Senate Vote Tomorrow Could Give Helping Hand to Patent Trolls
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The Ex Parte Reexamination is a fundamental tool for fighting against patent trolls:
https://en.wikipedia.org/wiki/Reexamination
They can also be used by big companies to steal IP from small inventors. However, this is not why the backers of this bill are trying to limit them.
When a troll buys up a patent from the early 2000's, they hope to stretch its claims, with the help of a patent-friendly judge, to cover some modern technology. Naturally, it's the FAANG and other big companies they really want, but first they build up a war chest by settling with smaller fish.
Filing an IPR is a cheaper way than going to trial for challenging these bogus patents, and believe me, nearly all software patents are bogus. I busted lots of them, including this:
https://www.zdnet.com/article/microsoft-patent-may-block-goo...
If you go to trial, it's some unsophisticated jurors who decide if the patent is valid. For a reexam, it's PTO people, who at least know what the law is.
So that's why trolls want to get rid of reexams: to force companies to negotiate with them.
Anything sincere about US patents must always be about how they should cost basically nothing to file correctly by inventors themselves. Otherwise it’s just rich people suing other rich people.
Especially software patents. If you are pro startup you are anti software patent. The status quo is a deadweight transfer from investors to patent attorneys.
The more you think and read about this, the more it will piss you off.
No, that's not the strategy. I served for a while on a engineers' committee in Geo to evaluate submitted patent ideas, 1-4, "1" being "definitely patent, we're doing this" and "4" being "this is so bad you don't even get the $50 for the idea." Usually it got a "2" if it was something we might do sometime, and a "3" if it was a good idea but not worth patenting.
I submitted five or so applications (in Ads, not in Geo). Several they dropped when the post-CLS Bank PTO rejected them on 101 (subject matter) grounds. Since it can cost $50,000 or more to prosecute a patent, and that is cash to an outside law firm, not just Google lawyers' salaries.
As for this patentpandas guy: there is lots of prior art. This guy is a naif. "Publish any idea you have as soon as you have it" is always a good rule.
You're a lawyer, whose job is reading shit, and you thought the protagonist was a man?
This is just stylistically razzing you. I am not this cynical and you are a qualified expert. The takeaway is that the status quo for patenting in software, and staff attorneys generally, is really unpopular, among highly educated people. There has to be major change.
No, actually. A patent agent.
> the status quo for patenting in software, and staff attorneys generally, is really unpopular, among highly educated people.
"highly educated" doesn't mean what you'd like it to. But yes, there should be major changes, starting with making software ineligible for the one-size-fits-all patent system.
I think Google changed its patent strategy fairly abruptly at some point. Currently they aren’t too excited about filing patents, but at some point in the past they definitely were.
That committee I was talking about was to evaluate IDEAS for patents, so they were definitely beating the bushes. But not shooting everything that came out.
Google is a massive company that often throws its weight to take patented technology without payment under the guise of fighting patent trolls.
Ex Parte Reexamination simply makes it easier to avoid patent claims since it provides another opportunity to throw out claims, some of which may have stood in a full trial.
Patent cases can easily take decades to complete an span multiple jurisdictions, and google has been involved in several such cases, meaning the original patents are now quite outdated compared to modern technology despite their original applicability.
After ex google executive Michelle Lee became head of the US Patent Office, the PTO has been more favorable to patent infringement in my opinion.
Google has settled many patent cases over the years, surely some of them were valid patents.
> If you go to trial, it's some unsophisticated jurors who decide if the patent is valid. For a reexam, it's PTO people, who at least know what the law is.
Is this not depriving people of their right to a jury? The PTO reviewers are hardly more knowledgeable about technical fields than juries. Somehow 64% of reviews end up with changes, is this not a sign that the PTO has been all to regularly changing its mind about valid patents?
To be clear I have never been involved in any sort of litigation against google, patent related or otherwise. I just think the pendulum has swung too far against patents. I could have instead argued that Apple or other companies are also very oppressive against patents.
I do agree many software patents are not applicable and are often spam, but there are real costs to decreasing patent rights outside of software
This is called "begging the question": assuming what is in dispute and needs proving.
"Patented technology" assumes that the "invention" was indeed worthy of a patent. If you want to take some example patents whose claims were thrown out in IPR, I'll be happy to debate them with you.
> Ex Parte Reexamination simply makes it easier to avoid patent claims since it provides another opportunity to throw out claims, some of which may have stood in a full trial.
Again, you are begging the question. I've actually watched a mock jury debate patent eligibility. Their assumption is that the PTO wouldn't have granted the patent if it weren't valid. I actually heard a member say about a piece of invalidating prior art (paraphrasing), "That's so obscure! It's not fair to expect the PTO to know about that!"
> The PTO reviewers are hardly more knowledgeable about technical fields than juries.
You can't be serious. Technical knowledge is not expected from a jury. PTO examiners are accustomed to doing this.
> Is this not depriving people of their right to a jury?
Not an unconditional right. A jury trial costs anywhere from $500,000 to $1,000,000 a day. Demand for a jury trial by an NPE is basically extortion.
> Somehow 64% of reviews end up with changes, is this not a sign that the PTO has been all to regularly changing its mind about valid patents?
For the third time, "begging the question." Find some patents that were modified and we'll talk about them.
> Google has settled many patent cases over the years, surely some of them were valid patents.
Pretty weak reasoning. Settling is not an admission of guilt.
> I do agree many software patents are not applicable and are often spam, but there are real costs to decreasing patent rights outside of software.
At last you've hit on something reasonable: take software out of the patent field entirely, and we can make some good law.
But this has be confused:
>> Is this not depriving people of their right to a jury?
> Not an unconditional right. A jury trial costs anywhere from $500,000 to $1,000,000 a day. Demand for a jury trial by an NPE is basically extortion.
Sure, no right is infinite, but jury trials are pretty foundational to our system, right?
And these costs, where do they come from? Does every trial cost a million dollars a day? (I mean surely small claims court trials don’t right?)
I’m a little suspicious because I’ve heard these big companies tend to hire expensive lawyers. If that’s where the cost is coming from, seems like a “them problem.”
small claims courts don't have a jury.
If you're suing a giant company and asking for hundreds of millions in damages, they're for sure going to pull out all the stops. It's not My Cousin Vinny.
Dang, I wasn’t picked for jury duty a while ago. At some fraction of a million bucks a day, I’d have been set for a while.
Tongue in cheek of course. Look, I’m intentionally stating my stupidity here, what’s the cost, is it really unavoidable or is it something that these big companies take on by their own decision?
However, if there's a city planning board hearing on your application to remodel your house, you're not entitled to a jury. The IRS can assess penalties without a jury. So it's not as simple as "you have a right to a jury trial." The PTO awarded your patent, a process that might have included multiple appeals, without juries. Not all administrative procedures allow juries.
I attended one day of the Apple v. Samsung trial in San Jose. Google had a "war room" (I assume Apple did, too), which was a suite in a hotel where we had meals brought in, and held all the work product. You can't risk sitting around in a restaurant and having people overhearing and bothering you. The war room has a guard outside 24x7.
Expert witnesses are transported there and housed, and paid anywhere from $300 to $900 an hour. Most of the legal staff don't live in that city and have to travel there. Partners in big law firms bill at $1000 an hour or so.
Big money.
1. This bill doesn't appear to address Alice/Mayo unpatentability under 35 USC § 101. https://www.congress.gov/bill/118th-congress/senate-bill/222...
2. My concern is that this bill seems to inappropriately raise the evidentiary bar for a patent challenger to prove invalidity in an inter partes review in the USPTO:
- Existing law, at 35 USC § 316(e) says a challenger in an IPR must prove invalidity by a preponderance of the evidence. https://www.law.cornell.edu/uscode/text/35/316
(In a court challenge to validity, the Supreme Court has ruled that invalidity must be proved by clear and convincing evidence, the highest standard in civil litigation, just short of beyond a reasonable doubt.)
- Section 4 of this amendment, when it comes to issued claims, would raise the IPR challenger's burden to clear and convincing evidence. For new claims, the challenger would still have the burden of proof, but by a preponderance.
Both standards are bad public policy, because in most cases a single, very-busy patent examiner is in effect making national industrial policy — and granting the patent applicant a nationwide monopoly on the claimed subject matter — all by his- or her lonesome after doing a prior-art search; the applicant must disclose material information known to him/her but is under no obligation to do a search. That's been the law for a long time.
It'd be as if a graduate school made a rule that a Ph.D. candidate must be issued the degree unless his (or her) dissertation committee does a literature search and shows that the candidate's research wasn't sufficiently novel. (As I understand it, every reputable Ph.D.-granting institution requires the candidate to do a literature search to demonstrate novelty.)
But of course it's worse than that, because — unlike a new patent holder — a newly-minted Ph.D. can't weaponize his- or her dissertation to try to "extract" royalties from other researchers.
2- Yeah, the one 'reasonable' complaint of IPR critics is the different evidentiary bar for litigation vs IPR.
IANAL but it's difficult to find a member of the patent bar outside of pharma/npe's that supports either bill.
that's it exactly. Pharma really should have its own patent regime, or at least, software & pharma should not have the same one.
It is also worse than that, because for most dissertations, your committee is generally going to be more widely-read than the candidate, and have discussed the topic with them for years. Although the candidate may have more specific knowledge by the time they are finished writing the dissertation, the committee is going to have much broader knowledge of the field in general, and is pretty likely to be aware of the relevant prior art anyway.
A closer analogy would be saying the Ph.D candidate must be issued the degree unless a randomly chosen undergraduate can show the research wasn't sufficiently novel.
That's not correct: Patent examiners are hired for their technical background, they're put through a four-month academy that includes their technical areas, and they get regular refresher training in recent developments by attendance at industry conferences, etc.
https://2017-2021.commerce.gov/americanworker/work-based-lea...
On the EFF's side, there's this: https://www.theregister.com/2009/05/11/scheduling_paradigm/
The opposing CSIS article posted by "alwa" in another comment also sounds very convincing. https://www.csis.org/analysis/new-efforts-promote-us-innovat...
Where is the civil debate?
We need to be reducing patent terms and making it easier to invalidate bad patents, not helping trolls.
https://www.science.org/content/article/us-supreme-court-str...
I haven't read it, but I know for sure that State of Fear, his book that revolves around eco-terrorists creating fake natural disasters to gin up fear about global warming, (in)famously has extensive notes and discussion about his views on the subject.
That feels pretty bad guyish. Unless I'm missing something?
For slightly more detailed perspective into what proponents might be thinking, CSIS suggests that the status quo effectively allows large companies with armies of lawyers to steal IP from small firms at will, and that PERA seeks to remedy a category of iffy gotcha kind of challenges; the conservative Federalist society claims that PERA would remove a threshold challenge to patent validity but would not disrupt more substantial analyses and tests later in the process.
I still have no opinion personally, but maybe a couple of contrasting opinions might be helpful for folks here.
[0] https://www.csis.org/analysis/new-efforts-promote-us-innovat...
[1] https://fedsoc.org/commentary/fedsoc-blog/the-patent-eligibi...
Whatever that means...
https://crsreports.congress.gov/product/pdf/IF/IF12563
> The Supreme Court decisions referenced above established what has come to be known as the two-step Alice/Mayo test for patentable subject matter. The first step of the Alice/Mayo test addresses whether the patent claims are “directed to” an ineligible concept (i.e., a law of nature, a natural phenomenon, or an abstract idea). To be directed to an ineligible concept, the focus of the claims must be a patent-ineligible concept, as opposed to a technological process. If the patent claims are not directed to an ineligible concept, then the claims are patent-eligible.
> If the claims are directed to an ineligible concept, then the invention is not patentable unless the patent claims have an inventive concept under the second step of the Alice/Mayo test. Step two considers the elements of each patent claim, both individually and as an ordered combination, in determining whether they contain additional aspects that “transform the nature of the claim” into a patent-eligible application of an ineligible concept. Claim limitations that are conventional, routine, and well understood, such as implementing an abstract idea on a generic computer, cannot supply an inventive concept.
An extremely over-reductive TLDR is that the Alice/Mayo test limits patents to specific, concrete, and well understood applications of technology. The test exists because of overly broad patents that essentially attempted to patent the idea of using a computer to do anything as well as attempting to patent ideas that were not yet invented in the hope someone would invent something infringing so they could extract a payday.
"Why is it being pushed?" and "who are the backers and the opponents?" would be better questions to ask. "What will be the practical consequences for software-intensive companies?" is another.
If software were not patentable (as it was not before 1982) then we probably wouldn't be having this discussion.
EFF v. Personal Audio LLC | Electronic Frontier Foundation https://www.eff.org/cases/eff-v-personal-audio-llc
I imagine they're a little breathless because if these go through, they won't be able to advocate on behalf of cancelling bad patents as easily.
I tend to agree with the EFF on this, but appreciate you providing some context.
True, but to paraphrase Arthur C. Clarke, sufficiently advanced ignorance is indistinguishable from villainy. And as a rule of thumb I worry whenever I hear "Congress needs to take action to remedy problem X", because Congress is going to have sufficiently advanced ignorance about the actual complicated nature of problem X and whatever law they pass is far more likely to make things worse than to make them better.
My basic problem with the patent regime as it exists today is that things are not what are supposed to be patented in the first place. The very idea of holding a patent on a gene (for example the BRCA1 and BRCA2 gene patents mentioned in one of the EFF articles on this topic [1]) seems obviously wrong to me. I could see a patent on a particular machine that does genetic tests, but not on the genes themselves. So to me, a patent like the Myriad one should never even have been able to pass the laugh test, let alone been granted so that a series of court cases was required to invalidate it.
The Alice Supreme Court decision somewhat narrowed the scope of what is supposed to be prima facie patentable, but I don't know that it fixed the above problem. Nor do I see anything in the proposed bills the Senate will be voting on that does so. So I don't see any side in this debate that is really addressing what I think is the root problem.
[1] https://www.eff.org/deeplinks/2023/09/bill-would-boost-worst...
Patents doesn't guarantee you business success. All it does is give you a seat at the negotiating table, the ability to countersue if one of those firms come after you. Otherwise, patents are worthless to small businesses.
Which is to say, they lie a lot. Take it with a gain of salt.
Unfortunately they also frequently get non-profits to be their mouth pieces, which makes finding some sort of unbiased alternate viewpoint difficult. As a practical matter, I wouldn't trust anything the Federalist Society says.
Important to note that the EFF is also a nonprofit, which is funded by big tech.
Even if it's true that these measures would help stop larger companies from stealing patents from smaller firms (I'm skeptical of that), I'd still oppose them.
The EFF is indeed self-righteous. That doesn't mean they're wrong.
The former have some claim to validity under the law, sometimes. The latter: almost never. That's at the root of the problem.