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Comment by amelius | Hacker News Reader

Patent Law shouldn't block any sale. It should at most lead to reasonable financial compensation of the inventors.

If you have a patent, and I use the patent to sell a product, why shouldn't you as patent holder be able to get an injunction to prevent me from selling the product?

Also, what does 'reasonable financial compensation' mean? Consider newly patented drugs. The R&D cost is enormous, even without covering the cost of the attempts that failed to get to market. And there can be multiple patents, including the method of action and the method of synthesis.

If you have 5 patents for drug X and I infringe on 3 to make a competing drug X', do I pay less than if I infringe on all 5 patents?

(Edit after several people commented: I believe that amelius meant to include mandatory RAND-like licensing for first sale. My response should be read in that vein.)

> I use the patent to sell a product

Let's say that you are a patent holder for an über-toaster.

If some company is making über-toasters using your patent, you can stop them from using your patent for their profit. This is what patents for.

If some other company is buying used über-toasters, fixes them and re-sells them, you should not be able to stop them from re-selling fixed über-toasters.

As you and chii correctly point out, the NYT article is about resale. I believe however that amelius, with the statement "Patent Law shouldn't block any sale", meant to broaden the topic to include first sale. My comment should be viewed as commenting on that change of topic.

If amelius only meant to include re-selling equipment acquired under a valid patent license, then the phrase "It should at most lead to reasonable financial compensation of the inventors" makes no sense. Were patent rights to follow first-sale doctrine, the patent holder would receive no financial compensation for resale. Which, for the record, is fine with me.

I was remiss in not making that clear in my scenario.

It seems to me that when a patent covers a product that is sold, the sale implies a license on that patent for that product. The license is sold along with the product. So if the über-toaster is resold, the patent license is sold along with it, regardless of the number of intermediate steps.

If that's not how the law works, it's how it should work. Actually scratch that, the way it should work is to not have patents at all, since they lost their net benefit to society a long time ago (if they ever had it), but that's a whole other can of worms.

Patents are still valuable, but only for research that requires massive investments.

They also cause a lot of research not to happen, and a lot of products to not come to market. If you take a holistic view, as a society we would be better off without patents.

There is simply not enough empirical evidence to support your assertions. Every time I've asked for evidence to support similar assertions, I've gotten nothing but vague anecdotes or historical examples that have been debunked.

This is unfortunate, because there are plenty of empirical studies showing the benefits and costs of patents (search ssrn.com for "patents" and focus on the studies that use economic data). The upshot is, to date nobody has been able to say the one outweighs the other largely because they are not directly comparable.

Does the book "Against Intellectual Monopoly" not have any such examples?

http://www.dklevine.com/general/intellectual/againstfinal.ht...

This book gets cited a lot in such discussions, so I usually just respond by linking some of my previous comments that address it and related works :-)

https://news.ycombinator.com/item?id=7890441 https://news.ycombinator.com/item?id=8157206

Without patents the new pharmaceutical industry would collapse and complicated new drugs we might otherwise benefit from would be lost.

But computer software and tech startups would be much better off since patents are purely harmful to software innovation.

Which points to one obvious reform.

Again, there is not much overwhelming empirical evidence that software / tech are harmed by patents. Studies attempting to prove this have been sorely lacking. However, there was a recent study that showed that patents can be a slight drag on fields characterized by a large number of very small, incremental improvements, which can characterize a lot of software innovations. I cannot find it right now, but this was the first paper I found that actually tries to quantify the costs of patents to industries like ours.

On the other hand, there are multiple other studies showing how having a patent increases the chances of tech startups of a) receiving VC funding and b) making successful exits. I'd say it's still not clear that the software industry is being harmed more by patents than it is being benefited.

So only the rich will get patents?

"Servicise" everything. The purchase of the UBER-toaster has a web-service associated with it. Do you really want the toaster or do you want your bread toaseted? When you re "sell" the toaster the service goes with it, it cost money to provide this service, so maybe the service provider is due a portion of the resale?

That sounds like a loophole a patent infringer could easily drive a bus through. "I'm not infringing the patent, I'm just reselling these patent-infringing items that were manufactured by a company in China that - oh dear, doesn't seem to exist any more."

The key there is that the patent-infringing items were never properly authorized by the patent holder. But a patent holder should not be able to prevent the resale of items he has previously licensed appropriately. Nor, IMHO, should he be able to attach conditions to his license: a sale is a sale, and once someone has sold something his interest in it should end.

Which is no doubt why companies want to switch from sales to rentals. If I rent you a toaster (or rent software, or rent an e-book), then there's no sale, and I can keep my interest.

The normal notion of a patent is that the patent covers the creation of something, but not its use. A patent is supposed to be instructions or the specifications for the creation of some object. If you are not creating the object, you are not using the patent. Otherwise, you would need to sign a contract for buying a hammer (assuming it was patented) outlining the allowed uses.

"The normal notion of a patent is that the patent covers the creation of something, but not its use."

Quoting from http://www.nolo.com/legal-encyclopedia/improvement-patents-n... :

> New Uses for Existing Inventions

> You can also get an improvement patent for an innovation that provides a new use for an existing invention. For example, in 2000, the Federal Circuit allowed a patent for the idea of using Bag Balm -- an ointment normally used to soothe irritated cow udders -- to treat human baldness. The court found it patentable, because it's a new use of a known composition.

Quoting from http://www.ncbi.nlm.nih.gov/pmc/articles/PMC3146086/ :

> In addition to patent protection for the original compound and method of use, patents directed to new uses and treatment indications can be obtained. Developing new methods of use for identified compounds can be a successful strategy for maximizing research dollars and for increasing the commercial life.

Those sound like it's possible to patent use, in addition to the 'creation of something.'

There are several types of patents listed at http://www.uspto.gov/web/offices/ac/ido/oeip/taf/patdesc.htm . One is a patent on new varieties of plants (see https://en.wikipedia.org/wiki/Plant_Patent_Act_of_1930 ). I don't think that counts as "instructions or the specifications for the creation of some object."

You wrote: "Otherwise, you would need to sign a contract for buying a hammer (assuming it was patented) outlining the allowed uses."

I believe this is almost exactly what's at issue in the NYT article, replacing hammer with ink cartridge.

It cannot block resale. It can block first sale, if the patent holder deem it so. I don't like that, but as it is today, that's the law

The law is sort of like that. You are only given an injunction when you prove you will suffer an irreparable harm that monetary damages cannot make hole.

Before 2006 injunctions were essentially presumed, but now it's pretty hard to get an injunction in a patent case.

Your point sounds reasonable, but there's a good reason to block first sale.

Suppose I run a firm that sells custom men's clothing, that has a patent to, say, change color and temperature at the wearer's preference. Each outfit has to be personally tailored by a professional designated by our company.

Now, perhaps a high-end men's clothing retailer begins selling my clothing and tailors it in-house. The quality is comparable and they compensate my company. So far so good, right?

Well, what if quality isnt comparable? What if the stitching was improperly done and felt too tight, or unraveled over time? Even if the customer knew that the "re"-seller wasn't an official associate, the damage to our brand would already be done.

And that's why first sale should be at the discretion of the patent holder.

But there's all the laws around brand name recognition already? Why bring in patents at all?

Yeah, you can use trademark law to enforce quality control, which makes much more sense than using patents, which the product might or might not even have.

Then the question becomes whether first sale applies to trademarks, which it does, doesn't it?

I don't even see that he did bring patents in at all. It seems to be a total non-sequitur. The argument is entirely about branding. How does "...and it happens to be patented" change anything about how the quality of the secondhand product reflects on the brand?

Patent covering the ability for clothing to change color and temperature at will. I thought that point was clear.

But what does the patent have anything to do with anything? The seller would still be interested in protecting their brand even if the product wasn't patented and the patent would still exist even if the product was sold under a generic label. There is no apparent connection between the patent and the interest in protecting the brand.

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