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Comment by cycomanic | Hacker News Reader

I find the framing of the conversation around problems with the patent system to largely be about patent trolls quite disingenuous.

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.

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I think the story of "small inventor makes big contribution" is very misleading. If an invention is small enough that someone can make it without spending significant resources, it is probably obvious enough that you shouldn't be allowed to patent it, because it is more likely other people incidentally have the same idea than they are "stealing" it.

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.

I think that's one way to view invention but the classic way it's been viewed in America is that if you found a novel way to put a sponge on the end of a dowel and manage to market it you should have protections to exclusively make your good for a while - there has always been, for me at least, a very strong romanticization of folks inventing things in their garage and making a few hundred thousand dollars off of them.

Imagine how history would have changed if we had to wait for the patent on the wheel to expire to use it

In your proposed world, shouldn't we simply get rid of patents entirely?

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 don't know if abolishing patents altogether would improve innovation. But I'm pretty sure that patents on obvious things hinder innovation, rather than help it.

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.

What is obvious?

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.

Yeah, there's a lot of bad patents, especially in the tech sphere, where the patent office & judges lack expertise to evaluate both what's in use and what's obvious. E.g. when someone almost successfully patented the concept of a e-"shopping cart" after it was in widespread use (also it's painfully obvious).

Sources: https://arstechnica.com/tech-policy/2013/01/how-newegg-crush...

The latter. Under your proposed ideal, he wouldn't be able to defend such a thing, as he was an individual.

I wanted to know too. It seems he was inspired by fish being naturally preserved in the arctic by wind and cold and how it was still tasted good later.

"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"

While many contributions do require significant tools & investment, there are still plenty of sectors where individuals can make massive contributions. For example Ben Choi leveraged mostly public knowledge and a few thousand $ to develop a low-cost neural prosthetic in high school. Having been to enough hackathons, this caliber of project, though uncommon is also not rare. The surface area for innovation is so huge, and the flexibility afforded by individuals/small groups is so significant that major breakthroughs continue to be made without backing.

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.

That’s probably true in the aggregate (as I’d posit most advances are incremental and become more expensive as you run up against diminishing returns to investment with legacy technologies). However, I think it discounts breakthrough tech/new technology fields and new applications. Not to mention many things that are consumer focused ( beanie babies, spanks, super soakers etc)

> If an invention is small enough that someone can make it without spending significant resources, it is probably obvious enough that you shouldn't be allowed to patent it, because it is more likely other people incidentally have the same idea than they are "stealing" it.

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.

The point of patents isn't just to protect you from theft. It's to grant you a monopoly on the invention in exchange for publishing details about it (thereby allowing others to build on your invention). Trade secrets law protects you against theft. Multiple people having the same idea doesn't actually mean anything - the person who makes the public disclosures of its existence is the one who gets the patent.

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.

Sure I somewhat agree with you. However my argument applies just as much if you exchange sole inventor with research group. The funny thing is "protecting the small inventor" is often stated as the purpose of the patent system, while in reality it is largely the big incumbents that are protected

If you're suing IBM, maybe. But I don't see how the majority of patent trolls that seem to be suing small businesses for things like using a printer, scanner, fax combo they bought at Office Depot is helping anyone out.

Its about identifying symptoms, not being an apologist

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

The argument is that society would be better off the the inventor licensed (or sold outright) to a company that will actually use the patent. Instead of to a NPE that exists only to sue.

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.

That’s an ok argument but you know why that doesn’t happen right?

Companies get defensive at the mere suggestion of paying anything, NPE streamlines the process

There are several errors in your analysis, while it IS accurate that "suing IBM" is difficult for a small inventor.

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.

I don't understand how anything you wrote invalidates my argument. Yes, the inventor does not get the full settlement amount, but some money is still better than a lot of debt that they might end up with if going after IBM themselves.

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?

> I don't understand how anything you wrote invalidates my argument. Yes, the inventor does not get the full settlement amount, but some money is still better than a lot of debt that they might end up with if going after IBM themselves.

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.

The small inventor is supposed to monetize a patent by building something useful for society. That's the whole deal. The patent itself shouldn't have value beyond protecting that path.

Bump

Why? They might be much better at inventing things than starting and running a business. The stated goal behind patents is to advance the sciences not to create businesses.

My understanding is that the goal is to advance society (not really the sciences) by enabling someone to produce their invention so society can benefit from it. The patent protects someone from having that invention copied as soon as it is put to use, which provides motivation to spend the time inventing it.

From the US constitution :

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;

Definitely the patent system has some issues. It certainly offers way too many protections with far too few checks. But there seem to be some strong assumptions here.

> 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.

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