Finally, A Bill To End Patent Trolling
arstechnica.com
arstechnica.com
Gonna call my senator and congress woman tomorrow. And then I'm going to tell everyone I know to do the same.
Intellectual Ventures and these other pantywaste dirtbags are going to be lobbying hard against this bill, so the only thing we can do (unless you have some millions of dollars to spare on lobbying) is to call people and spread the word. That worked for SOPA, so maybe it can work now too.
Go, go, go!
The cure for this problem would be a refutation of patents wholesale, or at the very least a repeal of software and algorithmic patents. Patent trolling isn't a problem that's distinct from legal patent enforcement, it just means some "little guys" can steal some of the intellectual free lunch the large companies have been having.
The reason NPEs are perceived as a problem is because they break mutually assured destruction. If the patent system were working as intended, we wouldn't need MAD, because it would be possible to write a nontrivial computer program that didn't infringe on someone's patent.
I have no real problem with the concept of an NPE, if their patents are genuinely worthwhile.
Ultimately, any invention covered by a legitimate patent should probably be protected by a legitimate copyright instead. The flaw in the concept of patents is the one pointed out by Carmack: if someone is capable of reproducing your work independently, then can it really be said to be "owned" by its "creator"? Obviously, no one is going to create an exact copy of Harry Potter or Microsoft Flight Simulator without having seen the original, but they might very well write a wizard school story or plane-based video game; clearly, those concepts do not deserve to be owned.
Anything not specific enough to be covered by copyright is capable of being duplicated by another human independently, and therefore absurd and counterproductive to assign ownership and monopoly rights.
I also don't think many practicing entities send out litigation threats that cannot be shown to be "substantially justified."
It also prevents entities from targeting end users without going after the actual manufacturer.
This bill is laser focused on NPEs.
"Democracy is the theory that the common people know what they want, and deserve to get it good and hard."
A little advocacy will go a long way, and it will be very interesting to see if the tech industry gets their act together enough to support it in any meaningful way.
As an aside, there are a lot of parallels between the litigation system under the federal rules and computer systems. In patent litigation, you have a phase that is extremely slow and expensive (claim construction). How can you minimize the average cost? One way is to try and filter out as many easy cases early in the pipeline so you hit the slow path as little as possible.
One of the reasons trolls have been successful is that the patent office is understaffed, and of the staff it does have, not enough are experts in software related matters. This means things get through that might not have if the PTO had more and better trained examiners.
If reforming to eliminate patent trolls, how about tossing in a nice big retroactive tax on patent trolls to help fund improvements in patent examining?
I had a hard time coming up with a good citation for this. Retroactive taxes seem to be legally controversial whenever introduced, and they're usually retroactive only to the beginning of the year introduced. Could you point me towards a better link?
this can be combated by making patent examination a peer review process, in a similar vein to scientific papers.
however, I agree with you that we should just get rid of software patents. I think there is no downside to companies copying (and potentially improving on) the features of a competing product.
What we need is actual reform of the patent system, not just sweeping the problem under the rug by singling out "trolls".
That's good, but the pessimist in me thinks IV could probably find a way around this too, but maybe not. Modifying the law to somehow identify patent troll originators (IV) and barring them from disbursing patents to NPEs would seem like some added protection.
If NPEs are barred from litigating patents, there's nothing to stop those large companies from saying "great, we're going to use this... but not pay you anything, because there's nothing you can do about it".
Even if it's "original inventor and heirs", you've created a liquidity process -- if you're a chemist with lung cancer, it would be great if you could sell your novel synthesis in order to pay for your cancer treatments rather than needing to start selling drugs yourself.
And then there's the problem of defining what a "practicing" entity is, of course. Someone who has at least one customer? Someone who has used the invention themselves? Someone who was planning on building a product, but didn't get into YC and ended up working at Microsoft instead while he tries to license his invention to raise money to pay for his next startup idea?
I don't follow the chemist example. The patent is still valuable to companies who do want to productize it, or even companies that don't. Companies can still buy and hold patents without doing anything with them, it's just that they are barred from litigating them. They can still resell the patent to someone else, potentially for a profit.
A "practicing" entity has either brought a product to market, or uses the invention themselves in the process of building a product on the market. Someone who is planning on building a product but has no funds doesn't get to litigate unless they are the original inventor. Your last example seems to imply that they are the original inventor.
The root of the problem is more closely related to the imbalance of power in a lawsuit: one party has the ability to subject another to great cost; with little or no cost to themselves, even if they are completely wrong. That imbalance is what makes extortion possible, and this bill seems to be more directly aimed at that problem.
To force the plaintiff to take on more responsibility, perhaps they could go further and require posting a bond for the cost of the trial in case they are wrong. That would prevent them from just setting up shell companies and then saying they can't pay when they lose. The judge can be involved in setting the bond amount, which should help sort out the rest of the problems and keep the incentives reasonable.
The chemist doesn't want to spend time going around to companies trying to license his technology, and he certainly doesn't want to spend years in litigation. He's busy dying (and/or cooking meth) -- he wants to sell his technology to a company which will do the licensing and/or litigating for him.
The big company usually pays when they don't want to produce it.
Otherwise, they just do it and wait for the lawyers (who are not going to come)
Also, it's easier for them to come up with a way of not infringing the patent in the first place.
The ability to sell an asset is an important one for an efficient economy.
Why should patents be assignable or transferable anyway? The assignment or transfer of a patent necessarily implies the original holder isn't interested in the state-conferred monopoly that a patent is, and therefore he's not interested in having a monopoly on the invention the patent covers. To my mind, the assignment of a patent should immediately expire and/or invalidate it.
It means no such thing. The monopoly has value whether they go through with production themselves or sell it. Selling it just realizes the value in the short term rather than the long.
There is a middle ground, where a patent once transferred by the original patent holder cannot be extended, or is perhaps reduced, or the patent cannot be resold. Something of the sort. This would maintain the patent's value for the inventor in a market, as well as provide reasonable measure against patents being scooped up and plaguing IT for decades.
Better yet, though, no more software / algorithm patents.
But beyond that I'm really confused by your argument. You seem to think that someone files a patent because they hope to exclude people from its use, which is not what patents are intended to do at all. They are intended to allow an inventor to realize an incentivized value for the public disclosure of their invention.
To that end it doesn't matter when the value is realized, the inventor has done their part by disclosing the invention to the public.
Because the purpose of the patent system is to turn trade secrets into public assets. Bob the blacksmith's new alloy is not much of a public asset if for the first twenty years all we get are the few thousand horseshoes that Bob can hammer out. You are advocating a Chairman Mao patent system, with patents only benefiting garage semiconductor fabs and artisinal jet engine factories.
The transferability of patents allows them to immediately be deployed throughout society.
Another valuable example of this is a patent pool consortium, a corporation that exists to bring all patents in a field together for easy licensing.
"Reduce inventions to practice?" First, I don't think that my country has any such legalese in our patent law. Second, what does that make NVIDIA? Or ATI? They don't make their own chips either. Third, I believe that what is protected by most of these patents are neither HDL files nor the chips but rather specific implementation techniques for parts of the HDL implementation of the ISA. If the chips were patented, it would be worthless because you could do an independent design.
A couple of years ago when I was building a product, our board convinced us to apply for a patent. After a provisional application and following it up with a proper submission, we finally had an offer that granted us the patent. Never pursued it. I know, it makes sense to protect your ideas; but we had Whatsapp, Pinger and other apps kicking ass in the space.
when $100k dollars is considered a low cost, someone is living in cuckoo land...
how about charging people this for failed patent applications? or just no patents at all?
nearly all of the arguments for patents are trivially in the worst interest of the wider public... frankly its an embarassment that the system exists at all, much less in the way that it does
As always, the topic is so much more nuanced than "good" or "bad". The first result, "Patent Troll Myths" by Michael Risch is a good start.
Sure, you will find the papers by Bessen et al where the "trolls cost the economy 29 Billion" meme comes from. But you'll also find a paper (by Schwartz and Kesan) that debunks Bessen's paper, which got nearly 0 coverage in the press. You'll even find a paper showing trolls have better patents than average! But these tend to get settled quickly, so typically the poorer ones go to trial, and so you get papers (like from Lemley) showing that trolls lose more cases than average.
You'll also find papers arguing the benefits of trolls, debunking some of the common arguments against trolls, and introducing new previously unconsidered harms of patent trolls.
And of course, just like there's no clear definition of "software patents", there is no clear definition of "patent trolls" either, and you'll find papers discussing this.
And because they use different data sets, different papers look at the same problem at the same time and reach completely opposite conclusions.
And further, because the authors are almost never practitioners in the field, you get some really obvious findings being reported... and then misconstrued! For instance there's a paper showing litigation has shot up since 2007, and presenting various theories, completely missing the Medimmune v Genntech decision that effectively upended the rules of patent licensing. And there's the paper that argues patent quality is dropping because more patents were being issued, without being aware of the ending of the misguided "reject, reject, reject" unofficial policy instituted by former USPTO head Jon Dudas (http://www.ipwatchdog.com/2009/03/16/prespective-of-an-anony...)
And as always, it's helpful to keep in mind where the authors' funding comes from. Bessen of the "29 billion" fame, for instance, is funded by the "Coalition for Patent Fairness". Check out the list of supporters. It's almost ad hom, but hey, if we can point out that studies showing the harms of piracy are often funded by the MPAA, we can point this out too.
Yes, there are clear bad actors like Lodsys, but there are so many more variables out there, and many are arguably helping more than harming.
Yet, somehow, it's only one small side of the story that gets told.
As this is a hot-button topic, we should take an objective look at the data. Because, quoting from one of the papers above, "Without a better understanding of the many complicated effects of patents in high technology markets, we run the very real risk of misguided policy decisions."
Maybe I'm missing something, and maybe it is a lot more complex than that, but I think this is one case where ill-defined or over-applied terms may be muddying the water with regard to what is or isn't taken into consideration on an issue that, by its nature, seems to have no redeeming value.
Saying they exist only to litigate is missing the whole picture. That is simply what they specialize in, primarily because patents are essentially a right to sue, and there's a gap in the market when it comes to enforcing patents.
Now you may say that patents themselves are crap and represent no value, but 1) that's a different problem than trolls, as others have mentioned, and 2) you'd be making a generalized assertion with little data to back it up. Even if you are an experienced patent litigator who's seen a lot of cases, there are biases at play. Which is why, again, we should turn to studies, which, again, do exist and, again, present a much more nuanced reality.
No, not software patents:
2. I'd love to know how many people voting on that poll meet the following criteria:
a) know what claims are;
b) did their own research rather than parroting what others say.
My point is always this: if we really are nerds, we should know what we're talking about, and woefully few of us meet that criteria when it comes to patents.
I'm pessimistic like that.