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Comment by makecheck | Hacker News Reader

At this point the patent troll problem is so severe that I think any new law needs to not only fix the problem, but retroactively assess punitive damages to all patent troll companies. It should be relatively easy to prove which companies were created only to litigate (e.g. they have few employees and produce no products related to the patents that they own). The fines should be absolutely massive; to hell with these people.

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> but retroactively assess punitive damages

This is unconstitutional. And not the fuzzy kind of constitutionality that pundits like to fight over. This is explicitly called out as forbidden in the U.S. constitution.

> No Bill of Attainder or ex post facto Law shall be passed.

Punitive damages are also not awarded as part of criminal cases. These would just be fines.

"And not the fuzzy kind of constitutionality that pundits like to fight over."

Lots of stuff the government does that pundits love to fight over is also called out as forbidden in the Constitution. Doesn't stop the government.

"Congress shall make no law..." lol

Except of course copyright law. That gets a pass because media companies have enough money to make people ignore the constitution.

You want to be careful with the "produce no products" bit - you'd stomp on entities like ARM that don't actually fabricate chips, but create and license designs.

Problem is, coming up with a definition of "patent troll" that's 100% objective and can reliably differentiate between a benevolent NPE like ARM and a group of snakes like VirnetX is tricky. Too strict and you'll have some awful false positives. Too vague and you're reduced to arguing it in court, something prohibitively expensive.

That's already governed under trade secret and copyright law. Their design itself would be protected the second it became a published work. Anyone could clean-slate the implementation themselves doing their own work on that. So, this is where patent law protects them as it prevents others from building something they described in detail. Aka, protects monopolistic business practices in chip industry. :)

I wonder how patents like this are even valid.

IMHO The patent laws should be amended to require entities to both "articulate a solution" and "add value" to make the patent valid.

For ARM (as a NPE) their patent licenses are bundled with a low-power processor core design that provides a solution to licensees requirements. The core design adds value to the basic technology covered by the patent.

The VirnetX patents shouldn't be valid as they merely describe an element of a design, and not a particular means of implementation. This may fall under Sec. 112(f) "Means-plus-function" [0], but getting the patents invalidated is not easy.

The EFF have tried to bust "stupid patents" [1] somewhat successfully. Please donate to support this worthy cause.

[0] http://www.uspto.gov/web/offices/pac/mpep/s2181.html

[1] https://www.eff.org/about/staff/daniel-nazer

> Problem is, coming up with a definition of "patent troll" that's 100% objective and can reliably differentiate between a benevolent NPE like ARM

From what I can tell, ARM started 30+ years ago and sold physical chips. I am missing when they morphed into mainly selling chip designs - and how were they able to make such a transition without the publicity of lawsuits.

ARM were not really a chip company. The parent, Acorn Computers, produced the BBC Micro. They didn't sell the physical chips as a product.

https://en.wikipedia.org/wiki/Acorn_Computers

As satisfying as that might be, an ex post facto law would be unconstitutional in the US.

https://en.wikipedia.org/wiki/Ex_post_facto_law#United_State...

> As satisfying as that might be

Given that patent trolls usually retroactively sue for stuff they didn't have anything to do with, I'd say it would be very satisfying.

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