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Comment by sunir | Hacker News Reader

I quite dislike that this bill places greater onus to locate prior art onto the public rather than the patent filer. I'm not sure how that protects the mythical small inventor.

I mostly dislike that there is no move to make patents only defensive. Patent awards should be limited to only the cost of direct interference with the patent holder's business.

That would be the most sensible given the intended purpose of patents of defending an inventor in return for publishing the discovery.

Suing a business that has nothing to do with your own because it employs a similar solution logically is destructive to the economy, since their success does nothing to harm your own success. Patents should be limited to protect you against competitors who are in a zero-sum game for the same market.

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> places greater onus to locate prior art onto the public rather than the patent filer

Wait, how does it do this? And what onus was there under the previous law for a patent filer to locate prior art? (Hint: none.)

You're supposed to cite prior art in the patent application and describe how your patent is novel compared to that prior art. Now, as I understand, there will be a process after the patent is granted for the public to invalidate a patent.

However, knowing how the PTO works, I believe they will simply shift more responsibility onto the public review phase in order to avoid work. They are 700,000 filings behind, after all.

If you know of relevant prior art, you're supposed to disclose it. There's no requirement to go do a search, and there's also no requirement to compare your work to the prior art. People do it sometimes, because it might help the examiner understand the novel points, and because it's considered good style. But there's no requirement to do anything more than simply disclose the prior art references you happen to be aware of.

Thank you (sincerely!) for the clarification as well as taking the time to check for a response and reply!

> Patent awards should be limited to only the cost of direct interference with the patent holder's business.

So you think that inventors who don't practice shouldn't be compensated.

I've done some work in computer architecture but I'm not in a position to build processors.

How do I get compensated for my work? (Note that "be an employee" doesn't work.)

I don't know. I think everyone has to figure out how to make a buck in this world, and inventors that don't produce any products anyone wants should be (in a fair world) out of luck.

Ethically, I think you have to do more than just file paperwork and leverage the government to extract money from others. It might be legal to tax people producing products, but it isn't moral or ethical.

Besides, it isn't the inventors (generally) who troll. The patents are sold to lawyers (like Intellectual Ventures) that troll, and they are the inventors on very few of the patents they take to court.

Maybe actual inventors can sue even if they don't have a product? I see no advantage in this, but I doubt this group is big enough to matter either.

> I think everyone has to figure out how to make a buck in this world, and inventors that don't produce any products anyone wants

Who said I didn't produce products no one wanted? Folks like my inventions and are willing to pay for them. However, those inventions aren't complete products.

> The patents are sold to lawyers (like Intellectual Ventures) that troll, and they are the inventors on very few of the patents they take to court.

That's because many inventors don't have enough money to go that route.

They'd much rather do it themselves (if only because IV takes a huge cut), but that is often out of the question.

> Maybe actual inventors can sue even if they don't have a product?

And how do you suggest that they do that?

I'm completely serious. I've done the lawyer dance a couple of times and didn't see any way to do what you're suggesting.

Details please. (You do know what you're talking about, right?)

So you think that inventors who don't practice shouldn't be compensated.

No, they should not. If you don't practice then you, and the public in general, are losing nothing from your inability to sue people who are actually making things happen. If you don't practice then you have no expectation of being compensated for your work other than hoping that someone else steps on your patent and trolling them. If your patent actually has value then you should be forced to take the risk to demonstrate that fact by putting the invention into practice -- you do not need to be successful at the practice, but you should be forced to at least make the effort.

> If you don't practice then you, and the public in general, are losing nothing from your inability to sue people who are actually making things happen.

I don't work for free, so I'm not gong to bother to disclose if I'm not compensated.

> If you don't practice then you have no expectation of being compensated for your work other than hoping that someone else steps on your patent and trolling them.

Wrong. In the current world, I can file and approach folks who might benefit, offering to license.

In your world, I can't disclose without risking them saying "great idea, thanks".

And no, no one signs NDAs with individual inventors, so that's a non-starter.

> If your patent actually has value then you should be forced to take the risk to demonstrate that fact by putting the invention into practice

The existing patent thicket around processors means that there's no way for me to practice. Plus there's the "invest millions of dollars" part (getting to tape-out is at least $1M, tape-out adds another $1M, and I still haven't done product support or any of the other things required to actually practice).

The value of my invention has nothing to do with whether I can do other things (design register files, etc) so it's unclear why my compensation should depend on doing said other things.

The motivation for you to patent is that someone else can file before you even if you invented it first. That's new in the United States and common in other jurisdictions.

You make money by licensing your inventions to companies that have means to create a product. You can use trade secrets and copyright to protect your invention. You don't need patents. However, in the defensive patent world, you should still get one in case they steal your idea.

What you'd be prevented from doing is creating an expansive definition of a market. That's not crazy talk. In the case of the Lodsys patents, Novell has filed that for prosecution history estoppel, which my reading of Groklaw might be because the original patents were filed with caveats they would only apply to a restricted market (probably set-top pay-per-view TV boxes).

http://www.groklaw.net/articlebasic.php?story=20110708021518...

I think this constraint on patents should be explicit and part of the law. i.e. a Pharmaceutical patent should declare it is for the pharmaceutical industry; if material engineering could use the same organic compound, that is sufficiently novel and non-predatory of the original patent holder. However, it's unclear in the current law whether or not the new use could pass.

> You make money by licensing your inventions to companies that have means to create a product.

That's assuming that I have something to license. Abolishing patents or requiring me to practice means that I don't.

> You can use trade secrets and copyright to protect your invention.

Neither one applies to processor features.

For example, I invented a new way to do branch prediction. Copyright would apply to any documents that I produce or to the mask that someone used to implement that feature, but a new processor, by definition, wouldn't use that same mask or even a portion thereof.

As to copyright, a processor company can implement without copying any document (and even if someone did copy, the damages are at most $250k if I can prove it, which is going to be expensive). They merely need to read whatever description I provide.

For similar reasons, trade secret is a non-starter. (You have to disclose many processor features to make them useful.)

> What you'd be prevented from doing is creating an expansive definition of a market.

Except that I'm not trying to do that. I'm trying to be compensated for inventing a new way to do branch prediction (for example).

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