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Comment by drakaal | Hacker News Reader

Patent trolls suck. But with out patents there is no incentive for innovation. The issue is not that Patents are bad, it is that you can patent a "unique way to swing on the playground" and be awarded a patent. Patent officer often don't know what they are awarding a patent for.

This is supposed to be kept in check by the fact that you can fight a patent.

I think that if you file a patent, sue someone over it, and lose you should be forced to pay 8X the amount you were suing for. That would severely limit who would try.

I also think that patents should only be allowed to be resold twice. This would limit the number of patents which could be used to extort money.

Lastly I think you should only be able to sue for patent infringement if you have a product using the patent currently in the market.

Those 2 simple rules would remove a lot of trolling.

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"But with out patents there is no incentive for innovation."

What a merry little idea. Has it occurred to you that there are a large number of people who invent, innovate, and develop because it's simply not an option not to? That it is a sort of compulsion, a reason for being?

In a market without patents, I'm sure capitalists will find a way to keep making money, just as I'm sure that inventors and makers will continue to keep inventing and making.

It totally depends on the field. In software, perhaps this would work nicely, because rapid iteration and expansion prevails.

That said, in the pharmaceutical or material science worlds, the cost and pace of research require that protection be afforded to those who choose to invest and disclose the fruits of their labor to the world.

It's not so black and white that there are no incentives for disclosed innovation, but patents are a big booster in some areas, for good reasons.

There was plenty of invention before patents existed as a legal concept.

Patents exist because some people who came up with clever ideas thought (properly) that it was in their best interest to be granted a legal monopoly on the implementation of their ideas and lobbied lawmakers to grant them these monopolies.

Patents did not come into being because we, as a society (speaking as an American), determined that our pace of innovation was too slow and decided that we needed to do something about it.

This idea, that patents encourage innovation, is the justification, not the motivation, for the legal construct that is the patent. There were no experiments done to test this hypothesis. In fact, I think the history of invention before patents suggests quite strongly that they are not needed; that, in fact, people will invent simply because we are tool builders and tinkerers.

EDIT: To testify to the fact that people invented before patents: http://bibliodyssey.blogspot.com/2011/12/machine-power.html

A book from 1606 showing illustrations of gear and hydraulic powered devices. Some are fanciful, others less so, but they all clearly show humankind figuring out every last way to apply a technology to the tasks of every day life.

Have you researched the history of patents? I'm no expert, but my understanding is that they were established in response to the guild system, in which a lot of technical knowledge was kept secret. Invention may have been occurring, but it didn't benefit the larger society the way it could have.

As far as I am aware, there is no compulsory license in the United States patent system, so while patents aren't more restrictive of the _spread_ of technical knowledge, they certainly could prevent the _use_ of technical knowledge. So, like, what's the point? Seems like a lacking solution to the problem you propose.

Also, I am skeptical that guilds were historically the major impediment to the spread of technical knowledge. After all, once ideas are lodged in your mind, nobody can unlodge them, whether by force or persuasion, not even your own self.

I would look instead to the historically enormously high cost of travel and book printing. Since people and books are the carriers of ideas (historically, at least; now we have the Internet), this seems like a more direct explanation.

One legal theory behind patents is that they were a tool to incentivize immigration. It benefited the United States even before it was the United States, as people was encouraging to stay in the country during the duration of exclusivity, and gave the country a working model of the invention so people could learn. Before patents, many invention was treated as city or state secret.

I can recommend a very interesting talk by Professor Eben Moglen, who teach law history and actually read discussions that happened between the people who wrote and worked with the first implementation of the US patent law (https://www.youtube.com/watch?v=LPzpBn-XGxw).

It's not 8x, but Rackspace is lobbying[1] for a bill that would allow courts to make patent trolls pay for all of the cost incurred by the defending party in a failed suit[2].

[1] http://www.rackspace.com/blog/patent-trolls-make-them-pay/ (last paragraph) [2] http://thomas.loc.gov/cgi-bin/query/z?c113:H.R.845%3A

But trolls are usually shell companies, aren't they?

What's to stop them from declaring bankruptcy and wash their hands of the whole thing?

Since the troll's targets would probably have to pay their lawyers upfront, I don't see how this bill would make any difference.

That's why I would advocate patent trolling in - extreme cases, where the trolling company knows the patent is invalid or not applicable - should be considered a form of fraud. Then the directors should be liable for criminal sanctions.

"But with out patents there is no incentive for innovation."

Aren't all of the tech companies who are supposedly violating these patents proof that the patents aren't needed for innovation?

Isn't making a better product so you can have a leg up on your competition incentive enough?

For obvious things like this, there shouldn't have been a patent issued. If I however invent the first hyperspace engine, You shouldn't be able to buy one, take it a part and make your own.

That is what patents are supposed to protect. Cotton Gins, and Hyperspace engines. Not Rotate your screen on your phone like you do on your tablet.

"If I however invent the first hyperspace engine, You shouldn't be able to buy one, take it a part and make your own."

Why not? What is special about non-obvious ideas, that they should not be as freely transmitted as obvious ones?

Also, why should the first person to file for a patent on an idea be the person who gets the monopoly on the idea? With 7 billion minds on this planet, even for non-obvious ideas, it seems highly likely that other people will independently come up with the same idea. It seems so arbitrary that the first person to file some paperwork is the only person to be rewarded.

What is special about non-obvious ideas, that they should not be as freely transmitted as obvious ones?

The sometimes-vast sunk costs of the discoverer.

Sure, but, as you say, ideas are discovered, and because they are discovered as opposed to created, their existence is not dependent on the specific person discovering them. So why assign legal ownership? How are ideas different than a discovery in mathematics?

When you're arguing from definitions like this (discovery vs creation) that's a good sign something is wrong with your argument. One could just as easily say 'X has created a hyperspace drive' as 'X has discovered it.' Discovery is rarely so fortuitous as walking along and stumbling across something of value, as if it were a gold nugget lying on the ground. Most 'accidental discoveries' come after lengthy failed searches, much as most 'overnight success' is actually the result of years of hard work.

what you're arguing is basically a sort of teleological justification for communism; if innovations of one sort or another would be found anyway, their finding must be part of an inevitable progression and the identity of the individual finder is incidental, thus we should only reward labor in terms of time spent. Since there's now way to predict where the next discovery will come from, we may as well reward everyone's labor equally on the basis of time rather than productivity.

I don't mean this as an ideological criticism, if that's what you happen to believe is ideal; I'm just pointing out that that's where you argument goes and I'm not sure if that was where you intended it to do.

Why do people continue to claim that without state intervention of granted government monopolies, no one would ever create new things?

A patent, meaning a state enforced monopoly, meaning a method of taxation outside congress, is a method for the government to redistributive wealth. By artificially increase price and distribute that money back to investors, government argue that future investing is incentivized.

One is free of course to argue if such incentives actually happens or not, but I do not see how that could ever mean that no more intervention would ever happen if the government intervention stopped. Where does this insight come from, and is there any data to support it? Are the IT market really that unstable that it must get a constant flow of government generated money to justify investing in new products?

And why is this state granted monopolies granted with an exact 20 years duration with no thought of maximizing efficacy of government funded incentivies? Could 10 years give 90% as much incentives as 20? Is there alternative ways maybe thats less costly to society but as effective? Surely, improving the process in how the government intervene in the market is a noble goal?

> But with out patents there is no incentive for innovation.

In some areas, perhaps, but not when it comes to software.

This is easy to show. Software was not always patentable or was rarely patented, and innovation was no less rapid than it is now.

The underlying reason is that the marginal cost of R&D for software is lower than in any other field. In principle, it just requires a person and a computer (which is what you need for any kind of R&D). No expensive labs, no clinical trials, etc. If you have a person and a computer, you're a potential inventor; if you have a bunch of them, you're virtually guaranteed to invent something. If you have a bunch of such companies (or college departments), you're virtually guaranteed to constantly reinvent what somebody else has already figured out.

When Oracle sued Google, almost all of their patent claims were thrown out on reexamination; and those weren't trivial patents. It just so happened that practically all of them had already been figured out by somebody else; and we only know because Google was willing to throw a few thousand hours at researching prior art.

This is why reinvention in computer science is so common; this is also why patent trolls can flourish: Because reinvention is common, they have plenty of victims to target. If innovation were not so easy in computer science (at least relative to the standards of the USPTO), patent trolls in their current form could not sustain themselves.

But with out patents there is no incentive for innovation.

This is quite obviously false, as there was innovation before patents were invented and not all innovations nowadays are patented. It isn't even at all clear that the existence of patents increases innovation.

Without patents, there is indeed innovation, but it's not "controlled".

Patents allow the existing power structure to sanction, spur and hobble innovation.

Patents are all about control.

> Patent trolls suck. But with out patents there is no incentive for innovation.

Tell it to Larry and Sergei.

Without patents, where would they be?

My guess is, just about where they are now. Plus a compounded increment for not having to pay patent lawyers along the way!

"I also think that patents should only be allowed to be resold twice. This would limit the number of patents which could be used to extort money."

I think patents should be entirely non-transferable. You should be able to license them to others, and perhaps designate a third-party that can manage the patent and license it on behalf of the owning entity.

The right to sue over the patent should never leave the original inventor.

All that said. RackSpace (who I do use for some of my hosting) has several patents. And it is kind of a Pot/Kettle scenario since they have used those on smaller companies in the past.

You are right, we do have some patents.

We have never used them against others.

Unfortunately, we feel like we need to be prepared for when other patent-holding entities come knocking. We know they will, because they already have.

We don't make the mistake of confusing "patents" with "innovation." The majority of what we create, we release under open source licenses, including a patent license.

If people and companies want to play nice with us, we will play nice. We believe that we can compete, and win, in the marketplace. We are only preparing ourselves for the challenges of those who don't want to compete in the marketplace.

Van

(Rackspace VP of IP)

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