The patent troll that won a $308M jury trial against Apple
letterspatent.org
letterspatent.org
Don't get me wrong, many of the patents are absolutely bogus, but that's not exclusive to patent troll patents. In fact bogus patents help established companies even more, because the trolls at least have to defend those patents in court at times, a small new player who is threatened by a large established one over some bogus patent can't afford to defend themselves.
The whole notion that patents are only legitimate if you build something is completely bogus. Either the patent system is about encouraging and rewarding innovation and then it should apply to anyone equally, or it is not and we should abolish it. I'm firmly in the second camp, but it seems the big players want to have their cake and eat it too.
"Hey everyone, I thought of this and wrote it down, none of you wrote it down before so now it's my idea for the next 30 years"
Is just ridiculous.
Monopolies are bad, and competition is good. Everyone is already incentivized to come up with and implement ideas faster than their competitors. Giving one person a monopoly just restricts others from creating competing products and only gives the user a worse and more expensive product.
That's how technology worked before the patent systems, and the outcome was manufacturer secrecy - which generally sucked more than the patent system.
A perfect counter-example to patents is FDM printers, which were incredibly expensive and inaccessible to the average hobbyist until the Stratasys patents started to expire. Now while it’s true there’s a lot of Chinese printers on the market, that hasn’t killed western companies - Pruša might be 2x-3x pricier than a Creality, but the 3D printing farms I know still went with the former, due to higher reliability and the fact that they need less fiddling to produce high quality outputs.
Meanwhile Stratasys is still selling $100k machines, and I highly doubt any of their customers would rather buy a cheap Chinese 3D printer instead.
Branding is completely irrelevant to the issue, you could well come up with say explosion-safe proportional valve design that is sold OEM worldwide and that an average consumer might not even know exists as a category.
This is proven false by the amount of top-selling products that Amazon has ripped off, produced for less (sometimes by striking a deal with the original factory), and then labeled “Amazon Basics”
Look at how Raspberry Pi still manages to maintain a huge market presence despite the prevalence of cheap Chinese clones - even if the latter occasionally have superior specs on-paper, in practice I have yet to find one that isn't vastly inferior in terms of ecosystem and software.
The point of the patent system is that you share your invention in the world, in exchange for monopolizing it for a few years. The problem is that most software patents share absolutely nothing of value with the world.
I think another misconception is the entire purpose of the USPTO. The USPTO wants EVERYTHING in the entire universe to be in the public domain. To achieve this, you give them your idea and in exchange they give you a monopoly for 20 years minus prosecution time. Even worse, anything you publish anywhere on earth after one year automatically gets in the public domain.
Anyways, enough ranting, but the system is very expensive and is actually not incentivizing the "inventor" anymore.
They said it's the purpose of the patent system, not the real-world effect. It's very important to remind people of this purpose. Because people (especially lawyers) keep pushing this concept that ownership on a patented idea is some kind of natural right being protected by law. Which is completely opposite to reality, and part of what leads to the system being warped in the way you complain about.
Have a look at the original Gore membrane patent: https://patents.google.com/patent/US4194041A/en
It's very clear, detailed and reproducible.
And since we are on HN, here a bit on the software side: IBM original arithmetic coding patent.
https://patents.google.com/patent/US4905297A/en
Perhaps it something that should not have been patented, but it's fully disclosed and reproducible.
Though I do agree lawyers and govts have basically colluded to create a system to suck money out of business in return for being allowed to function.
So, not much different then?
The calculus also doesn't seem all that clear to me. A alternative calculus: Build something new on top of someone else's idea (stand on the shoulders of giants) or spend all your time and money reinventing a perfectly good wheel so that you can do it in a slightly different manner purely for legal reasons.
If we assume free licensing then you might as well cut out the middle man and abolish patents.
A case in point is China. It used to just produce low-value-added manufactured products, and it had little IP protection to speak of. But as China has moved up the value chain, it has passed IP laws and built out a court system to enforce them. It has rapidly become one of the most active venues for IP litigation in the world. But if there were no Chinese R&D to protect, there would be little reason for China to build out this system.
You’re also ignoring what the patent is actually awarded for. The temporary monopoly is awarded in return for publicly disclosing your invention. Without patents you’d expect almost all commercial innovation to center around ideas that can be kept a trade secret, and to have a lot more budget devoted to protecting trade secrets. It would essentially be the exact opposite of what I expect you’d want to happen.
> The temporary monopoly is awarded in return for publicly disclosing your invention.
We could do just fine WITHOUT the patent system. Maybe if instead of fretting about diligent Chinese copycats, the USA and its corporations actually built stuff instead of outsourcing everything, we would not need to worry so much about patent infringement.
I suppose they could read expired patents, though.
Your suggestion that the global economy could shift towards an isolationist model is frankly enough to dismiss your idea without much further scrutiny.
Not at all. There's "global isolationism" and then there's outsourcing everything to the point where all that's left is the C-suite and a few supply-chain jockeys.
It doesn't have to be one extreme or the other.
"A patent cannot be obtained upon a mere idea or suggestion. The patent is granted upon the new machine, manufacture, etc., as has been said, and not upon the idea or suggestion of the new machine. A complete description of the actual machine or other subject matter for which a patent is sought is required."
Patents/IP/etc only have 'scarcity' because the government agrees to grant a monopoly to a person or corporation. It doesn't have any basis in natural law.
Without it, you would resort to greater degrees of secrecy.
First-movers already have an advantage in the market, this seems to be a natural incentive for R&D. And then also consider that many innovators and inventors do what they do for reasons outside of gaining monetary compensation.
Any consequences of greater secrecy would be largely overshadowed by the advantage of having an actually competitive market in film, tech, healthcare, and etc. Imagine if any manufacturer could produce insulin, or if any film student could shoot their own Star Wars movie.
In this case you are right, it stiffles progress instead of helping it.
But what about the case where "Hey, it took us 20 manyears of research to discover this, and when we release it, it's up for grabs for anyone"
In that case, you want to have a patent system so the research can have a ROI.
But the latter case never happens in software, and so I'm very happy Europe doesn't have any software patents.
... I guess it’s not really necessary to have patents in order to sell licenses, and I guess in most cases for software, patents are used as a moat for a business rather than getting a direct ROI on research.
If you are not from an industry where IP is unfortunately the foundation for doing business e.g. Pharma, Bio Tech; You are better off not pursuing IP at all, at least if you cannot afford the best IP attorney in your jurisdiction and assuming you have a competent patent authority.
Patents were designed as a way of allowing people to share their ideas, while retaining the ability to profit from their ideas for a limited period.
Without them, billionaires could just monitor the market and essentially just steal the business because they have the capital to leverage economies of scale. How do you prevent this without patents? What is your better idea?
You can always monopolize an unknown idea. Don't share it.
The alternative is "only I can produce this thing commercially, and you have no idea how I made it anyway".
I am very firmly in the second camp, too. But it still leaves the question: how do inventors get money?
In the long run, I hope for more consciousness on a broader base - so people and organisation just directly support inventors with money, they think are worth supporting. Than we could skip all this waste of time and energy.
And as far as I know, this is happening already today. Donated cancer research for example. Also lots (if not most) of academic research is state funded and when you define the state not as a stealing feudal opressive system, but as the self-organisation of people - you can say, that people are choosing today to give lots of their money into research.
But for common tech? On a broader scale as of today? I am sceptical on how to make that transition.
I guess people could do try to get crowdfunding campaigns for their new revolutionizing research - but the common inventor is not a PR and social media expert - and you need to be, if you want to have common peoples attention.
I was part of litigation in the 1990s where some guy had a patent on an “electronic offertory box” for use in churches. It had been granted in the 1980s. The claims made no mention of computer networking let alone “The Internet”. Yet in 1996 he successfully sued my employer and related groups that had developed a "disaster relief" web site because it offered the ability to make electronic donations (i.e. GoFundme, but to the specific non–profit). He "won" because the parties involved found it was going to be too expensive to defend.
Now, I didn't know about the patent.
I had no way of knowing about the patent.
There literally was no way for me to have found the patent, reviewed it, and decided "yeah, an electronic offertory box is absolutely the inspiration for accepting a credit card payment online directed to a charity, and I'm going to steal that sucker". Patents were abstract things that got filed away in a basement in Washington, they were not available online, only in Lexis/Nexis sorts of electronic services that peons were not granted access to.
At my company, people like me were advised NEVER to review patents ourselves due to the jeopardy we could place ourselves in if we implemented something that might be found to infringe a patent, intentions being irrelevant.
In the end the guy got paid off, and the disaster relief site got shut down less than a year later because once he got his pay off other "innovators" started filing cases and the non–profit we were working with decided it wasn't worth the effort if they were simply diverting charitable funds to anyone who could file a patent infringement claim.
Software patents are completely useless to me as an implementor. The processes described are so vague as to be useless to solve the problems I encounter, and the claims are so broad as to cover anything related to the field of the invention. And the ever expanding pool of people who can be targeted for infringement (oh, I see you use a laser printer in your office? You're infringing these 11,000 patents. Please pay up) just means the whole enterprise is a scam.
If it is patented, there is a way to find it. It certainly isn't a useful way of spreading information, but it exists, and its existence makes your claim sound hyperbolic.
How, precisely, would you have determined that an online donation to a charity usinga web site in 1995 would violate a patent for an electronic offertory box written and granted before the web existed? Remember, you can only use Lexis/Nexis or the U.s. PTO offices, the patent corpus is not available to the public on the web.
There are, in fact, four alternatives here and not two:
1. Producing company, legitimate patents; 2. Producing company, illegitimate patents; 3. Non-producing company, legitimate patents; 4. Non-producing company, illegitimate patents.
What I think grinds most people's gears are #4 suing #1 (or #3, though I don't think _this_ is common.)
So your attempt at making this out to be a (false) choice between #1+2 on the one hand and #3+4 on the other is disingenuous.
1. How do you distinguish legitimate and illegitimate patents. I guess you have to agree on some arbiter, like courts of law. So that's how we are in the current situation
2. Notwithstanding the issue around deciding between them, most larger patent holders have a huge portfolio of "clearly" legitimate and illegitimate patents, and they are using both (you don't need to sue to use the patent, just threats are enough)
3. If you ever spoken to a patent lawyer, the whole process is about making the patent as broad as possible without disclosing how to actually do it (at least if you are using the technology yourself). So one might argue it's about making the patent as illegitimate as possible, because then the patents are actually useful (otherwise they are just to easily worked around) .
Of course there's no easy way to distinguish _all_ patent (applications) this way but that one would not be accepted.
The issues you raise are certainly valid and reasonable but notwithstanding not the point of contention here. The trolling part is the one that comes from what is perceived as illegitimate claims/ patents.
[citation needed]
Specifically, Oracle notwithstanding, big tech companies have used patent portfolios defensively. Take Google as one example. When has Google filed a patent infringement lawsuit against any company (other than as a countersuit after getting sued eg Sonos)?
But Apple? The only patent suit I'm aware of that they initiated was against Samsung and this is a little more complicated.
First, it was primarily a design patent suit. I'm a little more sympathetic to design patents than software patents (which I'm 100% against). And, let's face it, Samsung did pretty much just rip off the iPhone. There were some non-design patents thrown in there too, that's true.
But the commenter I replied to suggested these tech companies were using patents to squash smaller competitors. And for most companies that isn't true. Even if you choose to include Apple in a list of companies that use patents offensively rather than defensively, Samsung isn't really a small competitor, so the point stands.
https://arstechnica.com/tech-policy/2017/04/appeals-court-re...
At one point when Microsoft was still in the phone business, I recall an article pointing out that Microsoft made more money off android in a single year (unspecified patents in a patent deal with google[1]) than they made out of their own mobile OS in its entire lifespan.
[1] My memory may be inaccurate, but I seem to recall that they did the patent shakedown without ever specifying exactly which patents android were infringing. There was a lot of speculation that it was the FAT patents, butu I don't recall ever seeing it being disclosed.
Bell labs (who is doing a lot of telecom R&D) for example is owned by Nokia now (it's called Nokia Bell labs)
That's a sophism, it's not either theses possibilities.
For me patents protect someone building something innovative, to later on profit from what he builds. It's not to reward innovation, it's to protect your capacity to build that innovation and sell it. It's not how patent troll use it, thus I disagree with their use.
> but it is not ok for smaller inventors to sell their patents to some of these "trolls" who then sue the big companies for violating the patents?
Why would it be? How is that beneficial to innovation?
Nobody here said either that it was right to use the patent system to keep out any competitors or newcomers either... it's right to keep competitors out while you build it/sell it at first, but it's not right to use it purely to keep competitors out.
It's not bogus. It's actually the only thing that justifies the mere existence of patents. If it doesn't enable better products for us then what's the point? Deviations from this social contract should not be tolerared, especially net-negative activity such as rent seeking by trolling companies and individuals.
I'd like to see: -- All software patents expire after 5 years -- All software patents must be actively used in a revenue producing product (yearly), if not the patent expires -- All software patents are NON-transferable only licensable -- All software patents must make their licensing rates public per patent with no special deals
Live by the patent, die by the patent.
Patents stop other people from creating useful stuff. I think it's reasonable that you should have to fill the gap in order to retain the right to stop them. Although enforcing that is difficult.
They fall in a different subsection of patent law than the way to implement something.
An entire industry has sprung up in Texas specifically around the extortion of actual technology companies -- which almost always exist in other states -- and it has been profoundly corrupting.
https://www.judicialhellholes.org/hellhole/2015-2016/u-s-dis...
https://en.wikipedia.org/wiki/TC_Heartland_LLC_v._Kraft_Food...
They pretty much intentionally lost S3TC patent case opting not to push for patent invalidation https://www.prnewswire.com/news-releases/itc-judge-rules-tha... The thing about s3tc is _its Apple own technology_, just renamed and repurposed.
https://en.wikipedia.org/wiki/S3_Texture_Compression "This mode operates similarly to mode 0xC0 of the original Apple Video codec." is an understatement. S3 directly lifted Apple patented QuickTime Road Pizza technique of encoding 4 colors using 2 values (same math, same values, same purpose, no prior art acknowledgment), to ~10 years later sue and win.
I guess it’s pretty similar to Apple acquiring the patents and then suing competitors.. but without all the ill will that directly suing companies off a weak base brings. Bit sad that it all rationally makes sense.
This seems like the type of thing that an amicus brief could point out regardless of Apple's strategy in the case. Did that not happen?
Do you have any inside knowledge or just guessing the strategy of the lawyers in the courtroom?
What can we actually do. How do we start fixing this problem?
Do the hard grunt work of getting enough of a broad base of political support for Congress to enact reform. Seriously, that's what it comes down to. And it's not some impossible thing even for a minority so long as it's focused. Precisely because majorities don't really pay much attention to such things and these days are fairly fixed, even a fraction of a percentage of the vote that always votes and will do so based on a single or very small set of issues can have an outsized impact.
In this case, the goal would probably be a few very targeted things. My nomination would be 1) Eliminate software and "business method" patents entirely, with the argument that software is already covered by copyright and vague ideas shouldn't be patentable, and 2) actually fund the USPTO to a much higher degree and give it more teeth so more patents can be taken down early.
I don't think it's an impossible dream. It's an issue that doesn't fit into typical polarization, since there are major business benefits both ways. There are easy outrageous examples of patents that will strike the average person as obviously wrong. It's something Congress can do without the slightest question. There will be economic interests against it, but there are ones for it as well. And the tide has been turning a bit on IP maximalism.
I've written my Senators at least, talking about some of the personal harms I've seen as a developer. I got replies. If nothing else, everyone should do that and not just post on the internet. They certainly are unlikely to immediately change their stances, but they absolutely pay attention to letters because so few write them. If they start seeing enough people concerned about an issue, they will if nothing else give it some much higher level attention. Unfortunately I don't know of any national advocacy/lobbying organizations devoted purely to patent reform. The EFF does some good work there, but they've got a wider umbrella of critical issues to fight as well. I donate what I can to them but it'd be nice if there was some place just for this too.
Still, I hope to see some progress in my lifetime on reigning them back in from when they were invented in court in the 80s.
China is now starting to enforce IP rights because as they move up the industry maturity scale, the rights become more important.
IP rights only become relevant to developed nations, where manufacturing and other primary/secondary industries become less important than service industries.
There is no "global turning against protected invention".
There is "developing vs developed nations ongoing opposing interests".
But software is very different from medical patents.
...opium and extracts for pain relief, cinchona bark for malaria, cloves and clove oil for oral pain relief, I could go on, but you could also Google this.
And the fact that a "patent medicine" is a synonym in history for "snake oil" shows how little scientific rigour patents brought to medicinal development, and how the patent system was initially co-opted to lend an air of legitimacy to quackery.
On the patent side you have such modern marvels as OxyContin, which has arguably caused more loss of life than COVID-19.
Patented drugs are generally awful. The idea that it costs $1B to make a game changing drug is a lie. It costs $1T. The US taxpayer pays 99.9%, and the big pharma company spends a billion to generate some shitty subpar derivative that they can then get monopoly protection on and create an artificial racket supported by false marketing.
https://en.m.wikipedia.org/wiki/Opioid_epidemic_in_the_Unite...
The average Opiod death is 3x that by years alone, and more when going by expected healthspan.
Hence "loss of life" and not "deaths".
This number is impossibly wrong. There were 48 new drugs brought to market in 2019. At an average cost of 1 trillion dollar per drug would mean the entire economy of both the U.S. and Europe were devoted to drug research which just isn't true.
That's only if you look at how the system is today and evaluate as it is today.
Software mostly doesn't have patents: theres no patent to an uber, to a paypal, to an amazon. You would have a different business model to fund medical innovation, for example, advance payments from prospective patients.
So if you got rid of patents innovation in some industries will be fine (software) and others will be wrecked (medical).
Patents are not the only way to incentivize innovation, and I think it'd be great to experiment with some other ways.
Socializing medicine is completely orthogonal to this issue. Unless you mean socializing drug discovery which would be a completely unproven way to develop drugs at scale.
It feels like every field knows that they're a cash grab without a lot of benefits, but assumes there's some industry that they don't work in where they're needed.
I spent a few years in medical research and realized that ohhhh shit, even worse in this industry.
The whole thing is a big lie.
End copyrights. End patents. The ideal length is zero. There is no case to be made to support them. We need to abolish them outright.
And it currently costs billions of dollars to get FDA approval.
Basically assume I find a new antidepressant. I spend 2 billion dollars proving it's safe and effective.
How do I get my money back when any drug manufacturer can now manufacture the same drug?
I don’t buy that IP protections incentivize innovation anymore than they prevent it. The reality is that the gains from intellectual property are not distributed evenly, and corporate executives know this. If IP is making you millions of dollars, that is a very different situation from IP just “making you a living.”
Even if you are doing well as a small IP-based business, you’re still stuck paying a premium on everything you buy (thanks to the existence of IP monopolies), and you still have little recourse against IP violations from large corporations and anonymous pirates.
I just don’t get how this isn’t all an enormous waste of resources for anyone but the already rich, or a completely raw deal for people who mod games, remix music, repair electronics, etc etc.
One slight nit: it helps if you don't spread the big lie "intellectual property" (since it's an oxymoron). Someone here on HN told me about the term "imaginary property" which works great, because then you can still use the "IP" acronym.
I too believe that medical innovation would be wrecked by the elimination of patents, but I think that is less to due some inevitable aspect of human nature, and more due to existing incentive structures that have been created by means of policy.
That’s a decent chunk of money, but it’s important to put it in perspective. Pfizer alone spends around $10B per year on R&D. J&J: $12B. Merck: $13B.
Patents necessarily put more capital investments into patentable work than unpatentable work, but that doesnt mean it is more efficient. I understand the principle of patents, but eventually you end up in heavy interventionism, state funding, litigation, etc. Best to do away of all of that imo.
That $100B is just for drugs that later got FDA approval, not the NIH grant budget.
https://en.wikipedia.org/wiki/Intellectual_Ventures
I guess if you are a tech CTO, you don't beat them, you join them.
The sad part of Myhrvold's troll company is that it quickly spilled over into sectors other than software and "tech". Sectors that did not necessarily have the same knee-jerk negative reaction to the patent system (because despite its flaws, they depended on it).
I can't imagine the carnage they could collectively unleash on the Judge, Jury, County, State, etc if they really wanted to? But it isn't worth the time, money or effort. At the end of the day it's just pay the "Parking Ticket" and move on.
That doesn't mean that Apple and Google are intentionally trying to preserve the legal environment for patent trolls to operate, but on some level it still is in their interest.
How can we realistically boycott the companies that abuse patents? I suppose I could stop using Apple products, but most current software jobs require some form of smartphone for authentication, so I need an iPhone or Android phone, thus supporting Google or Samsung or LG or one of the other big megacorps that abuse the American patent system.
I feel like the only thing that could conceivably happen is to fight fire with fire, and start suing these companies and challenging these patents to a point where it's so expensive for them that they lobby congress to regulate it better. Even still, I have doubts that that would even work, since it's still probably more profitable for them to keep all their ridiculous patents than the loss in legal fees.
Unfortunately, a patent portfolio doesn't protect against NPEs. A patent portfolio lets a company settle patent disputes with cross-licensing deals, or counter-sue with a "no you" argument.
An NPE doesn't have a product, so there's no reason to cross-license, and no way their product can violate any other patent.
You mean law firms?
Most patent trolls don’t make or sell anything. There’s nothing to boycott.
Write draft legislation that would fix the problem. Propose this to your country's legislature (Congress in the US, Parliament, etc).
Push for the new law.
Form or join an organization that writes and pushes for legislation that will fix the patent law mess.
Etc.
Alas, there's no such thing as unbiased.
So basically, neutrality nihilism? ie. "every source is biased so it doesn't matter whether I'm getting my climate change facts from the IPCC or InfoWars".
It doesn't make sense to give conspiracy theorists any space for the sake of neutrality.
But this is different to conspiracy theorists. There is a range of reasonable, good faith positions to take on this issue (eg, some on this discussion advocate the abolishment of copyright - not just patents - which is a position many in the software industry would disagree with).
We have a chip shortage right? And an American manufacturing crisis, right?
"We need to eliminate trolling waste and abuse for national security. In Asia they don't have this dysfunction and we're ceding ground to adversaries simply to make lawyering trolls rich!"
This issue is maybe in the top 1000.
All this points to larger problem that many thinkers are in denial, that is of humans themself. Humans in general are terribly flawed and that problem can be only marginally alleviated with laws, activism etc.
Or invest in seasteading.
This doesn't mean anything. It's just cynicism masquerading as fatalism. We thankfully don't live in an absolutist monarchy. Laws can change, and in fact do change all the time. Election upsets happen all the time. But like a sibling comment said, no one wants to actually go out and do the grunt work.
Whining on Twitter is certainly easier than canvassing a neighborhood.
Equitable progress (and progress in general), is a fraction of what it could be.
Changing this one rule and shifting our energies from endlessly regurgitating old ideas to gardening great new ones will lead to a golden era of progress in area like healthcare, education, and equity.
#EndIp. #LiberateIdeas. Start sharing big truths and fight big lies. The people will pick up on it.
Write down and publish as many things as possible to enable prior art searches. If an important case affects a field you've been working on for decades, actively help victims find prior art.
Consistently vote against IP maximalists wherever you have an opportunity. Don't have relationships with IP maximalists.
Remind the general public about how bad and stupid patents are when you have the opportunity.
Don't buy products that advertise using "patented technology" or "patent pending". If you have no choice, buy used.
If you are in control of a company's patent strategy, file lots of provisional patents then abandon them, so they show up in the database when patent examiners search for prior art.
Financially support victims of patent attacks and help them get as many patents invalidated as possible.
There's a cottage industry of infringement on social media where 'enterprising' companies outside the US take art they don't own and put it on merchandise. Large brands routinely duplicate small artist styles or simply trace their work. Often single individuals at the larger company choose to illegally copy the work of another, but the bulk of the benefit accrues to the corporation.
Personally, though I am a software engineer and much of my "property" is intellectual, the whole system feels wrongly conceived. It focuses on allowing commercial activity to continue around IP instead of keeping creators in control of their creations. In general, the best way to make money is to excise any humans from the IP as quickly as possible (like cutting away an un-wanted growth) to best shape the IP for future needs and markets. It sucks, even if I understand all the decisions along its path.
Creators are given a limited period of monopoly over the rights for reproduction and use of expression (copyright), ideas (patents), branding (trademark) to allow them to earn some return on their creations, but at the same time put the expression, ideas or branding into the public domain.
Copyright terms have been bastardized by Disney et al and author estates to extend the terms beyond anything reasonable.
Patent trolls and an unfunded USPTO and compliant court districts have bastardized patents.
"The little guys can't fight legal battles with large corporations. So either you work with lawyers that are labeled patent trolls or you lose your patent by default by lack of defending it. Or you can go broke fighting in court."
It was the first time I had considered the possibility that there may be more at play here and that I couldn't see all sides clearly.
These lawyers, and more importantly, these shell companies, are being labeled as patent trolls because they're filing nonsense patents and then spraying nonsense lawsuits around to try to capture random prey. They're not the vanguard of "protecting the little guy."
The idea that making it easy for bad patents to be defended is somehow good is ridiculous. It ignores the possibility that the patent office, the legislature, and the courts need to improve so that good patents are protected but bad patents aren't a drain on society.
Let's say you're a small player with a legitimate patent. A huge entity is infringing. In order to make any money of your invention, you have to fight. But that can be very costly and risky. Instead, you sell your patent to someone specialized in this, a "patent troll". You get some money, they use their expertise to fight the big player.
Like selling someone's debt to a collector so at least you get some money.
This approach gives the US an advantage on the international patent market too: an American patent holder has the priority rights in other countries where it wishes to register the same patent.
All this kind of makes sense - kind of - but in practice there seem to be a lot of crappy patents with prior art that remain unchallenged and sometimes even confirmed in courts despite prior art.
This is what's broken. 1-click checkout shouldn't have been registered not because it's crappy but because there were web sites doing something very close or even similar under a different name. Those businesses either never bothered, were too small or went out of business by the time Amazon could be challenged in courts. I believe there are many more examples like this.
Someone has to take the burden of identifying prior art. The PTO doesn't seem to be interested, it's just extra work for them which as a govt. agency they tend to minimize. Businesses that could present prior art can be too small or even out of business by the time a patent is registered.
I believe it's a matter of some additional regulations but because I'm not a lawyer I can't really say how to fix this system.
Some of these NPE bought those patents from previous PE that actually put the work on some of those innovation. That could be from Video Codec, 3G/4G Telecom Spec, Wireless Spec etc. I think those tends to have some merit. They never stayed around long enough to have a return of investment on their R&D. So patent is part of those asset, they should be of some value.
Whether you agree the price for those patents is entirely different. Although you could also argue those are bogus patent with no value.
It is also worth mentioning companies tend to file and fill as much patents as possible to some sort of spec in order to gain at least some form of ROI. The reason being the thing / part they work on for years may never had made it to the spec, but in the process of competing they might have made the official spec better. So despite their tools not ending up within the spec they might still want to get as much from the patent pool as part of their work.
Again, whether they are asking for too much of it is somewhat a different question. If you spend enough time on HN in the past few years most people would think 4G and 5G patents are absurd and Qualcomm is evil. I tend to hold a contrarian view they are not. ( At least not as evil as most would think )
What I cant stand is things like "Single Button Purchase" Patent from Amazon. I give some benefit of doubt to pull to refresh from Twitter. But single button purchase is .... I dont have a word to explain it. Although there may be people who disagree with me and think a single button purchase is genius.
These particular patents are a kind of submarine patent based on a particular abuse of the patent system: Someone files a patent, which means they get a monopoly on an idea. But they delay the granting of the patent. This way, they can wait until the idea they came up with is being used in some form by large companies before the patent gets granted, then they have 17 years when they can sue anyone and everyone who implements their idea from 1995.
Now, as it turns out, in 1995 the patent office changed their practice to stop this very particular type of abuse: Patents, starting in mid-1995, are valid for 20 years from date they were filed, not 17 years after the patent was granted.
However, this particular company, back in 1995, filed a large number of patents right just before that practice was changed, then delayed the patents in the Google lawsuit being granted until 2010 or 2013, allowing them to have a monopoly on a 1981 or 1995 idea from 2010 until 2027, or 2013 until 2030.
What needs to be done, in this particular case, is have congress pass a law saying that, for any and all patents filed in 1995 or sooner, every single one of those patents are now expired (or better yet, retroactively expire them in 2015, i.e. 20 years after 1995).
Barring an act of congress, maybe when this case is appealed, higher courts will give us a precedent which invalidates those old 1995 patents still being enforced here in 2021.
1. Only make practicing entities eligible for IP damages.
2. Reduce the duration of all patents by 50%.
When the 13th amendment was passed slave owners didn't get to "grandfather in" their existing slaves. Extreme example, but the point is sometimes old laws are so harmful to society we should not allow people to continue abusing them.
I mentioned in another comment about the Eastern District of Texas which became effectively a giant grift operation (though a recent SC case should put a damper on it). Plaintiffs sought it because they knew the jury pool would also be people who benefit from this extraordinarily corrupt, banana republic extortion racket. It was effectively like a forgettable little drive-through town that setup speed traps and decided to fund the municipality on the backs of outsiders.
There are some people who would counter this. For instance one paper notes that of jury trials, 73% of East Texas cases choose for the plaintiff, versus 68% elsewhere, "proving" that it isn't that much of a difference. The problem with this reasoning, however, is that East Texas was specifically where the cases with no merit went. It was overloaded with patent trolls and NPEs.
Actual, credible cases were seldom tried in East Texas.
Every judgment of that district should be vacated.
Pretty ridiculous how the most benign of terms all become slurs in the woke era.
Now you're in the same situation, but you sell your patent to another entity because you can't afford yourself to sue the big boys for damage. You or anyone else you delegate should have no recourse at all?
Ideas are a dime a dozen. Execution is what matters. IP has value and should be incentivized, but right now, the legal system weighs the legal application for an idea far too heavily, and so alas, patent trolls exist.
Imagine a startup trying to develop a very expensive solid state LIDAR. They don't have the millions in funds to go to a fab and go into production. They do shitty prototypes. But they get some attention and are able to sell/license their patents. In this alternative universe where patent law is much weaker:
1. The big corp can choose to ignore you and not buy or license the patents. Their defense will be that you are a non-practising entity since you have no revenues or customers. There is a grace period? They make the bet that they can just wait you out.
2. You never patent the idea in the first place. There is no point as there is no way for you to profit from the idea. The world never get access to the tech.
If they can't find anyone to invest in them, are they the ones to execute the idea? Btw, they could sell patents to practicing entities (those who immediately choose to become practicing entities of the patent) and still get compensation for their IP.
And your scenario does not exist, frankly, where someone comes up with an idea so unique and groundbreaking, that it isn't rediscovered for longer than the duration of a typical patent term. You have a couple years, tops. In fact, someone has probably already come up with the idea and you never heard of it. Execution is what matters.
Change always affects someone negatively, but I don't find your examples compelling. Patent trolls and lawyers are the real losers in this scenario, which is fine, because they are currently a net tax on value creation in the IP space.
Probably people, who experienced their share of professional, but corrupt judges, who live worlds apart from the common people they judge over.
If a verdict is supposed to represent the peoples will - doesn't it make sense to involve actual common people?
No, because the law should be followed to the letter and "common people" are not qualified to pass judgement. Jury trials in the US just seem to be about how 12 people feel about someone, not whether law was actually broken or not. Every time I hear a case where there was no hard evidence against somebody, but the prosecutor made an impassioned case to the jury and they decide that the person is guilty I'm like.....what even is this. Why have a justice system if you're going to have this circus at the end.
> The friends and adversaries of the plan of the convention, if they agree in nothing else, concur at least in the value they set upon the trial by jury; or if there is any difference between them it consists in this: the former regard it as a valuable safeguard to liberty; the latter represent it as the very palladium of free government. For my own part, the more the operation of the institution has fallen under my observation, the more reason I have discovered for holding it in high estimation; and it would be altogether superfluous to examine to what extent it deserves to be esteemed useful or essential in a representative republic, or how much more merit it may be entitled to, as a defense against the oppressions of an hereditary monarch, than as a barrier to the tyranny of popular magistrates in a popular government. Discussions of this kind would be more curious than beneficial, as all are satisfied of the utility of the institution, and of its friendly aspect to liberty. But I must acknowledge that I cannot readily discern the inseparable connection between the existence of liberty, and the trial by jury in civil cases. Arbitrary impeachments, arbitrary methods of prosecuting pretended offenses, and arbitrary punishments upon arbitrary convictions, have ever appeared to me to be the great engines of judicial despotism; and these have all relation to criminal proceedings. The trial by jury in criminal cases, aided by the habeas-corpus act, seems therefore to be alone concerned in the question. And both of these are provided for, in the most ample manner, in the plan of the convention.
[1] https://avalon.law.yale.edu/18th_century/fed83.asp
In case you're not American or familiar with American history/government, the Federalist Papers were written following the Constitutional Convention by Hamilton, John Jay, and James Madison to argue for its ratification and address much of the reasoning and arguments for/against the structure of our government (including the judiciary) as laid out in the Constitution.
And I think patent laws and law fights about them, are a circus already without naive common people.
And talking about circus
Far from perfect and
That's not to say that judges can't make bad decisions (we have a similarly infamous court in Hamburg here in Germany), but it seems that having a jury does not necessarily make for better outcomes.
More lawsuits = more business lawyers = more money for local business.
But AFAIK, this has only been possible because the plaintiffs have been able to choose their venue. And in the end, it's a game of numbers.
If venues where chosen at random, I'd imagine the the whole business model would fold - simply too much risk/uncertainty.
Rather than trying to make life harder for such trolls we should focus on fixing the patent system. My 2c.
If only 1 reader here on this HN thread ends up founding a unicorn company, you will have enough money & pull to get real patent reform thru congress, if you so wish.
Go out there, make serious money, then change the world of IP. Let that be your legacy.
That's your path forward.
For those that found this interesting——especially those that are frustrated by the current software patent system——consider subscribing. It's free, just a passion project I'm doing on the side. I think writing about & publicizing these problems is one of the ways forward to a solution, which is one of the reasons I started Letters Patent.
If you have questions about what i've covered, or suggestions about what to write about, please send them my way: joe@letterspatent.org.
The entire system is useless and should be abolished.
1) You can get nonsense patented if you are patient enough and keep going back to the patent offices over and over. The people who are reviewing the patents aren't in any way expert enough in the subject matter to meaningfully judge whether something is new. They should just as well issue everything that comes in the door because they aren't a meaningful block to the issuance of garbage patents. When they send back objections they are usually non-sequiturs (>90% of the time)
2) "Holding the patent gives you the right to exclude". This is useless for a small fry anyway because patent litigation is so costly that unless you are in a huge industry it will never be worth it go to court anyway.
3) The patent doesn't meaningfully put any real ideas into the public domain. The info in the patent itself is the tiniest fraction of what you'd need to know to make a working product. The useful stuff is the trade secrets and know-how. I could see this being not the case in a few select fields like biotech.
4) The system is a net drain on the economy. Big corps have to keep filing their nonsense patents to protect themselves from each other. None of these filings are adding value.
Funders like to see patents. But I think this is because they don't appreciate the weaknesses of the system.
So why is everybody outraged? Because the lawful licensing agreements don't make it to the news. The outrageous cases do.
Before I pay for protection, I want to be sure they got my back.
They are a crime against humanity.
I hope these kind of lawsuits put an end this terrible patent system
And I hope the software copywriting goes on the same way
> So fast-forward a few years to 1981. Mr. Harvey sat down with an electrical engineer whose name was Jim Cuddihy. And together, Mr. Harvey and Mr. Cuddihy put together ground-breaking inventions in communications technology that were ahead of their time.
It sounds like they made something novel and interesting!
> PMC’s business “is to license out the technology of Mr. Harvey and Mr. Cuddihy so that companies that want to use that technology with permission can do so,” Subramanian explained. “The company has over 20 licensees, and they've earned millions and millions of dollars from companies who have paid for the right to use PMC's technology."
> To the extent that Harvey and Cuddihy ever had an idea for an actual product, it seems to have been a kind of computerized graphical overlay on top of a TV screen. At some point in the early 1990s, PMC demonstrated a prototype to some potential investors in New York City. The prototype system consisted of a VCR and a computer that were hooked up to another TV screen, which combined the video streams in some way. It wasn’t connected to the internet.
But they were given the patent for it right? And they clearly had some kind of a working prototype.
> Whatever this contraption was, it was likely pathetically out of date when it was shown off.
Oh so their "contraption" was pathetically out of date..
> PMC never made any for sale. And as the CEO admitted, they didn’t even spend on R&D. Instead, they embraced the fantasy language of the patent troll—one in which real companies, like Sony and Arris and other licensees, “took licenses in our inventions because they were using those inventions,” in the words of PMC’s general counsel, Thomas Scott.
REAL COMPANIES, like Sony and Arris and other licensees.
This is the crux of the issue right here. Basically, they developed the technology but were never able to productize it themselves. So they sold the tech to a bunch of other companies. And then later they discovered that the tech was being used by many more companies, in many more products.
This doesn't sound like a typical patent-troll case to me. Apple can afford to pay 300 mil for some tech that they didn't invent. God knows they've stolen way more than that.
If they win this one, in the next lawsuit, they'll be able to describe Apple as one of their licensees, paying them hundreds of millions of dollars.
PMC is "licensing" technology the way the mob is providing fire protection.
I’m an inventor (100+ Issued patents), I develop POCs and concepts well beyond my ability to productionize. That’s not to say I couldnt create a product, just that I don’t have the resources. However, I do have the resources to develop novel techniques. Does that mean I didn’t invent the process- no, I did invent a new process. I just didn’t build them into a product.
You know what?
Apple is also inventing things and has a plethora of patents. Further, I 100% guarantee they did a patent search and knew of this patent prior to releasing their product(s).
While I don’t think patent trolling is necessarily fair, I don’t think saying “poor old Apple” for having to pay for someone else’s invention is fair either.
Do I think patent law needs reform? Yes. Right after copyright, which can be extended decades/a century after publication. That being said, this is the game. Play by the rules while you’re in it.
No, you don't. You guess that and it's good for your business if you assume that companies do the search and that searching is feasible.
Because if you simply keep it secret then the people who patented it after they independently came up with it can sue YOU!
The lesser evil is to put it into the public domain; then no one can patent it and no one can sue you either.
When you use a concept you have to patent it today. It’s unfortunate, but it’s reality. You can ignore patents out there, and later they will sue you (if your successful). And take a slice of your revenue.
If you have a lot of patents (like the big players). You then cross license and you’re good.
Do I think patent law needs reform, absolutely. It’s insane. Do I think you have to play the game - yes or you’re equally insane.
Then a few weeks later I have to look at it again and try to rediscover that revolutionary idea while the family is waiting for the lights to work again.
It's basically: query the database for the list of nodes, then tell the LB which of those nodes you want to send traffic to. Something you come up with in 5min if you ever need it.
"Automatically scaling neural networks based on load" [0] is one such example. Load balancing and scaling is nothing new. Doing it when there's a neural network as the application involved doesn't seem novel. Every flavor of software application shouldn't warrant its own patent for scaling out the computational resources involved, at least not when the supposedly novel method is so basic, but dressed up in neural network jargon. It doesn't even do that in all places. From the patent: "Allocate Processors -> receive load information from the processors -> adjust the number of processors based on the load information."
This is exactly the sort of patent I would expect a patent troll to buy up and then go after anyone (as long as they have money) that does any sort of automatic load balancing or resource scaling. Awful.
Then this one [1] is, quite literally, authenticating a user... but at an ATM machine. Ridiculous.
They aren't all this bad, but a lot of them are. However I'll note one that seems to have a least a little merit: [2] Using IR or temperature changes in keypads to obfuscate ATM pin input. (stealing PINs via thermal imagine is aparantly a real thing)
[0] https://patents.google.com/patent/US10614360B2/en?inventor=A...
[1] https://patents.google.com/patent/US20200012778A1/en?invento...
[2] https://patents.google.com/patent/US20200202015A1/en?invento...
Is it “spam”, I guess you can call it what ever you want. But you’re missing the nuanced problem.
Say as a company A you never submit a patent. Companies B, C, D, E, etc... All patent a portion of your applications before they are deployed or even after their deployed (but the patent is public).
They can then sue you. Each company for the aspects you violated.
Look at Wells Fargo via usaa
https://www.expressnews.com/business/local/article/USAA-Well...
Imagine that ten fold. You need (if your a decent target), patents you can cross license. Do I think it’s good? No I don’t. Can I reasonably argue you need to patent as a corporation - yes. I also support patent and copyright reform, but I can still understand the need to protect ourselves in the meantime.
The issue I took up in my comment was that you seemed to be defending this process to some extent, so I appreciate you clarifying your point of view to mean you were only defending the necessity of companies to engage in this sort of stockpiling of patents. It's not, from a less subjective viewpoint, rational: It is a net drain on the economy and innovation. However, when you find yourself in a crazy situation that you can't significantly alter, the rational response is often something that is itself irrational.
I often think of war as the prime example of this... It's insane that the US dropped two nuclear bombs on Japan. Heck, it's insane that such weapons were developed to begin with. And year the entire broader context was insane. Fighting a more conventional war against Japan would have been even more crazy, costing more lives and prolonging the war even longer. It's an appropriate metaphor to call the crazy patent situation "patent wars". (It's also part of why I like things like the study of optimal strategies in iterated prisoner dilemmas... it gives a framework for how to think about rational decision making under irrational conditions.)
A friend of mine described to me this exact idea over four years ago — well before the linked patent was issued. Does he have grounds to overturn that patent!?
Software businesses (and others) currently exist at the mercy of patent-rights holders. As soon as they grow fat enough, the ROI on suing them makes it worthwhile. The case of PMC vs YouTube is a representative example.
The US patent system, as it is now, does not make the world a better place. It stifles innovation, where it should be fostering it.
Copyright, on the other hand, is much harder to violate. A software company can do business with much less fear of unknowingly breaching copyright. The copyright discussion is sufficiently different and unrelated to the patent discussion that raising it as an argument seems a little whataboutery.
It's also a by-design unfair system only for the rich - as those with ideas (especially in 3rd world countries) don't have the resources to file for patents. It really makes my blood boil.
Patents and copyright are immoral, or the word immoral has no meaning.
Don’t play immoral games. Think from first principles.
[0]: https://en.m.wikipedia.org/wiki/Slavery_in_the_21st_century