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Comment by scabarott | Hacker News Reader

The case against trolls is so clear and obvious, why does it seem so difficult to craft legislation to prevent this? I imagine a simple addition to patent laws invalidating a patent if the holder does not commercialize it after a certain period should get rid of NPEs. Is it not that simple? Also do you know if there's anything like patent-troll insurance that covers legal fees in cases like this? If not, why not? It seems like this has been a problem for so long not only for small businesses but for major players (with vast amounts of resources and clout) that I'm baffled why the problem continues to exist. Is there something about the US legal system or business in general that my simplistic mind is not understanding?

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> The case against trolls is so clear and obvious, why does it seem so difficult to craft legislation to prevent this?

Patent trolls (the most successful ones, anyhow) practice Batsian Mimicry as a defensive strategy: they specifically try to look as much like a small inventor who's invention has been stolen by one or more bad actors. It is never simple to disrupt an evolutionary arms race.

> I imagine a simple addition to patent laws invalidating a patent if the holder does not commercialize it after a certain period should get rid of NPEs. Is it not that simple?

Are you aware of how long it takes drugs, for example, to get from the patent stage to the commercialization stage? I'm sure there are other obvious industries where this would be problematic to the normal way of doing business.

On a more broad note: is it good to require that all inventors directly commercialize their own inventions? At best, I think this is an open question.

A patent is way to encourage inventions, awarding the inventors the exclusive rights to their own inventions.

The public good is a priority. The idea is that the invention is beneficial to the public. If somebody creates a good invention but deny it from the public, this patent should not be in public interest anymore.

The public also benefits from people inventing alternatives to patented inventions.

That's debatable. Your point is that patent would encourage diversity which I'm sure it doesn't change much. Worst it sometimes prevents advances

How’s that good for the public?

More alternatives to choose from.

> somebody creates a good invention but deny it from the public

for about 15 years.. After 15 years the public can make use of the invention without paying a penny. How it is not in publics interest?

For 15 years nobody can use a invention, even if willing to pay. How is that in public interest?

I'm guessing the practical meaning is that the inventor is not required to license the invention "at a fair and reasonable" price but is free to ask whatever he/she feels is appropriate. I could imagine a case where the industry the inventor wishes to market to is controlled by a cartel which colludes to offer a low price for the invention. In this case, the inventor may wish not to sell or license in the hope that the cartel breaks up or gives in.

Because even if removing the patent system meant that the invention was kept secret from the public, it would most likely be reinvented many times in that 15 year time. The worst part of patents is that they extend even to others who do the legwork themselves, and frequently stifle an entire area (for example, 3D printing exploded in popularity and accessability right after some key patents held by stratasys expired, and this was in the best case of a company actually developing the technology they had patented).

We are talking about an exceptional case here. The patent owner is a wealthy and extentric agent who disregarts potential profit from selling/licensing/using the patent. And even in such rare and unexpected cases the public eventually gains access to inventions - which is not neccessarely the case for inventions kept secret. Basically, the society trades speed of technological development for certaininity of achieving its goals.

Don't patent trolls generally have hundreds of random unrelated patents they sit on? That sounds very different from a "small inventor who's invention has been stolen". Maybe we can limit the number of simultaneous patents you can sit on?

Shell companies and M&A make this a difficult proposition.

> Are you aware of how long it takes drugs, for example, to get from the patent stage to the commercialization stage?

Patent law already handles this providing pharma patents additional protection time for regulatory delays.

It's hard to draw a legal line between a few lawyers with some bad patents and a garage inventor struggling to make his idea profitable.

Not because those are hard to differentiate logically, but because one side is all about manipulating the legal system while the other has no knowledge of it nor funds with which to navigate it. Also, the system is supposed to protect the latter from big corporate legal departments that want to steal his idea. It's a hard problem because it's profitable for bad actors to get wrong decisions made.

This is a great conversation. Cloudflare certainly sees the value of the patent system, we have a number of our own patents that we employ defensively to make sure we can continue to run our business securely.

> Cloudflare certainly sees the value of the patent system,

OK...

> we have a number of our own patents that we employ defensively to make sure we can continue to run our business securely.

Huh? This doesn't support the beginning of the sentence at all. If your only use of patents is defensive, then the system is all cost and no benefit to you. Getting rid of the system would give you all of the "benefits" you currently enjoy. What value are you seeing?

Defensive patents are for making cross-licensing deals when IBM, Apple, and so on, come calling with their stack of patents to demand a slice of your revenue.

Right... The parent's point was that saying "we see the value in the patent system: it allows us to defend ourselves when others use the patent system against us" doesn't really make logical sense.

Right, but you wouldn't need defensive patents if patents didn't exist... this would be like arguing "I am glad we invented guns, because we need them to defend ourselves against people with guns"

> then the system is all cost and no benefit to you.

That's not strictly speaking true.

Having and using defensive patents has the advantage of disadvantaging competitors who don't have defensive patents but wish they did.

(Not that this is necessarily what djk44 would like to state as his reason for seeing benefits, just as a general fact)

Rephrasing your point: By damaging some other people more than it damages you, the system may hand you a relative advantage over people who are hit more badly than you, even as it hurts you in absolute terms.

This is not a compelling argument that the system has any value. "Sure, it's destroying value at our company, but that's fine because it's destroying even more value across the street!"

> It's hard to draw a legal line between a few lawyers with some bad patents and a garage inventor struggling to make his idea profitable.

You don’t necessarily have to draw the line. One potential legislative solution would be to simply throw up our hands, admit we can’t stop one without stopping the other, then deliberately choose to sacrifice the (vanishingly small number of) good actors in order to get rid of the huge number of bad actors.

How many lone garage inventors are out there fighting big companies over their legit inventions vs. the number of ridiculous patent troll cases?

Industries like the chemical and pharma industries would look very different without patents. A place like CISRO would not be able to exist absent patents.

The X-Plane guy and his dozen person company went through hell trying their assess off to prove they were being trolled.

> Is there something about the US legal system

At least one thing about the US legal system encourages patent trolls as compared with other countries: the US does not have the rule that many other countries have, that the loser of a lawsuit pays the winner's court costs. This affects many areas of US law, not just patent trolls.

This is not always a good idea - Private Eye has almost gone bankrupt before trying to pay court costs for libel - and subsequently facts emerged to show they were not libelling but in fact correctly reporting.

I doubt there are legislative fixes that won't make things worse - perhaps We can only hope for sound and robust rulings from engaged and informed judges.

(don't laugh)

...and yet, as I understand it, other countries just don't have this problem, not at anything like this scale, anyway. It cannot be the case that a fix is impossible, and yet every other country on earth has managed to fix it. We have to be doing something wrong.

...and this is the obvious difference that seems reasonable to blame, yes - if frivolous lawsuit is low-risk, low-expense action, why not do it.

In reality, looser-pays is usually more subtle, the winner is typically awarded only some standard rate that good lawyers don’t charge, but it seems sufficient for deterrence nonetheless.

> I imagine a simple addition to patent laws invalidating a patent if the holder does not commercialize it after a certain period should get rid of NPEs.

I suppose there are sneaky ways around this, such as marketing a product that features the patent but is otherwise inadequate.

Never underestimate the resourcefulness of patent trolls

Yep, you can make one simple flashy thing, say it does X feature, sell it to your spouse and say it's been commercialized

Haven spoken with a few friends of mine who are in the position to know better I guess I can answer part of my own question. Apparently if a law exists that is obviously broken it's usually because there are vested interests interested in keeping things that way. Since virtually every large tech company from Samsung to Facebook and now Cloudflare has had to fight patent trolls, the reason the system remains broken is probably that these companies themselves benefit from the current brokenness of the system and the benefits they get far outweigh the costs of fending off the occasional troll. It won't surprise me if these companies themselves sit on large portfolios of overly broad patents they never intend to use except to fend off competition or initiate their own patent litigation. OP sort of hints at this in another post on this thread.

It's not clear and obvious, or simple, to craft legislation that prevents trolling without also affecting the legitimate rights of non-troll patent holders, applicants, and licensees.

Somebody exchanged money for the patents to give these trolls. Blame them.

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