Obama to propose plan targeting patent trolls | Hacker News Reader

Obama to propose plan targeting patent trolls

tuaw.com

52 pointsMilkoFTW45 comments

I like this - it sounds like it's just adding transparency to get rid of the legal mind-games and intimidation. I had feared was that the plan was to effectively stop honoring patents under certain conditions. Although that would certainly be great in this specific situation, it presents a scary idea that rights or property* can be nullified after you've paid for it.

More transparency and openness is good - not only in this case, but in almost all others.

* And yes I know the meaning of the term "property" in IP is frequently debated on HN.

IP is a case of the government forbidding you from using the matter and energy you own in certain ways. I never understand libertarians who love government-granted IP rights.

Are there really people who feel like the government shouldn't enforce property rights? Aren't those just called anarchists?

See my sibling post for more on my own opinion on the matter, but that all hinges on whether or not you consider IP property rights. Is the exclusive right to use an idea an inherent, basic human right, like freedom-of-religion or freedom-of-speech? Or is it a government granted monopoly?

All property is a government granted monopoly in the present system, although much of it would be accepted through social convention or defensible by private force in the absence of government. Copyright/patents would probably be defensible for the sufficiently powerful too...

Of course, the libertarian perspective is that the government's ability to grant those monopolies is granted by the people to whom that property belongs. The rights don't come from the government, the rights are just there. The government sees to it they are not infringed upon.

> See my sibling post for more on my own opinion on the matter, but that all hinges on whether or not you consider IP property rights. Is the exclusive right to use an idea an inherent, basic human right, like freedom-of-religion or freedom-of-speech? Or is it a government granted monopoly?

All property rights are government-granted monopolies (including rights to real property and tangible personal property), whether or not they are also inherent, basic human rights.

You mean on real property or on gov't invented property created through government "interference" and "regulation" over free markets?

I don't see how having gov't create a right around "patents" (non-tangible "property") is any different than any other gov't regulation that libertarians rail against. (Taxes? Those are just GP "government property".)

So there is no such thing as intellectual property?

If Pfizer spends $10B over two decades to develop a drug, JohnDoe Co. can recreate it on day-1 in the market and compete against Pfizer without penalty?

Do people really want to live in that world?

There is no such thing as IP until created by what people in other instances would call "gov't interference." I understand the trade-offs involved and I'm not actually arguing for no IP, but more about the fact that it is held sacred, but any time the gov't does anything else that is "bad."

> You mean on real property or on gov't invented property created through government "interference" and "regulation" over free markets?

By "real property" are you referring to government-created exclusive rights over land (which is what the term actually means), or are you referring to government-created exclusive rights over tangible portable assets (which is "tangible personal property" rather than "real property", but frequently mistakenly referred to as "real property" by the kind of people that criticize "imaginary property"), and, in either case, how are these government-created exclusive rights different meaningfully different than government "interference" and "regulation" over "free markets"?

I meant both. Land, improvements on the land, and any affixed items and also the opposite of fake.

I don't think those gov't created rights are any different than any other gov't regulation, which is why i put it in scare quotes. People worship those property rights created and enforced by the gov't, but call the same amount of "interference" in other areas as regulation.

As a bit of a libertarian myself, I think I have two points to add. First, IP doesn't (I think) and shouldn't ever stop you from doing whatever you want for yourself. I can infringe all the patents I want if I'm using my matter and energy to make stuff myself. When it becomes commerce, that's when the government steps in. Which brings me to my second and harder-to-explain point. I'm still thinking through this myself so healthy debate is welcomed :) Libertarians generally believe the government should exist enough to protect individual rights. They're okay with the government getting involved to stop one person from destroying another person's life or property. Although I'm all for innovation, I think there's a certain amount of lameness when people immediately steal another person's ideas just to compete directly against them. In such cases, I think a certain amount of IP is inherent and the government merely protects rights that already exist. I certainly agree with you that once patents can be sold multiple times and non-practicing entities can sue, this idea goes right out the window and I would completely agree with you. Even when I think it's just lame to take another's original idea and use it against them, I admit that lame != illegal, which is why I think it's a hard line to draw, and I'm not entirely convinced of my own opinion here - I'm just saying I think the increased transparency would be a definite improvement.

> When it becomes commerce, that's when the government steps in.

You call yourself a 'libertarian'?

No true Libertarian would believe X.

I described myself as "a bit of a Libertarian" because I generally agree with all major points on their platform - not because I change my opinion to match their platform. I also didn't say the government "should" step in - I said the government "does" step in - because currently they do not prevent you from using ideas in patents for personal use.

> currently they do not prevent you from using ideas in patents for personal use

Is that true though?

I was under the impression that if someone patented a method of, say, making a sandwich, I could be sued for performing that invention in my own house for my own personal lunch.

I might be wrong, but I was under the opposite impression. I've done a bit of googling around and I've found some fairly reliable-looking sources arguing both ways. Anybody a lawyer? :)

Why 20 years? That's entirely arbitrary. Regarding your point about commerce, and the 'lameness' of an arbitrary class of competition, libertarians should encourage economic competition. Why does it suddenly become "lame" when a competitor "steals" someone's idea? Implementation is just as important as imagination. If another guy can beat you to the market even after you have the innovator's head start, you deserve to lose.

I think it's because in the modern (say, post 1900) world, many inventions that increase utility (both for individuals and for everyone as a whole) cost a ton of money to research.

If your competition can instantly use that research, you may not recoup your costs, and thus have no incentive to do it in the first place. Drug patents are a clear example of this (although you might argue that altruism can also be a motive for researching drugs, in which case think jet engines or something).

Both individual and global welfare are improved if the drug is researched, but it won't happen without a government incentive; a drug has to be sold well above it's cost to produce + a small margin to recoup research costs, but it's possible for the competition to copy a drug once it's out and sell it for costs + a small margin and make a big profit.

20 years is arbitrary. In theory it's the number that the people come to as the best balance of allowing costs to be recouped without unduly hurting global utility due to monopoly, in reality it's a consequence of where lobbying takes us.

In general, I think patents slow innovation. My intuition is trade secrets would work well enough for most industries. It usually takes a significant amount of time to reverse engineer a product, and in doing so one might gain new insights into how said product can be improved. Drugs are an exception, I admit, but I don't think most of the innovation in medicine this century will be in easily-synthesized drugs as we understand them.

I think I agree with you, but I'm not so sure on the difficulties of reverse engineering.

Small electronics are a good example to both our points; once a new device hits a factory in china it's as good as pirated (sometimes it's pirated in the same factory after hours!), but that hasn't terribly hurt the companies cranking out cheap USB drives, and companies like Apple have just moved way the up value chain.

I do think they have significant use for things like engines and heavy equipment, where (everything but the metallurgy) is reversible, but they take $BN investments.

Software patents (and really all 'business method') patents are total trash, if only because the USPTO can't possibly keep up with the pace, so people get patents for linked lists (in the 90s!) and shopping carts and such.

Yeah - I don't disagree on any particular point with you. My main point is that a certain degree of entitlement to use your original idea exclusively should inherently exist, and that the government would be protecting that right, not granting it. But 20 years? Yeah I absolutely agree - arbitrary, and way longer than it should be.

> IP doesn't (I think) and shouldn't ever stop you from doing whatever you want for yourself. I can infringe all the patents I want if I'm using my matter and energy to make stuff myself. When it becomes commerce, that's when the government steps in.

Whether IP should stop you from doing things for yourself is of course a matter of opinion. But the brute fact is that, in the U.S. and most of the rest of the world, IP laws do indeed prohibit you from doing a great many things for yourself, without regard to whether "commerce" is involved. (You may be thinking of the Commerce Clause of article I of the U.S. Constitution, whereas the congressional power to enact patent- and copyright laws derive from a separate provision, the Writings and Discoveries Clause, also in article I.)

For example:

- Patents prohibit you from, among other things, making or using the patented invention, unless you have permission of the patent owner. There are no exceptions for personal use. As a practical matter a patent owner might not bother coming after someone practicing a patent invention "for himself," but your definition of the quoted term might be different from the patent owner's definition.

- Copyright law prohibits you from making or distributing copies of a copyrighted work; from creating "derivative works" based on the original work; and from publicly performing or -displaying the work (among other things). There's an exception for "fair use," but as many college students have expensively learned courtesy of the RIAA, you might not want to roll the dice on that.

> I never understand libertarians who love government-granted IP rights.

Under some very influential libertarian theories of property (e.g., John Locke's), IP rights arise as natural rights the same way that rights in real estate or personal property arise, and so should be protected by government to the same extent as any other natural property right.

> IP rights arise as natural rights the same way that rights in real estate or personal property arise, and so should be protected by government to the same extent as any other natural property right.

That's ridiculous. Real estate and personal property has natural scarcity, but for "IP" the gov't is enforcing scarcity to make it profitable. A fair comparison would be someone discovering an ocean and then "owning" all oceans around the world. IP rights would arise as natural rights if you never shared your idea with anyone else.

Why do you think scarcity should have anything to do with the vesting of property rights in something? Under most libertarian theories of property rights that I'm familiar with, property rights vest when something is made useful. For instance, property rights in unowned land vest when someone puts the land to productive use.

If you have a farm, and you have such a bountiful harvest that you end up producing so much food that you can't possibly use it or sell it all before it rots, under your theory of property would that excess food no longer be your property, because food is no longer a scarce resource for you?

> If you have a farm, and you have such a bountiful harvest that you end up producing so much food that you can't possibly use it or sell it all before it rots, under your theory of property would that excess food no longer be your property, because food is no longer a scarce resource for you?

Only if according to the same logic it can be said the excess food is no longer your property because it is no longer useful as it is rotting.

Why would anyone need your food if there is no scarcity? They could go claim some "unowned" food somewhere else. Just like they could "clone" your ideas without depriving you of your idea. Property rights wouldn't be a very big issue without the scarcity.

Anyone else find it ironic that the article opens with Apple being the victim of a broken patent system, when they have a long history of using the same broken system to their own ends?

Thus the problem with framing the discussion around patent "trolls" rather than patents themselves.

Apple is not a non-practicing entity. Regardless of your feelings toward them, they're actually selling products that use many of the technologies they've patented. They're nothing like Intellectual Ventures and their ilk.

My vote, get rid of utility and design patents. Those are usually used for trolling and killing innovation.

Having seen quite a few design patents, and copyrighted designs, I'm not even sure where the line is between the two. Utility patents are the traditional patents in question (software and functional objects). I don't think you can get a design patent for software.

I'm all for utility patents, if the patent examining system is changed to get more help or advice from experts in the field, to more quickly find previous pertinent patents that could expedite invalidation of infringing applications, or decide if it's too broad.

I'm no expert on the US IP system, but it seems to me like a big part of the problem is that the USPTO grants patents for ideas which are both obvious and not novel. Some more ridiculous examples are the patents on making toast and the server patent mentioned in "When Patents Attack" where over 5000 patents for "the same thing" were in existence when that one was filed. Even then the patent was invalidated on the basis that the filer failed to mention his co-inventors rather than on the basis of prior art. I'm confused as to how those could ever get through the approval process in the first place, am I missing some finer points here?

The Carmack Reverse is an easy example software developers can understand. Paraphrased: "How can something that can be solved by a week of work by a professional in the field be something that can be patented?" Sure it's novel, but it only took an expert a week to re-invent by following a causal chain of reasoning about the problem.

This of course violates the purpose of patenting in the first place, to create and market something not obvious to those currently working in the field. The fact that the patent system is that broken is pretty chilling.

Is it possible that the 2-part series by This American Life ("When Patents Attack") had a tangible effect here?

Not sure if it is what is prompting the Obama admin to issue the executive order, but it is worth a listen to anyone even remotely interested in the topic.

Also being discussed here: https://news.ycombinator.com/item?id=5820657

Split discussion, both on the front page.

as usual, a lot of talking, proposing good stuff but 1% gets done.

When he does stuff, it's not enough (Obamacare) and it's too much (Obamacare); when he gets blocked, it's his fault it wasn't closed (Guantanamo) and he's threatening our freedom by trying to close it (Guantanamo); when he withdraws from wars he's cutting and running from our enemies (Iraq and Afghanistan) and he's a warmonger who isn't withdrawing fast enough (Iraq and Afghanistan).

To be fair, it's not the same people on both sides of each of your examples. I suspect every politician ever will be subject to completely opposing criticism from both sides.

Welcome to any amalgam of people bigger than a start up that isn't some sort of cult.

Right, why even bother trying to make change in the first place?

It's a start.

Reply on news.ycombinator.com