Introducing EFF's Stupid Patent of the Month
eff.org
eff.org
"Patents sucks" is a contrarian opinion in this environment. Without a proper-looking authority to back that up, no amount of explanation will ever convince those people. They will just assume there "must be a reason" for this, even if they don't understand it.
The alternative is to teach them how to think. This will take time.
Not really: you don't condemn an entire system by pointing out individual bad examples of it.
This is like picking a bad article linked on Hacker News and saying "Hacker News is broken and needs to be abolished".
You're not going to convince anyone with this kind of cherry picking.
Besides, the title made it sound as if the EFF was filing stupid patents.
Surely we can agree that "not perfect" is not equivalent to "broken"?
For example, a startup with hardly any funding comes up with a very innovative idea to tackle a problem, they start working on it with very little funding. Facebook grabs the idea, implements it in a month, exposes it to a billion users and the startup just dies.
What's the incentive for the next innovators to create a startup in such conditions?
"What's the point of trying to create something novel since Facebook or Apple will just copy us and crush us".
Not exactly a perfect system now, is it?
That makes an assumption that software patents should be used for preventing others from "grabbing the idea". That's invalid. You can protect your software with copyright, or for example make it open and ensure contributions from derivative works with copyleft. But to be competitive one doesn't need software patents which cause all kind of crooked damage.
They wouldn't have to, it's much cheaper and faster for Facebook to just acquire them.
Make no mistakes: whenever you read in the news that Big Company just acquired Small Company, a lot of this is justified by the patents that Small Company filed. It is much faster and cheaper for Big Company to acquire that company, its patents, its team and its products than spending years in court suing them.
That's bunk. It can happen that companies are acquired for patents. But the above was the case when it's acquired for technology. That's a very different thing.
Which is why software patents are so useless! Big Company needs a team and code, and it gets the product to market faster to buy the team who has already written and tested the code than to pay a new team the same money to write it again. Meanwhile the patent is useless because the cost of ligating a patent claim is an inconvenience for Big Company but a mortal danger for the startup.
However it's clear that banning software patents at least would already improve it. I.e. such workaround is better than the current level of broken.
[1] http://kotaku.com/two-melons-just-sold-for-us-15-730-in-japa...
That's demagogy. Completely or not completely is irrelevant. If it's passing through tons of patents like that and doesn't provide adequate means to prevent patent abuse - it requires a thorough reform. Those who claim that the system is not broken want to keep the status quo, because they benefit from the junk patents and patent abuse.
> That's demagogy.
Uh... what? I think the claim that the system is not completely broken is very fair. If you want to prove it wrong, show that 90%+ of the patents are junk.
> Completely or not completely is irrelevant. If it's passing through tons of patents
It doesn't matter which patents pass, what matters is which absurd patents go to court and win.
So, let's see, how many court cases have we seen this past decade where absolutely absurd patents ended up winning in court?
Don't get me wrong, I think the system has problems, I just don't think it's broken and needs to be completely abolished.
We need to find a way to eradicate patent trolls and there are a lot of potential solutions to this. For example, if company A acquires company B, then company B's patents become void and null unless A can prove these patents are applicable to its business. Blam. All patent trolls vanish.
Once you eliminate the problem of patent trolls, you realize that the idea behind software patents is sound and actually promotes innovation, start ups and entrepreneurship.
Eliminating patent trolls would eliminate that problem for large corporations, although it would still cost them million of dollars to apply for patents solely to cancel out others' patents through cross-licensing. Start ups are even more screwed because all of the large incumbents still each have a huge arsenal of broad software patents and can bury any software start up in litigation who tries to compete with them. This also makes having a software patent essentially useless for a start up because any attempt to assert it against an incumbent would only result in counterclaims and ruinous litigation costs. The idea that a small practicing entity can realistically assert a software patent against a large tech corporation is beyond belief. And that's before you even consider the six-figure cost of paying lawyers to get a patent through the patent office, which then generally isn't even issued until the technology at issue is either obsolete and disused or so common and ingrained in the status quo that issuing an effectively retroactive patent on it without prior notice to those who have since adopted it is inherently unreasonable.
Software patents are fundamentally useless and should be abolished.
Gigantic, established companies will always have an edge, regardless of patents. Abolishing the system and creating a wild-west scenario is ridiculous.
Reform and overhaul using principles guided by rational, current, and quantifiable evaluation, with an established timeline for recurring review and reform. That's what we need (in many more systems than patents as well; education, I'm looking at you).
Life isn't always binary. There are more answers than all or nothing.
"If they don't use that, then they can just use their connections to the government to legislate start-ups out of existence." In a way this is exactly what the current patent system accomplishes. Except it's through litigation, not legislation (but it's legislation allowing for the grounds of litigation).
"If they don't use that, they can just buy the property the start-up physically occupies and burn it to the ground." Now you're just being absurd.
"Gigantic, established companies will always have an edge, regardless of patents. Abolishing the system and creating a wild-west scenario is ridiculous." What we have now is a wild-west scenario where submarine patents and overly broad patents allow trolls (and even practicing entities looking to squash competition) can simply litigate at will and the costs of defending overwhelm their competition (unless they're equally large or play the same game with cross licensing patents).
Fairness has nothing to do with it. It's obvious that large entities have more power than small entities, but that's hardly an excuse to give them more. Especially when the argument being made is that it will help small entities which it empirically does not.
> Gigantic, established companies will always have an edge, regardless of patents. Abolishing the system and creating a wild-west scenario is ridiculous.
There should be corollary to Godwin's law that anyone who describes the tech industry as the wild west automatically loses the argument. There are no gunslingers here. You've already listed plenty of reasons why Microsoft is not going to be felled overnight by some startup in the absence of software patents.
> Reform and overhaul using principles guided by rational, current, and quantifiable evaluation, with an established timeline for recurring review and reform.
There is nothing to reform. The essential failure isn't in the specifics of the law, it's in the concept of patenting what is fundamentally information. Under the same law the patent system works largely as it's expected to in the pharmaceutical industry or the auto industry. It fails spectacularly in the software industry because software is not supposed to be patentable subject matter.
It would be if they hadn't already broken the system by letting so many frivolous patents through.
The original view of patent eligibility from those who encoded the system into the US Constitution was VERY different than that of today.
See, for example:
http://www.temple.edu/lawschool/dpost/mcphersonletter.html
If Jefferson had any idea of what the current patent system would look like and how little it had to do with bringing to bear really novel inventions with high social value (compared to being mostly a rent seeking mechanism used to make a quick buck via iffy, vague claims on all sorts of obvious ideas), I'm absolutely certain he would never have allowed for the creation of the system on his watch.
It would be silly to suppose that they spend the entire time in examination. That's why it should be obvious that I think they have ample time to correct their mistakes.
You do have a point insofar as the entire "game" of patent grants is rigged, such that the examiners are graded on how many patents are processed, while the examinees are allowed to resubmit filings as many times as they like until they pass (subject to fees, of course).
There are many similar sites raising issues that are important to society but the result seems to be the same, people come to blow off steam and get sated.
It might be fun if the EFF could post a threshold for investigating patents, perhaps taking suggestions and pricing it. Let people buy the patent shaming. I know they take blanket donations but targeted ones might get more people interested. Sally Struthers style, for only a one time donation of, we can expose a patent.
Policy makers might be somewhat burdened by pure abstract arguments about how broken the system is, or not give them enough thought at all. Providing such clear examples helps them to make educated decisions and convince others as well. So I definitely see a value in such articles.
Here is a good post on the similar subject:
https://www.techdirt.com/articles/20140729/05504028040/if-yo...
If a bad story hits HN, it's gone within the day. If a bad patent is issued, it can be used to extort millions of dollars out of people who are doing useful work.
The situations aren't glibly comparable. Every bad patent can cost millions of dollars. This isn't a system where we as a society should permit a high false positive rate.
In this situation, a high enough false positive rate, as evidenced by bad patents like these, can make it such that the cost of the system outweighs its value, such that a rational society would abolish it if there were no workable means of correction.
That aside, I note that the patent bar tries to spin the patent lawsuit revenue as being the value of patents, rather than the cost, so I suppose entrenched interests will continue with that line.
It's more like a day or two are spent actually examining any case in general. It takes so long because a) it has to (there is an 18 month period between submission and publication) and b) there are a lot of patents and the queue is long.
Also you've asserted there is a high false positive rate, but I would put money on the fact that the rate is extremely low. Like people having a fear of flying because they see news reports about all the accidents, the realite is the chances of a patent getting through or you dying on in a plane crash are miniscule, but successful flights and genuine inventions are rarely worth writing about.
Consider, for example, if airplanes carried tens of thousands, rather than hundreds, of passengers. Then our acceptable false positive rate may change by an order of magnitude.
Like herd immunity in epidemology?
The really large corporations are mostly immune, because they have the resources to fight the disease from the carriers. Everyone else is subject to ill effects. With luck the carriers die off before they can infect the non-immune population.
When you get more carriers, the spread of the disease increases exponentially.
In case of patents we see two things playing out at the same time: the race to get more bad patents issued, and more actors trying to abuse the existing ones.
The herd immunity is long gone, and everyone suffers.
And no, you can't sensibly distribute the costs of that across the population in a case like this. Patents can be asserted against everyone independently, so a larger population makes things worse, no better, as it gives trolls more victims, rather than distributing the cost. It's not as if patent litigation is over for a patent once they've sued one person (though it is interesting to imagine a model where a patent might be 'exhausted' once the holder collected 'enough' money through litigation).
To prove that software patents are bad, it is necessary, but perhaps not sufficient to point out bad examples. Then again I never said the only way of condemning the patent system was through examples?
And I don't think your comparison is in any way fair, but to address your point: if HN's quality vs quantity ratio dipped significantly then there would be calls to reform the submission and peer moderation system as well since HN would start to lose visitors over it. In fact constant reform is exactly how most of the top sites have managed to stay relevant in the fickle online world.
One of the companies is even litigious having field two patent suits this year. The only thing saving us at this point is we are a Canadian company and haven't entered the US market yet.
So, here is a concrete case of patents discouraging innovation and competition. We want to enter the US market because the competitors are selling backward solutions. We have an alternative that is 10x better, yet our company could be killed in an instant through one of these patents.
You might want to nominate this patent
Challenge it after being sued hopefully with enough cash to defend yourself.
Then we can brainstorm and see if we can innovate.
But, to make the exercise a bit more fun!? Don't read the EFF's summary, go read the patent and try to make sense of it. If you were an e-health company how would you work around that patent?
'knowingly violating' is not a phrase you want attributed to you in court.
But, the core point is the patent did nothing to further the state of the art, nor does it provide information that someone in the field would use to implement the patent. As I understand those are the two reasons for the patent system, so by that standard the patent is worthless.
I wonder if patents in other industries are actually useful, eg would a chemist ever refer to older patents to further their own lab work?
I don't give a shit how superfluous the patent may be, or what chemists do. You just openly admitted that you knowingly infringed on a patent. Further, even if the patent was complete bullshit, by you openly acknowledging that you are infringing on it, you are admitting not only guilt, but you are validating the patent. IANAL, but I could easily see a court using that as the evidence it needed to validate a patent that otherwise stood no chance.
US patents have no baring in Canada, they currently haven't done anything wrong at all.
OP said they are coming into the US market at some point. At which time, they will be infringing, and then everything I said applies.
When we became aware of the patents we consulted with counsel and put a plan in place. I misspoke earlier, for dramatic effect, we are not violating the patent as we haven't entered the US market, and we don't plan to until we've addressed this issue.
Furthermore, my account here is pseudo-anonymous, so you would need some serious google mastery to pull enough information together to make the connections required.
Patents don't have to further the state of the art, but they must teach a person skilled in the art how to practice the claimed invention.
It seems to be just the opposite, though: the patent system is telling you "You are copying something that exists, instead you should innovate and create something new".
So why don't you innovate instead of copying something that already exists?
If something is obvious, it should have been unpatentable. If the patent system says that it is patentable - the patent system is broken.
Here, we have an example of a company that is knowingly copying something that exists instead of coming up with their own solution to the problem, so I'm claiming that in this particular example, software patents are encouraging innovation. The company in question is simply choosing the easy way out of copying instead of innovating.
Patent abuser can even produce something useful. But if the patent is bad (obvious, abstract, claims a function, etc.) then such producing entity can ban all kind of competition which should exist because that thing should not be patentable in the first place. Because of that, term "troll" can be extended to any abuser. Not necessarily NPE. Even PE one.
Copying is a natural thing in many cases. Preventing copying by patenting abstract ideas is crooked and should not be allowed.
Not to mention cases, when some things were developed independently (so obviously not copied), but still are banned by patents.
No we aren't. Not sure how you got that idea. The patents in question are for small and obvious methods that is required for the larger product.
What you are saying is sort of like saying that somebody who invented the motor car is just copying something that already exists if someone else had a patent for the ball bearing.
Innovation requires building on things that already exist. It would be delusional to think anything is completely original and thought of from scratch.
The registration form uses a captcha to prevent bot registrations? The user is emailed with a link with a secret code that when clicked, verifies they control that email address. The IP address used to make the web requests are recorded (using a computer) and are later used to infer the users physical location from it. A webpage includes a map with a dot in places where users registered. The size of the dot depends on the number of users.
Which of the above is an invention that already exists for which we need to invent our own solution to?
The fact is that the two are not only not mutually exclusive, they're interdependent. Nothing is ever 100% entirely new. Every innovation builds on what came before.
The problem is not that people won't innovate. People are innovating. The problem is that someone has invented a new traction control system which they can't sell because someone else was granted a patent on the wheel. In 2011. And your solution is for the actual innovator to reinvent the wheel.
“Method and Apparatus for Indirect Medical Consultation” was issued on June 24, 2014. Presumably there is already a software/companies/people doing this that started before last month. If they are targeted, what happens? IE, if software published before June 24 is accused of violating this patent is there any possible case for it? Would it still cost huge amount of money to defend against this attack? Would losing the claim automatically invalidate the claim?
Method and Apparatus for Making Lots of Money
1. File an over broad patent by (a) describing an everyday procedure currently commonly preformed by humans and (b) adding "performed by a computer" to your claim. Alternatively, purchase a similar over broad patent from someone else.
2. Identify companies which utilize procedures which may fall under your patent.
3. Identify other companies that may utilize procedures slightly (or even barely) resembling those covered by your patent.
4. Determine prevailing legal fees for a patent defense case in the given area for each of the companies identified in steps 2 and 3.
5. Call all of those companies identified in steps 2 and 3 and threaten to sue them unless they settle for the sum of 80% of the prevailing legal fees identified in step 4.
6. Preform steps 1 through 5 using a computer.
I'm not sure if this is equal for other countries.
I see this happen in peer-reviewed research. A reviewer rejects the paper/patent based on a flaw that is perhaps not as gross but is at least concrete. When the flaw is removed (in this case the use of computer), the reviewer almost has no choice but to accept it. Can't the reviewer reject it for other reasons?
Software and other ephemeral businesses lack physical assets. That's scary to quite a few MBA types, especially those brought up outside this industry. A patent is something that makes software look on the balance sheet as if it's a physical asset that the company holds.
It's all an illusion, but it's a security blanket for these types.
Sure, but their actions have ramifications that could impact revenues. If the patent system was smothering the market and therefore tax revenues, one would think that the government might eventually act in its own interests and legislate a solution. On the other hand, if the current scheme is actually boosting revenues, there might be some hesitation in fixing something that, for the government, isn't a problem at all.
http://arstechnica.com/tech-policy/2014/06/chinese-govt-reve...
...and often has improvements that are practically useful. There, innovation happens bottom-up, with incremental changes to an existing product, and there's far more design sharing and competition since exclusivity doesn't last.
The real cost is having some draft it and prosecute it. That's like 15-20k.