Gnome patent troll stripped of patent rights
blog.opensource.org
blog.opensource.org
The story reads to me like GNOME spent $150k on a legal defense that saved themselves and carved out a little niche for FOSS projects, but otherwise allowed the patent troll to continue profiting from this patent.
> Of course, that’s little comfort to the 20+ victims attacked after GNOME with the now-proven-worthless Rothschild ‘086 patent, or the 50+ companies targeted with related patents that haven’t yet been re-examined.
Meanwhile, it looks like Mr. Smith basically did what the GNOME defense team should have done from the start and got the patent invalidated, with no funds to speak of.
> GNOME was represented pro-bono by Matt Berkowitz, Kieran Kieckhefer, Joy Wang and Larry Crouch from Shearman & Sterling LLP.
https://foundation.gnome.org/2020/05/20/patent-case-against-...
- "I can confirm that we have not paid RPI or Leigh Rothschild for this settlement."
That statement still leaves a lot of people that they could have paid for that settlement (or paid RPI/Leigh for a different settlement).
I was wondering the same about the $1M donation they got in 2018. Turns out they misallocated a significant portion of it to things like social outreach programs.
There is nothing wrong with having SRPs if you're a multi-billion tech giant, but a underfunded open source product shouldn't be wasting money on social programs when their primary product was broken (which, in 2018, gnome3 certainly was). At the very least, they could have used it to hold proper user-focus groups to find out how their users actually used their product.
I think the organization is suffering from a serious mismanagement issue.
If you want to start another organization that only does user focus groups then by all means do it, but otherwise you're barking up the wrong tree. The designers (not the foundation) already do user studies regularly anyway, the reason they don't do full focus groups all the time is because it gets expensive real fast.
Who said anything about profit? How about paying devs & designers, awarding bug bounties, and user testing?
> You have a substantial nonexempt purpose because you develop software published under open source compatible licenses that authorize use by any person for any purpose, including nonexempt purposes such as commercial, recreational, or personal purposes, including campaign intervention and lobbying.
> Mere publishing under open source licenses for all to use does not show that the poor and underprivileged actually use the Tools. ? You do not limit your distribution and do not know who uses the Tools much less if they use them for artistic purposes. ? you do not know who uses the Tools much less what kind of content they create with the Tools.
That said it should be clear here that this was explicitly for a charity, not just a non profit, but even still it's pretty messed up.
But there are some people at the foundation who would make it their goal to hire more developers, if the funding was there, it currently isn't.
I won't comment on the issue itself, but the way you're framing this is total and complete nonsense. GNOME didn't have a "take", it was a blog written independently by one developer. You're confusing the Foundation itself with random developers. AFAIK System 76 also never put out any official statements, it was again more random unofficial statements by random employees. I would actually be more disappointed if either of these organizations' management was wasting their time making official statements on pointless open source drama.
Searching through the foundation's news posts shows only one press release about system76, which is positive in tone and isn't related to any argument: https://foundation.gnome.org/?s=system76
If you could post this press release so I could read it, that would be great. Maybe I'm just stupid and I missed something obvious. But I think you may be misremembering this.
> Leigh Rothschild said “I’m pleased that we have managed to settle this issue amicably. I have always supported the innovation of open source software and its developers and encourage its innovation and adoption.”
FOR SURE, BUDDY.
That sounds like something Putin would say after he gets absolutely decimated by the Ukrainians.
Just couldn’t help but notice the similarity.
How was it possible to patent this in 2018?
https://patentimages.storage.googleapis.com/01/50/f8/a8e7c12...
I'm wondering why companies don't sue the Patent office when the patent used against them is invalidated (often some companies are still paying fees because they settled. )
Because they shouldn't be about making money. They should be about encouraging innovation.
Another way to put it is that integration should not be patentable. Everybody knows images can be serialized to a bitstream and that bitstreams can be sent wirelessly, each on their own is novel, but combining them no. Otherwise I could patent delivery of pepperoni pizza on a electric scooter, even if someone else patented pizzas and scooters already.
I get that the wireless tech itself is patented, but using it for existing applications should not be patentable.
Easy. I'm a former patent examiner and in my view, the root cause of most bad patents is obviously the lack of time patent examiners get.
Most people here don't understand how patents are granted. Patent examiners don't get a lot of time. If I'm an examiner, and I can't find it in the time provided, and the application doesn't have some other issues (101, 112, etc.), the application is likely to be granted. This is not a matter of caring about the quality of the work. I'm confident that few critics of the USPTO would do a better job than current examiners under the same time constraints.
The most effective way to eliminate bad patents would be to increase the amount of time patent examiners get. The amount of time is based on some IBM study from the 1960s from what I know. Some adjustments to the time have been made, but it's nowhere near enough. Yes, we now have better search technologies, but we also have at least two orders of magnitude more documents to search.
I'm told that the amount of time examiners get probably won't increase without congressional intervention. Right now the USPTO only makes money through user fees. The USPTO receives no tax revenue at all. This situation is actually worse, as the Department of Commerce diverts some of the USPTO's revenues for other projects. At the very least the USPTO should be given control over their own money, and they should also receive tax revenue. Then examiners can be given more time and do a better job.
Here's why some other approaches won't work:
- Punishing examiners for making bad decisions will just make an already stressful job more stressful. This seems to be the current focus at the USPTO. Fortunately I haven't heard anyone being fired due to poor quality, so I think it's mostly talk.
- Adding more ways for companies to kill bad patents after they've been granted favors large corporations who can afford to kill bad patents. Small corporations and individuals are still powerless against bad patents.
The internal search tools check a lot of patent databases and are quite good, but take time to learn.
The USPTO has a lot of subscription databases as well, including fancy AI/ML-based ones.
Many examiners will also search normal search engines like Google, though this can be tricky for legal reasons. If the application was not published yet then examiners are not allowed to get very specific in the search and other search engines as that could release confidential information to the search engine. The USPTO has agreements with the subscription databases to keep the searches confidential but no such agreement exists with Google.
In my view making new search tools like https://www.priorartarchive.org/ would not help the situation too much. It would be better to integrate more databases into the existing USPTO tools, as they are designed for serious power-searchers, and would make the new databases more visible. The internal search tool is much faster than the alternatives and operates by keyboard. Point-and-click search is much slower by its nature. Speed really is critical when time constrained and I think that is something not appreciated outside of patent organizations.
As for why the applications aren't published as soon as possible, I'm not sure. I suspect people might want some time before publication to test the market. If there is no market demand, I know that some law firms will abandon the application. But if it's worthless, then why not publish it?
Presuming that "ways to wirelessly share photos online such as through social media" has not been patented before, the best place to look for prior art would be the actual existing social media products which have ways to wirelessly share photos online instead of historical patent data; an effective search would have to be for actual prior art (i.e. products and solutions), not descriptions of prior art (patents and webpages).
Almost no one uses it, unfortunately.
I doubt anyone criticises the workers at the bottom, if/once they're aware of said time constraints. Rather, the caring about the quality of the work is something the person who decides on the time constraints clearly doesn't do.
It is a matter of caring, but yeah of course it is decided by a higher-up, not every person working there being individually lax. (I don't expect google/malboro/shell/... employees to be individually evil either, for example, even if the companies clearly could be better-respected if they cared about doing their work in society well.)
Having lots of such work is no excuse to do it worse. It is however an excuse to have a growing backlog.
When it takes 10 years to have a patent granted governments will do something about it, but they won't if you "make do".
Appointments for certain government offices in my municipality are booked for 3 months in advance right now. It made the news and the local government is increasing staff.
This would have looked very differently if someone just decided to cut the allotted time for appointments in half.
Degraded service will be tolerated for a long long time. Broken or nonexistent service less so. Imagine the outcry if people and companies can't get patents anymore.
Thinking of it, patents should probably only be given to natural people and at most one every ten years per person (unless replacing an earlier patent), and who can only sign away up to 50% to a non-natural entity. That'll cut down on the bullshit as well. The notion that one person among billions can come up with multiple patentable ideas in such a timespan is patently ridiculous and need not be entertained. Patentable ideas should take research or domain knowledge accumulated over years and not be a five minute shower-thought.
Unfortunately, examiners are evaluated based upon the number of applications they process.
Furthermore, when an examiner denies a patent or a claim, the patent application can be amended and refiled. Over and over again. Until the examiner grants the patent. Which still only counts as one patent toward the examiner's quota.
So, that backlog that you're imagining sitting there passively waiting actually represents an ever growing workload for the examiners, while their career-limiting KPIs get worse and worse.
Well that sounds like it could be the entire problem.
The problem of how to evaluate examiners' productivity is pretty similar to evaluating software developers'.
Unfortunately, the measure that is being used is akin to counting PRs merged.
It isn't hard to see how the PTO arrived at this method of evaluation: patent examiner time is their most constrained resource and they aren't provided the funds to hire more examiners, so of course they are focused on making the most efficient use of examiners' time to evaluate as many patent applications as they can.
Even so, patents are examined pretty thoroughly (just not thoroughly enough to prevent any bogus ones from slipping through) and it takes almost two years for a patent to be granted.
I think your explanation of how this can happen is plausible. But it’s also the problem with treating government services like businesses.
USPTO incentives should be aligned with the public good, not the bottom line.
This differs from a service like the USPS or Amtrak that address a market failure.
I think you may not understand the underlying economic forces.
Patents are explicitly addressing an existing market failure (that of suboptimal funding of innovation due to free rider disincentives). The mechanism is a grant by government fiat of an exclusive right for a limited time, enforced by the courts, and these grants (and the products covered by them) then become subject to ordinary market forces.
No! The USPTO is not a defending army trying to keep out barbarians. It grants patents. If it does not have time, or resources, then it does not grant patents. If the patent examiner feels they don't have enough time, the patent is denied - too bad. You can re-file, paying a fee for extended examination.
I feel any reform which does not change this approach will have only limited effectiveness, as patents will simply increase their complexity to make them more difficult to examine, until junk makes it through again. The USPTO must have the ability to say no.
P.S.: I feel I should bring up non-obviousness - prior-art is not the only disqualifier. It should disqualify all of these "do specific but obvious thing, on a computer" "inventions", prior-art or not. Perhaps the filer could be required to explain why their invention is non-obvious, saving the examiner some time.
Rejections can not be arbitrary. If the examiner can't find prior art but wants to reject the application, what are they going to write in their office action, the response to the patent application? "I couldn't find anything, but I don't like your application, so I'm going to reject you." As a junior examiner, everything I did had to be approved by someone. There's no way that would get approved. I'd be told by my primary examiner to go back and find something if I want to reject, and by the way, I don't get any extra time.
I haven't heard of any examiner being fired for poor quality, but repeatedly writing rejections with no basis would probably get an examiner fired for poor quality eventually.
And the applicant can appeal. As far as I'm aware the examiner gets no time at all to respond to an appeal! (I didn't get any time for the one appeal that I had.) The examiner does get time to respond to an RCE or continuation. It doesn't take too many appeals to seriously impact an examiner's productivity metrics, and if the examiner falls below 95% of their target for too long, they're likely to be fired. [0]
A lot of attorneys complain that the USPTO is far too harsh. And I think they have some fair points. Only about half of patent applications are issued as patents within 3 years. The vast majority of applications (over 80% last I checked) are rejected in the first action. (I rejected every application I received in the first action.) The process needs to be fair. So there need to be mechanisms to prevent the USPTO from simply rejecting everything to be safe. If the USPTO rejects everything, why even bother having a patent system? (Note that I'm not defending the USPTO's current system, which I think is absurd to give the examiner no time for an appeal.)
> P.S.: I feel I should bring up non-obviousness - prior-art is not the only disqualifier.
I'm afraid that you don't know what you're talking about here. Obviousness is a prior art rejection, and it's the most common type of prior art rejection. An examiner could go on "official notice" and just declare something obvious or known without prior art, but as far as I'm aware that never works.
[0] The way these metrics work (roughly) is that certain actions get a time added to a counter. Then your "production" is calculated as the amount of time you earned (the counter) divided by the amount of time you spent in examination.
I never said to reject things arbitrarily. Only if there is not enough time for an examination. Think of it as putting things on a backlog. If faster turn-around is wanted, more funding can be provided. Lack of funding should only make the work slower, not broaden patentability.
> I'm afraid that you don't know what you're talking about here. Obviousness is a prior art rejection
I'm sorry but this is absurd, and if the patent office functions using this definition makes it no less absurd. Why would US patent law require both non-obviousness and lack of prior art, if the two are the same? The fact that claiming obviousness without prior art "never works" in the USPTO is just evidence of its deep dysfunction.
I sympathize with working in a bureaucracy that seems built to produce bad outcomes, but conflating arbitrary rejections with asking for more time/putting things on a back-log, obviousness, and prior art, really does not inspire confidence. It smells like reasoning deformed by a broken bureaucracy, rather than sensible application of principles or the spirit of the law.
In US patent law, the word "non-obvious" refers to differences between the claimed invention and prior art. See 35 USC 103: https://www.law.cornell.edu/uscode/text/35/103
I agree that this conflicts with the colloquial use, which may be why European law says "lacks inventive step" instead of "non-obvious".
I get the impression that "prior art" to you means that the claimed invention was previously disclosed, which is a rejection under 35 USC 102. But that has to be exactly as disclosed. It's a high bar to meet.
> It smells like reasoning deformed by a broken bureaucracy, rather than sensible application of principles or the spirit of the law.
This speculation is neither necessary or helpful.
> I agree that this conflicts with the colloquial use
The law you cite says, distilled:
A patent [..] may not be obtained [..] if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious [..] to a person having ordinary skill in the art to which the claimed invention pertains.
This is, if anything, a superset of the colloquial use of obvious. It covers not only everything obvious to practitioners in the field, but also things that are only obvious if you are familiar with every latest invention in that field.
To clarify: You seem to believe that looking at it in terms of "differences" narrows the scope of what is obvious. Why? "Prior art" is, literally, the sum of human knowledge and invention (up to some date). To say something is obvious in terms of differences from prior art means that, if there is an obvious way (to someone skilled in the art) to accomplish the claimed invention using any prior knowledge or invention, then that invention is itself obvious.
How could you read this any other way? How could something be obvious, but become not-obvious if you referred to prior art?
It takes about 30 seconds to realize that the above patent has zero novelty.
I'm not going to disagree with the patent office being underfunded, but the fact is that whoever granted this patent had a complete lack of critical reasoning skills, and no amount of time was going to help that.
I see this all the time with the patent office. They'll approve any madlib-style patent without thinking about it at all. Any patent of the form "______ wirelessly" gets approved. "________ with a computer" is the other offender. Sure, maybe they reject it on the first pass, but it always makes it through the second pass.
Want to know the truth about how patent approval works? Talk to a patent attorney who files them. Here's some true things about getting your patent accepted:
1. Novelty doesn't matter at all.
2. The lawyer doesn't need to understand anything about the technology to write up the patent. They do need a few of your buzzwords, but that's it.
3. Patents always get rejected the first time, and then if your lawyer is any good they always get accepted the first time.
I've got a fistful of patents myself, and the acceptance of the patent application had no relationship with the inventiveness of the invention.
But can you find good corroborating evidence in 30 seconds? I'm pretty sure the applicant's lawyers would have a field day with "Patent Officer X rejected this due to their own critical thinking", no?
I disagree. I think the most effective way to eliminate bad patents would be to eliminate patents altogether. If there are no patents then there can be no bad patents:)
More realistically, it would be more efficient to stop bad patents before they make it to the patent office and waste patent officers' time. And the best way to do that is probably to reduce the incentives to file bad patents. I don't know what the most effective way to do that is though, maybe expire patents sooner, limit the number of patents an entity can file in a period of time, increase the fee for each additional patent filed, a penalty for patents that are rejected or invalidated, require you to actually produce (or license to someone else to produce) the thing you patent in order to keep it, etc.
Then the examiner could look at both the application and the comments and decide whether to grant or reject the application.
Almost no one sends in prior art.
What they actually lost is that patent. It was reexamined and all its claims were cancelled. Reexamination is a standard tactic against a patent infringement suit, and we did it all the time at Google. A reexamination is a mini-trial, with no jury; just a bunch of patent law experts. It costs less than a full trial but still can be $500,000 or so.
A troll will offer to settle for a small amount rather than risk getting their patent cancelled. I think it's fair to call it "irresponsible" if you pay them that ransom, but of course, it's cheaper for you that way.
Needed for what? To make it go away for you, while the troll gets more money to extort everyone else?
Companies can care about their bottom line while serving their community in a responsible manner. Companies going carbon neutral are doing it to improve their image, etc. but the consequences have net benefits for the society. No one's going to call that irresponsible. Feeding the patent troll market with the money that was donated to fight them off? Irresponsible.
The troll's business model is:
1. Buy patent (after due diligence) 2. Sue lots of easy marks (companies like OP's that will just write a check) 3. Use that money to fund suits against the tougher targets 4. Go for the big payday (a large jury verdict against a major company)
Where am I getting this? We had a talk by a former troll when I was in Google Legal.
So OP is at #2.
And that is called paying the Dane-geld;
But we've proved it again and again,
That if once you have paid him the Dane-geld
You never get rid of the Dane.
Are vaguely worded patents legal? For example, if someone in the age of black-and-white TV would patent an idea that "colors can be transmitted wirelessly or by wire, decoded or not decoded by a TV or other electronic or non-electronic device and displayed or not displayed on a screen or other medium". Would this idea without any research count as a valid patent application? Please explain, knowledgable people.
Patents can a potent weapon, especially if you have a lot of them in a specific area. So to answer your question, I would expect opposition from anyone with a big portfolio who wants unencumbered range of motion to use them offensively.
So for specific examples from the little corner of the world focused on here, I suspect and easy ones are Qualcomm and IBM. Probably Microsoft, probably Apple, but they've both surprised on some things recently.
If the whole idea of using bullshit patents to defend against someone's threat of some other bullshit patents gets buried at last, then everyone wins because not having to trade "portfolios of bullshit patents" back and forth lowers costs of business for everyone.
This was obvious at least 30 years ago, where have you been?
Watching things like this happen:
https://www.theverge.com/2020/8/11/21363629/qualcomm-win-app...
What color is the sunrise on the planet you inhabit?
The American Intellectual Property Law Association, for one.
It isn't too hard to look up who supported and opposed the Patent Reform Acts of 2005, 2007, and 2009. Wikipedia has pretty good summaries.
It looks like it was trying to cover the idea of sharing pictures between devices. Not the process of doing said sharing, but the idea.
Shotwell's feature kind of fits the description is that it downloads photos from a WiFi connection, organizes the photos by theme/date/etc (filtering), and shares the photos to FB/Twitter/etc (sending via WiFi). Basically any network connected photo editing/organizing software is in dangerous.
The patent obviously lacks innovation and slipped through the approval process. The court agreed and invalidated the patent.
Note that I am referring specifically to patents, not Copyright. Copyright protects a specific _expression_ of an idea and is an important concept. This is true for both proprietary and open source software.
Also other areas where research is an enormous cost factor (for example medical research) patents are essential to protect the cost of such research (or nobody would do it).
Edit: Spelling
Dorsey, and all the SV billionaires who made money off open source, perhaps it's time you "contribute back" by financing the fight against patent trolls...
That's what I meant by "going through", they obviously couldn't fight it in court, would have cost a lot more...
> https://foundation.gnome.org/2020/05/20/patent-case-against-...
https://foundation.gnome.org/2020/05/20/patent-case-against-...
Come to think of it, why didn't Red Hat step in here? Afaik, their entire raison d'être is keeping lawyers on retainer for these express purposes. Have the GNOME maintainers really burned that many bridges?
150k isn't much. Probably doesn't get you through initial motions against a well funded adversary.
> Dorsey, and all the SV billionaires who made money off open source,
I wouldn't know about his actions in other open source areas, but Dorsey specifically has directly funded defense against patent and vexatious litigation around Bitcoin and against open source developers. https://lists.linuxfoundation.org/pipermail/bitcoin-dev/2022...
In particular, a billionaire funded party filed a lawsuit against a dozen current and former developers (including myself!) alleging that we owned him some $6 billion dollars in damages for failing to grant him bitcoins that he claims he lost due to a 'hack' (which sounded like something out of a bad movie plot). The plaintiff alleged that the software's MIT license was irrelevant and that the people wrote the software owe a fiduciary duty to make whole users who lost funds through no fault of the developers. ... a conclusion that would probably mark the end of volunteer contributions in open source generally since no sane person would voluntarily subject themselves to unlimited liability due to publishing some free code.
Fortunately, at considerable cost we were able to convince the court that they failed to establish that their action had more than a fanciful potential for success and got it dismissed in initial motions (though presumably they'll appeal). It also sounds like the same party intends to launch a multitude of additional lawsuits on other basis including patent infringement (which they've been filing 3-4 patents per week in furtherance of, in an apparent attack via sheer volume), and has already filed defamation lawsuits against several journalists and community members ( https://cswarchive.info/ ). Direct defense costs across all parties and actions is in the millions now, without counting the man hours and stress of the defendants, and continuing to grow without a clear end in sight. And all this is just trouble created by a single entity.
Support from those who benefit from open source systems is crucial but because of the astronomical cost of defending even laughable lawsuits attackers will continue to have an upper hand without public policy changes.
We benefit substantially already from the 2010 SPEECH act, which protects US persons from the UK's abusive libel regime. The EU is apparently considering similar legislation with respect to the UK that if in place would likely have protected at least one of the people currently being sued. But the abuse of lawsuits for coercion and extortion aren't limited to libel or the UK-- rather, attackers will use the easiest path and with that one closed they'll use others.
No, that's just polishing the brass on the Titanic.
Patents on software just shouldn't exist. At all. We already have established laws where you can't patent maths. An algorithm is just a function. It should be covered by the maths disqualifier.
The fact that a smartphone could could contain and potentially violate literally thousands of patents is a complete anathema to the original intent of the system and it should be a huge red flag to the entire idea of software patents.
Non-works-for-hire last for some fixed time, or until all the authors/inventors are dead, whichever comes first. A principal distinction between "works-for-hire" and "private works" is that a private owned work gives any of the authors/inventors unilateral rights to rescind contracts without contractual repercussion.
Software patents shouldn't exist. The concept is patently absurd.
Isn't this the same logic as used in the US against capital gains taxes, that a person is being punished for being successful?
With some clever legalese it should even be possible to minimally harm individuals with brains while adding a non negligible cost to those who would (and are) abuse the system
As someone who thinks that the underlying concept of a patent is worthwhile (giving an independant inventor a bit of lead time for their invention against huge companies who could easily copy-cat), I seriously love that idea! Bonus point for somehow scaling the taxation based on real sales vs. lawsuits.
That said I don’t agree with software patents as a concept.
Surely it is taxed already by profit related taxation eg corporation tax in the UK and I'm sure most other countries have a similar one. Also any sales tax or VAT will capture some loot back to your friendly local Exchequer or equivalent.
OK let's get down to brass tacks: What you seem to be asking for is that if someone can be allowed exclusive rights to something then they should pay for that privilege in some way. That seems fair enough to me but you need to define what exclusivity really means and what sort of return should be sought by the authority involved. If we look a little deeper still: what on earth is IP? You also seem to advocate that if the IP is important enough then it can be purchased by the authority and that authority could release the IP to the commons or a form of commons.
You give away where you are from with the abbreviation USPTO. So we are going to need an internationally agreed definition of IP, if we are even going to begin this discussion (which has already happened and is enshrined in ... some international agreement that I can't recall).
Back in the day there was a somewhat backward colony belonging to a super power, located to the left of the Atlantic ocean. That colony grew, expanded and exploited its natural resources. That colony also had a pretty fast and loose approach to notions like copyright and patents. That colony only acknowledged their own local notion of patent and largely ignored any objections from the right hand side of the Atlantic for quite a while. OK, I'm taking the piss but not much. There's another modern equivalent to my "left pond country" these days - more than one.
So, let's start again: What exactly is IP and how does it get enforced, paid for or protected or whatever?
The problem is that the monopoly is "very cheap" — think of it as analogous to email being free? By adding a very modest tax to the IP we force NPEs to pony up (make a product) or drop the patent into the public domain.
Notice that it is the owner who determines the IP's value.
Either patents have a place and value, and they should be taxed (even when you are not using them to actually build anything). Or they shouldn't exist.
Giving an inventor of something a monopoly on its creation should be extremely limited.
Quite famously, the Wright Brothers original patent on the flight control mechanism successfully stifled any American company from making a plane, which became a real issue when the US entered World War One. The US quite famously had to buy planes from Europeans. This was such a huge problem that Congress passed laws to create a patent pool for aviation to stop this happening again.
Patents are unnecessary and they stifle innovation in almost all cases.
> We already have established laws where you can't patent maths.
> An algorithm is just a function.
OP seems to suggest that software is "just math". Everything is "just math".
So many governments give people a limited (usually <20 year) guaranteed monopoly on an idea in exchange for a full, public description of what the new idea is.
If you look through the US patent archives, there are instructions for all sorts of manufacturing and construction technologies that would have never become public knowledge had patents not existed.
The problem comes when a company successfully patents an idea that's already publicly known, or an idea that is strictly mathematical or abstract enough to be used against others but not concrete enough to be turned into a successful product.
Half of the patents are on absolutely trivial stuff that reverse engineering means looking at it for 1 minute.
It doesn't matter much if the source code is available, or if the specification is available, if you can't actually write code to use it.
That would be awful! Thank god we avoided this dystopian nightmare.
But at the same time, just because a patent includes an algorithm, it is not necessarily invalidated.
AFAIK those patents are illegal on every single country. But it doesn't stop honest people from losing fortunes over them.
For example Xometry has successfully patented "METHODS AND APPARATUS FOR MACHINE LEARNING PREDICTIONS OF MANUFACTURING PROCESSES"[0]. To me there is literally nothing novel here, they are just describing the results of using an existing stats tool in the "manufacturing" domain, preventing other companies from sharing how they do stuff like this for fear of being sued.
I read that patent as saying if you work for a CNC machine shop you can't run random forest on a CSV of your own data unless you get granted a license to by a potential competitor.
[0] https://patents.justia.com/assignee/xometry-inc
edit:fixed link
That gets us a world without patent trolls, and without interval wipers (and everything else invented by an individual inventor who wasn't in a position to start a company to implement the idea). Is that a strictly better world?
“I try to license the patent to auto companies”
Many patent trolls never even attempt licensing, they just wait to sue or settle. This would not remove all trolls but would be a first step.
Maybe patents should indeed only be enforceable by those that produce the invention (practicing entities as it was called above, not sure if that's an official term or something they came up with) and if you want royalties then you should put that in the contract when you sell the patent rather than sitting on patents without doing anything useful. That way we can have individual inventors (they are rewarded by what they make from the patent's sale) without also allowing trolls to claim to be inventors (because "NPEs" can't actually sue for infringement).
Or perhaps this should be a software thing, I don't know enough about how well this stuff worked for other fields honestly. I've only ever heard bad stories but then I also hang out with open source communities.
Edit: I realized one might think this makes the patent useless. If you can't sue for infringement as entity that doesn't produce the invention itself, any company could produce it and ignore you. Correct. However, I'm sure that if EvilCorp ignores your patent sale offer and produces GreatInvention without a license, MegaCompetitor would love to take the GreatInvention patent off your hands and license it to EvilCorp (or not and just block further use by EvilCorp). Thus the inventor can still be rewarded for the sale (incentivizing inventions), the new owner gets benefits of exclusivity for the parent's remaining duration, and it forces the invention to be available on the market (it can't only be locked away uselessly).
There's something to say for gjsman-1000's idea, or shall we say, invention
You are now advocating for only MegaCorps to own patents. Pretty wild to see HN users say that startups should not be allowed to compete with incumbents.
> Pretty wild to see HN users say that startups should not be allowed to compete with incumbents.
Pretty wild to be so misinterpreted. Of course startups should be able to use a patent. The point is just that an entity that does not make use of it also does not get to make use of the exclusivity granted.
A "startup" that only exists to enforce patents would be the definition of a patent troll afaik, hence me liking the idea that one needs to use the patent to make use of its rights. (Edit, Wikipedia: "Patent trolls often do not manufacture products or supply services based upon the patents in question.")
> how could MegaCompetitor block further use without a lawsuit (which could result in an injunction)?
Who said anything about "without a lawsuit"? See the part where I said that patents should perhaps only:
>> be enforceable by those that produce the invention
So when MegaCompetitor makes wipers from the example above, they can enforce that EvilCorp doesn't make wipers during the patent's validity period. Since the government has a monopoly on force, that means they need a lawsuit with an injunction as goal. (I'm not a lawyer though, nor natively English, hope I'm understanding and using the word injunction correctly.)
This is even better because things can't just be patented and that knowledge locked away without anybody able to use it.
Wireless image distribution system and method
Abstract
A system and method for distributing at least one digital photographic image is presented, the system and method comprising at least one capturing device and at least one receiving device disposed in a communicative relation with one another via at least one wireless network. In particular, the capturing device is structured to capture the at least one digital photographic image via, for example, a capture assembly, whereas the receiving device is cooperatively structured to receive the digital photographic image via, for example, the at least one wireless network. In addition, the capturing device(s) and receiving device(s) may be disposed in a selectively paired relationship via one or more common pre-defined pairing criteria. Further, the at least one digital photographic image may be filtered via at least one pre-defined transfer criteria disposed on the capturing device and/or receiving device.
TL;DR some kind of device sends an image to some kind of "paired" companion device wirelessly.
You put your toothpaste on slightly different bristles of your toothbrush than yesterday? NOVEL!!
You take a slightly different route backing out of your driveway. NOVEL!!
You write a cheque, and use a date that's one day later than any other date that has ever existed before? NOVEL!!
You stir your coffee 4 times instead of 3 times? NOVEL!!
I only wish I could experience this much novelty in my day-to-day life.
In the case of a song or a book, it is simple (in most cases) to know that someone is performing your song or publishing your book without consent. This isn't the case with patents. There is an involved process to determine if a given entity is violating another's patent rights. This friction in determining right from wrong is the mechanism that allows patent trolls to extract a toll from anyone who isn't able or willing to fight the claim. This puts an asymmetric amount of leverage in the hands of the patent trolls. Some mechanism/legislation needs to be put in place to balance the power so that there is a higher cost to the patent owner who brings spurious claims.
Why don't we see this deployed against competitors? I get why the big boys wouldn't want to rock the boat. But hiring a patent lawyer to go through a competitor's patents and challenge the ones they think could be flimsy sounds like a decent way to, at the very least, distract them.
Besides, if you try and fail you effectively strengthen the patent. Better to wait to try to undermine the patents they specifically try to assert against you-- 75% percent of patents lose claims on re-exam, so the patent holder knows they will likely have their scope narrowed which makes them more likely to agree to license or not enforce at all against a wealthy competitor (e.g. one that could afford to go after their patents preemptively). If the patent has already been re-examined the patent holder would have reason to be more aggressive and less compromising.
Take that further. The stakes should be high against all adjacent patent holders. Ultimately if we want to keep a working patent system it's too much work to rely on piecemeal independent cases like this, albeit a great success. The system has to self-police to be fair, and perhaps the best people to keep trolls and mischievous opportunists on a leash are the bigger players with legitimate patents. They must be fiven a motivated interest in eliminating trolls.
If you sell a gun to an unstable crazy who shoots up the neighbourhood then some blame lies with you. While the transfer of patents between concerned partner companies and subsidiaries seems okay, the market for trading patents simply as value assets needs destroying. Ultimately its probably better if we move to a world where a lot of "intellectual property" expires with it's holder and passes into the public domain.
To apply a leverage point analysis, it's probably time to reexamine and change the rules about the transferability of patents. Does the purchaser have a legitimate justification to hold the patent? If no, it forfeits.
At the end of the day, "justice" is what we buy with our conformance to society. When nations fight over systems of government, it's really a fight over what justice means. The current system is broken, but it's owned by old, rich, intelligent people who know what power is and how to use it, how to keep it, how to rationalize it. Even the good ones fall, when they see how goodness and self-restraint is rewarded by their peers, lest they lose their power.
I do not think there is a realistic path to reform. The US justice system should be replaced, entirely, with something closer to the German system, which is far less concerned with where evidence comes from, for example, and far more concerned with whether its true. Things happen much faster, and most argumentation is done in writing. Attorneys are forbidden from advertising - which used to be the case in the US, too. But of course they got that changed. It's also remarkable how often a German attorney refers to the law - they treat it as a rulebook as for a board game, whereas in the states the judge, in practice, has absolute power over all participants and is free to ignore the law, or invent new law. (Well, they aren't supposed to be, but the process for holding a judge to account is, if you can imagine it, even worse than the rest of the system. Gee whiz, I wonder how that happened?)
I fully agree with you (and it's one of the few strongly held opinions of mine), but I'm not really sure why you would bring this up within the context of patent trolls. Patents do run out, rather quickly even.
It's other intellectual property -- namely copyright -- that needs to run out way faster. The trademark system that we have right now is alright imo and doesnt need to be "fixed".
Not to get off-topic with copyright despite being an "older author", notwithstanding the sibling comments, I'd agree it's too long.
Now, it's nice that patents time-out quite quickly, and indeed that motivates for useful development, but what I'm talking about is adding serial (AND) conditions that require they're capable of being used.
Alice has a fresh patent on a method for manufacturing a drug. She can sell it to Bob who also runs a pharmaceutical company and is in the process of expanding his portfolio of medicines. If Alice sells it to Charlie who runs a hair salon and fashion company, because Charlie, who is not in the business of making medicines, she cannot sue or leverage using that patent in any way or it's immediately null and void. Charlie doesn't have an "interest" in the patent and so loses the patent by misusing it, without any further need to prove the patent invalid. Crazy as that may sound to some, I think its a reasonable amendment to present law.
Wow, I like the direction of this, pragmatic enough to get implemented but also on its way to establish the commons as a party in the deal.
I’ve long thought that the commons need a stronger representation in policy.
Aside from everything else in your argument, this is a really bad point to lean on - in America laws are specifically structured to leave the selling party blameless in all but the most extreme circumstances.
As a more general response:
I also think the thing that makes anti-troll legislation difficult is that making it harder to attack patents, and making it harder to defend patents makes it harder for smaller businesses trying to defend their property from larger businesses. If we start leveraging personal penalties on the attorneys of bad faith suites we need to have confidence that that also won't be turned into a tool to silence legitimate claims from small parties...
If we decided, for instance, to fine every bad faith attorney for 1 million dollars we'd need to make sure that large companies can't use the threat of that fine to strong arm small businesses into compliance.
This is a really complicated question and, at the end of the day, it's why we need to be really careful about maintaining a high quality in our federal judges - bad judges cause extreme harm by making justice inaccessible.
But this is more interesting;
>> If you sell a gun to an unstable crazy who shoots up the neighbourhood then some blame lies with you.
> bad point to lean on - in America laws are specifically structured to leave the selling party blameless
True perhaps. But I did not raise a point of law. This is an ethical chestnut that traces back to at least Plato. Perhaps unclear from my wording I'm implying you know the buyer to be a killer, and so it would be irresponsible to sell. Anyway, my suggested legal revision doesn't rely on whether the seller knows or not, but on the buyers legitimacy to hold the patent.
This is an extremely divisive topic in America so I'd really just suggest avoiding any gun or self-defense related analogies whenever possible.
I'm not required, thankfully, when selling something to do deep background on the person purchasing it. Further, you'd have to prove that my knowledge of this person included the fact that they intended to do something bad with the gun I sold them before I sold it to them.
Finally.. I may have just sold them the gun. Perhaps it's more important to ask this question of the person who sold him the bullets. In this analogy, I suppose that would be the patent law firm.
> Ultimately its probably better if we move to a world where a lot of "intellectual property" expires with it's holder and passes into the public domain.
You move from a high premium on participating in a market, which by some arguments, is my right to participate in to having no participation in it at all. I think more harm than good comes from this.
> To apply a leverage point analysis, it's probably time to reexamine and change the rules about the transferability of patents. Does the purchaser have a legitimate justification to hold the patent? If no, it forfeits.
You'll trade outright patent transfers for shell company transfers, and the small inventor takes a back seat in all of this.
This situation is unfortunate, but I don't think improvements come from hamstringing everyone.
From the context it seems like a more common analogy would be better to illustrate, rather than using an example of something that almost never happens.
A "use it or lose it" model to defang patentholders who don't manufacture their patents is a good idea, as well as using them as assets.
Every once in a wile I get baffled by how american justice system is broken, lacks common sense and cannot be reformed. Aren't the judge able to spot such abusive and predatory patent trolls that attacks only small and weak companies that have no means to defend themselves? Here where I live each time I discuss US justice system I get reminded of this probably false story of the woman that sued and won against a microwave company because they didn't state in the manual that you cant dry your pet in the microwave, and killed her dog or whatever. Such inhuman system rewards just stupidity and greed.
> That prompted over 4,000 Free and Open Source Software (FOSS) community members to rally in defense of the GNOME Foundation, raising over $150,000 to defend against the bogus claim
Why are the costs so high to point out a mistake in the decision to grant a patent? Is the reexamination fee reimbursed should the patent be found invalid?
Here's something that would work, maybe, eventually. It IS simple; it's just not easy. You have to realize that lawyers and politicians don't want to fix problems; they want to make a living off them.
Who wants to lead this effort (and don't say "you" because I'm retired)?
1. Get someone with legal training to write legislation fixing this situation. Personally, I think just declaring software as not patentable subject matter is the core of the solution, but that's to be decided.
2. Get a Congressman to introduce it into the House or Senate. Let's say it becomes "H.R. 666" or some other number.
3. For every Congressional candidate, ask them "Do you support H.R. 666?" Make it clear that your support depends on a Yes answer. That's a language they can understand.
Will this work? Well, it stands a chance. Comments on a thread like this don't have much chance at all of effecting any change.
More like the judge ought to award damages in terms of the time and means required for setting up that fundraiser and all other extra-legal expenses on top of the lawyers whose pro bono work could have been better spent. If the troll, or its parent, has to pay that out of pocket, in addition to losing the patent, maybe that makes an impression.
A random google search gives the costs mere mortals can expect for that (source: https://www.lventre.com/reexam.html)
> Ex parte reexaminations. Expect total costs to be $20,000 - $45,000.