That's what I thought, but towards the end of the article, the author explains himself. With supporting research which I appreciated:
> But now I cannot get behind them at all after such a clear case of patent trolling.
> [...]
> A wrap windshield on a truck? That has been around for years before Nikola Motors or Tesla Semi:
> [picture of MAN truck with similar design]
> Those types of concepts, like a mid-entry door and wrap windshield, *have been around for decades really and the fact that Nikola would patent them and sue anyone who decides to use similar ideas sounds just like patent trolling to me.
> [picture that looks like its from the 90s showing a truck with wrapped windshield]
These are design patents, not utility patents.
It's not a patent on all wrapped windshields, it's a patent on windshields that look like nikola's. The fact that someone somewhere made wrapped windshields once is irrelevant here (but would not be in utility patents)
To use a slightly crappy analogy, it's like patenting your ui, not your algorithm.
So with all that prior art, why were the patents granted? Whose responsibility is it to demonstrate novelty? Does the patent office do research for prior art? Or are producers of similar products supposed to constantly review and monitor patent applications and challenge them?
Because examiners are not incentivized toward accuracy, but volume. An examiner is in no way held to account for an overly broad patent grant, or at least wasn't when my father explained/ranted about it to me a few years ago (he's an IP attorney).
Things could have changed since we last spoke about it, though.
35 U.S.C. § 102 sets the standards for patentability. Interestingly, the relevant standards are simply statements about the condition of the world:
unless— (1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention
Patent applicants are expected to conduct prior art reviews and attempt to determine novelty, but this is done defensively - for the purposes of not wasting money on an obvious failure, or to head off anticipated claims of prior art by justifying the novel feature.
Meanwhile the patent office is expected to search for prior art and issue a rejection if found. To aid in this, there are also mechanisms for interested outsiders to contact the USPTO with evidence for rejecting a patent. Finally, someone who finds themselves infringing on a patent can file for review of the patent - this is the intended mechanism to ensure that people don't have to constantly watch for all patent applications which might harm them.
In practice, the USPTO is fairly good at rejecting things which have already been patented, or are obvious to a layman. But they often miss domain-specific developments which are either obvious to professionals (many software patents) or entered the market without being patented (apparently, this mid-door design). The ex parte re-examination system seems to have been gaining some teeth lately, but isn't sufficiently reliable to prevent patent trolling.
> Patent applicants are expected to conduct prior art reviews and attempt to determine novelty, but this is done defensively - for the purposes of not wasting money on an obvious failure, or to head off anticipated claims of prior art by justifying the novel feature.
If that’s true, patent applicants fail to meet expectations 90+% of the time.
Bogus patents like this are granted constantly. Prior art usually only comes up when there's alleged infringement, when it's used to invalidate the patent.
I'm not sure what the origin of "patent troll" is, but common sources (e.g. Wikipedia) certainly don't say it's limited to non-practicing entities.
Patent trolling is an attempt to secure patents for the purposes of making money via lawsuits or licenses far in excess of the patent's actual value, using the threat of legal costs or hefty infringement penalties. This is particularly true when the patented trait is incidental, over-general, or simply granted in error.
So where does Nikola Motors fall?
- They use the patented techniques, and those features are not clearly incidental to the product.
But...
- Their suit claims 'damages' which are a large fraction of their company's lifetime revenue, and presumably an order of magnitude above their lifetime profits.
- A quick check of the side door patent shows that extremely similar products predate the D816,004 patent by quite a lot. The line between "already exists" and "is not a non-obvious advance on what exists" is sometimes fuzzy, but it's not clear why this patent was granted.
So yes - it's a suit conducted to make money in its own right rather than prevent use, claiming unrealistic damages for a dubious patent. By most usage, that makes it patent trolling even if you make products as well.
> Their suit claims 'damages' which are a large fraction of ...
They have 6.3 billion revenue worth of pre-orders on the Nikola One.
> A quick check of the side door patent ... "is not a non-obvious advance on what exists"
It is a design patent, which covers non-functional ornamental design. Think of it as more similar to a trademark than to a regular patent. It doesn't have to be an advance on what exists, it just has to be aesthetically distinctive.
> They have 6.3 billion revenue worth of pre-orders on the Nikola One.
Yes, and their suit seeks $2 billion in damages - a large fraction of their lifetime revenue.
> It doesn't have to be an advance on what exists, it just has to be aesthetically distinctive.
Good point, my discussion of non-obvious was mistaken, and this probably does justify the wraparound window - it's not the first but it's a distinctive look. I'm still not clear on how the side door patent was granted, since it appears basically identical to designs in production many years ago, but it's not clearly unjustified.
> But now I cannot get behind them at all after such a clear case of patent trolling. > [...] > A wrap windshield on a truck? That has been around for years before Nikola Motors or Tesla Semi: > [picture of MAN truck with similar design] > Those types of concepts, like a mid-entry door and wrap windshield, *have been around for decades really and the fact that Nikola would patent them and sue anyone who decides to use similar ideas sounds just like patent trolling to me. > [picture that looks like its from the 90s showing a truck with wrapped windshield]