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Comment by tzs | Hacker News Reader

Interesting legal fact: although the Constitution bars ex post facto laws, that only applies to criminal law. A retroactive tax is legal.

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?

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That's fascinating if true, since the power to tax is the power to destroy. I don't see a clean division around a domain on which a retroactive tax is justified.

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?

Yeah I've never heard of that, even retroactive tax in a given year is new and controversial. I'd have to think that a massive retroactive tax would be considered an unconstitutional takings.

I don't think it's possible to have a retroactive tax on instances of patent trolling, as opposed to patents in general. In order for this to be a tax and not a fine, it seems like it would need to be a tax on the patent application, not on bringing and losing a patent lawsuit. And in order to determine at the point of application whether or not a patent will be used for trolling (which we might define as whether the patent will be used in a lawsuit by an entity that holds the patent but does not itself employ the patent's "invention"), the USPTO would need to be able to read the future.

>One of the reasons trolls have been successful is that the patent office is understaffed

this can be combated by making patent examination a peer review process, in a similar vein to scientific papers.

Or just get rid of software patents altogether. Software you don't want copied should be considered trade secrets, rather than IP.

wrong approach. copyright laws are already sufficient to protect copying of source code. thats not what patents are used for. patents are used for protecting product features and functionality. by their nature, product features and functionality cannot be trade secrets since the public uses them.

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.

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