Patent Absurdity (2021) | Hacker News Reader

Patent Absurdity (2021)

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37 pointsthunderbong29 comments

Although this is generally true of Legal's recommendation to all engineering development, it is often not possible. In particular, once you start writing your own patents (or having counsel write and you approve) then you'll have to answer questions about prior art, if anything is even close. At that point you have to at least read and respond to counsel's questions about particular patents and that means reading the spec, and usually the claims to understand them. At least those conversations are privileged, but that doesn't mean you don't have to answer in court.

The only reason this is really recommended is to avoid triple damages as opposed to simple damages. Depending on what you're working on, it's value and your investment, it may well make sense to look at patents... but for a large company it's usually patent lawyers working for you. In general, it's not a great idea to just go reading lots of only vaguely related patents and documenting it without purpose, because you would increase liability with minimal gain.

Furthermore, if you've read a patent and then come up with a great patentable idea, they can further claim more easily that your invention wasn't novel and was obvious from combining some other art with that patent, thus invalidating it. Having a good story about how you came up with the idea is important on the stand. Patents are boring and there's risk so mostly avoid it.

> In particular, once you start writing your own patents (or having counsel write and you approve) then you'll have to answer questions about prior art, if anything is even close.

Yes. I have found that pursuing patents is an enormous time-suck; it is a complete distraction from actually inventing things, and should be regarded as a major risk to your productivity.

Filing patents may suck for you, but it's not like, BigCorp who pays your salary is going to let you out of it. If you're creating something unprotected by copyright (eg physical), and don't completely control the means of production, then not having a patent means your invention/productivity is likely worthless due to competition anyway.

By the time you could have a product made, your manufacturer could simply make more and sell at a lower price those you receive nothing for. It's really common for kickstarters, and you can try splitting up the manufacture or adding little software bits to control it, but there's a reason patents on the creation of physical objects exist.

Rules I've been taught in 20 years as a R&D design engineer:

1- you are being paid to design new things, new ways. Design something how you think it should be designed until told otherwise

2- don't read patents, search for patents about what your working on, and certainly don't "design around" them. This is like sequestration of the jury in a trial, don't pollute your brain

3- let the other folks do their job, they will review your work, tell you what's novel and patentable, what's just regular, and what's not usable because it's covered by other ip and you need to do it not that way, then change those bits as needed.

The R&D engineer (or dev, scientist , etc.) needs not be the patent agent, and visa versa.

Edited:typo

Does anyone think the patent system is possibly worth saving? Perhaps some tiny shred of it? In light of the NYT copyright case (where they are clearly backed up by precedent, yet also completely at odds with human flourishing) and patent absurdities like this (these??), I really don’t see how one could possibly defend it. If there’s one thing open source and modern academia have shown, it’s that you don’t need these weird absolute arbitrary contracts to incentive R&D.

Researchers at the Fed agree:

> The case against patents can be summarized briefly: there is no empirical evidence that they serve to increase innovation and productivity

https://files.stlouisfed.org/files/htdocs/wp/2012/2012-035.p...

Since software disproves the utility of authoritarian restraints on intellectual labor, you should only expect the defenders of patents to be incapable when it comes to physiology. Only animals with dysfunctional genetics would advocate for restrictions on vectors of progress. Naturally as a result of evolution summoning its own enemies following the destruction that years of evolution and growth orchestrates.

I would express extreme incredulity at the argument that anyone who has different opinions than I do about intellectual property is deficient in any particular “physiological” way, especially a genetic one. For example an easy example, consider how all your favorite intellectual heroes from eras past were completely wrong about SO much - physics, astronomy, chemistry, and social ethics are common pain points. If Aristotle and Newton can be so wrong, then our opponents aren’t necessarily deficient.

But also I’m being pedantic and I agree that the rise of IP laws is a natural consequence of IP having value in the first place.

Impositions on intellectual property exist in the first place because the biologically deficient have cleverly acquired a violent weapon to inflict some substantial damage on those organisms which would exclude carriers of genes that evolution itself deems a failure. For evolution's unknown teleos toward fit species and individuals, whatever that particular end looks like according to evolution's grand designs for the world.

Life isn't fair and doubly so under the regime of evolution and its objective reality. So there's going to be some antagonism coming from the losers of biological life. That biology affects the possession of technical equipment like software and the socio-cultural valuation of intellectual property laws, for instance, proves itself harmful to natural and effective technological development. The rejection of intellectual freedom incriminates itself in the sphere of natural selection and physical physiology. Blatant advertising and screening of bad genetic dispositions, rationally, for those who take the physical sciences seriously and who also would like to resist purely unnecessary games and drag on progress.

But if information wants to be free, if technology wants to hook up with some smart and intelligent individuals, then it will try to find a way to such liberty. Enlisting the aid of free software hackers, for instance. And who knows what that villain would plan next if hacker geeks fail at being good henchmen for it.

> Does anyone think the patent system is possibly worth saving?

I think the original idea is worth saving. That is, they should incentivize people to publish details about inventions that otherwise would remain trade secrets. I'm glad the inventor of Portland cement filed a patent, for example -- they did get an 20-year monopoly, but for over a century since then, the rest of us have benefited from a publicly known formula and process for the manufacture of Portland cement.

Congress should write a law that reforms patents: (1) require them to be effectively how-to manuals: descriptive and complete enough to manufacture the thing from raw materials given the patent's instructions alone, and written in plain language (not legalese) easily readable by other technicians in the given field; (2) outlaw software patents, and (3) phase out patents granted since 2007 within 18 months unless they pass a re-review where they have to clear (1) and (2).

That has always been a bullshit justification. Inventions are not one off events, almost everything gets rediscovered many times, it's patents that make them so, and restrict the invention to something that can only happen once. It's basically a legal fiction.

Ooo you just unlocked the whole thing for me. According the basic tenets of modern Standpoint theory (and really post-enlightenment empiricism more generally), any technical idea or expression only has meaning in the author’s particular linguistic/professional/intellectual context — in their “standpoint”. So our attempt to apply capitalist property notions to ideas fails from the jump, because our whole culture treats ideas as fallible individual beliefs, not eternal divine forms.

Silly capitalist IP lawyers from the past few hundred years, their whole epistemic framework is inconsistent. Somebody should tell them, I’m sure they’d about face…

I don't think it was BS in the early days of the US, in medieval & renaissance Europe, and in antiquity. Life was harder, populations were orders of magnitude smaller, and a much smaller proportion of people had the means and education to invent things. The middle class was non-existent, and the most modern technology of the time was only available to an elite few. So the legal fiction that inventions could only happen "once" was not so terribly inaccurate; it was even useful.

But I agree that given how many people have access to the means of invention today, patent systems have become an absurd notion, and they only create absurd results in the marketplace. The time for patent systems came and is now long gone. Thanks for changing my mind.

To further Anotheroneagain's point, the basic assumption is that an idea needs to be protected separate from the execution. And potentially, help small companies make the best from their invention.

That flies in the face of reality where the devil is in the details, and the execution usually matters more than the idea.

Then applying for patents is a burden for small companies that has little upside when the 500 pound gorrilla can step on them and litigate the hell out of it, dragging any court proceeding for years if not decades. Looking at the Masimo case for instance, even as they're clearly winning on the legal standpoint, Apple sold 3 generations of watches before anything happened, and the ban is only on the US imports until perhaps some more years of litigation.

Patents and copyright are two quite different things. I think there's a case to be made for both, but equally it's fair to say both have also been abused.

I think your perspective on them likely depends largely on your view-point - if you are just a consumer the you're likely against them, if you are z creator you are likely for them.

For example I don't hold patents, so I think software patents are absurd. On the other hand I write commercial software (distributed as source code) so copyright is the only thing that stops others selling my code [1].

If I invented something though, like say an air-fryer I can see the value I patenting that to protect my investment as I pour time and resources into the development.

Before writing off the system as a whole, it's probably best to understand both advantages and disadvantages, and also consider multiple points of view (creators, consumers, little guy, big guy and so on.)

[1] copyright doesn't stop people copying it. But it does stop others from overtly selling my code, in my market space. For big customers it provides a solid legal "why we should pay for this" argument as failure to do so might result in legal penalties.

In other words copyright does enough to ensure I get paid enough to create for this space. Which is (I think) anything gain.

The triple damage is interesting. The founders like Jefferson didn't envision that punitive aspect, I imagine. Instead Thomas J wrote "He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. That ideas should freely spread from one to another over the globe,..." https://press-pubs.uchicago.edu/founders/documents/a1_8_8s12.... It's unfortunate that we have to avoid work of others and cannot easily stand on the should shoulders of giants.....

Is it worth going into patent law as an engineer? I've always been interested in this stuff and I feel like I could make a difference for the better.

The best patent lawyers/examiners are engineers. You really do have to understand the patents and the technology to write/read patents well. However, it is really boring.

To be paid well, you'll need to pass the patent bar exam. Being a paralegal doesn't make great money compared to an engineer. There are two paths though, one is to get a law degree, the other is to be an examiner for a few years. The lost income of being an examiner (and they're mostly remote now) is much less than the cost of a law degree. You probably won't be making the huge bucks ($1k/hr) litigating without a law degree, but you can make decent money at a lot of large tech companies. You also get to stay at the front of technology... even if the patents are REALLY BORING.

There's a third path: be a patent agent. You're empowered to prosecute patents for anyone, and most IP firms employ one or more of them. No law degree needed. I was one of those, for about a year. It is not the same as either paralegal OR examiner.

Will people pay you? Well, individual inventors will nickel and dime you, and big companies want big IP law firms. So it's tough. So yeah, it's boring, but once you've mastered it, it doesn't change that much.

If you would like to reach out, I can probably answer some things for you. But, whether it is ultimately worth it or not, is a personal decision.

I'd love to talk about it some more. Is it common to go "back to school" for this kind of thing? I'm a few years past my undergrad now. Still in my 20s, though.

Feel free, my contact information is in my profile. "Back to school" in this case would, usually, mean law school, at least in the U.S. My sense is it is not uncommon for there to be a gap between undergraduate and law school. Depending on your interests and background, there are, potentially, paths for working with / around patents (some mentioned in this branch) that would not require going back to school.

More substantively: I’m planning on using AI (grounded symbolic RAG-esque ones) and existing patent examples & instructions to help me write a patent for an AI system I’ve designed, passing it off to (non-specialized) attorney friends and family only for final glances. Does a kind hacker need denizen want to make an example of me and explain why I shouldn’t try that? The actual filing fees for “microenterprises” is low, and it doesn’t say you need to be a lawyer… plus cmon, there’s no way that “legal code” mentioned here is some impenetrable jargon.

In more provocative terms: once we have agential assistants with grounded legal knowledge, i think the patent lawyer industry will get its lunch eaten by AI-assisted laymen

I see a few issues:

(1) One of the biggest values the attorneys add is in prosecution. Absent attorney help, there is a big risk that you'll do things during prosecution that may impact the effectiveness of the patent during any litigation.

(2) Training an AI on existing patents is nice, but what you really need to do is train it on good existing patents. And you are probably not in a position to tell which ones are good.

(3) Asking attorney friends and family for "final glances" is a pretty big ask. Ethically it's questionable for them to offer advice in an area they are unfamiliar with, and even more so to offer advice based on a quick glance.

The "legal code" the claims are written is not impenetrable jargon at all. But, absent experience in litigation, it's hard to understand how the Court is going to construe claim language in a claim.

Thank you for the clear response - was hoping to elicit such an expert :). That all makes sense. I’m most interested in #3, as I obviously wouldn’t want to make them liable or connected to the patent in any meaningful way… will have to look into that.

The hope is/was that, since this is a cheap patent taken out by a non-profit micro enterprise, the stakes are low; if it eventually gets infringed it wouldn’t be the end of the world. So in that context, I wasn’t expecting any serious liability passing to them.

Also if anyone has resources for #2 I’d love to hear them :). I guess this is a huge field on its own now (I think IBM invested w/ Watson in legal research?), but I’m definitely going to try to find public datasets anyway. Or blogs, guidebooks, textbooks, etc…

…something tells me the question “which patents are good” might be take a while to answer comprehensively! Better start soon, I guess.

Probably not, you can file the patent but then you need to prosecute it if someone infringes on it. AI will be a tool for the field to help productivity whose output will still require expert review.

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