How To Kill Patent Trolls | Hacker News Reader

How To Kill Patent Trolls

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80 pointsdean33 comments

If only defending a patent suit was as simple as finding the prior art. Most patent trolls will happily invite you to take your prior art claim to court, knowing full well you can't afford to do it.

> Most patent trolls will happily invite you to take your prior art claim to court

If you (the defendant) has found good prior art (either by this method or some other method), you can also file for a re-examination with the USPTO using that new prior art. Still somewhat expensive, but significantly less expensive than going to court, and if the patent is found invalid it is just as dead.

But does invalidating a patent usually work well a intended? We see so many obviously ridiculous patents, that one might think that if they are so sloppy to approve patents on the first place, that they'll be just as sloppy in a re examination.

Or is the re examination all that much rigorous and accurate?

There's something like a million pending patents backing up the system. I think their attitude is "screw it, just approve everything, and let the courts sort it out". If you call for a re-examination, they might think twice, because they'll look bad if the courts suggest they screwed up.

Could you automate a patent troll using a variation on the SCIgen software and effectively ddos the entire patent office with nonsensical gibberish?

Am I bad for thinking of such things? ;)

I guess the problem is you need to pay a significant amount of money to file a claim. Interestingly, some have advocated the same method for preventing spam in email by requiring you to pay a very small amount every time you send one.

Yes, that's one of the oldest and most useless proposals that gets brought up by at least 5 people in every single discussion of email spam...

Which just happened to work well for the closest thing email has to a replacement. Text Messages. Think about this for a second, just about anyone can send you a text at any time using your public phone number yet it's not a problem.

Not a problem? Google for "text message spam".

Now think a second about the useful things emails are used for which text messages generally can't be: notifications for new releases of OSS projects or replies to a blog comment, mailing lists for OSS developers or hobbies...

No, but you can write nonsense claims (stuff that's obviously way too broad, and already in common use, or just plain silly) and publicize it if they are accepted.

I think you might actually be able to make some money with a program that searched expired computer-related patents for ideas which could be repatented for mobile devices instead of computers in general.

> "We see so many obviously ridiculous patents"

Many -- if not most -- of the patents that the community is quick to decry as "obviously ridiculous" only appear so if you misunderstand how patents work. [1]

The US Patent Office has granted millions of patents and reviewed millions more applications in the fairly brief life of computer/systems/process patents. The few dozen legitimately bad patents hardly justify an accusation of sloppiness.

We would all be positively blessed if every bureaucratic system had such a low failure rate.

That all said: Yes, the system obviously needs work. But the performance of patent examiners isn't that primary a concern to anyone who's taken a good look at the system and it's problems.

[1] All that matters are the claims. The descriptions are irrelevant to the meat of what, specifically was being patented. The community has a long history of loudly complaining about descriptions that define an absurdly general invention, when the claims, in fact, indicate a narrowly defined patent of at least arguable value.

Do you really believe that there are only a few dozen bad computer/systems/process patents?

That sounds wildly optimistic.

I believe that only a few dozen computer/systems/process patents are causing trouble because of reasons that could be arguably attributed to 'sloppiness' on the part of the examiner. That is: too-broad patents, patents granted despite prior art, etc.

I'm not counting any undesirable patents that are causing problems because patent terms are too long, or those that were granted because patent law/precedent/policy didn't give the examiner any cause to reject it, etc.

My point is only to refute the charge that examiners 'sloppiness' is common and/or a notable problem.

is certainly an incredibly expensive problem, even in single cases;

http://www.space-travel.com/reports/Boeing_Patent_Shuts_Down...

And I am pretty sure, even ignoring broadness as a factor and just sticking to patents granted despite prior art, that if there were only a few dozen patents causing trouble then the companies like Article One, who is getting patents revoked in the hundreds due to discovery of prior art, would not be able to exist while paying out millions in discovery fees to their researchers.

[edit] - a look at the problem of workload by a USPTO Patent Examiner;

http://just-n-examiner.livejournal.com/44737.html

My impression is the opposite. Patent cases one hears about seem to start with 137 patents, and the judge throws out all but a few claims of 2. Perhaps this is self-selecting, but the impression is that most of the patents granted are, in fact, bogus.

What you seem to be talking about are infringement suits where the judge throws out consideration of large numbers of patents and claims. That's about whittling down a problem of mind-boggling complexity to a group of questions that can be understood and answered in a reasonable amount of time. Those patents and claims aren't being struck down or ruled 'bogus'. They're just being ruled irrelevant to the meat of the case, to simplify the proceedings.

And most claims are thrown out of consideration simply because most patents only include a few independent claims. And as a practical matter if you can rule out infringement of an independent claim you've ruled out any possibility of infringement of its dependent claims.

I find the Google-Oracle case to be a great example of the bogusness of most patents. They started with hundreds of patents. Then the judge told Oracle to pick their "best five". You would think that if told to pick the best 5 out of hundreds that those at least would be solid. Yet Google has managed to get several of the 5 invalidated...

I think the solution needs to be more ambitious. What if the "invention" is not prior art, but other people can come up with the same idea on their own? Does that deserve to be patented so that the company that was one week late will need to pay patent fees? Maybe the whole patent process should be crowd-sourced and patents should only be granted if no one can think of the same idea.

(I discuss this more here: http://zappable.com/2011/08/how-to-fix-the-patent-system/)

  > What if the "invention" is not prior art, but other 
  > people can come up with the same idea on their own?

Then at the very least, it's evidence for obviousness, which (although a tougher sell) can also invalidate a patent.

EDIT: IANAL

Unfortunately "obvious" in patent law tends to mean there is published work suggesting putting stuff together in that way. If nobody has discussed the problem (e.g., you were the first to work on it), it somehow doesn't matter that anyone competent would have promptly settled on the same solution you did, and we aren't getting anything of value in return for your generation-long monopoly on it.

http://en.wikipedia.org/wiki/Inventive_step_and_non-obviousn...

Does anyone have any past experience with this? How much did it cost you?

I'm creating an app that deals with real-time information and geo-location... It seems that patent trolls will be lurking everywhere.

As a young startup, we don't have the money to go out there and make an attempt at protecting ourselves.

I appreciate the idea and love the crowdsourcing model. However, if I need to invalidate a patent, there might often be more urgency than hoping for the crowd sourced solution. Not to say it isn't viable, but maybe it's something best used in conjunction with a team of experts?

I would think that offering a $10,000 reward to the first person to come up with the solution would create a better sense of urgency than paying a firm $200 per hour to do the search. The firm gets paid more if it takes them longer, so why would they hurry?

If this were to gain momentum, then I think the exact opposite would happen. Crowd sourcing is like a human map-reduce. The bad patent is "mapped" to people who know something about the subject and each searches independently sometimes sharing results. Analysis is done to "reduce" the result to provable prior art. Further, I think they should remove the award. I would do this for free. Sites that pay people to contribute almost always fail (think Mahalo vs. Wikipedia).

Patent trolls affect all of us. This is something everyone could get behind.

Edit: by "exact opposite" I mean crowd-sourcing could produce good results faster, with greater urgency, than any expert.

About doing this for free: thought the same. Receiving money might even complicate things wrt tax or other employment contracts.

I wonder if they'd allow one to surrender any payments, instead having them directly donated to EFF, FSF or other non-profit organizations that are fighting with or are endangered by (software) patents.

I've always wondered why there isn't a crowdsourcing entity that pays out rewards for finding infringement (patent, copyright, whatever).

Well, priorart.org is available for purchase. All it really needs is a wiki and a bug tracker on there...

[edit]...oops, available by broker. :(

Ilike that idea. While offering money for the crowd is a nice idea. The confidentiality agreement may have been startling their progress. Maybe they would find more prior art if users were expected to contribute out of live for a bogus patent free world.

Was thinking that you treat a patent as a bug, then submit it through the bug tracker and the result ends up on the wiki.

Is there something I'm missing here?

Granted, there are more and more trolls these days. RSI is a real concern. You'll want a light weapon without a lot of recoil. And it should probably take an extended clip, to minimize reloading. Not to sound like a fanboy, but the Glock 17 seems perfect to me. All firearms can jam, so do bring a spare...

Seriously: why would anyone think seriously about how to fix this system? Why would anyone imagine it can be fixed? The only relevant question is how to kill it. Glock or no Glock, everything on God's green earth can be killed.

... what?

Also, it's a magazine, not a clip.

It reminds me of a poster I saw in the Occupy group.

     "Reform or Reveloution?

Societal change just doesnt happen without a very large delta inducing that change. For example, we can view the changes from 9/11: creation of TSA, creation of Department of Fatherland.... Homeland security, breakdown of freedoms of travel and search.

Change can also go the other way. We only have a large chunk of the Middle East to look at, starting with Tunisia.

What I have studied a portion of is how the United states got where it is today. And time and time again, corrupt laws are passed for the reason of knee jerk or 'security'. Those politicians also promise never to use those laws against us, which in 5 or so years undoubtedly are.

Perhaps the base Constitution is correct, although I think clarifications are in order. Perhaps not, considering the claim I have read that it was written solely for white landowners.

I don't have the answers, but I can spot corruption when I see it. And when it's this endemic, revolution is the only way to fix it. Gods hope it's a peaceful one.

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