Comment by AlbertCory | Hacker News Reader

Comment by AlbertCory | Hacker News Reader

Former tech advisor to Google Patent Litigation here.

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.

Google’s patent strategy is to patent everything it sees and hears about. This is a good case of it: https://patentpandas.org/stories/company-patented-my-idea . As long as patent attorneys are on quotas at Google, they will be filing bullshit patents they didn’t invent all the same as the trolls.

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.

> Google’s patent strategy is to patent everything it sees and hears about. This is a good case of it: https://patentpandas.org/stories/company-patented-my-idea . As long as patent attorneys are on quotas at Google, they will be filing bullshit patents they didn’t invent all the same as the trolls.

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.

> As for this patentpandas guy: there is lots of prior art... This guy is a naif.

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.

> You're a lawyer

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.

Are you talking about the time period of the article, so looks like 2014ish?

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.

It was never "patent everything you can see."

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.

Let me point out the opposite view.

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

> throws its weight to take patented technology without payment

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.

I’m generally of the opinion that you are probably right, given that you are on a site where people are inclined to be opposed to your position but are handling the argument quite deftly (this is a dumb way of handling it, but I’m not a law guy, I’m a programming guy, so this is outside my wheelhouse, so I’m just using social signals).

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.”

> 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?)

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.

Are you saying the jury is what costs a million dollars a day? That’s mind-blowing to somebody who doesn’t have any contact with the legal system.

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?

I realize I was a little glib in ignoring your comments on the right to a jury trial. This IS a gray area, in that you can be deprived of your property.

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.

Reply on news.ycombinator.com