further illustrates that Alice is untenable. 101 eligibility is now a 102 test.

  20. Matt December 8, 2014 11:20 pm

    How do we think this will effect the enbanc currently before the court on the ip engine v google?

  21. Gene, but not Gene Q December 9, 2014 4:10 pm

    My opinion of which elements of the claims discussed are NOT ABSTRACTIONS follows. I think Judge Chen’s decision should stand. The other patent’s non-abstract portion is too thin to qualify the claim as valid.

    A system useful in an outsource provider serving web pages offering commercial opportunities, the system comprising:
    (a) a computer store containing DATA, FOR EACH OF A PLURALITY OF FIRST WEB PAGES, DEFINING A PLURALITY OF VISUALLY PERCEPTIBLE ELEMENTS, WHICH VISUALLY PERCEPTIBLE ELEMENTS CORRESPOND TO THE PLURALITY OF FIRST WEB PAGES;
    (i) wherein each of the first web pages belongs to one of a plurality of web page owners;
    (ii) wherein each of the first web pages displays at least one active link associated with a commerce object associated with a buying opportunity of a selected one of a plurality of merchants; and
    (iii) wherein the selected merchant, the outsource provider, and the owner of the first web page displaying the associated link are each third parties with respect to one other;
    (b) a computer server at the outsource provider, which COMPUTER SERVER IS COUPLED TO THE COMPUTER STORE AND PROGRAMMED TO:
    (i) RECEIVE from the web browser of a computer user A SIGNAL INDICATING ACTIVATION OF ONE OF THE LINKS displayed by one of the first web pages;
    (ii) AUTOMATICALLY IDENTIFY AS THE SOURCE PAGE THE ONE OF THE FIRST WEB PAGES ON WHICH THE LINK HAS BEEN ACTIVATED;
    (iii) IN RESPONSE TO IDENTIFICATION OF THE SOURCE PAGE, AUTOMATICALLY RETRIEVE THE STORED DATA CORRESPONDING TO THE SOURCE PAGE; and
    (iv) using the data retrieved, AUTOMATICALLY GENERATE AND TRANSMIT to the web browser a second web page that displays: (A) information associated with the commerce object associated with the link that has been activated, and (B) THE PLURALITY OF VISUALLY PERCEPTIBLE ELEMENTS VISUALLY CORRESPONDING TO THE SOURCE PAGE.

    A method for distribution of products over the Internet via a facilitator, said method comprising the steps of:
    a first step of receiving, from a content provider, media products that are covered by intellectual property rights protection and are available for purchase, wherein each SAID MEDIA PRODUCT BEING COMPRISED OF AT LEAST ONE OF TEXT DATA, MUSIC DATA, AND VIDEO DATA;
    a second step of selecting a sponsor message to be associated with the media product, said sponsor message being selected from a plurality of sponsor messages, said second step including accessing an activity log to verify that the total number of times which the sponsor message has been previously presented is less than the number of transaction cycles contracted by the sponsor of the sponsor message;
    a third step of providing the media product for sale at an Internet website;
    a fourth step of restricting general public access to said media product;
    a fifth step of offering to a consumer access to the media product without charge to the consumer on the precondition that the consumer views the sponsor message;
    a sixth step of receiving from the consumer a request to view the sponsor message, wherein the consumer submits said request in response to being offered access to the media product;
    a seventh step of, in response to receiving the request from the consumer, facilitating the display of a sponsor message to the consumer;
    an eighth step of, if the sponsor message is not an interactive message, allowing said consumer access to said media product after said step of facilitating the display of said sponsor message;
    a ninth step of, if the sponsor message is an interactive message, presenting at least one query to the consumer and allowing said consumer access to said media product after receiving a response to said at least one query;
    a tenth step of recording the transaction event to the activity log, said tenth step including updating the total number of times the sponsor message has been presented; and
    an eleventh step of receiving payment from the sponsor of the sponsor message displayed.

  22. Anon December 9, 2014 4:40 pm

    which elements…
    portions…

    Gene, but not Gene Quinn, did you sleep at a Holiday Inn last night?

  23. Techlover1 December 9, 2014 11:50 pm

    This sounds to me like EOLAS 2.0. Embedding an iframe on a web page has been around much longer than this patent. If you notice the truly eligible software patents are never just stumbled upon by a high school webmaster.

  24. Curious December 10, 2014 8:23 am

    Embedding an iframe on a web page has been around much longer than this patent.
    That isn’t being claimed.

    If you notice the truly eligible software patents are never just stumbled upon by a high school webmaster.
    If you notice, almost all software engineers (without training) upon being presented with a patent have little idea as to what is being claimed. Don’t worry, I see the same problem with lay attorneys, judges, and even some patent attorneys.

  25. Techlover1 December 10, 2014 5:36 pm

    Some software patents have over 500 claims. I can guarantee that there is no way that all 500 claims are new inventions. Unfortunately just allegedly infringing on a single claim will cost $1M to defend. I’ve seen independent claims in patents that are teaching simple subtraction. The problems we face are:

    1) there is no way to know if and independent claim is an existing invention with added dependent claims or an actual new invention.

    2) what differentiates the invention from any prior art.

    3) specific protocols. For example any software after 1995 works on the Internet because you can operate it using meta frame.

    4) chocolate and peanut butter. When is combining others work a new invention. Is putting a tv inside a urinal a new invention?

    5) imagine if I were a lawyer and could patent many legal arguments. How would you do your jobs? It’s very difficult to keep up on every single patent claim on every patent.

  26. Curious December 10, 2014 11:19 pm

    Some software patents have over 500 claims. I can guarantee that there is no way that all 500 claims are new inventions.
    See … this is why I KNOW you aren’t a patent attorney since a patent attorney would NEVER make such a statement. Generally (with some exceptions) 1 patent = 1 invention — no matter the number of claims. Different claims in a patent are just different ways of describing (not the proper word but good enough in this context) the invention.

    Unfortunately just allegedly infringing on a single claim will cost $1M to defend.
    People who spend $1M to defend a single claim are either (i) involved with technology worth a whole lot more than $1M or (ii) not particularly business savvy. I would imagine that of all the companies that ever got sued for patent infringement a tiny, tiny percentage of them spent $1M to defend the lawsuit.

    I’ve seen independent claims in patents that are teaching simple subtraction
    I’m sure there was more to it than that — again, I refer back to my comment that “almost all software engineers (without training) upon being presented with a patent have little idea as to what is being claimed.”

    there is no way to know if and independent claim is an existing invention with added dependent claims or an actual new invention
    Most inventions are improvements on old technology — which is what I believe what you are driving. If so, your use of “independent claim” and “dependent claim” misleads the reader.

    what differentiates the invention from any prior art
    Read the claim, as a whole.

    specific protocols. For example any software after 1995 works on the Internet because you can operate it using meta frame
    And your point is?

    chocolate and peanut butter. When is combining others work a new invention. Is putting a tv inside a urinal a new invention?
    Most inventions are combinations of old parts. Is it obvious to put a TV inside a urinal? It all depends upon what other people have done in the past and what it suggests to one skilled in the art at the time of the invention.

    imagine if I were a lawyer and could patent many legal arguments. How would you do your jobs?
    Well, aside from the statutory subject matter and obviousness issues, I could innovate and find a better way than the (old) patented ways of arguing in the past. I could wait 20 years at which time the invention is no longer patented (or earlier if the maintenance fees aren’t paid). I could take a license from the patent holder. Or (not that I advocate this approach), I just ignore the patent and go on my merry way knowing that the cost to sue me will far outweigh the potential damages, and hence suing me is not a good business decision.

    It’s very difficult to keep up on every single patent claim on every patent.
    So, should we give up on patents altogether for every industry (every industry has the same problem)?