If you can't compete in the open market, you don't deserve a seat at the table | Hacker News Reader

If you can't compete in the open market, you don't deserve a seat at the table

ginzametrics.com

33 pointsrgrieselhuber47 comments

> Patents are designed to protect an implementation of an idea, not the idea itself

Nope. In fact, one doesn't even have to have an implementation whatsoever in order to be granted a patent.

Just reading the rest of the article, it seems like ya'll don't know a whole lot about patent law.

I don't either, but I do know enough to know that forcing patent holders to "go after the largest infringer" is a silly idea. How would you determine "largest"?

You may be confused here. Copyrights are meant to protect the expression of an idea, not the idea itself.

Patents are meant to protect an idea - but it has to be the right kind of an idea. It has to be "how to do something", not "what to do". You can't patent the idea of a time machine; you can patent a specific way to make one.

But note well: That's the intent. The patent office has kind of messed up that intent by issuing a bunch of vague patents that never should have been issued.

You can very much patent "what to do". They're called business method patents, and they're how software is actually patented in the US.

There is no "software patent", strictly speaking.

And business method patents are a mistake. They should never have been issued. And the Supreme Court is currently headed in the direction of scaling them back, if not eliminating them entirely.

No they're not.

They use a bad example of Pepsi and Coke since you can't patent a recipe and that's why they guard the "trade secret recipe" a more fitting example would be Ford Mustang vs Chevy Camero.

Actually the idea that they should be forced to go after the largest infringer is a really good one, one which I haven't seen advocated for very much and seeing it there turned my initial first reaction of the piece upside down (nothing personal to original blog author, I just have a strong negative bias towards SEO).

Though you can handwave the idea away by the technicality of it being difficult to determine who the "largest" infringer is, you could achieve the gist of idea by structuring enforcement of the IP protection such that if you know about infringement or can reasonably be assumed to know about infringement (because it is happening very publicly), you must take action or risk losing the protection. This is already how trademarks work, why not patents?

There is some initial bad fallout that would come from a system like this in that there are surely companies who know about infringers of their patents who let it slide for whatever reason and this might force them to act, but I think the eventual positive effects this sort of system would have (IMO) would be worth that initial pain.

What you're saying is a terrible idea, because it shifts due diligence to the infringing party. This means that whenever I create something, I'd have to hire a legal team to figure out if I'm infringing on something or not, or risk losing the ensuing lawsuit.

Furthermore, I resent the notion that I'm just "handwaving" at all here. It's not only difficult, but completely and entirely impossible.

It's entirely untenable, and it's a little silly to take patent law reform advice from someone who admits to not knowing much about patent law.

> This means that whenever I create something, I'd have to hire a legal team to figure out if I'm infringing on something or not, or risk losing the ensuing lawsuit.

What's the difference from the current situation?

It's currently... not that way?

Of course it is. If you don't want to be hit with or lose a patent infringement lawsuit, you'd damn well better search for applicable patents so you can avoid them.

Perversely, if you simply assume there will be patent lawsuits you will lose, you're better off not finding them, lest you then be hit with treble damages.

For a small entity, of course, it doesn't matter. Your legal bills will bankrupt you anyway.

Actually, no, that's not how it works. When being sued for patent infringement, a valid defense is indeed, "I didn't know about that patent."

No it isn't. You either infringe a patent or you don't. It is better not to know about the patent if you get caught infringing because of the treble damage possibility that nknighthb referenced, but "I didn't know about that patent" is a meaningless defense, you're still on the hook for the base cost of the infringement, just not 3x whatever that base is.

In either the current situation or the one I think is worth considering, you either infringe or you don't, nothing changes with regard to due diligence. Many patents are infringed every day with the infringing party having no idea infringement occurred (see: Carmack's reinvention of the z-fail stencil shadow system or any of countless other examples); but not knowing of the patent is absolutely not a defense. This is one of the more insidious problems with the current patent system as it relates to software, there are so many broad patents currently active that you basically can't avoid infringing all of them if you write any code at all, even if you never spend a second looking at other people's patents. The only variables are will you ever get big enough to be worth suing or not prior to the lifetime of the many patents you will invariably infringe.

Also, the idea that having a system where the IP holder is essentially forced to act to maintain control of the IP can't, by definition, be "impossible" because it is already how trademark law works in the US.

And as I mentioned in the original post I made on this I recognize there would be some negative fallout from the proposed system, but I think over the long-run it efficiently adds in a lot of features to patents that are currently missing (eg. a lot of people have proposed a yearly fee to renew patents to make sure people don't horde mountains of defensive garbage patents, this would achieve that same goal because they wouldn't want to put the legal resources in worthless suits against known infringers, and thus their garbage patents would very quickly lose their power; also it would make it far easier for many unknowing infringers (see for example the recent audio podcast patent disaster that is still going on) to group up to fight garbage patents because the person claiming patent protection would be forced to pull them all in instead of using the current system which is "go after the small fish, get a victory in East Texas, then use that to bleed everyone else dry".

> No it isn't. You either infringe a patent or you don't. It is better not to know about the patent if you get caught infringing because of the treble damage possibility that nknighthb referenced, but "I didn't know about that patent" is a meaningless defense, you're still on the hook for the base cost of the infringement, just not 3x whatever that base is.

So yes it is, then?

Requiring patent holders to go after the largest infringer would tilt the table sharply in favor of large companies.

Lawsuits involving the largest corporations are enormously expensive affairs. Especially in the USA, with our extremely expansive rules for what information is discoverable in civil cases. That's part of why they so rarely make it to court when it's big companies suing other big companies. When it's small companies suing big companies, that asymmetry makes it really tough. And a small company suing a big company for patent infringement is likely already feeling some pain in the pocketbook.

But if a small company whose patents are being infringed can start out by getting a judgment in their favor in a case that's less expensive to pursue, that will give them a big leg up when the time comes to take on the big guys. A rule saying that you have to go after the largest infringer would take that away.

I don't really agree with this for a couple of reasons.

One is that juries, by and large, tend to favor David in David and Goliath cases.

Also, it shouldn't be that hard to find competent lawyers willing to work on contingency to take meaningful patent case against a larger corporation if they get a percentage of the damages. For cases where the patent isn't that strong to begin with or the infringement isn't very clear cut and thus the lawyer's EV is very low, well then fuck the little guy anyway, he shouldn't be patent trolling in the first place.

It doesn't matter if you're likely to win if you can't afford to litigate.

> it shouldn't be that hard to find competent lawyers willing to work on contingency to take meaningful patent case

Yeah, that's why it happens all the time. (hint, it doesn't).

Y'know, it's becoming increasingly common in patent law, and the trend is disturbingly closely related to the rise of patent trolling.

The oversupply of lawyers in the USA has become so great that many attorneys will take on anything at this point, including patent cases on contingency. And that makes it easy for businesses to hop on board, since the cost to them is so low.

Yeah, it's not very well thought-out. "The fact that patent holders are not required to go after the biggest perceived infringer or, more importantly, ALL infringers, and unilaterally get to choose infringers further proves the illegitimacy of software patents in the first place." [emphasis mine]. That patent law doesn't include this thing he just thought up proves that they are illegitimate (whatever that means in this context)? It doesn't follow. Does the fact that copyright litigation not require you to go after the "biggest" infringers prove its illegitimacy?

I'll be the first to tell you I'm not an expert in patent law but the point I'm trying to make is this: if patents on software are truly about protecting legitimate interests and not intended to encourage anti-competitive behavior, then we could fix a lot of what's wrong by requiring patent-holders to only sue up, as one example.

That specific suggestion is more or less impossible to implement. How would you determine what "up" is?

Doesn't seem that hard. Revenue, market cap, funding, to name just a few.

Do you, personally, have a market cap?

For private companies, that equates to valuation. So, yes.

No, I mean you specifically.

I don't think there is such a thing, at a personal level. At least I've never heard of one before. Why?

Then how do I, diminoten, sue you, rgrieselhuber, for patent infringement, if we're basing things on "size"?

You don't sue individuals for patent infringement unless they're so stupid as to do business as a sole proprietor, which is a bad idea for a host of reasons quite aside from patent infringement. You will not find anyone with deep pockets to sue for patent infringement individually.

It is distressing that someone obviously so utterly clueless about law has the top comment on this story.

The personal attack just tells me I've made a good point.

Wouldn't it be measured by the claimed damages?

What does that change, except for forcing mom-and-pop inventors to go after GE?

It would actually prevent this exact situation - stopping larger companies from suing upstart competitors.

How would it stop that at all?

Explain how this would work, in practice. So Google sues Joe Individual over patent infringement. What now?

Google would be suing the wrong entity and the case would be dismissed by an unamused judge who sanctions Google's lawyers for being idiots who wasted the court's time.

Google needs to sue the limited liability entity Joe is working within.

Individuals can infringe on patents too.

The case could be thrown out. Google gets nothing, Joe continues to infringe.

That's... what?

No one has mentioned this yet, and that's completely absurd anyway.

I'm against software patent law, but trying to legislate only suing up takes an awful thing and makes it even worse. People would construct multiple businesses around the premise of keeping each one smaller than the dominant player. It would take the existing bureaucratic nightmare and add an entire new level of complexity to it.

> Just reading the rest of the article, it seems like ya'll don't know a whole lot about patent law.

Nonsense. This is HackerNews, where writing some half-baked website code makes you an expert in both business and law

and economics... don't forget economics

cough bitcoin cough

And were dabbling for a month in Haskell to make an elaborate "Hello World" program makes you an expert in Monoids and type theory...

The carbonated beverage example is an interesting choice, considering that there was a whole lot of patent activity in that industry when it was first born. We just don't remember it because it all went down about 200 years ago.

Arguing the ins and outs of patent laws was not the point. I think the point was to say that if you're going to patent something (especially a vague idea) that it comes across as cowardly to only go after one company out of 20 - because obviously you're not in it to protect your idea, more to take down anyone that manages to take any marketshare. Ray's point is that you should maintain marketshare by having the best product, the one people want to use - not by forcing them to use you because you've sued everyone else out of the space.

Well-done, and thank you for taking a stand against a broken system.

tl;dr - I'm scared. Don't sue us too please.

Did you even read the blog post? He's all but daring them to sue him. I congratulate him for taking a stand -- if all of us did the same, this broken software patent business would be much less of a problem, and only worst socially-outcast patent trolls would bother suing anyone.

If we were scared, we wouldn't have written it.

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