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Comment by onion2k | Hacker News Reader

It shouldn't matter who owns a patent. If the person or company who registered it has decided to 'cash it in' and sell it to a company whose business is patent licensing is OK. Whether or not the patent is valid is the important issue. Optis 'won' $506m in the US as well, but the supreme court reverted the decision on Apple's appeal. The UK court has decided that it is valid (for now).

Something very important to note here is that the comment was made in regard to a case arguing whether or not Apple agree to be legal bound by another case next year to decide the patent license fee. Apple are arguing that they'll leave the market if the fee is too high. The reality is actually that if they agree to a binding agreement in the current case, and then decide the fee is too high after the case next year and refuse to pay it, they'll be banned from selling iPhones in the UK. Their exit from the market won't be their choice.

This remark is a scare tactic aimed at making the court agree a lower patent fee. No one believes that Apple will voluntarily leave the UK market, but if the court imposes a high fee Apple might be forced to. It's highly improbable, but it's not entirely impossible.

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I think that is the material change we need. Patents must be used as an active and relevant part of your product or you don't deserve protection. The point is to encourage innovation and from someone from basically just reselling your idea. If you aren't selling it, then why do you deserve protection?

This would mean only mega corporaions capable of funding hundred million dollar FDA trials could have drug patents, and people who came up with novel drug mechanisms would all have to work for these companies rather than specialize on early stage innovative research and sell to them.

Mega corporations capable of funding FDA trials buy patents and use them to create/produce drugs. Patent trolls don't create anything.

Mega corporations capable of funding FDA trials buy patents and use them to create/produce drugs.

They do that sometimes. Other times they discover a drug chemistry, patent it, and then do nothing with it because they decide the market isn't profitable enough. That stops other companies bringing the same drug chemistry to the market. Patent trolls actively want people to exploit their patents in order to sue. I'm not sure which is more disagreeable.

> buy patents

Whose non-existant patent would they buy under the new system where the non-practitioner can't have one to sell? Or I can see you could only let practitioners enforce, but what would be the details on that? The non-practioner could just threaten to become a practitioner or sell to one in exchange for a settlement from someone violating, or if prior violators were grandfathered in once practitioning from the holder began, it would be a race to violate as many as possible before they could be put into practice, in order to get them free through grandfathering.

An example would we the Biotech/Pfizer vaccine - it could never have finished clinical trials so quickly if patents were not transferrable between companies

It makes literally no difference, as the parent comment already mentioned. You deserve protection for coming up with the technology, not for using it. These patent trolls are one of the methods to support a research program. Universities, for example, aren't set up to sell devices.

As long as the patent is for some actual innovation, there is nothing wrong with this market structure, economically or morally.

> You deserve protection for coming up with the technology, not for using it.

Why? Ideas are cheap, execution is everything and all that. You don't have to literally be the person executing on it, but whoever you transfer or sell the patent to should. I'd be ok with licensing or selling patents to others to build the technology, I'm not ok with licensing or selling the patent to others who will only use it to sue people who do try to build something similar.

The concept of patents was to encourage innovation, not stifle it.

Its also quite common that multiple people invent the same thing at roughly the same time. With these patent trolls, if one of these people gets the invention patented first, but does nothing but rent seeking with it, that will prevent others who came up with the same thing but were too slow to patent it to even try.

Couple that with overly broad, vague or downright invalid patents and you end up with a system that discourages, hinders or puts a large cost on actual innovation. Even if a patent is provably invalid, it costs money in legal fees to get it overturned.

The facts alleged here are that apple is using a patented technology, held by someone else, without licensing it first. And now that this is discovered, the remedy is to have Apple pay the licensing fees for the patent (including retroactively).

Without the ability to sue people infringing on your patent, how do you ensure people will pay to license it?

If whoever is holding the patent is not using it for anything other than sue people, then I really don't care that Apple infringed it without licensing.

That sort of goes in the face of your "licensing or selling it to others" above though, right?

Let's say you have a patent. You're trying to get someone to license it. They decide, no, we'd rather just use it for free instead. Now you have no buyers, and no licensors -- what is your option but a lawsuit?

If you can demonstrate that you were trying to get it into production, then there's nothing wrong with a lawsuit. I mean, maybe there are better solutions (making them more and more expensive to hold the older they get was mentioned by someone). The goal should be to prevent hoarding for the purpose of rent seeking, without intention for ever actually producing anything. That is, that patents are to protect your invention while you implement it, in order to encourage innovation.

But honestly, I'd be happier to just abolish patents altogether.

The whole point of the patent program is to give you a boost in using the technology (to encourage you to come up with it in the first place)

A research program that only produces patents for patent trolls seems like a useless research program.

Useless to the general public, but a great way to collect fees from those infringing.

I wholeheartedly agree with the sentiment that you need to actively use the patent in a product or forfeit all protection.

I'd say actively use or pro-actively license to someone else. If a company can't show that their patents are generating revenue somehow other than lawsuits, the holder should be forced to give the clarinet to a kid who is gonna use it.

So there are a lot of problems that arise either way. Fist, the way it works now, you file for a patent and get approved, you own it for the generic term that applies to everyone, special considerations depending on the type of patent not withstanding. This leaves us with patent trolls, yes.

The alternative: grant a patent but if it not used within some scope of time in some way it becomes public domain or otherwise no longer considered a person's intellectual property. So you go to some company and say "I've solved your problem and I want to license my solution to you" and they tell you either you're going to sell it to them cheap or they'll just wait you out. You either take it or lose the patent in short order and now they can use it free. Now the only people that even own intellectual property are the big guys, and if you don't sell they let you lay fallow until your ownership becomes forfeit. You either sell to them or lose the patent.

I hate patent trolls too, but this alternative is worse. I personally don't like intellectual property in general, I think the best solution is to just not have it. Trade secrets are one thing, making it illegal for someone to reverse engineer something they bought or draw pictures they saw elsewhere in public is a bit absurd.

That is no the whole point, and certainly hasn't been going back to the 18th century at least. It is routine for patent holders to license their patents to manufacturers for production. That would not be possible if inventors had to make the product for commercial sale by themselves. It would render novel inventions by independent inventors untenable. Only big corporations with manufacturing resources would ever be able to patent anything.

Take James Watt for example, Matthew Boulton could just have told Watt to take a hike and started manufacturing improved steam engines by himself. Watt couldn't have afforded to make steam engines independently, and why would any investor bother supporting him with capital if they could just set up production without him too?

The problem is with trivial patents, not patents in general.

Your facts are completely false, and in fact it's easier to bring things to market than it's ever been.

Watts held back progress significantly and steam engine development was hampered by his and others patents until the expired. The steam engine would have been built to pump water out of mines whether patents existed or not.

Split a company's research from its production and sales departments into two organisations, and one licenses its patents to the other.

You have transformed a structure where one entities invents and produces to a market structure with one where those are separate roles.

You like the former and abhor the later. But from the outside, this change is absolutely meaningless. It's no different than any other make-or-buy decision.

(Note that "sells a license" is exactly the same as "patent trolling".)

All these feelings you people have are based on the idea of "superficial" patents that aren't "real innovation". Which is, indeed, a problem. But it has nothing to do with the above. Assume some actually useful patent, and these objections fall apart.

It is not meaningless. The split structure is actually better (if it is genuinely spun off, rather than created as a tax evasion mechanism) because it can licence the technology to multiple entities, which spurs competition among them.

And yet the patents are often not for innovation but are purposefully vague to capture iterative improvements under their umbrella and profit from it. It's nonsense in this actual case but the concept of patent protections would be fine if to your point it was actual innovation. How would you even decide what is or is not innovative though? Any idea not in the patent database already? Patents are going to become trickier as we abstract and build more complexity into the overall ecosystem.

Everyone keeps touting that in the future technology will solve climate change.

Will it? Or will we have to wait for the patent period to expire of said technologies.

I personally consider it morally wrong to deny people from implementing ideas of their own invention.

> It shouldn't matter who owns a patent. If the person or company who registered it has decided to 'cash it in' and sell it to a company whose business is patent licensing is OK. Whether or not the patent is valid is the important issue.

Disagree, fully, 100%. To believe this you have to first buy into the idea that the patent system is a good one and/or that people who are doing none of the actual work should be able to rent-seek the people who actually are. If you aren't using the patent you should not be allowed to force other companies to pay you for it, that's just a stupid system (even if it's the system we currently have). I don't care if it's Apple, Google, Facebook, Oracle, or an indie developer, none of them should have to put up with BS patents like this.

> If you aren't using the patent you should not be allowed to force other companies to pay you for it

Companies like ARM would not be able to exist under the system you propose. Their whole business model is creating patents and licensing them to others instead of using the patents themselves.

Preventing companies like ARM from licensing their patents would only benefit incumbents like Intel who can afford the massive amounts of investment required to turn those patents into chips.

So I think we can all agree there is a big difference between the generic/basic patents we’ve seen trolls use over and over again (stuff like “an input device causes and output device to do something”) and an instruction set/CPU architecture. Also I’d bet money ARM has multiple in-house processors for testing/R&D. That’s a far cry from the patent trolls who do nothing but “own” a patent they do nothing with and didn’t come up with in the first place most of the time.

All that said: so what? My ideal world wouldn’t have patents at all. They cause way more harm than good. And we’ve seen time and time again that the big companies will just straight up copy or buy up any competition, the system is broken.

> Also I’d bet money ARM has multiple in-house processors for testing/R&D

When I worked at ARM, we just used FPGAs to emulate the chips and waited for the customers to give us a board with the actual chips. Maybe another division did create their own hardware, but everything we worked with for testing in ours was from customers.

> there is a big difference between the generic/basic patents we’ve seen trolls use over and over again (stuff like “an input device causes and output device to do something”)

If it is a generic/basic patent, why should it make a difference whether the enforcer is a practising entity (PE) or not? Unlike a non-practising entity (NPE), a PE would be less inclined to licence it because they want to keep competitors out. ARM is big enough that they can instigate litigation on their own against infringers. Smaller inventors have no chance of doing that, and patent trolls are often their only venue. Many times, the problem is with bogus patents that should never have been granted because of prior art or obviousness (supported by the authorities failing to perform due diligence before granting patents). And the other is the expense of defending against a valid patent that does not apply to the defendant's product. Patent trolls' portfolios are often full of such patents, but this is not limited to NPEs.

> big companies will just straight up copy or buy up any competition

An example that comes to my mind is Nuance, a practising entity that engaged in frivolous patent infringement lawsuits against a new competitor Vlingo. Nuance did turn their patents into products (Dragon NaturallySpeaking), so they are not considered a patent troll under the usual definition. Yet, their actions against Vlingo were the same as that of a troll, and even though Vlingo won, they were weakened enough to be bought out by Nuance.

> Something very important to note here is that the comment was made in regard to a case arguing whether or not Apple agree to be legal bound by another case next year to decide the patent license fee. Apple are arguing that they'll leave the market if the fee is too high. The reality is actually that if they agree to a binding agreement in the current case, and then decide the fee is too high after the case next year and refuse to pay it, they'll be banned from selling iPhones in the UK. Their exit from the market won't be their choice.

I'm having trouble seeing why this sequence:

    Court: pay $X fee or stop selling iPhones.

    Apple: OK, we'll stop selling iPhones.

doesn't represent Apple choosing to stop selling iPhones.

Pay x or I'll break your legs.

I think you've gotten your example backwards. If you tell me "Pay $X or I'll break your legs", and I say I'll take the broken legs, and you break my legs -- you really want to argue that that's the decision branch where I wasn't really making a choice?

Of course you were... You could've paid.

Common law has the concept of "under duress". I'm sure other legal traditions have something similar. It is also common sense in the US culture in general that you can't be said to agree to having your legs broken in a situation like that.

While the mythical "homo econominus" may say that there's no difference between "give me $$$ or I'll inflict severe negative utility on you" and "give me $$$ or I'll reduce the positive utility you receive from selling goods by the same amount" by saying it's the same amount of utility in absolute terms in both branches, in practice nobody feels or operates that way, and that's with steelmanning this argument by declining to note all the obviously relevant ways in which this metaphor is a mismatch.

No doubt it's possible to reframe it so it looks like Apple's decision but it isn't really. It's more like;

    Court: Pay $x fee

    Apple: No

    Court: Your punishment is that you're no longer to allowed to sell iPhones

The outcome is the same, but the reality is that Apple really don't want to stop selling iPhones and would never voluntarily stop, so they're not really choosing to if they're legally prevented from doing so.

In your framing, did Apple not choose to say "No"? It's not like they're not aware of the situation -- you're commenting on them talking about it.

The court is providing circumstances. Apple responds to circumstances. But the only way they can respond is by determining what they want to do, and then trying to do it.

Note also that in your framing, unless you believe the court would respond to Apple attempting to pay the fee by saying "no, you had your chance, it's gone now, get out of the market", it's still Apple choosing not to sell iPhones.

In the interests of demonstrating a harsh penalty for judicial overreach, I would like to see this case made, and Apple abandon the market.

I don't know the British system well enough to understand what reaction public opinion would have on members of parliament, but some censure of the judge and reversal of the patent decision could happen.

Even as a Brit, I don’t feel that I understand the British system, though from everything post 2016 I’ve reached the conclusion that neither does the current British government, and therefore they may well censure the judges even though the judges are supposed to be independent.

Or they might do nothing, because Apple isn’t a British company and they want to help Amstrad take over its market share.

"I don’t feel that I understand the British system"

Probably doesn't help that there isn't a single UK-wide legal system...

Edit: There are 3 or 4 legal systems in the UK depending on how you count them:

https://en.wikipedia.org/wiki/Law_of_the_United_Kingdom#Thre...

The judiciary isnt supposed to be independent. That is the american system.

In the UK all power is held by parliament and extends from parliament.

The power may flow from parliament, but the judiciary is still (supposed to be) independent:

• https://www.judiciary.uk/about-the-judiciary/the-judiciary-t...

• https://www.judiciary.uk/announcements/swearing-in-of-the-ne...

That is a different sense of the word "independent" than the American "separation of powers" one.

Does that make a difference? What I said was they are “supposed to be independent” in the broader context of saying the politicians shouldn’t censure the judges, but might anyway.

I don't know why this is being downvoted; compared to the US system, the UK system doesn't implement anywhere near the same amount of separation of powers. As you can read about in sources like [1]

While judges in the UK have life tenure and aren't allowed to stand for parliament, judges are constitutionally subordnate to parliament - they can't challenge the validity of acts of parliament.

And separation of executive and legislature is essentially nonexistent: Getting the support of a majority in parliament makes you the prime minister - and the first-past-the-post system makes it very common that a single party will control a majority of the seats.

[1] https://researchbriefings.files.parliament.uk/documents/SN06...

To add to your comment,

The executive is staffed by members of the lower house.

Until recently the head of the courts were from the upper house. So the lower house provided the executive, and the upper provided the courts.

Compared to constitutional systems like the US, the UK is basically still in the same position.

There is no "constitution" that the legal system forces parliament to adhere to. Our courts simply enforce acts and "send them back" to parliament only when there are inconsistencies.

I actually regard the creation of the supreme court here in the UK a pretty silly thing, it should've reminded with the upper house.

Either way, it isnt independent in the US sense.

That's not strictly true. It's the Crown that is the font of all power.

Parliament legislates as the Crown in Parliament - hence the mace must be present in the chambers while Parliament is sitting and all bills must receive royal assent to become Acts of Parliament.

There also exist powers that are (currently) outwith Parliament - namely the royal prerogatives.

The court system is similar, courts derive their power from the Crown, although, of course, they are subject to statute passed by Parliament.

Parliament writes the laws - the judiciary interprets & implements them, as in all other democracies that I'm aware of.

Judicial independence is a mainstay of most democratic countries ( separation of powers in general).

In any of the British jurisdictions, neither parliament nor the government can dismiss judges. Nor can anyone else.

If they displease the government, then they might not be chosen to head lucrative judicial inquiries - I think that's the only sanction that government can inflict on them.

Neither government nor parliament can "reverse" a patent decision.

Government and parliament have been known to "censure" (criticise) judicial decisions; usually that behaviour provokes a negative reaction among educated people and thoughtful newspapers. It doesn't happen often.

The government can also appeal against sentence in crimnal cases, if they think the sentence was unduly lenient. This is fairly recent statute legislation, and controversial.

> neither parliament nor the government can dismiss judges

This is wholly untrue. Parliament can do what it pleases, including disestablish the judiciary and the executive.

This is technically true but kind of irrelevant? If it comes down to that level of radical transformation, of abolishing the judiciary, the state is on its way to disintegrating. Rather like the Royal power that exists only as long as it's not used.

You're right, it can do what it pleases; it has been known to behead a monarch.

But it still can't dismiss a judge, because Parliament doesn't employ the judges.

Well as you say it's "leave the market for mobile phones", ie., it'll be iPhone which goes -- rather than Apple as such.

If the fee is 20x on their profits from iphones, personally, I'd leave -- for a few years at least. The opportunity cost is very high: leave for 2+ years and prompt the UK gov to act. Then return.

Also, my issue is exactly with "validity" conditions. Regardless of what they are, my view is we need a change in the law to make cases of this kind non-starters.

My initial stab is this: patents have to held by companies operating in the relevant market to be valid. The ensures licensing fees go towards companies capable of innovation, and limits patent trolling.

I'd prefer, even, to add: those companies are using those patents; or otherwise, have +10 years from their last use in a product (etc.).

However, one step at a time.

Trying to blackmail the government by threatening to leave the market suggests phrases involving noses, faces, and spite. It's apple buyers that would be hurt by apple leaving the market -not the government, which would look weak if it capitulates to blackmail threats.

The government doesn't care about apple users. They don't care about any citizens. And anyway, the apple users can always buy their devices in the EU.

> If the fee is 20x on their profits from iphones, personally, I'd leave -- for a few years at least. The opportunity cost is very high: leave for 2+ years and prompt the UK gov to act. Then return

And loose the customers base who would otherwise be locked into iOS/Apple ecosystem? It’s not just profits from iPhones they would be loosing.

E.U. countries are very close by. Apple products would likely be in duty free in force.

Trade in used devices would be brisk, fed in part by what is brought in.

Then, Apple begins running ads for sympathetic members of parliament, with astonishing levels of cash.

You're right about the imports. Not sure the lobbying campaign would go like that: party discipline in the UK is too strong for picking off sympathetic MPs to be a useful strategy, and political advertising is very heavily regulated.

the devices that infringe identify themselves to cell towers don't they?

would be easy enough for the patent owner to obtain an injunction preventing new devices being used on major cellular operators

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