Delaware judge discovers hidden entity recruiting people to be patent trolls
ipde.com
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And it all sucks. I think tethering legislation to making corporations exempt from income taxes, and refactoring taxation on profits and loans secured against corporate ownership might be the only way to get it through.
I don't like it, I really don't agree with it, but the reality is that's what it would likely take to overcome counter arguments in favor of continuing corporate personhood. As I mentioned, it might be tolerated if it came with tax exemption, in leiu of new taxes against corporate/stock loans and more taxation on profit distribution.
Of course it should, that's the whole purpose of the corporation. That's the premise whole western financial system is built on - that the corporations are right-bearing entities. That doesn't mean they are people - it means that in the western legal system, certain rights can attach to entities other than people. That's no surprise to anybody who would look into how corporations work and why they were invented in the first place.
> as though to cast a second vote
Voting rights have never been part of corporate personhood, what are you talking about?
> Money is not speech
Money by itself is a resource. This resource can be spent on speech - I can pay money to facilitate my speech. If you prevent me from doing that, you essentially shutting down my speech - what is the use of it if nobody can hear or read it, because publishing costs money, and I am prohibited from that? In a separation of labor society - which by now is every society - money is a necessary prerequisite to use the services of society. And no (significant) societal activity can be performed without involving money, one way or another. Thus, money are not speech, literally, but money are a necessary gateway to speech.
> This is tge court's error.
No, that's your error by trying to misrepresent the court's decision in a way that is convenient to you for criticizing it. The court did not say "corporations are people" or "money is speech" - they said something that the opposing side activists turned into such slogans, but if you want to understand and not just scream out your rage, then you need to go to the actual meaning, beyond the slogans.
There is a legal concept of "corporate personhood", but it has nothing to do with "being people", it's a legal term of art. For example, it makes it possible to sue a corporation instead of trying to sue each of its shareholders and executives individually. And it wasn't used in Citizens United v. FEC at all.
You don't lose your right because you act collectively, though some things get conceptually awkward.
Stripping unions of their rights might be a bit controversial. On the other hand, "collective representation" is essentially the definition of a union.
Enduring the consequences of one’s actions with complaint is not accountability, it’s a temper tantrum. Whether the consequences are administered by vigilantes or courts is immaterial to the earnestness of anyone’s accountability. The vast majority of people being publicly shamed have an elementary understanding of accountability and their hollow efforts are an insult to the time of everyone subjected to their rambling excuses, projections, victim blaming, lies, and other erroneous thought patterns.
I don’t want more bystanders getting caught up in the courts because they took action when our leaders sat on their hands. That said, I have no sympathy for the public figures having their legacies dragged through the mud after careers of horrendous behaviors get brought to light.
Nice round of victim-blaming. Don't like the random mob vigilantism? Well, it's probably your fault and that's the modern society for you, and again your fault for not embracing it enthusiastically. In fact, you are a bad person for it! Nice.
I’m talking about sexual predators, people who wore black face in the past two decades, domestic abusers, and other unacceptable behaviors. If you think any of this is okay, bugger off.
What are you talking about? Indian mob Justice? Tripathi? Gamergate? Spacey? Weinstein? Trump? R Kelly? Travis Scott? Bill Clinton? Assange?
You: you must love sexual predators and domestic abusers, typical Republican! Bad faith! You should be deplatformed!
Yeah, friend, you present a great case study why twitter mobs are so bad.
I’m not suggesting you love or support these things, but I am concerned that you’ve taken a sarcastic defensive position instead of naming specific people to rebut my points. An omission of defeat perchance?
My point is that mob justice will continue until the government deigns the problem bad enough to enshrine these behaviors into law as crimes. Why are you having such a hard time understanding that this is a fixable problem directly resulting from negligent government?
> My point is that mob justice will continue until the government deigns the problem bad enough to enshrine these behaviors into law as crimes
You mean the solution for mobs hounding people for wrongthink it for the government to make wrongthink a crime? Brilliant.
USPTO upper management is taking comments about the "robustness and reliability of patent rights" until February. You can leave your comments here:
https://www.regulations.gov/document/PTO-P-2022-0025-0001
Unfortunately giving examiners more time is only briefly addressed in this request for comments. I think the public should really drive home the point that the procedural changes discussed wouldn't be anywhere near as effective as simply giving examiners more time.
Don't believe examiners are overworked? Take a look at this subreddit: https://www.reddit.com/r/patentexaminer/
(Note that this comment is only my opinion, not that of the USPTO, US government, etc.)
Don't take my word for it... here's r/patentexaminer on the USPTO's latest internal AI search tool: https://www.reddit.com/r/patentexaminer/comments/ybbb60/is_t...
Also, don't underestimate how difficult finding synonyms is. Many examiners, myself included, keep lists of search queries with a lot of synonyms to use later. I've been doing this for nearly two years now and my saved search queries keep growing. I don't expect this to end anytime soon.
(Again, like my other comments here, this is just my opinion, not that of the USPTO or US government.)
Finding prior art is inherently a “graphy” problem and current AI is getting better at graphy problems by the day (probably even by the hour). I have zero doubt that AI could solve this problem, but am unsure whether it will be allowed to.
For example, the current AI search tools don't seem to look at patent drawings at all. This is despite the fact that in many technologies, the drawings are the easiest way to determine similarity of the technologies. The words used vary a lot, but the drawings are frequently quite similar. Existing technology could be used to make a big improvement here, I think, but the problem is that people writing AI search tools seem to go for the easiest approach and only look at the text.
It does get more complicated than that. When I examine applications with flow or electrical circuits, frequently I'll run into circuits which are equivalent in some sense but arranged differently. An AI patent search tool should be able to handle this problem.
(Again, like my other comments here, this is just my opinion, not that of the USPTO or US government.)
It's apparently based on the training examiners get.
The USPTO also posts a lot of the slides they use for training: https://www.uspto.gov/learning-and-resources/examiner-traini...
Otherwise, I'm confident there's information out there on how to search patents, but I haven't seen it.
But I think examining an actual application will be more useful for you. You can do this yourself as practice. Find a patent application that was examined. Be sure to pick an application and not a granted patent. In the US the number will be formatted like USYYYYXXXXXXXA1. You want to do an examined one so that you can compare against what the examiner did. That will be pretty easy if you pick one that was published a while back, so YYYY could be like 2015. On Google Patents for the application you picked, look for "External links" on the top right and go to "USPTO PatentCenter". Then under "Documents & Transactions" on the left, look for "Non-final rejection". If there's a rejection posted then you can see what the examiner did and compare against what you did when you're done.
Look at the independent claims of the application and find prior art that fits the claims. Don't check what the examiner did before you search, just try searching on your own. Write an office action (the report listing why it's the same). "Map" the claims by putting in parenthesis after each claim element why the prior art shows this feature. For example:
> A widget (Bob fig. 6 shows a widget) with blue lights (Bob fig. 6 shows the lights; para. 0076 says that the lights are blue).
When you're done, compare against what the examiner did.
Be aware that it probably will take you several weeks or longer to do your first one.
Here's the USPTO's new public search tool, which is similar to the one used by examiners (main difference is that the public version only has US patent documents): https://ppubs.uspto.gov/pubwebapp/static/pages/landing.html?...
You could also read a book like Patent it Yourself by David Pressman to better understand the legal aspects than what you'll get from the USPTO's slides.
You also might be interested in some other suggestions I've made here on designing patent search systems: https://news.ycombinator.com/item?id=33519398
(Again, like my other comments here, this is just my opinion, not that of the USPTO or US government.)
I do with the costs for a patent were a bit front-loaded where it costs even half the total amount just to (re)apply, in order to better pay for the review costs.
Blow away USPTO filing/examination process and replace it with straight arbitration.
This will skew the issue towards deeper pockets.
whoever has more money for court battles will win the patent case.
Is that what we want?
The patent system was designed with the assumption that USPTO would do its job, and switching to an adversarial model for patentability would just make it easier to get obvious patents.
It works unfavorably the other way as well. If you have your patent infringed you have to spend lots of time and money advancing the lawsuit. More, in fact, since the burden of proof is on you to claim infringement. No matter how you slice it the end result will be the biggest organizations with the beefiest legal teams will win all the spoils of patents while independent inventors can only survive by attaching themselves to those behemoths. That's the situation that open patents were designed to prevent. Ideally patents should exist to empower inventors to be able to live off their ingenuity; not for the sake of rent-seekers to bully creators into entering a protection racket.
A Patent is simply a ticket to start a lawsuit as a plaintiff. So just file, get your ticket, and start suing competitors, putting on them the burden of proving your patent is worthless.
That is the opposite of the way it is supposed to work.
Without some kind of penalty beyond the costs of patent & prosecution, this is massively anticompetitive.
If your point was that we are, in a practical sense, close to this now, then yes, I agree (but that was not clear to me in that comment).
Fees are merely a rounding error in the overall cost of patents, prosecuting (obtaining) them, pursuing cases against "violators" or defending them. The fees are in the $hundreds to small $thousands of dollars [0]. It typically costs $20,000 to $50,000 in patent lawyer fees to get a patent. A company I was personally involved with ran up over $350K in attny bills to obtain only a handful of patents. The fees were a rounding error.
Fees for prosecuting a "violator" or defending a suit? Again, court fees are in the $100 range. Just the opening motions would be in the $20,000 range easily. And that does not even begin to account for the technical and executive time to understand and mount a defense.
I've been directly involved, and one thing that is absolutely the opposite of scalable is the court system. It is massively time-consuming and money-consuming. Worse yet, it takes many years for any case to wind it's way through the system, often more than a decade.
Yet, you are proposing dumping the entire issue on the courts and attorney system. How are you proposing to mitigate those costs?
Seriously, not to be rude, but you should stop positing about stuff of which you are clearly massive ignorant (or actually explain how your proposed solution would actually work among all the factors).
Sheesh
[0] https://www.uspto.gov/learning-and-resources/fees-and-paymen...
This includes but is not limited to 1) the costs of the courts. 2) the costs of the attorneys to defend, 3) the costs of the technology and executives to mount a proper defense, 4) the opportunity cost to the small defending company which COULD OTHERWISE be focusing it's resources on something productive like a new product or support (vs defending a bogus lawsuit).
Again, the courts do not even begin to scale - the courts are the opposite of scalable.
The new class of enabled patent trolls may lose one case, but they'll win others, possibly because they've bankrupted their victim, and can continue to plague the rest of society.
Moreover, the courts are massively inconsistent. Again anti-scaleable. The inconsistencies get worked out through appeals to higher courts. This literally takes decades and hundreds-of-thousands to millions of dollars per case. They do not get worked out when it is state cases, which is why we have already have venue shopping (you know about the East Texas patent scam courts, right?).
And your so-called "solution" to charge big players orders of magnitudes more cannot be gamed? Simple, make a small company, pay the small fee, buyout later. Or syndicate the fees, or get rounds of investors to handle the fees, since the return is virtually guaranteed. Ya, then you change the fee structure (years later) and the game begins again.
The fees are only a rounding error in the costs, and if you think exponentially higher fees cannot be gamed, I'd like to talk to you about a fantastic deal on an oceanfront property in Kansas, because you are so friggin gullible.
No, automatically granting patents with some weird scaled fee structure and letting the courts sort it out is one of the worst ideas ever. You would literally lay waste to entire sectors of innovation. It would be only a few years before people would soon be screaming for proper centralized regulation and a patent office capable of judging obviousness and prior art; congratulations, you've just re-invented what the founders invented nearly 250 years ago.
Seriously, you are making a nice demonstration of how ignorance of how a real system works creates the illusion of finding wonderous solutions.
For every highly complex system problem there are a huge variety of simple solutions, all of them wrong. Congrats, you just found one.
If the problem isn't about increasing costs for large players, then what about decreasing those for small players?
The basic problem is patent cases are inherently highly complex and specific to particulars and context, and the legal system is inherently inefficient and unpredictable.
These are worst case legal situations for good actors, but the best case terrain for bad actors that can carefully select the battles they want!
The only "simple" solution I can think of is, that a pattern of patent troll behavior is explicitly made illegal, and judgements and findings against trolls can puncture normal limited liability protections of corporations and business arrangements.
Taking out the serial trolls could then be made profitable and repeatable for legal entrepreneurs, who can assemble the deep pockets, and accept the large risks, required.
Having run businesses, been involved with patents and the courts, some things are blindingly obvious. So I'll step back a bit.
First, the courts are insanely overworked, so things take forever, lawsuits are insanely expensive for both sides. Most importantly, the entire court system is structured to be anti-scaleable.
Even attempting to use the courts as a scaling solution works against the entire design. If you are sued, you have lost the minute you get served - defendant always pays, and the entire effort and costs are on you, even if you win. The only solution would be to redesign the entire court system, and since the courts are constitutional creations, that means literally re-constituting the entire country (Constitutional Convention, dissolve the old constitution, start from scratch; I can hardly think of anything more dangerous in today's climate).
On the small business side, there is literally nothing that can be done.
Even take a thought experiment where someone magically funds a bottomless supply of money to defend patent cases — no small biz ever spends a penny on attorneys and court costs, and can always afford the best attorneys (nevermind that wrongly accused criminal defendants still need to get by with underpaid & overworked public defenders).
This is still a massive unbearable cost for the small or medium sized business, simply because of the huge of management distraction involved in running a lawsuit. In a lawsuit, it is NOT just "let the attorneys handle it". Every case is unique, and the attorneys are handling only the legal issues — they need to be educated from scratch on the issues in the case, and all that time and effort to educate the attorneys comes from the defendants. Then, the defendants must to sit for depositions (a whole day or more), which need extensive preparation, and be involved in preparing for trial, which just blows entire days or weeks out of the schedule, and so on...
So, even if the external costs are 100% paid, it is still enormously costly. Even if you also paid every exec and employee involved their entire fully loaded employment cost, it is STILL too costly, because of the opportunity cost. Those person-months of time are all taken from the company's productive work on their products.
Now, multiply this by dozens or hundreds of lawsuits on every patent, trying to simply sort out whether the patent is even valid. The overall cost to society would be insanely massive. Giving each patent examiner 10X the time (vs the simple doubling requested by the examiner's comment above), and doubling their pay would not even be a rounding error compared to the costs you would impose on every innovative business with such a court-based plan. And, the results would be worse.
Part of the reason I find this annoying is that I also used to start from a Libertarian perspective. It is very attractive. But every time I started to work through how a Libertarian solution would ACTUALLY work, I found that even the first-order consequences were ludicrous, and usually ludicrously expensive. I would up re-inventing the government structures that we already have. So, it is either naive, or a trope to sucker naive people into trying to tear down the institutions that society has already built. Of course these need to be improved, and they should be, but the L approach really doesn't begin to work.
If you are a genuine inventor, and have a truly novel, original, valuable invention, you want the patent to deployed and fully enforceable as rapidly and fully as possible. Waiting years for multiple cases to sift their way through the courts only allows others to infringe for those years. Even if you rightly collect judgements in the end, those are unlikely to make up for the market leadership opportunity cost you lost to the infringers.
If, OTOH, you are a small-medium business being sued for a bad patent, you also want it clearly defined that the patent is invalid, so you can move on. Waiting for multiple courts to decide only costs you more money, distraction, and market opportunity.
What is really good for everyone is a very serious, fully funded, fully staffed and highly competent National Patent Office, which can effectively and reliably determine patent-ability, and is widely respected for its expertise. That is best for everyone because there are clear boundaries. It would also mean far fewer patents because there are a LOT of junk patents out there.
Reducing costs might help, but how would you go about reducing the costs?
As GP points out, the most of the cost isn't government fees. It's paying your own private lawyer or law firm, for their time and advice, assuming you choose to do that. And to the other party's lawyer if you lose in litigation, perhaps.
Your lawyer is a private arrangement which mostly doesn't involve the government. The government fees are already low.
Given that, how does your proposal differ from "patent lawyers should charge much less for their time, to people with less money"? It's hard to imagine them voluntarily reducing their income by a large factor to a large number of people, or agreeing to take on lots of low paid work when they have better offers.
But there are other models, e.g. no win no fee works in some fields.
Certainly this is what I was told when I started filing them at my mega corp. 3K for filing, 10K bonus if granted and helping shield the product in case we are served. Our patents can be horse traded to settle a dispute. Because I believed in our team, product etc. it was easy to think we should be capable to defend ourselves; we were the best and that meant the stragglers would come for us using any means available, including patent trolling.
Like many weapons systems, patents can certainly serve defensively as well as offensively. In this case, defending against others using them as offensive weapons.
Patents can also have some marketing value.
The one thing the do NOT do is universally stop infringement in real time, which is what people think they do.
If you have a new product/technology, a large company that wants to use it will simply go ahead and litigate it later. You will have a ticket to sue them. They'll have their defensive wall of patents, and maybe you'll make a deal and settle out of court. If not, you'll try to stay afloat and if you manage to fund the suit, in 9-15 years after all the appeals, maybe you get a big judgement.
If it's a small or Chinese company, they'll just run with it, you can sue them, if you're lucky, you'll get an injunction to have products seized at the ports by customs, and you'll never collect a penny at the end because the company will be long dissolved. They'll have stolen some of your market with impunity.
Medium-sized companies might actually respect a patent, because they are intending to stay in business, but don't have unlimited resources.
The only upside to patents as originally formulated was they actually traded an implementation blueprint for exclusivity. A worthy trade. Many patents don't even do that anymore, and devolve down to "draw the rest of the owl" tier parking lots on ideas. IP attorneys have done nothing to skew away from this outcome.
If they're infringing on you, and you're infringing on them, then it nets out. By patenting your own developments, you allow yourself to legally net out. If you don't patent it, then in the eyes of the law it is not equal. Seems like its a quantification of intellectual property, which doesn't mock anything.
So while you might "net out", said netting out is not helping society actually advance, in fact it makes it more difficult to do so as you try to avoid potholes created by patent x-1 in your own journeys to actually innovate/invent.
The moment you get a self'sustaining finance engine implementable from a legal construct, it will be beaten reoeatedly, as fast and hard as possible til all the money possible can be extracted.
What you're basically saying is "every country in the world should have nuclear weapons and then let their respective god(s) sort out the winners if there is a dispute"
The USPTO seems to be doing decently over the decades in terms of increasing the number of examiners, though lately I know they've had a lot of difficulty hiring.
I would posit the better solution is curbing overly broad/abstract patent language that can be used to litigate anything and anywhere - and you can use patent trolls to do this work for you:
Pretty much any NPE patent portfolio will work as a great benchmark for what not to allow, as they go out of their way to acquire poorly-examined patents with the exact characteristics i mentioned.
While I agree with you that multiple stakeholders are incentivized to do thorough searches, not everyone agrees on that, and those stakeholders rarely ever do thorough searches. People aren't Homo economicus.
Applicants are required by law to provide prior art on an IDS form. Usually that prior art is close but not close enough. And almost no one submits third-party prior art. I've never once received a third-party prior art submission.
And as I said, not everyone agrees that these folks are incentivized to do good searches. For example, many patent attorneys recommend against doing patent searches for various reasons.
> I would posit the better solution is curbing overly broad/abstract patent language that can be used to litigate anything and anywhere
I strongly agree that enablement requirements should be higher. My understanding is that would require a change in the law, which would make this much harder than increasing examination time. And don't think that enablement rejections will take a lot less time than prior art rejections for examiners. Attorneys love to argue that sort of stuff, so rejections which are basically arguments are often time consuming. A prior art rejection can leave a lot less wiggle room for attorneys.
(Again, like my other comments here, this is just my opinion, not that of the USPTO or US government.)
You'd think so, but standard operating procedure for most patent prosecution is to intentionally not perform a prior art search. If you do find something relevant, you have to disclose it in your IDS. So let's say you pop in a few search terms into google patents, and there's ten thousand hits. You know only a few are relevant, but you don't know which few. And if you don't submit the relevant reference that was on page 99 of those search results, your patent could be invalidated in litigation some day because it could be construed that you were hiding that reference from the examiner. So you might think that you should just submit all 10k references? Wrong again, it could look like you're trying to bury some super important reference in a sea of garbage. So by opening one browser tab and typing in a couple of search terms, you've essentially shot yourself in the foot one way or another, and any patent that ever is issued from your search will have a target on it's back forever. So, most patent attorneys will ask the client for relevant references to cite in the IDS and have a standard practice to not perform any prior art searching for prosecution purposes. Patent attorneys are a paranoid bunch.
An example would be the Amazon One-Click patent. That should never have been granted because the "what", ie. the basic idea, is obvious and once you have that the implementation is trivial.
To get a patent you should at least have to describe a method for solving a non-trivial problem and prove that it actually works.
The One Click patent would be like patenting just the idea of an air conditioner because once you have that idea any software developer worth his salt could implement it.
Demanding the patent goes into the specific details on the "how" gets us things like "they implemented it in JS but we used TS so that's legally distinct, this patent doesn't apply to us" (ignoring how idiotic software patents are, and how stupidly long they are allowed to be active for) or "they made their machine using sheet metal and distinct PCB components, we used plastic and an FPGA, this patent doesn't apply".
If you get a patent granted, and you sit on it, you lose that patent. If you make real the ideas/things described in your patent within the required time frame, your patent "kicks in" and you get to sue others for copying your idea, even if their specific realization of that idea differs from yours.
Reducing for how long patents are granted, disallowing "tweaking-a-thing to renew the patent", and either drastically cutting down the duration of, or entirely canning, software patents, would be a nice move though.
Do you have a reference for that ? I've never heard of any such "duty". There are many patents that have never been implemented yet remain valid.
Beyond that my point is not that they didn't show the "how" but that the "how" in that case was absolutely trivial and completely undeserving of patent protection.
That's not proof of non-obviousness. And even if it were, it's still not a reason to allow 'what' patents (which the law actually doesn't allow! But they get granted anyway).
> Demanding the patent goes into the specific details
You are arguing a strawman. A patent must describe the invention in sufficient detail for someone skilled in its art to reproduce. Incidental details shouldn't be (and I believe aren't, legally. What the USPTO actually does in practice is a different matter) grounds for calling an alternate implementation non-infringing.
What you're describing is a hideous perversion of the patent system. It allows patenting any obvious [1] idea so long as you are first to file [2]. Alternately, if the idea is novel and non-obvious, it grants patent protection without requiring disclosure of implementation. It basically grants patent protection to trade secrets.
[1] A test for non-obviousness: does an implementor care to look at your patent or reverse-engineer your implementation, or is a description of what the invention does sufficient?
[2] And eventually implement.
This seems like a wonderful test of obviousness to me.
However, the "what" could be: "A method of reducing the number of online sales that are attempted but somehow aborted".
The "solution" of having a single click to purchase, in the context of cached purchase info and permission, might not be obvious to everyone working on that problem. (Even though it might be obvious in hindsight - which is not a barrier to patentability.)
That "solution" is specific enough to not block other's from solving the same problem (avoidance of aborted purchases) in via different methods.
That would be the approach I would use to defend single-click against your test. (Not a lawyer, no special legal expertise, just working through the logic as I can see it.)
That's a good point. But it does open the door to patenting so many things it would make business impossible - store layout? Ad composition? Sales timing? Employee treatment?
Fortunately the law does not seem to have such a broad view of what is patentable: https://en.wikipedia.org/wiki/Patentable_subject_matter#Unit...
The other problem is the 'could' in your hypothetical - as far as I know, that's not what Amazon put on the patent application. Probably because they knew it is not patentable subject matter.
You may be thinking of trademarks, which can be granted on the basis of an intent to use the mark in the market with a time limit thereafter to keep them.
For the same application, the next action I take will get significantly less hours. I get about 4 hours to reply to an amendment (if it's rejected and it usually is). That includes searching and writing it up. I think examiners typically exceed that time and have to go under time for other tasks in order to reply to amendments.
(Again, like my other comments here, this is just my opinion, not that of the USPTO or US government.)
My point is, you many not actually need more time, rather you may need better and more modern tools that would vastly improve efficiency and accuracy of examiner workflows.
Anyone else feel free to chime in!
For those who are too young, a fax machine is this arcane device that used to be everywhere, like a remote photocopier.
Got the US patent dated 2013. Was the lawyer pulling my leg?
Which is all to say that it wouldn't surprise me if there were a legal requirement for an "original document", and if that requirement could only be met by physical mail or fax.
As a former fax server administrator (and troubleshooter/maintainer of everyday standalone fax machines), I think the point-to-point nature of traditional, non-Internet fax is the killer feature: no packets split up and resting on intermediate servers, etc. Fax servers have one or more individual fax modem cards, so the only network involved is before or after the actual fax transmission.
I know fax is outdated. There are other effective technologies to replace it. But I've found myself more than once speaking up as a defender of the technology because, as originally used and codified into law, it serves a specific purpose and, as a bonus, if you know how to use a photocopier and a telephone it's drop-dead simple to use.
(Again, like my other comments here, this is just my opinion, not that of the USPTO or US government.)
This comes up almost immediately when studying to be a parent examiner.
> This comes up almost immediately when studying to be a parent examiner.
To my knowledge, this wasn't part of my training. Perhaps you mean studying for the patent bar? I'm not a patent attorney or agent, just an examiner.
AFAIK email to fax (and vice-versa) converters have existed for a while ?
I'm much more annoyed that in 2022 we are still misusing pdf, treating it as a digital-first format rather than one more appropriate for archival of paper documents... (and with the associated "pdfs cannot be modified" myth)
Is there some magic sauce that makes the search suddenly useful once it's sitting in AWS?
I ask because I see this ALL the time. technical people abusing business ignorance by using initiatives to improve tools to "move to the cloud". Unless you're telling me the problem you're solving has to do with elastic demand or too much costs maintaining infrastructure, this does NOTHING to solve the actual problem.
Do we imagine that suddenly this organization is going to start maintaining their stuff if it's sitting on AWS servers instead of their own?
I have explained why it should not be, but Mgmt does not care.
Everyone's doing it. We NEED to do it.
I believe we are in a mix of FOMO, resume-driven development and empire-building.
Ok, I can tell that you want me to expand. Here goes:
Cloud may offer:
1) improved scalability (both horizontal and vertical)
2) improved availability
3) reduced cost
None of these are guaranteed and will require much expertise in both initial choice-making and continuing execution.
We don't really have that expertise.
Do you?
I feel confident saying that the government does not have this expertise and never will, so this just seems like yet another taxpayer-funded boondoggle (aka, the status quo).
From what I've always heard, of all the benefits the cloud has, reduced cost is not one of them unless your compute need is exceptionally small (ie, you only need a few t3.* instances).
Anti cloud zealots are having their time just like pro cloud zealots did. You have to understand your workloads and cloud offerings to see if it’s right for you.
Yes
This is hard to do.
The days of the full cloud lift-and-shift are going away, and we're getting to the point where people make that decision rationally.
As an aside, I actually believe in the cloud enough that I am working on a startup for a piece of cloud infrastructure.
It doesn't, that's the point, you're adding to the same noise everyone else is.
Yeah, we’ll see there. This is the federal government, not a startup.
And then the key decision-maker says if we don't do cloud architected systems, we'll have trouble recruiting developers with suitable skills...
It's really dumb.
And end up with not much gain. :(
You pack your bags And you move to the cloud
There's somethin' missin' here at home
When you, you gonna move to the cloud?
Into the cloud where it all began
I'm always buyin' With the local and the junkies
This cloud life is one big pain!
But you, you had to move to the cloud
Into the cloud where it all beganI don't think more than 1/3 or so of my time is wasted due to these sorts of things. That's significant, but it won't be the game changer that doubling examination time would be.
I don't know anything about what's happening on the backend, for what it's worth. I assume that it's always near exploding.
By the way, you can find a bunch of annoying time wasters listed by examiners here: https://www.reddit.com/r/patentexaminer/comments/y9pyfx/mild...
(Again, like my other comments here, this is just my opinion, not that of the USPTO or US government.)
There's a parallel also in the world of academic paper publishing--the pressure for constantly innovating and publishing is a major reason for bad publications.
I am speaking anecdotally, from my experience as a past PhD student and a current young professional in the research industry.
Old orgs with old tools aren't improved by putting more pressure just on the users of those tools.
But on this point:
> And while search technology has improved, it hasn't become orders of magnitude better.
In general it has, it is just that the USPTO's software hasn't. I imagine a team of the right 2-5 people could make something better than you would wish for in your wildest dreams. But how to actually make that happen is another kettle of fish. Anyone capable of fixing this would most likely be better remunerated doing something else, but nerds are easy to snipe and even just reading your gripes here and in the subreddit has made me want to solve this problem if for no other reason than the humanitarian one.
On the contrary, USPTO's internal search tool (PE2E Search) is overall good and has many features that I wish public search engines like Google had. The main difference is that it's designed for power searchers, not the general public. Yes, PE2E Search has a lot of issues, but the USPTO contractor who commented here has probably never used it to search for patents and thus has no basis for comparison. You should take what they said with that caveat in mind.
My basic point is that no existing search technology makes up for the sheer increase in documents to search. The last significant innovation in patent search was switching to computerized search in the 90s. The changes since then have been relatively minor, but the number of documents to search since then has increased dramatically. Maybe some AI based search will eventually be a game changer, but for now it's not (I've tried 5+ AI search tools and they usually aren't good) and I don't see that changing any time soon.
Also see these other comments I made:
https://news.ycombinator.com/item?id=33509535
https://news.ycombinator.com/item?id=33506241
(Again, like my other comments here, this is just my opinion, not that of the USPTO or US government.)
A lot of patents would fall under obviously not palatable, or obviously priority art if they where written in simple to understand language.
Also patents should not be legal if they fall under "everyone who looks for a solution to the problem they solve would find it (or something very close to it) by spending around ~100k in salaries on normal employees doing the research". (I choose 100k€ as this is where I live roughly a more senior and two non qualified junior software devs working on it for half a year, I also choose it because it less then what fully invalidating a absurd patent can easily costl.) I just don't see a point patents for anything any arbitrary company could easily invent by throwing "just" 3 non highly specialized people at it. As many companies would do so anyway if they need the problem solved. Such patents don't protect innovation they hurt innovation. Alternatively allow patenting them, but only with a patent live spawn of 2 years, i.e. "grant a head start for the first inventor without hampering innovation in general too much".
Are you saying that search technologies of 2022 are not orders of magnitude better than the search technology in the 1970's?
Search tools in the 1970's were basically manually panning through microfiche. This was the time before even relational databases were commercially available, let alone full text search across thousands (or billions) of documents going back hundreds of years. The tech that we have now would be literally unbelievable to most practitioners in the 70's.
You have a point about the switch to computerized searches. Searching by examiners used to be looking through paper files, not microfiche, though. But patent search technology hasn't improved appreciably since full text patent search was introduced in the 1990s. There have been a lot of new documents to search in the past 25 years alone, yet there have been few changes to examining time.
Also, full text search is probably not as useful as you think for patent examination. For many technologies it's the best way to search, but for many others (like a lot of what I examine), text search is much less useful than simply flipping through a ton of documents, looking at the drawings. It's common that important details exist only in the drawings or are most easily spotted in the drawings. So this limits the improvement one gets from switching to computerized searches.
And, there's a big advantage to paper documents that wasn't maintained during the switch. From what I'm told there were a lot of useful notes from previous examiners written on the patent documents. Those notes were entirely thrown out when the USPTO switched to computerize searches. They could have digitized them, but USPTO upper management isn't known for thinking ahead. That's a loss of a lot of institutional knowledge. At present there is no way for examiners to share margin notes, and there should be.
(Again, like my other comments here, this is just my opinion, not that of the USPTO or US government.)
Let's suppose you had access to all the source code in the world. Given a description of a patented invention, is there any way to find out if it is already implemented somewhere? The answer is no, there is no decidable method for doing that. The proposition that there is, violates Rice's theorem. By contrast, in other areas, for example drug discovery, a patent covers chemicals of a certain class having certain substructures. Whether another chemical is covered is algorithmically decidable. Let me emphasise that: people are complaining about the tools to find prior are are bad, but we can mathematically prove that perfect tools don't exist. I'd suggest that the burden of proof, that sufficiently good tools can exist, should fall on those advocating patentability of software.
But of course, patent examiners don't even have access to all this code. Unlike in drug discovery, where the entire business relies on patents so any discoveries have been filed with the patent office, software companies don't need patents to do business so the vast majority of software ideas aren't filed with the patent office.
I've seen a lot of patents whose prior art could be found by spending a bit of quality time with a thesaurus, or a halfway decent index.
The search tools are acceptable, but could be improved a lot. To get ideas for improvements, you should talk to actual examiners and try searching for patents yourself. Unfortunately, too frequently people who don't know much about how patent searching actually works propose "improvements" that aren't actually improvements.
Case in point: https://www.priorartarchive.org/
While well-intentioned, this site is doomed to mostly be unused by examiners. The classification search doesn't work. Classification search is a critical feature for patent examination. And the classifications are produced by machine learning, which usually produces poor quality classifications (despite loud pronouncements about how great machine learning is for this task).
The internal search tools work mostly by keyboard, and this search site works mostly by mouse. Mouse is much slower in my experience, and this matters a lot for time-constrained people like patent examiners. The main advantage of the internal USPTO search tools is speed, not anything fancy: https://news.ycombinator.com/item?id=30978043
The documents on the "Prior Art Archive" have tons of broken images, too.
> I've seen a lot of patents whose prior art could be found by spending a bit of quality time with a thesaurus, or a halfway decent index.
Most of the time this is not the case. If it's something that simple, it would be easily rejected. Keep in mind that when the media says a patent covers X, it probably doesn't actually cover X. It probably covers something far more specific that isn't a problem for anyone.
(Again, like my other comments here, this is just my opinion, not that of the USPTO or US government.)
https://breckyunits.com/the-intellectual-freedom-amendment.h...
The old "search technology" was "shoes" (boxes) of 5-20 patents arranged by patent classification. Patent examiners literally walking through the stacks of files to get the relevant shoes. This takes more physical time than doing a classification search using a computerized search tool.
There were some advantages of the old system that were not transferred to the new search. Specifically, in the old system Examiners would see each other as they were walking the stacks. Notes could be left on the paper copies in the shoes. This knowledge sharing is not included in the current USPTO system.
If the patent holder does not pay within 6 months, then all the patent holders patents since then will be invalidated.
It has to function without involving the courts as they will bleed anybody who are no rich.
This is simple, gruesome, but effective. I just can't imagine the politicians wanting this efficiency.
This would instantly lead to every patent being constantly challenged by everyone. All the time. Since you've created a non-judicial venue for these claims and counterclaims to be settled, you've also created a parallel legal profit centre.
Vigilante justice is terrible not only for being gruesome, but also quite inefficient.
This does little to change the dynamic. Paying a few hundred dollars to harass one’s competitors, commercially and ideologically, is peanuts.
So pharma might get 20 years like they do today, hardware might get 12, software might get 8, and cryptography might get 5 (no one ever turns much of a profit with cryptography patents -- the entire industry avoids them like the plague).
This will greatly discourage patent trolls because they won't have enough years to shake people down. But it won't discourage legitimate patent owners, and it will encourage continuous innovation (so that products can keep some patent protection all the time).
The problem is that examiners have no real way to determine what is "obvious". Every new field is a gold rush, and I've seen multiple fields slowed down dramatically by it. Worse yet, those rushing to new discoveries are usually not those rushing to file patents. This is most clearly where the patent system is destructive.
I would like to see a rule that it is on the issuer of the patent to demonstrate that not only does it seem novel, but their patent is on something that could have been done, and would have had a market, for the previous decade. To demonstrate non-obviousness not by someone's say-so, but by the fact that people failed to figure it out.
Besides, the idea of punishing me for being successful, that is - having more sales of my product, while popular, seems extremely counterproductive to me.
A lot of people propose things similar to what you have, but in practice these sorts of things almost never are used.
You also don't need a formal procedure like this. I'm sure if you contact the examiner assigned to the application, they'll listen if you have a valid legal reason to reject the application.
(Again, like my other comments here, this is just my opinion, not that of the USPTO or US government.)
1. How much time do you get given to perform a search? How comprehensive is searching (and how much time is given) if PCT or EP searches have already been performed?
2. Given existing citations (e.g. from a US PCT search), how long do you get to perform examination? How long do you get given for later reports?
3. How common is searching following amendments and how long do you get given?
4. How much time do you get given for further reports?
5. Do examiners do classification as an additional duty? If so, how much time do you get?
6. Have you Epoque (the EPO's search software)? If so, how does it compare to the tools you use?
Comprehensiveness varies and can be independent of whether other offices have done searches. It can be hard to get even two examiners at the same office to agree on what good prior art is. I've inherited applications from an examiner who retired and I didn't always agree with their prior art.
I tend to use foreign searches as starting points for my own searches. I'd guess about half the time what I find is the same as the foreign search or comparable but different. Often I find clear deficiencies in foreign searches.
The time I get does not change if there are foreign actions. I get so little time that I hesitate to even write the previous sentence in case it gives upper management ideas about where to reduce time...
Searching at patent offices is never particularly comprehensive in my experience. If someone wants a comprehensive search, their main option is to do it themselves.
3. I am required to do at least a cursory search after any amendment as far as I'm aware. How detailed the search is varies. See the next point for how much time I get.
4. I get about 4 hours for a final rejection. The US has "after-final" actions as well which can provide up to 3 hours if I recall correctly, but are much more limited in scope and rarely used properly by applicants in my experience. After-final actions should be used mainly to cancel any claims not declared allowable by the examiner, in my opinion.
5. All USPTO examiners have classification as one of their duties now, but they are given very little time for this. The time varies between 0 time, 30 minutes, and 1 hour depending on the results of an approval process.
Longer version: The USPTO recently made some significant changes to classification and docketing. Applications are docketed to examiners based on a combination of the CPC and USPC classification now, with the eventual goal of eliminating the USPC component of the docketing system. Here's how it works: Poorly paid contractors classify patent applications. Based on the classification from the contractors, applications are docketed to examiners. Examiners then have the opportunity to correct the classification if it's wrong. As it turns out, poorly paid contractors don't classify well. I'd guess that about 10% of the applications I'm docketed have serious classification issues. The precise number probably varies appreciably between examiners. I will try to correct the classification issues with a process called a C* challenge. This requires approval by examiners called SCEs. The SCEs will check if they agree with the examiner's proposed classification. Sometimes they'll add their own classification, but usually not. The amount of time an examiner gets is zero if none of the changes are approved, 30 minutes if the changes are approved but the changes do not cause the application to be transferred from the examiner, and 1 hour if the changes are approved and the changes cause the application to be transferred. Unfortunately, properly classifying applications frequently takes far longer than 1 hour. This is particularly true when examiners have to classify applications in areas they know little about.
I don't bother changing the classification at this point if it seems mostly right because the amount of time I get for correcting the classification is so small. I will only try to correct the classification if it's egregiously wrong.
6. I think I saw some screenshots of the EPO's software once, but I don't really know how it compares to what the USPTO uses. For what it's worth, the USPTO's new public search tool is very similar to the internal tool. The main difference is that the USPTO decided to only include US patent documents in the public version, which is a shame. https://ppubs.uspto.gov/pubwebapp/static/pages/landing.html
(Again, like my other comments here, this is just my opinion, not that of the USPTO or US government.)
You can email the author, I guess. As far as I know patent authors have an eternal duty of disclosing prior art on their own patents.
I assume that if you email prior art to the author they have to report it to the USPTO. Not sure if the patent would ever be invalidated though
I don't see how GPT-3 could be particularly useful for me as it exists now. GPT-3 doesn't know anything about the prior art, so I can't see how it would work there. I think some sort of AI system could be useful for non-prior-art analysis like 101 or 112(b) compliance, but that would need a specially trained system. The data's out there [0]. I think if combined with existing 112(b) analysis software this could be quite useful, but not as useful as something good that finds prior art.
[0] https://www.uspto.gov/ip-policy/economic-research/research-d...
Specifically on the prior art search aspect, there should be a bigger burden on the applicant to find meaningful prior art. If the examiner finds something obvious, the application should be deemed fraudulent and carry some stiff penalties.
I understand how it's interesting to see how one NPE structures it's relationships. But aside from the mail drop / physical location shenanigans, I can't tell if there's any legal significance to this information.
Can you say more what this means? What were the risks these people were (I would guess unknowingly) accepting in return for their 5-10% if things went ‘well’?
Certainly, their LLCs could be subject to attorneys fees if the Court awards fees (which it generally only does in exceptional cases) or for sanctions based on attorney behavior.
However, normally, only their LLCs would be liable rather than the owners personally--unless they fail to observe the corporate formalities.
One even had no idea what the name of the patent "he" owned was, or what it was for.
Failing to observe which formalities in particular would expose them personally to such liability?
It spreads downside risk directly. It also makes unraveling the real interests harder.
It's a clever, evil hack of the justice system. It's very cool this judge uncovered it. I hope they get nailed and I hope we close these loopholes.
IANAL, but I wouldn't think "this seems sus" to be a sufficient justification for a court to compel discovery without a clear relevance to the issues before it.
So essentially the scam removes liability from the (dubious) patent owner - it removes the downside to (allegedly) abusing the law, and subverts the intent of the legislation.
As I said, that's what I suspect. The actual scam may be different.
https://www.themarysue.com/google-maps-facing-german-ban/
@btrettel is right that examiners need more time, but that would mean the PTO would have to hire a lot more of them. A better solution is just to change patentable subject matter to (effectively) exclude computer software. Congress will have to do this since the courts and PTO are unwilling or unable.
As for @blobbers below: patents are not a shield against trolls. They're only a shield against your competitors who actually build things. Trolls don't want your patents; they only want your money.
Lastly, as for the tools: I was told, 10-12 years ago, that when it was suggested that examiners use Google as well as their mandated tools, the union objected that this would be more work and they'd have to be paid more. Perhaps this is no longer true, and I know that the conscientious ones always did.
This is tech, it’s a race, everyone playing already knows that. All parents do is slow innovation or in some cases stop it entirely
I don't necessarily disagree with you, but what makes software unique in that it would be effectively excluded by changes while other subject matter (presumably) wouldn't be affected?
I can answer this:
1) Because software is already covered by copyright.
2) Because any given idea or concept in software can be implemented an infinite number of novel ways. Patents only cover specific implementations of an idea... Not the idea itself.
Let's use Amazon's One Click patent as an example: How many different ways do you think that could be coded/handled? How many different programming languages could be used to make it work?
If the One Click patent was actually specific enough to not be a broad concept (as required by patent law) it would include the actual code that makes it work. That's the software equivalent to an engineer's blueprint. However, if you look at the patent claims (https://patents.google.com/patent/US5960411A/en) you can see that every single claim is just generic nonsense (e.g. "The method of claim 11 wherein the client system and server system communicate via the Internet.").
Even if you add all the claims together and examine the patent as a whole you still get nothing but a broad concept on the idea of clicking once to place an order. Repeat after me: PATENTS ONLY COVER SPECIFIC IMPLEMENTATIONS OF IDEAS, not the ideas themselves. Which is exactly what every single software patent that exists defines: Nothing more than a broad concept.
You could require that patents provide the actual code that makes them work but then they'd be worthless because any given bit of code can be implemented an infinite number of ways. It would be trivial to change a for loop to a while loop or wrap things in functions or even something as simple as using a different programming language. Any of those things and more would get around a patent on a specific implementation of software, aka "code".
The list of "patentable subject matter" ("101" to insiders) is a legislative decision, i.e. a political one. The Congress doesn't need an ironclad reason, but there are plenty. The Constitution just says:
Congress shall have power… to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.
It's simply a matter of Congress using its power to decide that the "useful art" of software does not need patent protection.
Pure mathematical formulas are already excluded from patentability.
And now yet another election is happening where Congressional and Senatorial candidates are not asked to support or oppose this proposal.
This is how it's going to happen, if it ever does. A bill gets introduced, the Establishment runs op-eds against it, and the battle is joined.
SCOTUS keeps slapping down the CAFC, and the CAFC just keeps weaseling their way out of it. It will take clear legislative direction to slay this dragon once and for all.
https://www.bakerbotts.com/thought-leadership/publications/2...
https://web.archive.org/web/20221107120623/https://ipde.com/...
Edit: I discovered the Render.com autoscaler setting. Hopefully it's back now.
Blocking cloudflare blocks half the internet so I presume there’s something else going on somewhere.
Pretty much every CDN works the same way or very similarly.
Lovely.
As my local county attorney told the court, "We will not be using the cloud because it is not secure," this doesn't surprise me. The bane of local governments strikes again.
I would ballpark Delaware court IT security requirements as similar to DoD Secret level clearance.
And as far as I understand a higher security cloud solution is usually a custom ask and really expensive at any of the major providers, simply not affordable for smaller organizations.
Since “cloud” is actually a marketing term (usually meaning virtualized servers), any company or department who says no to any mention of using the cloud is showing willful ignorance.
Not in my professional estimation, unless you want to reduce the argument to absurdly pedantic levels.
My quick response to the county government was for immediate effect, "The CIA uses AWS."
From what I understand, the infrastructure is really, technically, exactly the same, but just limited to certain customers. It's also, generally speaking going to be as, or more secure than any self-managed datacenter connected to the internet. The transparency could probably be a bit better.
note: used to work for a government contractor that received a LOT of hacking effort as a target.
I don't know the requests/second, but at peak on Google Analytics it said that 300 people were on the site "right now" -- unsure of what that corresponds to. ~5-10 reqs/s roughly?
Also note that render.com puts Cloudflare in "front" of the nodes automatically, which helps with some caching.
(I'm unaffiliated btw, just moved to them from Heroku and have been happy to far)
Hardly effective for gauging HN readership, given the abundant use of ad blockers. Based on no evidence whatsoever, 100x that and you should have a reliable estimate.
It's also a Python 3 instance running Django/Wagtail/Puput, and all blame goes to me for poor coding. If anyone reading this happens to be a Wagtail & Render expert and wants some short contract work fixing my code, please reach out (arussell@shawkeller.com)!
You know officials are doing something right when they can secure broad support like that.
This is actually why you've started to see people nominated for high level federal posts and even SCOTUS without a lot of divisive scholarship, because they're intentionally staying away from these issues to try to maximize career growth.
https://crsreports.congress.gov/product/pdf/R/R45622
See pages 30-33:
> during the Trump presidency, with 81.0% of district court nominees confirmed by roll call vote
> During the Trump presidency, in contrast to the two immediately preceding presidencies, only 15 (10.6%) of 141 district court nominees confirmed by roll call vote received zero nay votes at the time of confirmation. A plurality of nominees (36, or 25.5%, of 141) received more than 40 nay votes when confirmed by the Senate, while another 20 nominees, or 14.2%, received 31 to 40 nay votes at the time of confirmation.
"Uh Oh!" - Every Remote business owner.
While I get what the judge is going for here, there's nothing about renting an office space somewhere that makes a patent more valid.
If anything, the contracts that allow the parent company to take 90-95% of the income should also entitle them to the same level of liability and that should have nothing to do with the shell company address. As soon as that is addressed, hopefully by law, all of this stuff goes away very quickly.
I mean a 50 person team with no office (i.e the new COVID standard). Yes, you could use the "CEO's house", but then he's gotta actually live for a significant amount of time there and receive mail for the company?
None of this really makes sense, and the laws (or interpretations) have not been updated.
The registered agent is responsible for getting served, receiving legal mail, and other government correspondence on behalf of the company and forwarding it along in a timely manner.
This is different than a mailing address because a process server or government employee must be able to physically walk into the premises of either the principal place of activity or registered agent, deliver the notice/correspondence/etc. to someone, and record who they handed it off to at what time.
"mailing address because a process server or government employee must be able to physically walk into the premises"
Yea, that would be the CEO's house if their spouse is home, maybe.
Again, the registered agent does not have to be the address of any of the principals of the business. But it must be a place that is open during standard business hours and accept process notices or legal correspondence upon behalf of the business.
https://www.legalzoom.com/articles/what-is-a-registered-agen...
I realize a lot of business do this, and have survived fine, but that's not the point I'm making.
Ummm... yes? Unless you're running a fly by night operation, why wouldn't the CEO make himself available to the world at a physical address?
The principal place of business has to be an address where actual business activity takes place. That establishes your business nexus and which states/agencies have jurisdiction over your business.
It doesn’t matter if it seems “fine” to put down a virtual address in the principal location field, it’s not sketchy — it’s simply not allowed. The state can revoke your business registration for doing so. (And if you look at the terms and conditions for your bank and/or credit cards, they can close your accounts for doing so as well)
In the context of business formation, it is entirely legal for a business to have three different addresses for the three different address roles (principal place of activity, mailing address, and registered agent) provided those are real addresses.
Every secretary of state (or division of corporations, if it’s called that in your target state) that handles business formation allows for this. Sometimes the principal location is public data, sometimes it’s not. The registered agent is always public data.
The original comment I responded to was in regards to your stated requirement of the CEO receiving mail for the company — that is the role of a mailing address. The address to where the business can be served notices, subpoenas, etc, that is the role of the registered agent address. In the context of a remote-first business, you can choose to put your home address here or you can put in legal substitutes.
With regards to your last comment, the judicial system uses your principal address for determining jurisdiction and your registered agent address for delivering notices. If you are providing a virtual address when they go looking for any of these two address roles, you have screwed the pooch.
In the new context you’ve raised regarding tax authorities such as the IRS, when you are filling out said registration paperwork or change of address forms, you are explicitly asked to give the physical address where your records are kept which introduces a fourth address role — that again does not have to be your house, but it does need to be a real, legal place.
I'm saying this is simply not how a lot of small to medium remote businesses operate anymore vis a vis my original comment. ¯\_(ツ)_/¯
These are litigation funding exercises, so the goal is protection of the "investors".
But you'd also get things like protection against discovery (the smaller entity has nothing to give you), etc.
This is the sort of thing where they go too far, and end up in jail despite thinking they're just good at playing the system. (see, e.g., prenda law)
That changes things beyond just liability - it also makes it appear judgement proof. And the dollar amounts indicate that companies may just settle because there’s nothing to win by a counter suit.
Presumably theres some contract with the patent "owner" preventing that, but maybe that would show they aren't really in control of the patent.
Also judges in general don't like people being "clever".
- If lawyers for a defendant are going to settle (we generally prefer not to), we often want a portfolio license -- a "go away" license. By splitting up the patents among entities and keeping itself hidden, an entity like MAVEXAR can keep filing serial suits against the same targets and can keep receiving more expensive "global" settlements.
- It dodges liability for attorneys fees, since the entities have little or no money, and may decrease the chances of a fee award generally.
- It means that the entity with the patent has little or no discoverable information, decreasing the cost of suit because there is nothing to produce. Lawyers for that entity can also take stronger discovery positions because there is no concern about about responsive discovery.
Short term they are horrendous, long term we may need them to force positive changes that benefit and are on the side of small-time inventors and problem solvers, and not the mega-corporations (patent trolls with massive capital).
tl;dr: Patent trolls are bad, the patent system that enables them is bad, we need to force massive patent reform.
Exactly. How will that happen?
My answer: you get some congressman or senator to introduce a bill, and then you apply all the influence you can muster to get it passed. And there will be opposition.
Stay safe out there.
This judge was getting awfully close to invading the attorney-client relationship. I would have to think hard, and review the law, before answering, or letting my client answer some of those questions.
This seems to refer to the people who got recruited to serve as owners of the patents. They are not "hapless"; they are getting a slice of the patent trolling action.
> In short, it looks like both of these witnesses signed up to be the fall guys for the assertion of these patents
Unfortunately, the article doesn't hint at what that might mean. Obviously they are inconvenienced by having to appear in court as witnesses. Do they face forfeiture of the LLC income, and penalties? Jail?
Creation is hard and should have some potential for rewards. I think we need software patents (especially) to be shorter lived and non-transferable. They can only be licensed and the licensing schedule should have to be public and available for all people at the same price. The employer can get a free license as part of the patent process for company use. This gets rid of trolls and patent farms.
No, we have copyright and trade secrets to protect those things. There are many forms of IP protection, but patents are the most questionable by far IMO, and are more likely (in most fields) to be a net loss rather than a net gain for humanity.
> Creation is hard and should have some potential for rewards. I think we need software patents (especially) to be shorter lived and non-transferable. They can only be licensed and the licensing schedule should have to be public and available for all people at the same price. The employer can get a free license as part of the patent process for company use. This gets rid of trolls and patent farms.
Copyright protection is sufficient for software IMO. Very few pieces of software are novel enough to be worthy of a patent, and in the few cases that are, the greater number that aren't outweigh the benefit to the few. When you have to try this hard to salvage the system, it is usually best to not try and salvage it.
Of course! Maybe that's because in the sciences this is a normal thing in order to get published at all. If you present findings with a black box reviewers will want to pry in. And what do you know, the sky doesn't fall with all of this sharing of knowledge. People who put time into their findings are still considered experts and are rewarded. In fact its probably a lot easier to point to your accomplishments when things are actually public and you can talk freely about them, versus layered behind NDAs and whatever else other threats designed to keep you from talking about the work you do to other people who might do something generally useful with that information.
https://www.dmagazine.com/publications/d-magazine/2022/octob...
There has been literally - and I mean literally on the literal sense - one case from 11 years ago and none before or after that in my lifetime
This might sound controversial, but patent trolls are pretty much the only way for a "small inventor" to monetize a patent (note not invention). If say IBM violates your patent an individual or even a moderate startup or company has absolutely no chance of defending it, because IBM will either drown you in litigation cost or if you also do business find 10 other patents in their portfolio that you violate and force you to cross licence.
By framing the issues to be about patent trolls means that the big companies just want to have their cake and eat it too. They want to keep out newcomers without any risk to their own business.
That doesn't mean I am pro patent trolls, but I just am not convinced that the patent system fullfills any value. Patents are written so broad that they are essentially meaningless.
The only scenario where patents make sense is when a research group spends significant resources to invent something, and then publishes the invention with all the necessary documentation to make use of the invention, then they should be rewarded with licensing fees for their contribution, so they can continue and hopefully make more inventions.
Edit: When I say research group I'm not just thinking of non-profit universities. A research group could also be a group within a for-profit company that develops something, a for-profit institute, a joint industry working group, etc.
The person who made the flash freezer, for example, was just one person. If he couldn't protect his patent, despite definitively changing the face of global food preparation, why should IBM have any intellectual property?
I'm not familiar with the invention of flash freezing. Did the inventor just patent the idea of freezing food fast? That sounds like a pretty obvious idea that should not be patentable. Why give someone a monopoly on quick freezing?
Or did the inventor patent a non-obvious mechanical device that is capable of quickly freezing food? Giving the inventor a short term monopoly on that device in exchange for publishing the blueprints sounds like a reasonable deal.
In the case of flash freezing, hasn't the market shown that the idea of quickly freezing food (to preserve the food without producing large ice crystals) was novel when he invented it? We have been able to freeze food for hundreds of years, and nobody was doing it that way until 1924. That sounds like a non-obvious novel idea to me.
Sources: https://arstechnica.com/tech-policy/2013/01/how-newegg-crush...
"After years of work on his own process, Birdseye invented a system that packed dressed fish, meat, or vegetables into waxed-cardboard cartons, which were flash-frozen under high pressure"
Many of these inventions could be readily transformed into significant business ventures but, without patent protection, would be easily beat out by companies with the resources to build out manufacturing nearly instantly.
The resources spent on an invention is typically a terrible measure of novelty or inventive step.
But I agree, patent law should to a greater extent protect the investment that goes into realizing an invention, and less the invention itself. For example I think it’s absurd that you can patent stuff that you have no intention of building or offering for sale.
No, you don't necessarily need to spend a lot of resources or even have a "research group" to invent something completely novel, and the price of research is actually a lot lower than you think if you aren't hiring people. For example, you can make a new silicon chip to prove that your new circuit works for under $10,000. A new electronic device of some other kind is only a few thousand. Software (for the few remaining fields where you can get a software patent) is pretty much free to develop.
To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;
> patent trolls are pretty much the only way for a "small inventor" to monetize a patent
In the current system, yes, but in general no. The outcome is tied to the "litigation costs" precisely because the patent office is underequipped, leaving the burden of investigation on individuals. Strengthening the authority, and actively prosecuting and penalizing patent troll behavior increases both cost & risk, while cutting income. Your investigative authority doesn't need to be perfect - just better - to significantly change trolling economics.
> because IBM will either drown you in litigation cost ...
IBM is one of the longest standing patent troll companies and these are cookie cutter patent troll tactics. Good anti-troll legislation dilutes this by strengthening the investigations.
okay so you’re living paycheck to paycheck and took the risk of filing your patent with the attorney for $10,000 and arguing with the patent office a couple times for another $10,000
now you need to monetize it and other people did the thing you described after you described it
everyone on the internet says “hm you should have launched a startup using more capital and more risk, doing that one specific thing, otherwise you are just a troll!”
yeah ok. convincing argument
If an inventor just wants to sit on a patent and not produce anything based on it, they should be forced to (eventually, though I have no idea what timeframe would be optimal) release their rights.
Companies get defensive at the mere suggestion of paying anything, NPE streamlines the process
First, patent trolls have a very simple business model (and I heard this from a former troll):
- Don't even sue the real easy marks, the ones who will just write a check for $50,000 to make you go away. Just threatening them is enough.
- Sue the slighter harder targets. For these, you have to actually file a suit. They will settle with you, and you'll demand more than $50K because they made you work a little.
- (This step is optional) Sue the real hard targets, like Google, who will file an IPR (inter-partes reexamination) to try to invalidate your patent. Again, many times you'll end up with a settlement out of this.
- (also optional): go to trial, and hope for a gigantic jury verdict. Buy a lottery ticket, in other words.
Now your statement "Patents are written so broad that they are essentially meaningless." is nonsense. "So broad" means that they apply to lots of products, and the jury just has to decide one of the claims applies to yours.
So, your "small inventor" might get some money by selling to the patent troll, but it might not be from defeating IBM, and it won't be 100% of the money.
Regarding the broadness of patents, my point is they don't advance technology or the sciences (the oft stated goal of patents), because they try to cover everything without revealing anything (a goal given to me by several patent attorneys in the patenting process). So what is their purpose?
As I agreed. However, you're wrong that a troll necessarily goes after the infringer you know about, and in fact they may not even bother.
Secondly, "broadness" is a term of art in patents. It doesn't mean what you think it does. It doesn't mean "advancing technology." It means the scope of things covered by the claims.
For example, Coca-Cola never patended their formula. So you might think: I can copy it and sell my own right? Well, yes, legally yes, if you ever found their formula, somehow. They been successful for more than a hundred years now in hiding that formula.
Thing is, software patents allowed people to actually patent ideas, concepts, stuff that is obvious and don't need sharing, for example: "ghost racer" is a patented concept, for a while any game that wanted to display to the player his past run by showing a slightly different copy of himself so he can compare, had to pay patent royalty. But the concept is obvious, it is simple, it is there, nobody used a ludicrous amount of money and time to invent it.
This is different than the patent for Michael Jackson dance moves that requires specialized devices, he patented physical objects that required time and money to make, they had a non-trivial purpose on his dance and he had to work to create them to make his dance moves possible. And now that he is gone, the awesome stage tricks he invented can keep existing, because he wrote detailed patents explaining how to repeat his feats.
Stuff that is obvious cannot be patented, according to the law. The problem is the system's implementation of the law.
Software shouldn't be patentable because math isn't patentable.
Is physics patentable? Everything in the real world eventually depends on physics. Yet despite the unpatentability of physics, patents built on physical properties of the world exist as well. Why should mathematics and software be different?
To create a solution within the constraints given is what engineering is all about, and requires expert domain knowledge and creative thought. Software isn't just math, it operates on real processors with real limitations. I'm not arguing that software patents should be valid, but the "software is just math" argument is too weak to carry much weight.
https://web.archive.org/web/20210824042808/https://www.gamas...
That doesn't make it any more deserving of a patent.
I don't really buy your argument since the same could be said for obvious stuff in the physical world as well.
I still think I am leaning towards companies keeping their secrets if patents is the only solution we can bring to the table.
This is a legend. Coca Cola is just water with sugar. The "formula" tastes different in every country. And today's coca cola is not the same like yesterday, so they shall fill a patent every other year in every country.
As for the "no effort" claim, reminds me of the :
Henry Ford vs Charles Steinmetz' (of General Electric) invoice for fixing a generator : "Making chalk mark [showing where the issue is], $1. Knowing where to make mark, $9,999."
In general, the software world sees plenty of innovation, and would continue to see that innovation without patents. Besides, software is much closer to mathematics. The idea that e.g. long-division is patentable is ridiculous, but if you write "long-division, but on a computer" the only thing that prevents a patent is how glaringly obvious the prior-art is.
(Some sort of IP protection or reward system is still needed for real inventions - where it takes serious money, expertise, time, etc. to achieve something major.)
But maybe a better moral would be that shell corporations (& lawyers playing shell games with them) should be outlawed.
Some examples:
- Rust memory management
- New models in machine learning that enables amazing results
- Protocols
Rust's memory management was invented without any such incentive, and the world is richer for it.
Once I had an idea while sitting on the toilet, about how to use past log data to pre-emptively scale up, when the peak hour is about to come.
I had the idea just randomly sitting on the toilet for a few minutes… it was already patented.
I imagine that this is the case for most stuff in the world. Ideas are not usually unique but it's the great execution of the idea that present the real challange.
Just the testing procedures involve massive investment.
I'm not in favour of patents at large by the way, but they make even less sense for software.
Ideas may also require intellectual labour. But one may not receive the protection of the government for them to give temporary advantage over competitors. Ideas are a collaborative venture, protocols being the very epitome of this - since a "protocol of one" is a bit like a birthday party for one... a bit sad and pointless.
If one wants to make money, by all means invest time in pursuing patentable inventions, but do not presume that mere ideas (most of which are "nothing new under the sun") should be afforded the same protection.
The problem we have today is that the patent system is derelict. The goalposts have shifted to allow almost all and any silly idea to obtain a patent and the system itself is weaponised for extraction. It has not shown any will to reform, so abolition may be its ultimate fate.
Your post seems to entirely misunderstand the patent system. “But one may not receive the protection of the government for [ideas] to give temporary advantage over competitors.” This is just flat out wrong. The purpose of a patent is literally to receive the protection of the government for your ideas in order to give you a temporary advantage over your competitors via a government granted monopoly on an idea. The bargain that’s struck is that the patent owner gives the details of their patented idea to the world so that anyone can eventually practice it or build off of it in exchange for a limited exclusionary protection in commerce.
I have plenty. Now, I do not wish to be rude Abduhl, but I find your "question" a little disingenuous, and your expectation that I act as your personal tutor on well documented matters a tad entitled. This isn't my full-time job, and I come here mainly to look for interesting and unusual viewpoints. Have you done even the most cursory research into the history of patents as I indicated? Do you need some reference material or links to get started?
How about reading some lecture notes and essays (some of the finest on the formation of copyright, patent and trademarks) on the site of Havard law professor Lawrence Lessig [1]
One example I saw just today :
Thomas Savery getting a patent on "make, imitate, use or exercise any vessells or engines for raiseing [sic] water or occasioning motion to any sort of mill works by the impellent force of fire,", which I assume subordinated Thomas Newcomen during the patent's duration = all of his life to Savery, despite Newcomen's engine being much more advanced & commercially successful... (at least he didn't end up destitute, like some of the previous steam engine inventors !)
You can argue that the patent system in the US is partially broken because of how broadly patents are granted nowadays, but that does not support the GP’s contention that there is some kind of distinct line that can be drawn between an idea and an invention, which is why the patent system is what it is now. And, again, your own link underscores how far we’ve come in understanding that unlimited monopolies on technologies/ideas are bad and how limiting patents durationally can help with that. Note that one of the requirements for a patent to issue is called “enablement” which basically means that your patent MUST describe the invention with sufficient particularity that a person with ordinary skill in the art could make and use your invention.
(Also, I don't think that in that case the patent expired because its holder died, more likely it came to a term (after being renewed ?) after 35 years (which I agree is a tad long), otherwise my source wouldn't have put it in this way ?)
Consider the idea of "going to the moon" versus the implementation of Project Apollo.
Even if it would have stopped java from being a thing it's just not worth it.
And if so, do they outweigh legal costs and chilling effects of patent trolling, and the inefficiencies of people having to engineer around patented ideas.
Intellectual property is a fairly artificial concept. It's quite "big government" when you think about it - government grants a monopoly on the application of an idea. It is only worth preserving if it makes the country richer.
Shell companies have done more damage to the world than most tyrants ever could - enabling tax evasion, escaping responsibility for substandard construction (you close the company after completing contruction of a house) or for decommissioning toxic assets like exhausted mines or oil rigs. They are uaed to obscure land ownership.
Usually people talking about shell companies are referring to companies with no business interests at all or if they are bring expansive only contracts/ip agreements. A construction company is doing actual business. Land owned in a corporation has an actual asset etc.
Most startups start as shell companies, you sort of can’t create a corporation without being one for some amount of time.
So I’m ok with the idea of corporate ownership reform but I think you’d need to get more specific than “shell companies == bad”
I think you could fix a lot of the issues by requiring that all companies must be recorded in a public registry that includes contact information, owner and executive names, as well as a list of actual physical locations where the company operates (if any -- online businesses don't need to have a physical location).
The states decide the information requirements in their jurisdictions and many have vested interests in not changing them (particularly Delaware where this case is).
https://www.fincen.gov/news/news-releases/fact-sheet-benefic...
So we’d need to get specific about which practice is duplicitous. Is it the treatment of IP as an asset? The transferability of patents ? Limited liability of patent defense?
I am no expert in any of those things but I bet there is value in each and bad unintended consequences of each.
If I described to a lay person that there was a hacker website frequented by lots and lots of people with an active forum community, you’d likely get at least some of them to suggest banning it…
Different things. In this case you have a pathological outcome in the process. "Free real estate" as it were because you've got an organizational structuring that is essentially censure proof by the Court unless you pierce the corporate veil.
Remember, corporations are suffered to exist as a courtesy, and a means to distribute risk, but our Court system is very much tuned to "there is a person, get them in here now, and lets get this sorted."
If the Court has to choose between being ineffectual and exploitable, and piercing the veil in order to get to the bottom of duplicitous behavior, one can only hope the Judge will settle in and push the issue.
Surely the basis of all corporations is to trade and to undertake usefull economic activity.
We spesifically don't want them to limit liability where profit is made upfront, owners take off with the money, and there is no-one left to pay the costs.
There are endless examples of this because ideas are not scarce and there are typically multiple intelligent people who have the same idea. All patents do is allow somebody who fails to successfully execute an idea to weaponize the legal system to extort money out of people who do successfully execute "their" idea.
That's not even getting into how the US Supreme Court allows GMO seed companies to patent plants and sue farmers for patent infringement because the neighboring farm's GMO seeds cross-pollinated with their seeds. In Bowman v. Monsanto, the US Supreme Court actually ruled that farmers can't plant their own seeds (when this cross pollination happens) without paying the patent trolls at Monsanto! Patents are simply corrupt, innovation stifling monopolies the entire way down and should be completely abolished and banned from ever coming back via constitutional amendment.
(Current copyright terms are excessive but copyright itself along the lines of the US Copyright Act of 1790 is reasonable as a tool to encourage creative works and copyright abolition would likely be even worse than the status quo's century long copyright terms. Likewise, trademarks are also legitimate as a fraud prevention tool. They shouldn't be conflated with patents as they are in the concept of IP.)
Trademark also has a good few issues, aside of being abused to the point where it becomes obviously stupid (like trademarking colors, common words and similar idiocies). It also cannot prevent counterfeits, which is more a game of whack-a-mole than anything else.
So, to solve the triviality, the patents shouldn't be worth more than it would take for a competitor to reinvent the end result - so if we're talking about a truly advanced chemical process, sure, takes time and reasearch and people and experiments... definitely worth millions. In contrast, pressing pageDown and in result moving one (full) page down (instead of moving a screen-height) should be practically worthless, since it'd take someone just a few hours to reimplement. Valuing would be hard but still better than nothing.
The other is the time limits.. especially in software, a year is a lot of time, really a lot... and 20 years is way too much.
I mean the marketing blabla behind patents is always the little inventor who found something incredible but will be eaten by the large corps, right? Which means they should be interested in actually creating a product out of it to make money, and the patent gives them a "safety" period before the big corps stomp the little guy to the curb. Or ... maybe this whole thing was a pure marketing ploy and patents have been misused in all kinds of ways in the 19th century already?
https://news.ycombinator.com/item?id=33505728
Some decades later, however the (much less broad ?) patents over steam engines able to produce circular motion, seem to have forced Watt to differentiate and improve his "2nd engine" so much that it could be differentiated enough from the other patents :
https://technicshistory.com/2021/10/10/the-steam-revolution/
Note also that Watt was bad at business, and only owned 1/3rd of "his" patents.
Our post-modern issues seem to me to instead stem first from :
- it being too easy to shelter liability (and tax fraud !) behind complex company trees
- a failure of antitrust and lack of goal/duration-limited companies allowing companies to grow waaaay too big to the point where they have enough power to heavily weigh on governments (note though that Watt had already managed to convince the British government to give a 25 year extension on "his" "1rst" steam engine)
The problem with multinationals is just icing on the cake, because they use all kinds of tools to block off competition, not just patents and copyright. And compared to the small inventor they do have the means to control for patent violations by others and go through court with that, if needed. So the whole process is highly aligned towards the wealthy to begin with.
If you are working as an inventor it's your own responsibility to market and sell your ideas and create appropriate contracts when selling your inventions to someone.
A patent has to go through several layers and areas of concern before finally being approved. The entire approval process must be documented and publically available.
As it is common, the idea was fine, it even somewhat worked in few places, but applying it everywhere turned out to be silly. We have medical companies changing an atom here in there to make "same" but legally distinct drugs, and software people patenting half a day of work of someone as some "invention" (and my favourite [1], "playing with cat using a laser pointer").
It failed as a system decades ago and if anything it became blockage to innovation (gotta check thousands of patents, they might be too similar!).
More than that, it is peanuts in cost for corporation but significant one for a single "inventor" so majority of it lies in hands of corporations that would do that R&D anyway.
The protection it provides was also supposed to encourage publishing the science (as opposed to just lock up your trade secrets and never show it to the world) but frankly long patent interval makes it a bit pointless, competition can just invent "same/similar legally distinct process in many situation and only people getting richer by patents are lawyers, not "inventors".
I start to think laws should have "best by" date, and be re-evaulated after 10 or 20 years whether they served a purpose well and still serve it...
[1] Method of exercising a cat https://patents.google.com/patent/US5443036A/en
There is another model for innovation, however, and that is the government research grant model. The government taxes wealth, the taxes accumulate into massive funds, government experts hired from the field identify compelling research topics that would benefit the collective, funds are made available and other researchers submit proposals of what they would do with that money, government experts choose the most promising proposals, money goes to things based on research merit versus the product or technologies potential to take money from people's pockets.