Comment by etler | Hacker News Reader

Comment by etler | Hacker News Reader

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In this case it seems to be entirely a royalty dispute, and has nothing to do with the patent. Hasbro properly licensed the product, the just didn't properly pay out the royalties.

Also, the patent reform bill[1] that was featured not so long ago isn't about holding companies, it's about making the trolling process harder. One of the provisions is requiring the "real party of interest" to be exposed in the litigation, so a shell company litigating on behalf of microsoft would have to get microsoft involved with it. The other big thing has to do with validity and pleading. In many cases the lawsuits are brought about without any valid claim, and are just used as a harassment tactic to get small companies to pay up their fee instead of going through an expensive and painful legal process. Under the bill, the discovery process is halted until the patent is interpreted, and it forces the patent holder to be more specific about which claims are actually at issue.

None of the things put in that bill seem like they would affect the likes Johnson, had this case even been about patents, as he has legitimate and valid patents, and he himself is the real party of interest.

[1] https://www.eff.org/issues/current-legislative-proposals-pat...

That is an excellent explanation! What it suggests to me is that the problem with patent trolls is perhaps not so much with the patent system itself but with the specific mechanisms through which patent lawsuits proceed.

Kind of like how software security most often fails in the implementation rather than the theory. :)

I'm thinking that it's easier to get support for reforming details about the lawsuit proceedings than the patent system itself. The bill is smart in keeping its scope very small and clean, tackling the real common sense improvements that will have a big effect of frivolous litigation.

No, there are definitely problems with the patent system itself in addition to the problems with the legal system.

Take the Rockstar suit against Android. We know who the real parties in interest are (Apple, Microsoft, etc.). Rockstar isn't going after small businesses who are more likely to settle than go court. They're going after Google (which will almost certainly fight back). I don't know about the validity of the claims, but they're at least plausible enough that Google felt compelled to bid for the patents.

Nevertheless, the Rockstar suit feels wrong. And it's because Google created Android independently of anything Rockstar (or the previous holders of the Rockstar patents did.

And it's because Google created Android independently of anything Rockstar did

You may be right, but a similar claim could be made about any patent case. (i.e., it's a weak argument.)

Consider you invent and patent a time machine. I've never met you or done business with you, but I read your patent and "independently" start producing a very similar time machine. You might have a problem with that. Obviously, Google claims they've never read the Rockstar patents or that they're irrelevant, but equally obviously, I'd make exactly the same claim regarding the time machine.

> You may be right, but a similar claim could be made about any patent case. (i.e., it's a weak argument.)

You would be correct that this wouldn't save you in court -- under current patent law, independent inventions still counts as infringement. But my argument is that in terms of what feels "right" or "just", independence is the key test. If it turns out later that Google did in fact read Rockstar's patent and copy them, the outrage at Rockstar would probably be mitigated.

> Obviously, Google claims they've never read the Rockstar patents or that they're irrelevant, but equally obviously, I'd make exactly the same claim regarding the time machine.

You could claim that, but I could also prove it false. If you read the patent by downloading it online, there's an electronic paper trail. Unless you're Doc Brown, building a time machine sounds complicated enough to require multiple people, so there are now witnesses to your copying. I'm not a professional investigator, but if I were, I'm sure I could find some other ways of proving or disproving copying -- especially if there were bajillions of dollars on the line.

That said, if you had a time machine, I suppose you could just go back in time and patent it first and avoid the issue altogether. But temporal mechanics mechanics aside, if you're curious on how to make an independent invention defense work, I've written a much longer post on it at http://www.techdirt.com/articles/20121011/14171220681/yes-in...

> under current patent law, independent inventions still counts as infringement.

Also under current patent law, "obvious" inventions are not patentable. There's a tension involved in saying an invention isn't obvious, despite its independent development in various places.

Obvious to whom? Patent law says it can't be obvious to a "person having ordinary skill in the art." But suppose a particular invention is obvious to two people, both of whom hold exceptional skill in the art, but is obvious to no one else. In that situation, you could have independent simultaneous invention, but the invention would still be patentable under U.S. law, and the patent would go to the first person to make it to the patent office.

That's the problem with patenting time machines, someone can just go back in time and patent it before you invented it.

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