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Comment by cycomanic | Hacker News Reader

The issue I have with much of the patent trolling bashing is, that it somehow makes a distinction between practicing companies who make something and non practicing entities. I think this is a huge veil the industry pulled over people's eyes. Why is it OK for huge companies like apple, IBM, Google... to use the patent system to keep out any competitors or newcomers, 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?

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.

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Patents are a monopoly on an idea. And ideas shouldn't be owned by anyone. One shouldn't be forced to share their ideas, but the concept of coming up with something, and then going to your community and saying:

"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.

But "so now it's my idea" just means "now only I can produce this thing commercially, unless I give you permission".

The alternative is "only I can produce this thing commercially, and you have no idea how I made it anyway".

Companies like this don't produce anything commercially, didn't actually invent anything, and their patents are so vague and general that no one is any more informed about how to make anything.

People like to say that without patents there will be no incentive to advance technology, but if you're the one to come up with an idea then you already have a huge head start. If you don't make use of that head start, then you don't deserve it, and this applies to patents as well.

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.

In practice you'll have a head start of maybe a year before a grifter in China replicates your three years of R&D and floods the market. And a copied product will always be cheaper as they don't have to amortise development costs.

That's how technology worked before the patent systems, and the outcome was manufacturer secrecy - which generally sucked more than the patent system.

It sucked in different ways, but its not clear that it sucked more.

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'm with you on software patents, but they are only a fraction of patents landscape and really pertinent only to North America. But naturally it's overemphasized here on HN.

Way overemphasized here on HN. The USPTO is in a terrible spot right now. Your IP is not worth what it was before the AIA (America Invents Act). It essentially decimated the patent system. I won't go into specifics.

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.

I'd be very interested in a writeup. My gut feeling was always that it is in fact not incentivizing the "inventor" either. I do see people at big institution filing patent after patent, but it seems very inaccessible for a normal human being like me.

Exactly. Patents protect only monopoly of large companies. Getting a patent in EU or in USA is very expensive ranging from tens of thousands and up to hundreds of thousands. Big part of this money goes to totally unproductive parasitic hands.

The fees are half for small businesses, and 1/4 for "micro entities". If you only want a US patent it isn't very expensive. Investors want to see patents which implies they have value, even if it's an uphill battle to take on a big company.

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.

Can we do away with this myth that patenting something will somehow put knowledge into the open. Has anyone here actually read a patent? They absolutely will not tell you how to do something. In particular I know for fact that, the things that are actually valuable are either never patented or specifically omitted from the patents so that no one can actually reproduce a method technology from a patent because some crucial steps are missing.

That's not the rule, patents have to be reproducible by a man of the trade. Not disclosing crucial steps in the claims, even if overlooked by an examiner, is also a handicap: someone can circumvent your patent if the actual substance is missing.

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.

> Can we do away with this myth that patenting something will somehow put knowledge into the open.

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.

> In practice you'll have a head start of maybe a year before a grifter in China replicates your three years of R&D and floods the market.

So, not much different then?

It's different in that you can prevent the imports of copies into the mature markets by suing the importers.

The Chinese cloning threat is largely overrated unless your product is very simple and you have 0 branding.

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.

The cloning threat is very real on high end systems. Things like electric train propulsion, water purification systems, tons of various industrial designs with enormous upfront R&D were copied wholesale.

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.

> The Chinese cloning threat is largely overrated unless your product is very simple and you have 0 branding

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”

Any examples of that where the product isn't commodity-grade? The AmazonBasics examples I see are things like household appliances, cables, cheap accessories, lightbulbs and batteries. If you're a small-to-medium sized business in the West, you should try to target market segments where the quality, branding and support of the product matters, as obviously you will lose in a race-to-the-bottom of undifferentiated low-quality commodities.

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.

Just because the patent system has some problems doesn’t mean it doesn’t have any value. These troll patents might contain a high number of ideas you might just casually come up with, but the actually valuable ones tend to be comprised of innovative ideas that usually require significant R&D investment to come up with. Without patents there’s very little incentive to invest in coming up with those ideas. A lot of the time the people who come up with the patent have no intention or capability to bring products to market, so unless you want 100% of research to be completely controlled by commercial interests, you probably want to have patents.

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 key word here is 'invention'. In practice we have lawyers specialized in crafting as vague and broad patents as possible, so that bogus infringements can be litigated in court.

There’s lots of problems with our current system. However the list of problems doesn’t include the existence of the system itself.

  > The temporary monopoly is awarded in return for publicly disclosing your invention.

Reading patents is perhaps one of the WORST and most inefficient ways to discover "new ideas". Even ignoring the turgid legal language, the actual central ideas of the patents are either so vague they're useless or they apply to utterly obsolete scenarios or they just poorly describe something that has already been in existence/usage before, during, and after the patent's existence.

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.

You’re really just restating the claim that we don’t need intellectual property protections, without making any attempt to explain why.

Your suggestion that the global economy could shift towards an isolationist model is frankly enough to dismiss your idea without much further scrutiny.

> ...suggestion that the global economy could shift towards an isolationist model...

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.

Not to mention, it's my understanding that tech employees are generally instructed to avoid reading patents, because if the company ever gets found in court to have infringed on the patents, then them having read the patents will be used to show wilful infringement and therefore to award triple damages.

I suppose they could read expired patents, though.

The fact of the matter is that countries with weak IP laws and/or enforcement see less innovation. It makes sense too, the calculus is easy: rip someone’s tested idea off for free, or invest huge piles of money just to get your foot in the door?

Do you really believe that software patents represent anything close to an original idea? From my perspective, Software patents are on such stupid things utterly divorced from anything that could be considered innovative, that none of it incentivizes inovation.

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.

You are leaving out the option of just licensing the patent. If you are lucky they will license it to you for free.

Can the license holder set any price they want? Essentially blocking access with an absurdly high paywall? Or is there some kind of standard?

Yes, or they can refuse to license it to you at all.

That's still a restraint on innovation. Money going to licensing can't be spent on salaries.

If we assume free licensing then you might as well cut out the middle man and abolish patents.

The causality probably goes in the opposite direction. Countries without IP don't care much about protecting it. Countries with IP care about protecting it.

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.

Citation needed. Historically this has not been true (I pointed to a famous example with pharmaceuticals further up) and it is also not true for companies, i.e. companies that patent a lot do usually not have the highest R&D budgets relatively.

Assuming that statistic is true, how do you know countries with more innovation don't just end up producing big corporations that lobby for more control over ideas that they don't want to compete for?

People on here are generally exposed to ridiculous side of patenting, with high publicity marginal cases that make headlines. A lot of patents are way beyond an idea written on a napkin and are the outcomes of significant R&D expenses.

Uhm, I used to think that patents are a monopoly on a certain implementation of an idea, not the idea itself. If you own a patent of a video codec, that doesn't make you automatically owner of all codecs of the world. Am I wrong?

> "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"

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.

Didn’t mpeg work with patents and licenses?

... 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.

Not to mention the poorly qualified or downright unethical Intellectual Property(IP) industry which makes the uninformed spend thousands of dollars in the patent process without proper prior art search, only for the patent authority to later dismiss the application i.e. if the the patent authority is competent or else award the patent which ends up with a troll.

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.

Ideas can explicitly not be patented.

"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."

https://www.uspto.gov/patents/basics

I'm on a few dumb software patents and they always start with "a server configured to..." given how close software patents are to ideas.

He means idea in the broader sense of nonphysical concept. For example, the patent for a drug is not private property in the same way that a plot of land is. One is a physical entity which can only be owned/utilised by one person or group at a time, and another has no physical properties and can be utilised by literally every single person alive had they the inclination.

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.

Just because it's not physically present doesn't mean it's not real. Patent represents compensation for time spent researching and developing it.

Without it, you would resort to greater degrees of secrecy.

Sure, it's real, but it is not affected by scarcity. Monopolies are never a good idea, they suit oligarchs at the expense of mankind.

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.

This is the party line, but it just isn't true. Patents are obtained & enforced on ideas all the time, especially in software. PMC is enforcing a patent on the idea of DRM, on the idea of error-correction in streaming video. They never implemented either (beyond a prototype which may or may not have had these features, and never sold).

I agree that we allow patents for things today that aren't novel but patents do allow a single person to build a company around an idea. By having some protection for a time, they have time to recoup research costs and build something sustainable.

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?

Patents are a way to encourage sharing ideas.

You can always monopolize an unknown idea. Don't share it.

> One shouldn't be forced to share their ideas.

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.

"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 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.

Is it really innovative if you do not implement it? I don't mean market it and make it successful, I mean just implement it. Because if the "inventor" can't implement the process described in the patent, it's not really a useful invention, is it?

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.

ARM is a good example of innovation without implementation.

> There literally was no way for me to have found the patent

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.

It’s absolutely hyperbole, in the same way the Vogons clearly published the development of the interstellar bypass In a closet behind a door labeled something like “tiger, do not enter”.

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.

This is a false dichotomy if I ever saw one. The fight is not between the ones that legitimately use patents and those that've merely bought (or created) them to make money off of the IP itself.

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.

There are several problems with your argument.

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) .

Patents need to be discriminated based on some threshold of originality or something similar. My country even has a term for it "verkshöjd" that is applied in this context. That way you don't get trolls trying to sue Amazon for "Way to sell merchandise using a >>computer network>>."

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.

I believe most of the time 1 and 3 applies to the same company (if it is big enough) simultaneously because companies want to be one move ahead of their competitors.

> Why is it OK for huge companies like apple, IBM, Google... to use the patent system to keep out any competitors or newcomers

[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)?

Many internet companies, including Google, have used patents only defensively (so far). However, there are plenty of tech companies that do assert patents offensively, including Apple, IBM, Qualcomm (famously), Oracle, and lots of others.

Qualcomm and Oracle are clearly bad actors. IBM? Probably. But I have no idea honestly.

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.

Apple sued Samsung with scroll bounce back effect. Yes Samsung is a big player, but the lawsuit means other developers also avoid to implement same thing.

https://arstechnica.com/tech-policy/2017/04/appeals-court-re...

The main difference is that those huge companies can potentially be kept at bay with defensive patents. They have at least some skin in the game in playing stupid games with stupid patents because they could find themselves on the receiving end of these frivolous lawsuits. There is no such defense against patent trolls, only court victory, legal reform, or extrajudicial penalties (e.g. reputational).

> 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.

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.

I think you might be referring to the patents from Nokia. These are licensed on FRAND terms. Nokia was one of the original inventors of GSM and owns a considerable patent portfolio especially on the network tech.

Well, MS also went after other rubbish like exfat from what I remember. Until last year, that is, when they discovered their love for linux.

I don't think MS ever owned the Nokia communication patents. They only took over the phone and devices business. Nokia the telecom and information technology company still lives and bought (merged with) Alcatel who had previously bought Lucent.

Bell labs (who is doing a lot of telecom R&D) for example is owned by Nokia now (it's called Nokia Bell labs)

> 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.

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.

Looking at the article, it looks like if the patent holder John Harvey had spent his post-Yale life simply resting and investing in the S&P 500, then the "infringing" technology in question would have happened just fine with out him. And Mr. Harvey would probably have been richer doing that, too.

> The whole notion that patents are only legitimate if you build something is completely bogus.

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.

We need some serious patent reform, especially in the software sphere.

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

I agree that patent abuse and IP abuse extends beyond trolls. That's one of the reasons I started Letters Patent -- and that's why I linked to Cory Doctorow's piece outlining Apple's long history of IP abuse.

Agree. Everyone wants to have their cake and eat it too.

Live by the patent, die by the patent.

I would argue if you're not bringing your idea to market, that's not innovation. It's the opposite, you're blocking innovation.

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.

And Apple is no stranger to bogus patents (eg the infamous round corner patent)

That is a design patent that falls in the same category as the shape of a coke bottle and are related to ornamental design on an object that has practical utility.

They fall in a different subsection of patent law than the way to implement something.

https://en.wikipedia.org/wiki/Design_patent

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