Comment by grellas | Hacker News Reader

Comment by grellas | Hacker News Reader

Once again the Supreme Court has stepped in to curb the Federal Circuit Court and bring a level-headed interpretation to the relevant statute defining how damages are computed for infringing patent rights to a component that is part of a larger article of sale.

The precise legal issue involved here is primarily of interest to the immediate parties to the dispute (and, of course, similarly situated parties dealing with like claims). It is not a legal issue that stirs much public debate.

Yet the reining in of the Federal Circuit has major public consequences. The Federal Circuit basically has been on on a bender for the past 20+ years in interpreting the patent laws such that basically everything under the sun became patentable with the enforcement rights of patent holders utterly maximized. This led to the plethora of software and other process patents that has caused so many to throw up their hands in despair and to conclude that all patents are evil and should be abolished. Whether they should or not is a policy question for which there are decent arguments on both sides, in my view. But, assuming one agrees that patent protection can be useful for the right cases, the law is now coming around much more to the point where far more defensible patents are being granted, upheld and enforced and where such enforcement is more reasonably tailored to the purposes of patent law as envisioned in the U.S. Constitution. And that is a very good thing.

Apple is and has for years been very aggressive in attacking competitors with patent claims. In this case, their patent was upheld and the question remained as to how much they had been injured. With this decision, the U.S. Supreme Court helps ensure that Apple will get compensation but not a windfall for the wrong done to it.

Patent law may be right or it may be wrong in a social-justice sense but, as far as the U.S. law is concerned, if it is to be upheld and enforced at all, it should be done in a way that actually furthers its proper purposes and not in a way that promotes shakedown suits and opportunistic legal claims. So kudos to the Supreme Court for getting it right and for putting proper bounds on patent laws in general in a way that helps bring sanity to the field.

Beyond ethics, there's also geopolitics involved. Weaker patent guidelines in USA gives a competitive advantage to the USA over the rest of the world. Of course any country is free to submit patents as they please (in accordance with the WTO), but USA companies de facto submit more patents, the same way as a USA citizen has more indemnities in case of plane crash, which ensures an ongoing dominance for the rolling 20 years. See it this way: As a French person I'd love that your guidelines become more strict, because it would give more opportunity for the smaller French startups to grow; If I were American, I would love if patents were used to bring money back from the French companies to USA. The irony is, patent trolls attack other Americans more often than foreign countries, which hasted the debate about patent trolls.

Hence, Kudos to the Supreme Court for putting better bounds on patent laws, especially since that means losing a little leverage for American companies.

> Once again the Supreme Court has stepped in to curb the Federal Circuit Court and bring a level-headed interpretation

Surely you don't count Alice among the "level-headed" opinions? Supreme Court opinions relating to patent law almost invariably feel (to me) like they're written by a bunch of people who don't know much about patents and don't care to learn.

Alice is surprisingly workable. It's not an academically satisfying case, but having applied it in several cases now I think it is a useful analytical framework (which is miles ahead of what we had before it).

The idea of a case being an analytical framework is intriguing. Care to elaborate? (Should I just go read it? Does it propose some kind of multi-pronged test?)

It's not a multi-factor test in the sense of "weigh these four factors and then do what you were going to do anyway." It gives you a process for thinking about whether a patent covers ineligible subject matter. First, you ask: "is the patent directed to some abstract matter?" If it is, then you ask: "when the claims are considered as an ordered combination, do they add something more to the abstract idea so the patent isn't just a patent on the idea itself?"

It does a pretty good job of capturing the idea that, e.g., you can't patent "packet filtering" but you may[1] be able to patent a specific process for packet filtering that, say, minimizes how many bytes of each packet you have to process.

[1] Whether you should be able to patent a specific process for packet filtering is a different question. I'm not saying Alice is a good articulation of what the law should be. But I think it's a decent way of thinking about patents and coming up with the "right answer" as section 101 intends to define what the right answer is.

The problem is the question "is the patent directed to some abstract matter?" Because every patent claim abstracts from a particular implementation to a broader category of covered subject matter. That's literally the entire point of a claim, to capture the new idea instead of just a particular device.

Then we get into questions about whether it's an "improper" type of abstractness, which is totally unworkable and hasn't been fleshed out by the courts.

The Supreme Court should have just said what they appear to have meant--that business methods are ineligible subject matter.

Oh, come on. It's been a decade since the patent holder was in a strong position. We effectively don't have injunctions or punitive damages any more, and infringement claims get tied up in all those new post-grant review procedures.

> Oh, come on. It's been a decade since the patent holder was in a strong position.

the sharp rise of patent trolls in the last decade would like a word with you

If you believe patents make any economic sense, then the term patent troll is basically just an epithet meant for rhetorical effect.

If the function of patents is to incentive capital markets to invest in products and processes that otherwise wouldn't see any investment because of the lack of a profit motive, then patent trolls are a good thing. The whole point of a patent is to grant a monopoly. Whether a patent holder enforcing the monopoly is a non-practicing entity (NPE) is immaterial.

Indeed, by the logic of the patent system so-called trolls are an unmitigated positive. They add liquidity to the patent system. Liquidity means the patent system, theoretically, is more efficient at incentivizing research and design.

If you have a problem with patent trolls, then it means you have a problem with something _else_ fundamental to the patent system. Maybe if you followed your beliefs to their logical end, you would question the validity of the necessity of patents. Alternatively, maybe what so-called patent trolls are exposing is the fact that patents are too freely granted, or granted for too long. Or that being able to sell patents at all, whether to NPEs or other companies, is just an end-run around anti-trust laws, which would otherwise blunt how rigidly a company could leverage patent rights in a market.

In any event, there's nothing negative about patent trolls, per se. They're simply exposing fundamental flaws in the patent system. I fear that focusing on so-called patent trolls will simply result in superficial legislative and judicial solutions.

You're confused thinking that a patent troll is just a non-practicing entity.

A patent troll is not just a "non-practicing entity" - it's an organization that attempts to use a granted patent to charge tolls on a range of later invention which was neither enabled by nor anticipated by the patent.

There should be absolutely no incentive nor mechanism for patent holders to block and extract tolls from inventions they did not enable.

It's perfectly fine for a bridge builder to authorize someone else to charge tolls (a non-practicing entity), but it is unacceptable for an unrelated party (troll) to set up camp charging tolls on a bridge, just because they had an idea for a similar bridge somewhere else.

Exactly. In your definition a patent troll refers to any patent holder doing something you don't approve of, no matter that it's legal.

IOW, the term is purely rhetorical, like pro-life/pro-choice, right-to-work, etc.

Stopping so-called patent trolls could be done with real, substantive change, or it could be done superficially by rejiggering the rules so the system is less susceptible to easy criticism. That is, you can clamp down on patent trolls (i.e. high-profile abusers), without actually changing how easily patents are granted or the scope of what they encompass. And without changing the fundamental balance of power in the high-tech economy between small upstarts and large, established players.

In reality, for young companies patent trolls are an imaginary boogeyman. A patent troll won't sue until you're actually successful. "Legitimate" patent holders are going to kill you in your crib. As an entrepreneur I'm far more concerned with the latter than the former.

It behooves large corporations to keep the focus on so-called patent trolls.

That's a good point, for example when many individual app developers were being sued / threatened for the use of in-app purchases, it could be argued that the root of the problem is that something like in-app purchases is not an idea that otherwise wouldn't see investment due to the lack of a profit motive, and that it shouldn't be covered by the patent system in the first place.

For the idea that patent trolls add liquidity to the invention marketplace, I'm under the impression that the cost of acquiring the patent in question is often only a minor component of the operation, and the major cost is litigating it. Which seems to suggest that the primary economic effect is something else (what that is I'm not sure).

I think part of the problem with NPEs is that in practice there is a natural disincentive for large companies to sue over (possibly) frivolous patents, since they generally each have large patent arsenals and can countersue causing a loss to both companies. So there is an incentive to have some degree of restraint except in particularly egregious cases, and for total patent wars not to go on forever. NPEs obviously don't have this incentive, and it's not clear to me how a change in patent law could effectively replicate it.

> For the idea that patent trolls add liquidity to the invention marketplace, I'm under the impression that the cost of acquiring the patent in question is often only a minor component of the operation, and the major cost is litigating it. Which seems to suggest that the primary economic effect is something else (what that is I'm not sure).

The phrase you are looking for is administrative overhead. Which suggests that obtaining "liquidity" via patent trolling is highly inefficient and should be discouraged, because the bulk of the money is going to overhead and not incentive for innovation.

A well stated point that I hadn't myself considered, and has changed my perspective on the topic enough that "I changed my mind" would be an accurate statement if it wasn't for the binary it would otherwise imply.

(Indeed, it's comments like these that give me pause when thinking about votes in moderation systems)

One variety of patent troll is not interested in the legitimate goals of the patent system at all.

All they want is a credible threat and easy prey - a patent that will hold up in court long enough to bankrupt their victims, who lack the resources to fight back, and will therefore settle.

Fighting this variety of patent troll requires acknowledging that patents have (unintended) uses other than "incentivizing capital markets to invest in products and processes that otherwise wouldn't see any investment because of the lack of a profit motive".

Even legitimate and narrowly drafted (but inapplicable to the defendant) patents can be abused in this way, because the process of responding to a patent infringement claim is expensive.

There are many flaws that should be fixed in how patents are granted, but patent trolls rely on one serious flaw in how patents are litigated: the median cost to defend against an infringement claim is $1 million.

I agree. I think it's a regulatory crutch that can be abused and therefore requires more regulation.

The patent system is a left over from monarchial rule and should be abolished.

> If you believe patents make any economic sense

~80% of programmers don't think software patents make sense. Did you see the design patents at issue here? It's literally rounded edges and a grid-like UI for apps.

>then the term patent troll is basically just an epithet meant for rhetorical effect.

The term came about due to corporate lawyers taking issue with using the term "extortionists".

> They're simply exposing fundamental flaws in the patent system. I fear that focusing on so-called patent trolls will simply result in superficial legislative and judicial solutions.

Agreed, we should settle for nothing less than ending patents on software, especially when the cost of reproduction is nil.

At least 80% of programmers have never invented anything significantly new.

That may be true, but is irrelevant.

Mathematics is not patentable either, and there are many "significantly new" innovations there.

The position of whether software should be patentable depends mostly if you think of it like math, or like pharmaceuticals. The former requires mostly just a lot of thinking, and very little money. The latter requires massive quantities of cash, expensive equipment, trials, lawyers, etc.

A large number of software patents don't even require a lot of thinking- the majority of the work goes into writing the patent, rather than the creating the system to be patented.

Short patents on truly new software inventions could be overall a benefit to the software industry. But the crappy ones are unquestionably a significant drag.

I agree with these parts of your argument:

() The big problem we have had, particularly as regards software patents, is that it has been much too easy to get one. They need to be restricted to actual technological advances, and not just cases where changes in the landscape enable applications that are novel but obvious, like sending document scans over email. (A document scan is digital data; email is a transmission medium; sending data over a medium has been done since the telegraph.)

() It's not at all clear that the existence of NPEs per se is a problem. As long as we allow patent rights to be sold at all -- and I don't really see how we could prevent it; any rules we came up with could be gamed -- I don't see how we could prevent their sale to NPEs. And then, the fact that an entity is non-practicing doesn't seem to me to justify denying it its rights.

() "I fear that focusing on so-called patent trolls will simply result in superficial legislative and judicial solutions." -- I share this concern to some extent.

However, I don't entirely dismiss the patent troll problem either. I think the rules around patent litigation have made it too easy for NPEs, armed with low-quality patents, to shake down innocent businesses. There's just not enough risk to filing an infringement suit in bad faith. I think judges have to be empowered to fine plaintiffs for abusing the system, at least to the point of requiring them to pay the reasonable attorney's fees of the defendant if the suit is unsuccessful. It would have to be at the judge's discretion, as we don't want to discourage independent inventors from filing legitimate infringement suits against large companies. Specific evidence of abusive litigation would have to be present, such as:

() Suing end users of a product, who are much less able to defend themselves than the manufacturer.

() Inability to provide specific evidence of actual infringement: to say exactly what the defendant has done that infringed what claims of the patent.

() Forum shopping.

() The patent is invalidated on review.

please inform eastern district of texas.

I shutter to think what you believe a "strong position" would be if you do not believe patent holders today do not have one.

I am personally favor abolishing all patents, especially true for "design" and software patents. I feel Patent holders today have FAR FAR FAR too much power to the point where the patent system is HARMING innovation instead of encouraging it

Reply on news.ycombinator.com