My Brush With a Patent Troll
jacquesmattheij.com
jacquesmattheij.com
- John Carmack
"Patents are usually discussed in the context of someone "stealing" an idea from the long suffering lone inventor that devoted his life to creating this one brilliant idea, blah blah blah. But in the majority of cases in software, patents affect independent invention. Get a dozen sharp programmers together, give them all a hard problem to work on, and a bunch of them will come up with solutions that would probably be patentable, and be similar enough that the first programmer to file the patent could sue the others for patent infringement. Why should society reward that?"
Carmack put his finger on precisely what bothers me as a programmer about software patents.
One thing puzzles me. The social utility of patents is supposed to be that they spread knowledge, because otherwise people would keep their discoveries secret. Well, how many people make use of the "knowledge" in software patents to further their work? When was the last time any of us said, "Gee, this is hard, I'll do a patent search to see if anyone has solved it"? The very question sounds like a joke. In other words, regardless of what one thinks about software patents in theory, in practice their positive uses are negligible compared to their negative ones.
Also, just because you don't read patents doesn't mean nobody does. I would guess it's more of a trickle down effect. University professors and researchers read patents and use it to expand and continue research and gradually for the good patents by the time the patent has expired the knowledge it imparted has diffused into the working participants in the field.
I think it would be great to see the courts adopt that standard. It's there in the law, and repairs the problem of the obviousness standard, which is to say that the patent troll just pays some expert to say "it isn't obvious to me!" and done. But teachability is a much more defense-friendly requirement: the jury typically won't be able to understand it, so if the defense brings a line of smart people who say "this is gibberish" that ought to be very compelling.
Perhaps no one reads the actual patent document (as you say it's written in legal terms - so it's purpose is to establish the extent of the invention for the law). Perhaps what people do do though is look at the outcomes of patents like the devices or code and learn from them. My point is that just because some people (or even no people) read the actual patent document that doesn't mean that the knowledge doesn't reach those who might use it.
The trade of still isn't worth it in our industry at least but the secondary benefits should still be considered in weighing the balance (there are some real benefits of patents along with the considerable costs).
So the question is, how do we make sure lawyers don't want to? (without going to jail).
However there's a right to a jury trial. So I propose the following.
Juries for patent trials should be paid dramatically more (in the neighbourhood of what lawyers get) and selected from a list of volunteers according to criteria that the two sides argue over.
The idea being that we want competent people to fight to get on juries rather than come up with an excuse not too.
There is already legislation coming into effect in the US which will give parties 9 months to contest any patent, through the patent office. This should help solve the problem of lay juries deciding the validity of recent patents.
http://ipspotlight.com/2011/09/19/changes-to-u-s-patent-law-...
Not so much that he was an expert, but he thought he had relevant expertise, made a false presumption about the nature of the law based on that misunderstanding (namely, that because object files would not run without recompilation between the iPhone and instances of prior art produced by Samsung, it didn't count as "real" prior art), and convinced the rest of the jury to deliver a guilty verdict based on whether the processor could execute the same object code or not, not whether the presented evidence actually was sufficient "prior art", meaning a demonstration that the invention was not unique enough at the time to warrant protection, to invalidate Apple's patent.
This seems like an archaic goal that could safely be discarded if the legal system were changed from adversarial to inquisitorial to compensate for the fact that differences in wealth allow the wealthier side to hire more convincing counsel.
Even loser pays can be problematic, though, because the troll or bigcorp can fund a war of attrition for far longer than a startup or small business. I saw a variant of this happen to a company. An adaptation of the inquisitorial system to civil cases seems like the most sensible approach, if the goal is to provide equitable outcomes regardless of the financial resources of the litigants.
An alternative idea is a shared pool of legal funds. Both parties contribute to the pool and the pool is divided equally. If an aggressor wants to hire the best lawyers in the business, they have to provide the equivalent to the defendant.
>which has everything to do with politicians
Most of them start out as lawyers. Coincidence?
Don’t get caught. ;-)
But seriously, there only seems to be one answer that is likely to work in practice: change the risk/reward structure so that patent trolling isn’t profitable any more.
One obvious approach would be making fewer things subject to patent protection in the first place. You could explicitly exclude whole categories like software or business method parents, assuming you could define them clearly enough. You could raise the general bar for granting/defending patents in terms of originality and non-obviousness. You could leave the standards the same in principle but apply more robust checking for prior art and/or a more thorough consultation to determine obviousness before awarding a patent. Each of these has costs in different places: principally, the legislature, the courts, and the patent office, respectively.
Another approach would be to look at the types and magnitudes of consequences that result if you lose a patent case, either by being found to infringe someone else’s patent or by claiming that someone infringes your patent and failing to win the case. For example, what if the remedies available to someone who owned a patent but who was not actively working to exploit that patent in some reasonable way themselves were made dramatically less than the remedies available to someone who was using the patent system “properly” to secure exclusive rights while they worked hard to exploit a real invention? What if there were a meaningful cost to bringing a patent case and losing not just because the court invalidated your original patent but also because the court actively determined that the original patent had been [some legal specification of “obviously abusing the system”], a kind of patent case analogy for dismissing with prejudice?
Curiosity, love, boredom, responsibility, etc... There are a lot of incentives other than profit and billions already gets spent in R&D for reasons other than profit.
But if profit is your motive, and patents don't exist, you have several options. One of the interesting ones is that of monetising expertise. People will copy you, but you are also known globally as the expert, for the simple reason that you can prove you developed it. So you not only have a market made of the people who will buy the stuff, but also of those who want to learn off the expert how to build the stuff. To make the most of this requires good marketing, and an acceptance that you should be developing your next thing for when the money slows down from the current one as the market saturates, but that is the same as today anyway.
That is also the classic case for patent abuse. Take a drug that works, tack on some non-active atoms somewhere, change the name, patent it, jack up the prices on the old drug when the patent is about to expire to push buyers to your new monopoly.
(Customers usually don't care about cost, which is certainly a problem for holding down prices, but this doesn't seem anything like "patent abuse.")
I assume this is the new trade name for a variation on Viagra.
JRR did not patent 'the application of height-challenged individuals manually transported to a heated device for the purpose of destroying small amounts of jewelery', but the work is copyrighted so you cannot just find/replace the story so it reads Shrodo and Hamwise going to Mt Foomp with their trusty sidekick Bandalf.
To take a quote from your source: "Every writer owes a similar debt to those who have come before." - this is something I believe speaks more to the core of software development than the patent system we use today.
Terry Brooks' supposed imitation of The Lord of The Rings didn't stop it from generating hundreds of millions of dollars in revenue.
You have drugs at one end of the spectrum and software and business processes at the other. There is a huge cost associated with medical research due to the inherit complexity of the human body and the requirements governments put on proper testing. Any patent solution has to address that problem as well.
(And, yes, drug companies are doing a horrible job at doing real research, but that doesn't alter the substance of the argument.)
And yeah, that is the level on innovation in software patents.
Make a condition of patent defence to actually have brought to market a product that uses the patent. Licensing the technology to someone would also be a valid defence, but it should be within a reasonable timeframe. Patent protection could then be limited to the actual use made of the technology, overly wide patents would be more clearly identifiable, and the patent could be legally reduced in scope without losing all cover.
Good luck with that.
The only way to stop this troll problem is to stop these patents from being issued. Nip it in the bud. There will always be someone willing to pay for an exclusive license to the patent (i.e. buy junk patents) with the sole intent of using it to sue startups. Sad but true.
Even if the junk patent was filed for and obtained by a person who was intending to build a product or see that products get built using the technology, what we all know can happen is the product never gets developed, the patent is never practiced, and it gets sold or traded for something or acquired through bankruptcy or some other means. And... eventually... it can wind up in the hands of a troll.
Having these junk patents "floating around out there" (or maybe we should say lurking in the depths, like dormant but functional submarines ready to take out any ships who have set off on a journey to build products and made it far enough... it puts every startup at risk.
The essence of a patent is a government-granted right to sue. That is really all it is for the grantee. Nothing more and nothing less. The often cited language from the US Constituion only relates to the creation of a patent office and the purpose behind it, not what the patent office grants you. The USPTO does not give you a free ticket to a monopoly (modern US patents are not "letters patent") nor does it even ensure a successful business. You have to accomplish that on your own. Being able to sue infringers or having rights to sue as a bargaining chip in negotiation _might_ help. But it won't ensure your success. (Unless your "business" is pure patent trolling.)
Ideally (as the Constitution suggests) the patent is intended to spur innovation and (we would assume) protect a growing business of sharing those innovations (e.g. as products) with others, but that doesn't always happen. Businesses fail for a variety of reasons. But a patent, no matter how poor in quality, remains a right to sue, as long as the maintenance fees are paid. Thus even a long forgotten junk patent with no associated product or innovations is still a "live" right to sue, a potential threat, laying dormant until a. the owner gets bitter enough to adopt an extortionist mindset (e.g. look at what the co-founder of Microsoft, one of the wealthiest men in the world tried a number of years ago- no one is immune from this mindset) or b. the patent falls into the hands of a natural born extortionist, e.g. someone who actively looks to buy junk patents in order to sue people for a windfall. The patent troll.
There's lots of streaming video on the web. For trolls, plenty of targets. Millions of potential defendants. If they issue 100,000 threats to sue, there will be at least a few that decide they'd rather pay than fight. Which then enables the troll to repeat the process.
Honestly, the porn industry was always making large sums of money in this type of field, so perhaps Youtube was a little short-sighted. For a more general statement, they started the lawsuits when it became economically viable to, i.e. the companies using the "infringing" patented methods made enough money to sue for / strike a license deal.
If you had just watched an episode of The Jetsons and then were presented with a global communications network attached to computers with video screens, live video communications would be about the first thing you would think of. If you had also watched some adverts during the episode however, you would probably come up with live video porn, and maybe Amazon.
As long as a company wants to keep the monopoly rights over a patented invention, they are taxed a percentage of the patent's market value each year. They can choose either to pay that tax or sell the patent to someone else.
The government would offer to buy any patent for its market value, using tax revenue gathered from other patents, in doing so putting the invention into the public domain.
This would discourage companies from building large 'defensive' patent portfolios, since they'd be expensive to maintain. It works for the 'lone inventor' scenario too, since the market value of a new, untried invention would be low.
Once a patent's value is proven by developing the patent, its value will rise. At some point, the benefit derived from the patent's monopoly rights will no longer be worth the cost, and the rational thing to do is sell the invention.