Looking forward to the day a patent troll comments on a discussion
There are in fact legitimate small inventors who must approach large companies, and that situation predates the hardware and software industries, but it was software and hardware people that created this idea of the "patent troll". If there was a "bad" situation that existed before Intellectual Ventures was founded, no solution was offered by those who were negatively affected. Rather, the approach taken was "If you can't beat `em, join `em." One could argue, as a result, the situation went from bad to worse.
(But you probably have a point that if patents are legitimate than an otherwise ethical patent troll would also be legitimate)
I'm not sure it's possible to be an "ethical" patent troll. It is a structure explicitly chosen to minimize any collateral in case their patents are thrown out in court, claims are invalidated, and they have to pay to for the counterpart's expenses (and which point the company is simply dissolved, with little to no damage to the owners).
If somebody is so sure their patents are valid, let them form a "real" company which utilizes said patents to bring in revenue, and let that company go to court with competitors and bear the risk of having to pay for frivolous lawsuits.
Not that I think that that software should ever be patentable, of course.
There are a variety of reasons why forming a "real company" that produces products might not be practical. For example you might be in a field where the startup costs for a competitive company is in the billions (silicon manufacturing), or that is a natural monopoly already monopolized by one or two big companies (operating systems). Your competitors also have patents on things that you would need to be competitive and for whatever reason you aren't willing to license them.
Or really you might just not be well suited to running a company, bad at managing people or whatever, and if patents are legitimate it seems like they are legitimate regardless of whether or not you want to start a company.
(PS. I'm generally against patents, and strongly against software patents, but that's neither here nor there on whether or not patent trolls are legitimate under the assumption that patents are)
> There are a variety of reasons why forming a "real company" that produces products might not be practical. For example you might be in a field where the startup costs for a competitive company is in the billions (silicon manufacturing), or that is a natural monopoly already monopolized by one or two big companies (operating systems). Your competitors also have patents on things that you would need to be competitive and for whatever reason you aren't willing to license them.
But what are you doing with those patents, then? As much as we both consider them to be a bad idea, patents are supposed to be a vehicle to promote tangible advancements in the field, to encourage development and manufacturing. If you don't produce anything but just stop anybody else from doing that, or just collect rent by granting out permissions, you are not using patents "correctly".
I'm not sure it is either, the law is a blunt tool and it's not always possible to legislate things like "be ethical".
One potential way to do legislate this is to require that plaintiffs place funds in escrow pending the outcome of the case, to pay for the other sides fees if they lose. Occasionally courts will already order this under current law. I'm not going to generally advocate for that as a good idea though, I think it probably has a lot of side effects and I haven't put enough thought into it to be sure it is a good idea.
> But what are you doing with those patents, then? As much as we both consider them to be a bad idea, patents are supposed to be a vehicle to promote tangible advancements in the field, to encourage development and manufacturing. If you don't produce anything but just stop anybody else from doing that, or just collect rent by granting out permissions, you are not using patents "correctly".
Theoretically, it was the act of inventing that occurred prior to the award of the patent that the patent is supposed to be rewarding. The reward is precisely the ability to extract rent from people who use the invention (whether by making it and selling devices at a premium, or licensing the patent).
You see this mechanism actually function in pharmaceuticals for instance, because patents are so valuable there are companies that pour resources into inventing new drugs that they can patent. (I have other issues with patents in this industry, I wrote about them elsewhere in this comment thread, but the reward mechanism really does motivate useful work here: https://news.ycombinator.com/item?id=27587034)
That's an interesting direction, but how does the collateral compare to the average lawsuit's costs? What happens if the suit drags on, exceeding the collateral, do the parties just agree to disagree and drop it?
I could also be a small company, on the defending side, which is the frequent case in patent trolling scenarios. I shouldn't be barred from defending myself in court if I don't have the ability to post the collateral up front (if I'm convinced my case is strong, at least).
On the flip side, a small IP owner should still be able to sue a giant company that is violating their patents/copyrights/etc. Even if the said company has a lot of money and is liable to create huge attorney bills. But I suppose if the escrow for plaintiffs becomes more common, it's a small price to pay for the benefit of the whole ecosystem.
> You see this mechanism actually function in pharmaceuticals for instance, because patents are so valuable there are companies that pour resources into inventing new drugs that they can patent. (I have other issues with patents in this industry, I wrote about them elsewhere in this comment thread, but the reward mechanism really does motivate useful work here: https://news.ycombinator.com/item?id=27587034)
Good points on the pharma industry.
But okay, let's agree that there are pharma companies (research laboratories, etc) that don't ever do the end production themselves. Perhaps that's even a good state of affairs (of which I'm less certain).
Still, those companies are "real", and they have financing and budgets for stuff other than the patent lawsuits. They have to do the said research and put quite a lot of money in it (which is what makes those patents valuable and arguably a benefit to society as a whole), and that distinguishes them from an average patent troll.
You would expect the value to be set by the court as an approximation of the amount of fees that they might award to the defendant (which in turn is an approximation of what a reasonable defense might cost), as the lawsuit goes on you would expect the court to periodically increase the collateral requirements on the plaintiff, since the total cost to defend the suit has gone up.
Small, legitimate, companies having to put up collateral is an unfortunate side effect, but if they have good claims (and can convince a lender of that) they should be able to finance it... so that's probably not the end of the world? It does seem like a bit of an access to justice problem, not really sure how I feel about it.
> They have to do the said research and put quite a lot of money in it (which is what makes those patents valuable and arguably a benefit to society as a whole), and that distinguishes them from an average patent troll.
This is true if they license the patent directly to the manufacturers, but that's not necessarily the case. It seems entirely reasonable for a company to discover a drug, patent it (so they have something to sell), and then sell the patent to another company that deals with licensing it out to drug companies.
A license management company (aka patent troll) in the middle comes with a number of benefits:
- Chances are there's still a lot of risk associated with that drug, e.g. it might fail in human trials, by selling the patent immediately you reduce your risk.
- Licensing patents is not your core competency as a drug discovery company, it makes sense to have an entity that handles licensing for the patents invented by many different drug-discovery companies.
- You might, for whatever reason, want to stop operating as a drug discovery company. Maybe you want to retire. This shouldn't wipe out the worth of your previous work.
Generally, assets being transferable seems like a good thing. A lot of our society is based upon that principle... and if patents are transferable, it seems inconsistent to say "you can do X with asset Y, and so can most other companies, but not if the only thing a company does is doing X to assets Y". Inconsistencies like that generally lead to weird arbitrage opportunities and inefficiencies in society...
So the system might still work fine even if all patents get shut down when a company that acquired them does.
It's not what I suggested, though: just that a non-practicing (at least in some sense) company can't litigate.
That would mean that you can sell your patents to some shell company even. But the recipient couldn't sue anybody over them until they either start a profitable business on the side relating to said patents. Or they resell it again to a company that satisfies the requirements. Or have a lump sum set aside in escrow, I guess.
https://www.eff.org/document/memo-uc-regents-re-patent-licen...
What would people call this. What is this LLC actually going to produce, besides licensing revenue or litigation.
I'd say the business idea was created by the govt. Finding new ways to profit via exploiting the laws will always happen sooner or later if they exist.
Hardware and software are perhaps unusual because the patent office has such a divergent idea of what is and novel and obvious to experts versus reality, presumably because computer technology moves so fast.
I assume the patent troll approach would be that they're returning value to their investors, while following the law as it stands.
We should not through out the baby with the bathwater....
Example: Are you going to reverse self-driving code from a vehicle giving you are ride? Or a server behind an API?
I looked into just the fees to file a patent, and it's for middle class, upper class folks, institutions, and companies.
The poor guy tinkering around in his wood shed is not filing patents.
Maybe not throwing out all patents us a good idea? I don't know, but an American citizen (low income) all fees shouid be eliminated.
I would like to see a limit on patents anyone can file, or a graduated fee structure?
1 patent free. (low income. $300 everyone else) 2 patent $500 3 patent $500,000 4 patent $1,000,000,000
This would at least limit those guys patenting round corners?
My pet example is the mosquito laser. They invented it at MIT, and showed that it could effectively shoot down mosquitos that pass between posts. The hardware costs were a bit high, but would come down drastically if someone mass-produced custom chips for it. But, the overall idea is patented, and currently held by a “think tank” licensing company, and no product has emerged. I can only assume that it is because their licensing demands are too high. I’d be happy to start my own company to build mosquito lasers, but I’m sure that their licensing costs would kill any profit from it, so I don’t. And so the world is left with no mosquito lasers for more than a decade.
If you want another extreme example, the 3D printer craze was kicked off by the expiration of a patent on the FDM process: https://www.fabbaloo.com/blog/2020/3/2/the-challenge-and-opp... The innovation in the 3D printer space probably lost 10 years due to that patent.
One possible solution to the problem, without throwing out the entire patent system, would be to create a mandatory licensing system with fixed rates. For example, if you know that your design is about 60% patented, and there is a law that says 20% of your profits have to be given to the patent holder, then you might be able to go ahead and make the product and still turn a reasonable profit. The patent holders would get paid something and the products would continue being innovated without these stupid wait-17-years delays. Also it would put less severe stake on the patents, so people could just argue out the details in court about who gets how much money without worrying that it was going to bankrupt a company or kill the product line.
As soon as any technological idea becomes well-known, say some research idea getting hyped in the media (e.g., quantum, VR, some new kind of laser, 3D displays, etc.), then people everywhere run out and patent all possible imagined ideas of how this new tool might be used to make products.
This seems an arbitrary assumption. Products don't make it to market for myriads of reasons. Seems like a poor example to use to target patents - especially as with patents you know that within ~20 years that idea will be freely available to everyone.
Innovation seems to come from
- Academics, who would be doing the same thing regardless of patent revenue
- Entrepreneurs (and people working for small companies), who are hurt much more by the existence of the patent system than the potential revenue from it.
- People working for big companies, who would almost always be building the exact same product if the patent system didn't exist, except they wouldn't have to worry about working around competitors patents.
Certainly the patent system makes some people money, but it mostly seems to be
- Lawyers (for obvious reasons)
- Owners of already very large and no longer very innovative big companies, who had the time to build up a war chest of patents.
I don't particularly believe that giving extra money to either of those groups encourages innovation, and I certainly don't believe it encourages innovation enough to make up the harm it does to people attempting to be entrepreneurs, people having to work around patents, and so on.
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One potential exception to this is bio related industries, which are different in that patents are often the primary product a company produces, instead of a byproduct produced by engineering work that happens for other reasons. Without patents you would need to find another way to fund that work, if you want it to happen. I wouldn't call most of that work particularly innovative though, it's mostly just very expensive mind numbing work like "trying a million different possible drugs" and "running huge human trials" and so on.
I would generally prefer that the bio work be funded by a different system, because I don't think the patent system produces good outcomes for society. It creates perverted incentives to always be creating new drugs, instead of finding new ways to use old ones. It creates perverted incentives to not build on each others work. It means that drug companies have the ability to charge substantially more than the cost of production for drugs they produce, meaning people who could be treated cheaply in an optimal system go untreated (note: The marginal cost of treating more people is really small since the expensive part is the R&D that already happened). Moreover it forces drug companies to do that if they want to recoup their R&D costs.
Something like direct government subsidies to companies who discover drugs that people end up using (for medical purposes) seems like a better solution. There are a million variations on that, but I'd claim that basically any variation on that is probably better than patents.
And a novel high performance x86 CPU design. x86 is patented thoroughly, although now it ought to be ok to ship one that has the features from about 20 years ago. I would still recommend to be cautious!
And an ARM one. ARM is known to some in the field as a company with an army of lawyers after all.
A lot of innovation happens when patents expire.
Other people's open source FPGA designs are shipping now (and kudos to the designers - they are really well implemented!), in part thanks to many of the basic patents on FPGAs expiring about now.
I would be quite surprised if RISC-V implementations aren't dependent on a number of key patents having expired by now.
FDM 3D printing (where hot plastic is squirted through a moving nozzle) became popular when the patents on it expired. Some people into open source 3D printing think it happened because that's when people innovated. They did innovate at making it low cost, but the expiry of the patents was a factor too.
At the moment I'm building a specialised high-performance database engine, and I have to explicitly avoid some of the obvious on-disk data layouts because they turn out to be patented. It's annoying having to come up with some "clever" alternative, but I'll find a way.
I don't know if patents encourage innovation on balance, but they've definitely prevented me from shipping some fairly advanced things I've worked on in the past.
I don't begrudge the companies or the system, but I will argue that there is plenty of innovation impeded by it, and in my experience I have never worked anywhere that patents helped, only places where they hindered. It could happen but it hasn't yet.
When I discussed this with a patent attorney once, there was a fascinating gulf between people who dream up patentable (or already patented) solutions almost casually on demand when faced with a problem, and people who think this is impossible and such insights are precious gems that rarely occur. I'm sure it differs between fields, and I know there are some very clever patents. But in software and to an extent hardware, the two fields I'm most familiar with, most patents seem to cover natural solutions to a problem which would occur to anyone skilled in the area when faced with that particular problem.
So is copyright, without them both the concept of IP dissapears.
Patents at least have to be usefull, and documented publically for future use.
Copyright of code by comparison is an abomination, it does something to your smartphone and data, you have no right to inspect it or change it.