Cloudflare defeats patent troll Sable at trial
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A major source of this problem IMO is the granting of bullshit patents in the first place - patents that should never have been granted because they’re obvious and/or there was prior art. Patent clerks aren’t actually subject matter experts in the field, and there’s little incentive for them to deny bullshit patents. They maybe deny them once or twice, but dedicated companies just keep applying and eventually get them granted, because the applicant has a major incentive to get the bullshit patent, and the patent office has only minor incentives to deny bullshit patents. I think these incentives need to be changed - for example, if company A sues company B over patent C, company B spends $10 million on their defence, and wins with the patent being deemed invalid, I think company B should get MAJOR financial rewards from BOTH company A and the patent office, on the order of 10x+ what they spent on their defence. If granting a bullshit patent was a $100 mil mistake, patent offices would be WAY more careful with the patents they grant, and applying for patents would be WAY more expensive, and those are both good things!
The right incentives could keep the good parts of the patent system while eliminating the (currently pretty massive, out of control) downsides. Patents are currently a mediocre idea implemented incredibly poorly.
There are so many bogus patents being granted. Prior art search done by patent clerks, from what I have read, can just be searching existing patents. So if something was invented long ago but never patented, then that might not even be caught in a search, even if there are many web pages or academic papers that describe that prior art. And like you said, they may not be able to realise that the invention is actually obvious, because they are not subject matter experts.
There is another problem where the patent is valid but the defendant's product does not violate it. It is often too expensive for the victim to litigate it in court. Depending on the jurisdiction, the plaintiff may not even have to tell you exactly which patents they are alleging that you have violated, until they sue you. So you cannot even check whether their claim is reasonable.
It needs to be easier and cheaper to challenge bad patents and false claims of infringement.
Do you have any examples?
But how?
I would say "Simple solution: abolish patents on software".
In fact, I would say the ultimate realization of that is the existence of patent-trolls. The patent-holder which exists solely for the purpose of possessing the patent rather than creating it, or utilizing it to make their own product.
I'd love to be proven wrong, but I think the "well if you wanna make an omelet..." kind of attitude I usually see accompany sentiments like this seem more edge-lordy than anything else.
>into complex chip design
Do you have any idea all the technology and tools that go into chip design? They aren't all nicely documented in some patent applications.
>when your competitor could just pay your lead engineer half of your 9 figure R&D budget to completely replicate the process
Good luck with that. No single engineer knows enough to replicate any truly complex process.
>I'd love if this work could be done by universities or publicly funded because it so obviously benefits the greater good
If you could pay a single engineer to do anything so substantial as you claim, then all this work would be done by universities. It isn't, for a reason.
The incentive that companies have to pour resources into this stuff is to make money, and they do this by building their technology base and market share. Not having patents isn't going to make much difference; it'll just prevent them from keeping new competitors out of the market so easily.
More often a patent or copyright is one of thousands a giant company procures. But all the intellectual property profiteers need is that 1 in 300,000,000 chance dangling in front of a voter and they'll never agree to do away with IP, in fact, the opposite will happen. They'll actively fight to keep them in place.
(That's not to say that the reality isn't also broken, just that popular perception is even more broken.)
What a silly point then. Who cares what people's perceptions are when they are not based in reality.
> If your "maybe someday" dream prominently features being issued a patent, it's not because you'll use the patent responsibily to defend the idea that you're actively developing and marketing.
I see, so nobody can get a patent because nobody will use a patent "responsibly".
There's no point in furthering this conversation.
Oh, I would immediately start a fund that looks for good ideas at the germinating phase and then superfunds a competitor.
By "the patent office" you mean taxpayers, right? Because we're the ones who foot the bill for any judgement against the government. I can't see any situation where individual patent clerks would be held accountable. First, it goes against established case law regarding civil cases against federal employees [1, 2]. Second, if you amend the law so that patent clerks are an exception and can be held individually liable for potentially tens of millions of dollars, only absolute idiots would agree to take that job.
[1] https://www.justice.gov/jm/civil-resource-manual-33-immunity...
[2] https://www.ojp.gov/ncjrs/virtual-library/abstracts/personal...
I think they meant the patent office should cover that from fees, not from taxpayers.
In a city near me the taxpayers recently rejected a tax increase to pay for a bond because they were grumpy that the government took out the bond without asking them first. The city was still on the hook for the bond, so they just siphoned money from the roads fund.
The same thing would happen here—you can say that the judgment must come from fees, but then the patent office will have to either raise fees to crazy levels in order to cover the risk (thus making patents even more of a large company advantage) or they'll siphon money from things that were being covered by fees and use taxpayer dollars to cover those things.
Another analogy: I'm sort of against housing brokers passing the mortgage onto Fannie Mae. By the time the government finds out something is wrong, it may be too late to "untake" the property. Brokers have short-term control goals and short term risk profile. They stick somebody else with the long term disk, while they're still paid. It's a misalignment.
Now THAT would be a use of my tax dollars I could actually get behind.
I've posted before about some of the issues here: https://news.ycombinator.com/item?id=33506286
This is sometimes true, but also isn't super relevant. The patent office contracts out to experts to help them evaluate a patent. My friend worked as one of these contractors. He would get patents in his field of expertise in which he holds a PhD and had 15 years of work experience, and then write a report and do the prior art searches. He would then send his report back to the patent clerk.
The reason you get BS patents is because they only give the clerk a small amount of time to make a decision, so they have to work with whatever info they have -- they don't have time to seek out additional information.
The patent office needs a lot more funding if you want it to be effective.
As a former USPTO patent examiner, I can confirm that this is the main reason for low patent quality.
> This is sometimes true, but also isn't super relevant. The patent office contracts out to experts to help them evaluate a patent. My friend worked as one of these contractors. He would get patents in his field of expertise in which he holds a PhD and had 15 years of work experience, and then write a report and do the prior art searches. He would then send his report back to the patent clerk.
I never found the contract search help to be useful. ("STIC search" is what I'm thinking of. Your friend may have been on a different contract as I'm not familiar with specific contract subject matter experts providing search help.) I'd guess that the problem is that those folks get even less time than I did!
Those companies are patent trolls, not a separate issue. They don't stop being patent trolls just because they're large and well known.
That's not a part of any commonly accepted definition of "patent troll" that I'm aware of, but of course NPEs can also be patent trolls.
> use them as a moat to prevent challengers
This is what makes one a patent troll.
It's exactly the definition I've heard of for the past 20+ years.
>This is what makes one a patent troll.
No, it isn't.
Think about what a troll does: it hides under a publicly-owned bridge, and then forces anyone who wants to cross the bridge to pay a toll.
This is exactly what the NPEs do with their BS patents: they get a patent on some obvious BS, and then charge people money to use "their IP".
Big companies don't do this: they use patents to prevent competitors from operating. They don't grant licenses to their competitors at all. Trolls in mythology didn't refuse bridge access to anyone, they just forced them to pay a toll.
The entire point of being an NPE is to get money from licensing (and lawsuits).
I spent that summer trading emails with lawyers trying to get the application to even resemble what we were actually doing. The patent was for computer animation, and the application had fucking clip art of printers and pagers and 50 pages of "and this is novel because computers are shiny" and "if you figure out how to do this with a toaster, we've called dibs."
I'm proud of the work I was doing; we were legitimately working at the frontier of motion design. It's cool that my name is in the historical record for that, but it's also embarrassing that it's in the form of a software patent - particularly one that looked like it had been copy/pasted from decades of bullshit patents and barely adapted to cover what we were actually proposing.
Whatever little faith you have in the patent system will be even further eroded if you ever find yourself on the filing side of the patent. It shocked me how much of the application was broad and hand-wavey, citing irrelevant and obsolete technology to pad out the pages. Even worse, they didn't seem to care to understand the actual "invention." If I didn't fight back, they would have filed (and probably won) something that could have been generated with the prompt "please write me a generic patent application to pad out a tech company's portfolio."
There is, of course, the usual problems of companies spinning up shell companies to mitigate the risk, but that's a different problem that needs fixing for a whole bunch of reasons.
This is a good reminder to enthusiastically help out your legal team if your company is the target of trolls!
I had the opportunity to do it once. Our legal team was helpful, patient, and curious. The work was pretty annoying because you have to try to help them work out whether some bizarrely worded unrelated thing could possibly be construed to be part of our product.
In our case the troll went away as soon as we made it clear we were serious about taking it to court.
I cannot tell you how thankful I am for Cloudflare taking it as far as they can. The cost and risk must be considerable to them.
Wonder when they’ll start enforcing their patent on CNAME flattening, for example:
https://patents.justia.com/patent/11159479
Edit; clarity
My point (if any) is that while we pat Cloudflare on the back for “taking down a troll”, they are complicit (as are many companies these days) in assisting the creation of future trolls who will mine their own, more general, perhaps “obvious to someone familiar with the art”, patents like CNAME flattening.
The solution is patent reform on this kind of obvious bullshit, but that's not something Cloudflare can solve.
Pretty sure that's just for trademarks.
A non-binding and less-meaningful commitment would still be something. They could easily start there and they have not.
There is a robust debate to be had on the validity of obvious or generic software patents that only questionably constitute legitimate "invention", but that's almost entirely separate from the problem of the bottom feeding pond scum that collect patents for no other reason than to attempt to enrich themselves via parasitic extraction from people who had similar ideas but actually used them to create something useful. The former might be trying to get exclusivity from something that anyone could have come up with, but at least their idea is useful to someone. The latter brings nothing of value to anyone except maybe themselves, and arguably negative value to everyone else.
There is no resolution to the troll problem if you just keep playing the same game. So I’m not sure why we congratulate companies for “taking down trolls” when their own patent portfolio will (just as likely as not) add to the troll problem of the future.
Would Project Jengo pay me if I could show prior art for CNAAME flattening? No, because it’s their patent.
So that when competitors come knocking on the door, they can use the portfolio to say, "Well okay, but then you owe me license money for $x, $y, $z from my portfolio, how about we just not bother with this, agreed?"
https://files.stlouisfed.org/files/htdocs/wp/2012/2012-035.p...
maybe this is the path to kill the trolls. tech companies could fund an insurance-like mutual scheme to defend instead of pay off the trolls and then drive them out of business. it can also research and invalidate their ridiculous patents.
They are supposed to promote innovation, in practice, it's more about protecting guys who sitting and waiting for passive cash.
Once we give exclusive rights to all AI stuff to Nvidia, is the world going to be a better place ?
What would be with ChatGPT if Google actually had enforced (or enforces) patents on Transformers.
Is the world better since we have to pay a license to use the word "Smiley" and not "Emoji" ? (a >500M USD per year business btw).
If this is true it would fall under copyright or trademark protections, not patents.
I agree with you that patents a probably a net negative for innovation, but we need to come up with a stronger argument than monopolies are bad.
In software? Um... <crickets>. (But you asked "where patents" and not "where software patents", so...)
Great, they've played their role, then. I'm ready for that stage to be over now. IMO if there's an incentive to manufacture distribute the product, let that be the incentive.
Unless you completely revamp how drug discovery and research is funded and driven, anyway.
If the initial research is funded by government grants or at Uni or whatever, the overwhelming majority of the cost is still in Phase 2 and 3 trials.
This is why certain drugs don't get developed anymore - if it's a naturally occurring substance that can't be patented, nobody's gonna foot the gallion-dollar bill to go through trials.
The reasons people are for/against patents are political. A rightist view would be that patents allow first-to-the-finish-line inventors to reap financial awards that lead to success and freedom. A leftist view would be that the opportunity cost of patents is an increased cost (analogous to a tax) on everyone else in the form of licensing fees and barred entry to markets as improvements in science and technology make patents more obvious than innovative.
If we don't reform the system by at least reducing patent durations to something reasonable like 3-5 years, then that will create an incentive to operate outside the market. People will just use open source and 3D printing to build their own stuff, rather than purchasing it from someone else. In other words, more patents = bigger black market and smaller market/profits for those operating legally.
It's not a good look anymore to favor policies which encourage corruption. Other examples of unintended consequences include the War on Drugs, the Citizens United decision, NAFTA, etc etc etc. We know better now and we can do better, rather than letting special interests dictate the manner in which we do business.
Patents as originally formulated were to incentivize public disclosure of new techniques for building things. Portland cement is a great example: the company could have kept the formula secret and profited significantly, but instead a patent was filed, they got a short monopoly, and for over a century we have enjoyed the benefits of a publicly known formula. Pure ideas (like math and physics) were considered non-patentable.
If we can reform patents to disallow patenting software (and all other pure "ideas" with no physical realization), I think that will continue to help encourage public disclosure of helpful techniques (like Portland cement) without all the stupid baggage of software patents.
They'd get a monopoly for 18 years, then anyone with enough money could build and sell a full-flow staged methane combustion engine -- something no one but SpaceX has yet achieved.
But I remember seeing statements here and there that at least half the "cost" of a new drug is marketing. Commercials, paying for 'conferences' for doctors etc.
Not going to search for citations, I'm sure you have something ready to prove me wrong and show how 95% of the cost is blood, sweat and tears.
It is like saying solar panels are bad for the climate because manufacturing them requires CO2 production.
It shouldn't need to be said that no one would do marketing if it didn't more than pay for itself and offset the costs of the thing being marketed.
It... actually does. The utter majority of pharmaceutical cost are the clinical trials, and the cost of "failed" compounds has to be absorbed by the few that eventually pass.
It used to be the case that the development part would be done by universities and government grants, but universities these days prefer to hoard their inheritances instead of spending it, and governments lack the ideas and auditing capability, so everything has gotten privatized and with it, control transferred from democratically elected institutions to quarterly-focused boards accountable only to shareholders not society.
I'll wire you 2.6billion (the extra 0.1 for your trouble) in exchange for a cure for alzheimers deliverable 5 years from now against 5 billion if you can't deliver. Should be an easy 100million+ for you.
Lmk once you have your side in escrow.
That's pretty much precisely what happened in the COVID-19 vaccine race.
Though to be fair, basic research into mRNA vaccines dates to 1989, clinical trials to 2001, though quite obviously not for COVID-19 vaccines themselves.
The Covid vaccines were actually formulated within days of widespread public awareness of the disease. What took months were clinical trials (begun April 2020, Phase III by November of the same year), and emergency use authorisation by December 2020, and ramping up production and distribution, the first less than 12 months after the WHO had first announced the disease, the second (widespread availability) within 18 months.
Different conditions and treatments are of course widely divergent. Vaccines against viruses are reasonably well understood and simple in principle (trigger an immune-system response without triggering the disease), though even here some viruses can prove difficult to vaccinate against (rhinoviruses, forms of viral hepatitis, HIV). Pharmaceutical treatments against cardivascular, neurological, oncological, psychological, and other conditions are quite different. And in the case of infectious bacterial pathogens, I've been hearing and reading about the lack of effective novel antibiotic agents for nearly 50 years. In the case of some ancient scourges (totally drug-resistant tuberculosis is at or near the top of my list) this is truly terrifying.
The other challenge is that what the pharmaceutical industry focuses on --- chronic conditions facing wealthy populations with high-payout insurance --- often fails to match the true personal and public health concerns of humans at large. Much of the pharmaceutical industry's concentration is on relabeling or recertifying existing drugs, either to a new condition or with mildly tweaked formulations or delivery which serve to extend patent protection. Neither greatly advances the pharmaceutical formulary, and many at-risk populations go unserved.
Perhaps people/institutions that grant overly broad patents should be held responsible in a scenario like this?
If we take the position that an inventor should be able to try and get profit from their invention how can we protect that without patent system?
But most software patents aren't inventions; they're just brain farts with money behind them. They might not be trolls, but they went to the toilet, had some random idea I had 20000 times in my life already, but they patent it genuinely thinking it's anything original.
There are many none trolls, like the famous Amazon one-click buy one; everyone in web dev invented that in the 90s by themselves; they patented it. How is it worth protecting?
If you did invent and put the time and effort, how about selling your products; if someone else does it better, that's life. Especially in software; the pain is in the development and finishing, not the invention. The idea is absolutely worthless, outside this broken patent system.
Aren't patent systems already supposed to reject "inventions" that are common sense? Perhaps the problem is not the system itself but rather the humans who are approving these.
The other problem is funding: look at the patent examiner listings right now and think about how many people they’re going to be able to get with the federal pay scale having been prevented from keeping pace with the market for years:
https://www.usajobs.gov/Search/Results?l=&l=&a=CM56&hp=publi...
Wright brothers or James Watt were notoriously hard defending their patents, hindering progress and getting next to no significant profits. 3D printers only took off after key patents expired.
His advice: File a submarine patent, wait til someone else has the idea but is stupid enough to manufacture, sue him for low enough that he wants to settle.
Why not manufacture? He explained that the patent system is designed to help the incumbents. If you manufacture, the big players will make some minor change, file for a patent as an improvement to the original, and ignore you. If you go to court - who has more lawyers on call?
At some point, you may iterate on your original product. At that point they will sue you with the patent they have obtained for their improvement. It doesn't matter if you infringe, it doesn't matter anything. Guess who has more lawyers? If you are lucky, you can settle for just giving them your IP plus your legal fees.
Many many inventions and improvements have been created by small guys, but they don't go to market. Because if it will disrupt an existing big player they will be sued. For any reason under the sun. Because the legal system favors the side with the funds.
And that is even without considering the companies in China et all that will just copy your idea wholesale, at a fraction of the price, and are untouchable.
The patent system helps the incumbents, but does nothing for the little guy.
A better system would be to use the money currently spent on the patent system to give grants to anyone who comes up with a new idea. [And you can even perhaps have some way for the general public to weigh in.] The smaller the company, the more the grant available. With funds, you could actually try to develop a brand, and the competition across the board would help everyone.
And then if I iterate and get sued, even though I can show I hold the original patent it's not a slam dunk win for me in court?
I also view the goal of the patent system as benefiting a society by encouraging the people to innovate. While somewhat similar to the current goals (rewarding the inventors) it is subtly different because its success and failure is determined not by the fairness to each inventor but by its statistical impact on innovation. If it tends to encourage innovation, even if in a few corner cases the time limits are too short for the inventor to reap the full reward, so be it. If it tends to stifle innovation by focusing on fully defending every inventor it needs to be repealed. My 2c.
The premise is flawed, the conclusion can only be wrong.
Patents are an invention by the bourgeoisie to extend their control of the production of anything and extract as much money from it, but to make it acceptable they have the play the image of the "lone inventor in their garage". This inventor doesn't exist. No invention ever came out of nowhere, based on nothing more than hard work and selfless involvement. Nothing would be achievable without the help of society, past and present, without cooperation, and to close that off is to go against the very reason we as a species survive. We need shared creation of art, of technologies, of ideas, because this helps everyone. Look at Volvo giving away their rights on the 3-point security belt, or the penicillin being openly distributed; to favor individual wealth over collective well-being is borderline criminal.
Patents do not serve individuals, the individuals are not business people. Patents only serve companies which by definition steal the production of its workers for private profits.
Patents do not allow creation; patents prevent creation. Look at the history of steam machines and how many people were involved in all the subtle, incremental improvements. It's not just one guy suddenly finding out everything from scratch. One of them put a patent on his invention and froze the development of the steam machine for decades before allowing it to continue.
Straw man. No-one has suggested that the inventor invented something in a complete vacuum without support from society.
That's the fallacy fallacy.
This has several advantages:
1. Inventors get paid to fail. Failure is a critical step in the process of invention.
2. Inventors get paid immediately. How can an inventor be expected to have time to invent something if their only means of income happens after the work of invention? Any person who is working should earn a living.
3. An inventor can quit. If you aren't getting anywhere on a project, then you can go do something else!
4. Another inventor can pick up where they left off. Fresh eyes bring new perspective.
All of these things are already paid for. Either that continues to happen, or invention just stops happening altogether. Obviously there is profit to be made from new ideas, so there should be plenty of incentive to invest in inventors.
Inventors could also collaborate and unionize. Many already do.
By implication, you:
>here is my proposal to replace intellectual property
Property rights, intellectual or otherwise, are granted and enforced by the state. So too, it would seem, might be their replacements. But it sounds like you're actually proposing simply eliminating all current IP law rather than replacing it with anything.
My proposal, taken in context is to meet the same needs that IP intended to meet, but without any state involvement.
What about: inventors should be able to try and get profit from their invention like anyone else.
Allowing patents on software is about as sensible as allowing JK Rowling to patent the concept of a storyline about a boy who was cursed at birth by an evil wizard, and must defeat said wizard in order to fulfil his destiny.
This is, of course, a myth.
It's not impossible for that to happen, theoretically, but the way the patent system actually works these days is that large companies patent anything they ever think of regardless of actual novelty, holding on to vast piles of patents as weapons of strategic deterrence. The megacorps exist in a state of patent detente -- unless someone is particularly blatant about a violation, it's better not to sue another corp because they'll just countersue with their own patent hoard. Then you'll both be stuck in years of litigation, working to get each other's patents invalidated, unsure of who is going to come out of it with a remaining claim.
When the tiny independent inventor appears, however, they don't have any of that patent-hoard protection. So it's easy for a big company in a vaguely related industry to squash them if they want to. Or wait until there's enough money being made that it's worth showing up and demanding fees. Sure, the company's patents may well be bogus and unrelated, but the tiny inventor can't afford to spend the next five years litigating that.
https://www.insurancejournal.com/news/west/2012/11/26/271633...
> A company headed by a Colorado professor who invented a strategy board game has won a $1.6 million patent infringement verdict.
> ...
> Innovention prevailed in a patent infringement against MGA, Wal-Mart Stores and Toys R Us. A federal court in New Orleans found that MGA’s Laser Battle game, sold through the two retailers, infringed on Innovention’s patent for Khet.
https://boardgamegeek.com/boardgame/16991/khet-laser-game
https://patents.google.com/patent/US7264242
---
Note the rarity of this happening that it makes the news compared to how often patents are thrown around in courts.
Please supply evidence. All links in your comment relate to a patent to an invention where lasers are an essential part of the claims. I'm not convinced that rules alone would be patentable subject matter.
https://patentpc.com/blog/example-of-how-a-board-game-is-pat...
https://boardgamegeek.com/thread/493249/mythbusting-game-des...
https://www.theiplawblog.com/2019/04/articles/intellectual-p...
http://www.gamecabinet.com/info/PatentSearch.html
https://boardgamegeek.com/filepage/93654/blue-and-gray-paten... (Blue and Gray) - this particular one is well known because Sid Sackson went trawling through patents and found it and wrote about it. From https://archive.org/details/gamutofgames0000sack/page/9/mode...
> THE FILES OF PATENTS that have been granted are a fruitful hunting ground for forgotten games, although going through these files, as anyone who has ever been involved in a patent search well knows, is a time consuming job. Often the patented games are downright silly, such as a set of dominos made of rubber so that they can double as ink erasers (No. 729,489) or a sliding block puzzle with edible pieces so that a player who despairs of a solution can find consolation in gratifying his stomach (No. 1,274,294). Often the patents are repetitious: There are over a hundred variations of the well-known checkerboard and over a thousand different baseball games.
> But often the patented games are a fascinating reflection of their time: races to the North Pole, war games to capture the Kaiser, automobile games, in the infancy of the automobile, and radio games for the crystal-set fanatic.
https://patents.google.com/patent/US2026082A/en (Monopoly)
https://patents.google.com/patent/US5662332A/en (Magic The Gathering)
Thank you. I concede, this one is proof that an application that's essentially board game rules can be accepted. Whether rules not tied to a particular machine should be accepted is debatable. https://en.wikipedia.org/wiki/Machine-or-transformation_test...?
... and that this is so infrequent that it is news.
My uncle is such a garage inventor, and has made a comfortable living for himself by licensing a number of different inventions.
One of the things he invented was the Zipit drain cleaner. It's a long piece of plastic with barbs on it. You shove it down your drain, pull it back out, and it pulls out a gigantic disgusting hairball that you had no idea was down there!
It's really quite remarkable, it works so much better than what people were using to unclog their drains before. It seems obvious in retrospect, so why weren't such products already on the market?
Unfortunately after seeing the success a competitor decided to copy it and, when my uncle tried to sue, the competitor got the patent invalided. Meanwhile my uncle lost much of his savings in legal fees.
https://usinventor.org/portfolio-items/34660/
In my (biased) opinion, this was a case of a legitimate, deserving patent. But all the junk patents and patent trolls, and the arms race you describe, have shifted expectations so much that the patent review board now tends to invalidate everything brought before them. So now the patent system doesn't even work for the people it's supposed to work for, since when a small inventor makes something actually worth patenting, a big company can just invalidate the patent.
With all that said, I do agree that software patents are pretty broken. If nothing else, the 20-year time limit is way too long, as technology moves much faster than that. We are constantly building the next layer on top of whatever was invented last decade, so last decade's inventions have either become foundational or have been discarded. Patenting an idea means it has to end up in the later category, as a proprietary idea cannot be made foundational; the industry must work around it. Meanwhile, the upfront investment cost in software ideas is much lower than other kinds of inventions, so there's no need for 20 years of royalties to incentivize it. I think software patents could make a lot more sense with something like a 3-year time limit. But I'm not really sure it's needed at all, as first-mover advantage seems sufficient to reward many software inventions.
(Disclosure/disclaimer: I work for Cloudflare, but obviously the above is personal opinions. I am proud of what Cloudflare has done with Project Jengo -- which I had no personal role in, I'm just an enigneer.)
Otherwise, you will spend more time and energy on that lawsuit than your work on invention. It's what economists termed "deadweight loss".
It has at time proven to be a business mirage, especially if inventors start suing other inventors and pioneers rather than getting on with copying and improving upon each other's work. Invention and engineering is a collaborative process, even if at time, adversarial. Can't really let a few folks has their monopolies at the expense of everyone else.
Well then, let the inventor try and get profit from their invention. An idea is never enough: it's the execution that matters, so let the inventor go forth and execute.
they weren't intended to be used by huge companies to help further their already impressive monopolistic empires. they collect them and use them as a kind of insurance or mutual-assued-destruction policy. microsoft won't sue ibm (and so on) because both have such a vast portfolio of garbage patents that they know they could tie each other up in litigation for 100 years, and they don't feel like paying for it.
then you get to the trolls. our government is actually enabling and encouraging a semi-legal form of extortion. the big companies can pay or pay to fight. it's a tax on everyone in the business though, even when winning. only the attorneys really win here.
it's obvious that the time and place for patents has come and gone.
- they don't do what they are intended, do much more harm than good.
- other comments are 100% correct, "software" (algorithms) and other similar areas like the one in TFA should never have existed in the first place.
- the pursuit of patent portfolios has created a surge of really bad patents. it's really been the entire life of the internet and modern computing. "one-click-patent", etc. and far worse. so why actually encourage more and lower quality patents?
- it does no good for an inventor to go get a patent, because even if the spiffy device is successful at market, the chinese will steal it with or without the little patent number engraving on the bottom. hell, they'll copy that too. if you find out who they are and sue them, they'll pop up as another company. if that's who you are competing against, why waste time and energy on anachronistic non-functioning armor.
- better option for an advantage from a unique software algorithm is to: be to market first and, if desired, keep it a trade secret.
- i think it'd be relatively easy to fix. first, allow the patent-holder to pick or easily challenge the venue (to kill east-texas) and second, allow awarding of attorney costs for the defendant, and force the plaintif to post a bond to prove they can pay them.
- but why bother? just abandon the whole system. it literally helps nobody.
Did that actually broadly happened over the history of patents? It sounds intuitive enough that patent protect the little guys, it's another if it actually happened for any period of time.
I remember reading that the Wright brothers spending time and money suing other inventors and pioneers over their patents. Ultimately, they weren't very successful at building a business and fell behind. That capital spent on a lawyer could be spent on their business or improving their machines.
the Wrights are kind of a sad story, but one that HN readers should be familiar with. technical excellence and just flopped at the business side. they got far too wrapped up in secrecy, almost paranoia, and like you pointed out, it just delayed and eventually ruined them. strain from fighting basically killed Wilbur at 45 years old.
Whatever the people that created them intended, they were used at first to grant favors to well connected people (some times for good reasons, other times not), and then to enable industrial monopolies on planned economies.
That last one is the format that the modern version is based on.
i brought up intention because it's a) historically true and b) to contrast with the complete opposite that they developed into. you get rid of something without acknowledging what it was intended for and looking at whether it's still helping or not. i don't think any of that is foolish.
This is a ridiculous (and incorrect) opinion being presented as fact, coupled with a lot of strawman arguments.
The fact that the implementation of the patent system has been massively abused over the past few decades does in no way imply that the theory is flawed and that
> just abandon the whole system. it literally helps nobody
This entire comment is as ridiculous as claiming that "kids keep graduating from high school with barely any education, we might as well abandon the public school model and have every parent teach their kid".
A chef can’t sit around and think up recipes and file thousands of patents. We explicitly agree in the law that it would be incredibly backwards negatively affect society if chefs got exclusivity on recipes and could sue home cooks for being creative. And chefs are still thinking up new recipes and using them in their restaurants because unique meals and flavors offer a competitive advantage. The reward is that you can keep your profits in our capitalist society. See Coca Cola and KFC. You have to use your knowledge in a novel invention to benefit.
In the same spirit, it’s not wanted to have people sit around and ideate about which instructions, and in what order, when fed to a processor machine, make it do useful things. Thousands of people program processors every day and we don’t want them getting sued because someone else figure out an efficient way to reverse a linked list. You have to run a software service that provides value and get people’s money that way.
Even if we concede that patents are useful in their intended purpose to protect actual manifest inventions, not just ideas (patent office is supposed to require a prototype invention to be registered with your patent), that’s certainly not what patent trolls are doing and that’s not how the majority of software patents work.
For the purpose of discussion, to get close conceptually to some sane type of sane SW patent scheme you’d have to 1. make a linked list reversing library, 2. register the complete prototype source code with the patent office, and 3. be actively maintaining and selling your linked list reversing library for your patent to even start to hold water. But even then you’re running up against problem that software is purely algorithms (just like recipes) and those aren’t even originally patent-able.
Apple can’t patent an “object oriented operating system” unless they’re offering that system in isolation and as a whole to consumers for use, which they’re not, but someone at the patent office got tricked into granting them a patent. Patents are supposed protect the inventors of complete products, not tiny building blocks of knowledge (algorithms). The “patent hate” is because despite the arguably good initial conditions, the patent system has been abused by greedy people who are not benefiting society in any way whatsoever. And you should be infuriated by that.
https://constitution.congress.gov/browse/article-1/section-8...
: To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;
"Exclusive Right" means exclusive right. And I don't think the definition has changed much since the US Constitution was written.
https://www.etymonline.com/word/exclusive
I think it must at least be licensable, or authors couldn't sell copies of their works. But whether the IP rights can be sold is another question.
Authors and inventors are mentioned with the same language in the clause. Since it has always been true that authors can basically only profit from their writings by selling copies or originals of their works (without selling the right to the copyrighted material itself) then some form of licensing is necessarily included in the clause for both copyright and patents.
There may have been journalists at the time who wrote works for newspapers owned by others. If so, this would be a reason to include the right of selling all of the rights to one's writings or inventions in the clause. I genuinely don't know if this was the case though.
There are plenty of laws which have been ruled unconstitutional. But it takes someone making the complaint to a court for this to happen. Otherwise the legislature does whatever it wants.
Currently a majority of the US Supreme court thinks that the status quo at the time of the writing of the US Constitution or its amendments has bearing as to the meaning of those texts. Thus I mentioned back then authors sold copies of their works while retaining all other rights as indicating that "licensing" is within this clause. Whether or not total sales of the rights to the work is within the purview of the clause is another question that I'm curious about.
Which laws are those? I'm not sure why it wouldn't be in the scope of the constitutional grant of authority to congress. "by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries" The use of exclusive here makes perfect sense with how things worked then, and today. I think you are getting caught up in non-existent semantics. What would be the purpose of the clause if authors/inventors couldn't sell their work? what would be secured in the exclusive rights that benefits the furthering of arts and science if inventors and authors couldn't exploit their exclusive rights? I'm a copyright and patent litigator and I've never heard anyone make the argument you are making.
Not that they can't sell their work, but that they can transfer their exclusive rights in such a manner that they themselves can no longer exercise those rights.
And laws which allow this are obviously, by definition of the words at the time, not "securing" those rights to the authors and inventors. You can't secure something to someone by allowing them to (both post-hoc and especially pre-hoc) permanently transfer those rights.
Especially the pre-hoc transmission of rights as seen in various contracts (work for hire, etcetera) completely flouts the "securing" basis of the constitutional IP clause in that under no circumstances whatsoever did the rights ever belong to the author/inventor. The Constitution did not grant congress the authority to make laws allowing intellectual property protections to a pre-hoc transfer, but only possibly to transfer in which the author/inventor first had exclusive rights. Therefore any contracts which automatically assign any rights to any creations to another party the moment those creations are created cannot be covered by intellectual property protection laws created pursuant to Article 1, section 8, clause 8 powers, but must have some other constitutional basis (possibly under the commerce clause?).
I guess you could get around this argument fairly easily by saying that the "limited time" is X number of years or until sold. But then I still don't understand under what authority the purchasing party gets these IP rights, as they are not the author or inventor, and thus not entitled to any securing of rights under this clause. If they do have rights it must be under either common law which pre-existed 1789, or under another section and clause of the Constitution, since this is not a 9th or 10th amendment issue. Congress can't just make law willy-nilly however it wants to, but must do so under one of its enumerated powers.
I guess another way around this, and possibly the way it is done in IP law (you would know better than I), is that these rights aren't literally sold to another, but instead a permanent licensing contract is signed in which the author/inventor grants use of their exclusive rights to the licensee to do with however they wish. In this way the "exclusive rights" would still be secured to the author/inventor, though exercised by the other party. This seems like sophistry, but much of the law is.
I don't follow that those words are the "laws" you are talking about. The security of the right is the intellectual property. The patent secures the space the invention covers. The copyright secures the space the novel expression covers. Your interpretation of "secure" is completely specious and has no basis in law.
Can you point to anything to support that understanding of "secure"? It seems like you are doing the opposite than what you claim to be. Rather than reading "secure" as they meant it at the time, you are reading a new definition of "secure" based upon how you feel IP should be resolved today.
This is all besides that if an owner can license, then transferring the IP itself is trivial, as one can grant a license that covers all aspects of the exclusive rights.
I find it a bit ridiculous that you write "ways around this" as if your argument has any actual basis in law. It doesn't, and it seems like you have no experience in licensing IP rights. While that's not necessary to have an opinion, it certainly has not left you with an understanding of how things work such that you could base a reasonable opinion off of that.
> Can you point to anything to support that understanding of "secure"?
I'm a regular person who is trying to interpret the law. I'm failing. This is probably because I'm getting too lost in thought. But the law should be clear enough that regular people can understand it without citation or legal knowledge. It should not be a specialized field except that specialists have broad facility in application. It's a definite improvement that modern laws abandoned parsimony for as precise as possible definition of terms.
That's all.
And the plain meaning of "secure" at the time was: "The sense of "get possession of, make oneself master of" is from 1743." https://www.etymonline.com/word/secure With "no one can serve two masters" a biblical phrase that Jefferson would have been well familiar with.
> This is all besides that if an owner can license, then transferring the IP itself is trivial, as one can grant a license that covers all aspects of the exclusive rights.
Exactly. I did eventually figure this out. I still think that it's a sophistic end-run around the plain text of the clause, unless said license includes a clawback provision that the author/inventor can unilaterally initiate.
But I also believe that the founders knew about the Sophists, Shakespear's Merchant of Venice, and the like, as well as some of the arguments at the time over what to include in the Constitution. And that if they wrote ambiguity into Constitutional provisions, they likely did so on purpose. Definitional changes accounted for. Which puts me at odds with most jurisprudence.
It’s a bit of a joke, and I guess you don’t realize it. But the point about academic references is that you are making an academic argument. You’d think that if your point was true, that it is SO OBVIOUSLY beyond the plain meaning of the word, SOMEONE else would have said something in the ensuing 200 years. Yet here we are, you telling me you know what the founders meant, despite all the evidence and common sense running against you. Okay buddy - good luck with that.
The Constitution only allows congress to "exclusively secure" IP rights to the originators of the material. It does not allow congress to "exclusively secure" rights to anyone else. The only way I can make this work is through an originator licensing a work to a single other entity, and in said license guaranteeing that other entity that the originator will not otherwise use any rights they own except to the extent of the exclusive license to the other entity.
This works. I still think it only really works if the originator has the unilateral power to break the agreement. But I can understand someone legitimately making a counter-argument.
In an originalist sense, the founders were very much against royal grants of monopoly, so limited the power of the government to grant monopolies solely to the originators of ideas.
I'm no longer confused, so yes we can drop this line of discussion. I hope you understand that I wasn't talking about just one word, but the word in the context of the rest of the clause.
The only people who would advance an argument against transfer of IP rights are those who don't have standing to make such an argument.
(what could they do with it then? you realize not all inventors are interested in running businesses? licensing was not a new concept to the founders. obviously you have no rebuttal to this, but I just want to hit the point home because I find your argument so obnoxious in the profundity you think it belies)
including the founders themselves, who you cannot cite to say meant that their entire concept of property rights was somehow distinct when it comes to patents.
In my "arguments" as you call them I am not citing jack shit other than the constitution, time-specific definitions, and some recollections.
AGAIN I AM A CITIZEN TRYING TO UNDERSTAND THE LAW BY READING THE PLAIN TEXT OF THE LAW.
> including the founders themselves, who you cannot cite to say meant that their entire concept of property rights was somehow distinct when it comes to patents.
There were a lot of distinctions written into the constitution that separated it from preexisting common law and royal prerogative. Titles of nobility, etcetera. So when trying to understand the basis of the law I necessarily revert to the knowledge that the constitution is the supreme law of the land, and thus it's text is definitive as to jurisdiction and powers.
AGAIN, I SAID THAT I FINALLY UNDERSTOOD THAT THEY CAN EXCLUSIVELY LICENSE THEIR RIGHTS. BUT THE CONSTITUTION DOES NOT GRANT CONGRESS THE AUTHORITY TO GRANT RIGHTS TO SOMEONE WHO IS NOT THE ORIGINATOR. SO I WAS TRYING TO FIGURE OUT HOW THIS WORKS. *I NOW UNDERSTAND HOW THIS WORKS!!!!* I still think there are holes in it, or of my understanding of it, but these aren't killer holes.
FOR GOD DAMN SAKE. HOW IS IT OBNOXIOUS TO WANT A COMMON CITIZEN TO UNDERSTAND THE VERY LAWS HE LIVES UNDER? AND THEN CALL HIM ASININE AND OBNOXIOUS FOR TRYING TO FIGURE IT OUT VIA DIALOGUE?
No, you're talking out of your ass, and you wont listen to reason.
>AGAIN, I SAID THAT I FINALLY UNDERSTOOD THAT THEY CAN EXCLUSIVELY LICENSE THEIR RIGHTS. BUT THE CONSTITUTION DOES NOT GRANT CONGRESS THE AUTHORITY TO GRANT RIGHTS TO SOMEONE WHO IS NOT THE ORIGINATOR. SO I WAS TRYING TO FIGURE OUT HOW THIS WORKS. I NOW UNDERSTAND HOW THIS WORKS!!!! I still think there are holes in it, or of my understanding of it, but these aren't killer holes.
Not sure why you think repeating yourself in caps-lock makes a difference. Congress can't grant a patent or a copyright to anyone else but the inventor or the author. The author and the inventor are free to do what they want with that property right. Nothing you said about the word exclusive or anything else changes. This is entirely common sense as I've pointed out to you several times. I also pointed out that your reading of the text is baseless, defies common sense, and the plain definition of any of the words. You, of course, insisted otherwise and that you were obviously correct despite a complete dearth of any kind of support. There's no reason for you to be electronically yelling at me, you got yourself here on your own. You were pompous and rude, why should I be courteous to you at all?
None of this shit is "obvious" without understanding a lot of legal basis. I didn't understand the legal basis until this discussion.
that usually seems to lead to blathering "sovereign citizen" nonsense
Those are not patent troll companies. Patent troll companies file patents and then sit on the patent until they can sue another party for infringement, and never make an attempt to commercialize their patent.
Another example of not using it in the use it or lose it scenario is Pfizer's acquisition of Esperion Therapeutics in 2004. Esperion was developing a competitor to Lipitor, so Pfizer purchased Esperion for $1.3BB and shelved the technology to prevent competition with their best selling drug. Had Pfizer "lost" their patent for failing to commercial Esperion's drug, that drug could have entered the market as a generic to compete with Lipitor and severely reduced the cost of statin drugs for consumers.
Patent holders are not required to license their patents last time I checked. You are simply required to acquire a license prior to using patented technology.
If they don't want to license it, you're SOL.
(edit: if you were speculating on what should be, and not what is, then my bad... :)
That is apparently right and I learned it wrong (but it does seems wrong to me).
edit: after reading the siblings answer, I apparently wrongly overgeneralized the way it works with patents in standards
This is Qualcomm's big business (and others), getting their patents into standards like 5G and then charging people a fair amount to use it - and they have to license it to everyone, even their arch nemesis. Or you just buy their chips.
For a patent of something you invented, but did not submit to become part of a standards-body, you absolutely can choose not to license it for any amount of money.
Patent trolls will point to their prior victims as current licensees, proving successful commercialization.
Many of the patents asserted by trolls were not actually filed by the trolls. Most often the troll company simply purchased the patent from the original owner (or, often, a bankruptcy court) and then they proceed to go about suing others using their newly acquired weapon.
We really need a patent troll version of anti-SLAPP laws. To go past the shell company, and hit the people who run them.
If you invent something, there's a work product. There is documentation, notes, blueprints, CAD files, software, etc. You can sell this and license it however you want. You can sue people that use it without a license. More importantly, you as the original author can use the IP as you see fit.
All of that is what I would put under the category of "use it." If you stop licensing it, then you "lose it."
Personally I don't think you should be able to sell the invention as an idea to another company that only relicenses it, but I get that there needs to be a market for IP itself.
These would only be protected by copyright. So if you invent something but do not have the resources to create the implementation yourself (and therefore cannot patent the invention under the scheme proposed by GGP), but you licence the work products (documentation, software) to one or more companies who can then implement it, a larger, well-resourced competitor can just reimplement it without paying you as long as they did not need to use any of your documentation or software. So that reduces the value of your work products.
But if the converse happened, e.g., your customer reimplements something invented by the large competitor, they can get sued, because the large company, being able to implement their invention, can therefore file a patent. So it amplifies the effect of having more resources.
It would be fairer to treat the large company the same way, and only let them copyright the work products rather than patent the invention, putting them on the same level as a smaller inventor.
It is a bespoke kind of business, tailored to the specific technology and investment network of the people involved.
One example is ARM, which licenses the processor designs they create, and do not build or sell the chips themselves.
I'd be more on-board with the idea if non-software patents only had say a 5 year lifespan
Dedicated patent trolls will trivially overcome any hurdles by cheaply doing just enough to legally demonstrate they are working on future commercial applications blah blah honest.
Meanwhile, it likely puts up a prohibitive cost that will prevent the smallest genuine inventors from inventing?
In such a society, the rules need to be enormous and complex, much more than a 2 sentence HN post, to eliminate all the edge cases and loopholes everyone will naturally want to take advantage of.
Those 'taxes' already exist (at least in the US system). They are called "maintenance fees".
See https://www.fr.com/insights/ip-law-essentials/everything-abo...
Failing to pay the fee causes the patent to expire, and be unable to be used to sue someone. So these troll firms must also be paying these fees to be able to sue based on the patent.
Why only those things?
Not really.
Some patents are fantastically valuable to patent trolls. Some are not. A $500/year fee isn't going to deter a "company" of lawyers who are making millions soaking businesses with patents that should never have been granted.
If you want a scheme that actually does what you want, you'd need something like:
The owner of the patent chooses the fee that they pay per year. And anyone can pay that fee * the remaining years on the patent * some multiplier (probably in the 2-10 range) to prematurely end the patent.
So, if someone's got a patent on a hamster powered submarine, they can keep it for $1 per year (or whatever the minimum should be). And that's fine... because it isn't harming any one since no one wants to build such a thing.
But a patent that a troll is using to milk the industry with will need to have a pretty stiff fee or people won't play ball, they'll just buy out the troll.
Invalidity arguments and IPRs suddenly aren't things?
I'm sure that you're aware that when you go to court, the result is never certain. Bad ruling happen all the time.
Presumption of validity is what makes patent trolling more lucrative than other forms of predatory litigation. You're guilty until proven innocent, because the law assumes that the patent office is generally doing the right thing.
It's just an evidentiary presumption that is trivially rebutted with any evidence.
In the future you can amend the value claim, but you can only adjust it down.
Companies and researchers should be free to patent to protect themselves, but patent trolls with no clear technological development (no lab, no product, no licensing+developing) should be stopped.
It seems easy to me to draw a bounding box around these behaviors with a simple test. Perhaps like a Howey test [1], but for patent trolling.
If other people are better than you at seeing what some technology could be used for it, then maybe we should lower the barriers for those people. The whole point of the patent system should be to provide the greatest benefit to the greatest number of people.
The two are very different concepts.
edit: this is why you don't patent every damned thing, just the things that you believe will be profitable over the next 20 years. Otherwise, the cost of researching and filing the patent, as well as maintaining it, may well exceed whatever profit you actually get from the thing.
Unless you work for a corporation, that owns your intellectual output anyway, and encourages you to submit forms for anything that looks even remotely patentable.
But even then, if you devise some thing that will be very useful if we ever get teleportation working, your employer may still not patent it, if they believe that teleportation is more than 20 years away.
So basically ending patents? If you invent something fantastic, say a way for a self driving car to perfectly sense its surroundings, Ford could just come in and pay whatever amount to invalidate your patent and prevent you from bringing your invention to market?
I get that people don't like patents because they sometimes get abused, but on the whole I think we wouldn't have a lot of the things we take for granted if they didn't exist.
This is where the patent system shines. Because he got a patent he could shop around, sell it to a company which made a tidy profit on it. He didn't need to raise capital to establish a factory and all that to bring it to market and the company buying it seriously got ahead without spending an inordinate amount of money and time inventing the thing.
That sounds like a highly constructed example, and even if we take it for bare value, makes a lot of assumptions, for example that whatever you invent is patentable.
The way you phrase it also makes it sound like patents are all about individual contributions, when in reality the era of lone genius inventors is long over (if they ever existed). In the US, it's practice for your funding institution to keep all the rights to your inventions, so if you invented the perfect sense for self driving, it's highly likely that a company like Ford already has the patent, because they quite literally own your intellectual output.
Imo, I feel the same way like OP, there needs to be a use it or loose it doctrine, just like there is with trademarks. Overall the legislation around intellectual property and copyright feels to be in favor of big corps at the moment and should be heavily castrated.
The "you" in that case could very easily be a startup
Some people would say large businesses can make things cheap in a way that small businesses can't compete with. However, that turned out to not happen in practice as big companies chase huge profit margins, supported only by the government.
China doesn't have this problem the US does because they have weaker patent laws. Patents need to be eradicated ASAP or we will not be globally competitive. We are also harming humanity as a whole as the inventive utility of patents simply doesn't scale in proportion to the harms, with the large populations we have now, they are clearly harmful on balance.
The fundamental problem with patents is that the benefit has lower asymptotic complexity with respect to population size than than the harm does. When you exceed some population size, patents become harmful.
The utility of copying is N^2 since you have O(N) copiers and O(N) inventions to copy from.
The harm of patents is therefore O(N^2) since this is the copying that patents prevent.
What we find is that the benefits of patents seem to scale at most around some O(N /log N) ish metric. Doubling the population size increases the number of inventors, but the chance an invention was already invented by someone else increases as population size increases. Hence the benefits of patents scale worse than O(N). Applying that to the harm and we still get O(N(N/logN)) for harm and O(N/logN) for benefits. Clearly patents do not scale.
* Here I am using Log N as a substituite for the difficulty increase of finding an invention not already invented. This exact measure is difficult to estimate.
A slightly different approach would be for patent owners to declare an estimated value and pay property taxes on that value to enforce their monopoly. (They may also wish to update the estimated value periodically as circumstances change, perhaps every few months or years.)
To keep owners honest, anyone is allowed to pay the owner a multiple (1.5x? 2x? 10x?) of the patent's current estimated value to invalidate it.
If the patent owner wishes to hang onto the patent but cannot afford the taxes then perhaps banks would be willing to offer a patent equity line of credit, like using any other income-generating property as collateral.
To use your example, if you estimate that your self-driving patent is a ten million dollar asset and Ford pays you twenty million dollars to invalidate it that seems like you come out ahead because you have more than the patent was worth and can still build your product.
Part of the problem is having a huge number of BS patents driving up the cost of going through all of them to figure out what's what.
Its not the only problem with patents, but i think a "property tax" solution would solve some of the issues. I'd like it to be incrementing each year - like first year $0/year, and increasing each year so the longer you keep things out of the public domain the more you need to be able to self-jystify its value.
This seems like a pretty bad attempt at such a scheme.
is it is always a bad idea to ear mark a tax for a specific purpose. Especially if you desire to use the tax as a punitive measure to reduce that which you deem bad for society, if it works now you need to come up with the money for the thing you funded elsewhere because all government programs are permanent
Look at smoking, all kind of things were funded on the back of smoking taxes, and when those punitive taxes worked to reduce smoking the revenue dried up but the budgets for for those programs did not so now the money had to come from somewhere else....
Using the tax code to punish or reward behavior is always bad
Isn't that pretty much the entire purpose of the tax code and why it's so complicated?
It's one of the tools the government has to shape behavior.
Actual tax revenue doesn't really matter since a permanent deficit and ever-growing debt is apparently fine.
Allowing the government to use taxation for purposes other than public finance has been and will continue to be an avenue for abuse, and authoritarian control ultimately leading to tyranny
You seem to misunderstand the entire concept of taxation, in its entirety, also. Taxes can either be used to raise revenue, or to correct for externalities. A tax that corrects an externality is valid on its own, EVEN IF, the revenue from that tax is burned or otherwise destroyed. It corrects for market failure, which leads to greater surplus.
The intention of legally enforced ownership is primarily to encourage development - and not to incentivize speculation as we seem to be doing in many situations. It seems reasonable to tax such speculation.
I'm inclined to agree with you.
For example, maybe the fee is $10000 for the first year. This doesn't come close to recouping the cost of a single enforcement action, but it makes sure that someone has some skin in the game. Then every year the cost gets 10x more expensive. Of course you are free to choose your own base and multiplier.
For someone to keep a patent for 5 years, the total cost would be $10k + $100k + $1M + $10M + $100M = $111110000. Maybe it's worth it for a patent like the light bulb. Probably not worth it for a drinking bird toy. But either way, the value decision is up to the patent holder, and the cost of the patent incentivizes rapid monetization rather than squatting.
The kicker is: the values are public, and if anybody wants to buy it for something higher than the assigned value (or maybe some fixed percentage above the assigned value), you HAVE to sell. Of course, the buyer is then taxed at the higher value.
Why punish patent holders because of patent trolls or garbage patents ?
Make it unprofitable to be a troll, and they will go away. Trolls need to be tagged , like pirates. There should be rules to make hunting for trolls profitable. For that, you need a "bounty". Here's my take:
In any patent dispute[1], the loser will pay as punitive damages (this is the "bounty") to the winner, the lower of (i) the winner's legal costs, OR the loser's legal costs x 2, plus (ii) loser must disclose the ultimate name of the beneficial owners (or material, if public) of the loser. EINs not allowed. The "trolls" are thus, branded.
The next lawsuit ensues. During research, it is found that one of the parties is a known troll that has lost 1 prior case. Now the damages, should troll lose, are 2X of any settlement OR punitive amount.
Should troll lose again, an extra 2x (total, 4x) gets applied on the punitive damage[1] to the troll and so on. If troll wins, his x is halved.
This does 3 things:
1- Incentivize public to seek out weak patents, or trolls, for a payout.
2- Makes Trolling much harder at scale.
3- Ensures huge companies face risks if they throw their weight around. Bigco can afford $$ penalties vs small fish, but cannot afford to be tagged a 2-4x troll. It makes them an attractive target for bigger fish looking for the 2X or 4X reward challenge of Bigco patent portfolio.
Erm, what service? A record in a database? How's that different from a patent office? I guess there's fancy registrar website...to do what...help me pay my recurring bill?
OK fine want an ongoing patient fee ? Make it $9.99 per year just like a registrar, who gives you convenient ways to renew and pay fees from a working, modern site, and allow migration , with a few clicks.
Is that going to prevent trolls ? Unequivocally, no.
Parent was arguing for some ridiculous, unnecessary , tax. Then cited registrars as an example.
My point, 1 gives a service, one does not. If you want to charge for a service, then make it transparent and make the fee reflect the service, not argue "hey we already charge for registrars" to make his/her point about a new, unecessary tax.
Edit: It is also there to make it slightly more expensive to create scam sites, but mostly for the anti-hoarding.
Now, Patents already require fees and also substantial paperwork. In effect that is the "hoarding" control.
I stand corrected that the point of ICANN and registrars to charge something is to introduce a barrier to entry. Yet, I'd argue you are still providing a service if the fees go towards nonprofit activity to improve interoperability.
Yet, introducing a huge fee to patents wouldn't really be conductive to anything on the patent side, which is at the core my issue: I'm not making a judgement about the margin on fees, i'm questioning whether there's a semblance of service. From my vantage point, registrars have made massive improvements in accessibility and ease of use, and as you said, they have lowered the barriers to entry. | I can't say the same at all for patents.
So TrollCo will just pay a different homeless person $100 to be the owner on paper for each of their patents?
I don't think you fully appreciate how tough is to run a business with someone's name on top of every document. Not to say its not possible for a determined actor, but its going to eliminate a lot of options from the get go.
Then, let a judge find out!
I work for a registrar and know people working at registries so I know that is not the case. The reason they charge more than like 1-2 dollars per year is to make it expensive to hoard domains.
I worked for a registrar for a decade+ and worked with a lot of hoarders. Very early on in my career I actually dobbed one in to our local registry authority (because I was naive, and he was CLEARLY breaching the requirements for our ccTLD and so I thought 'Well this is wrong and I should report it') and is how I discovered nobody actually cares about hoarding and just wants to maximise revenue. (Well duh I suppose.)
- small companies and private people can afford patents
- big corps do not get an advantage, in fact the bigger they get, the more expensive holding a patent becomes, ensuring they have to use those patents and not patent everything just because
- number of patents any single entity can hold is limited, unless they want to go in debt for holding patents
- there could still be a minimum yearly amount as proposed by you
There is literally no case in which society profits from a corp being split up into a thousand holdings.
amusing opinions that remind me not to trust them
1st year = 2000 USD
10th year = 1m USD per year
20th year = 1bn USD per year
It becomes prohibitively expensive if you don't use it. After 23 years it would make only sense for the most insane blockbuster drugs to keep going for another year.
What would this do to people who file their own patents to protect their own inventions? Historically, that's been the vast bulk of all useful inventions in this country.
IP is property, and it's taxed at the value you declare that it's worth.
However, if you swear to the IRS that it's worth $500/yr, then you can't claim in court that a violation of it is costing you $10,000,000/yr in losses. That would be perjury.
Your patent is worth $10,000,000? Awesome! I bet your local school district will love to hear how much you'll be paying in taxes on it.
It isn't now, but we could make it so.
Some states also tax car as property.
What is not taxed is Intellectual Property. Because it is almost completely owned by the super rich. And, of course, these billionaires need all the help they can get. How about we change this? We can think of wiping out property taxes for homeowners (making homes affordable) and fund education from patent taxes. After all, the super rich are deriving these patents from the education system, its only fair they pay their fair share.
a ship declared the value of their cargo for toll purposes. They decided the price, but the catch was the customs could buy the cargo at that price.
There's clearly values I'd easily accept, you offer me a hundred grand for my car and you can take it whenever you want.
Now for regular items like a car this would be hard. How do I value it and how do I not get caught out when second hand sales spike and I don't follow the markets?
But we're not talking about everyone's car. We're talking about asking the state to forbid others to make or build certain things (yes I know it's more detailed but you get the meaning).
That extra “value” (or tax on people) you ascribe to your car may or may not be distributed in manner that societally makes sense
Or have I misunderstood your point?
It may not be intuitive how the math works but this would be exploited so hard it would cause serious social and political issues. I don’t have a dog in this fight, I am just savvy enough to the math to see how bad an idea this is. Which is probably why no government has seriously attempted it even though it is an old idea.
What I like for IP laws is as follows:
When you create a protected work, you pay a very small fee. Say, $1 for copyright, maybe $500 for a patent.
Each year thereafter, if you wish to maintain your IP protection, you must pay double what was paid the previous year. Otherwise the property reverts to the public domain.
This ensures a period of protection if it's genuinely needed, but ensures that everything will eventually enter the public domain, especially in the case where no one is making any economic use of the material.
Currently, there's an incentive to disallow progress. If someone does not want to make use of their own patent, they are currently incentivized to sit on it and keep the ability to create that thing out of the hands of anyone else, "just in case". If we shorten the period as you suggest, to half (for example), then that freezes that progress for a decade.
If an incentive is created to put inventions into the public domain if one is not using them, then that is better for everyone.
And by doubling the fee each year, it becomes financially infeasible for even large companies to keep things out of the public domain forever. A fee of $500 that doubles annually would, at the 20 year mark that is the current patent lifespan, cost a half a billion dollars to renew for that year.
Congratulations on the massive net loss in taxable income in your country.
EDIT: Removed some mean words.
You don't see how such a policy would spur terror among large, profitable companies with trade secrets, leading to them moving overseas?
If this is the only real problem, than why not just let them go overseas? Let the market play it out? The boon of progress and freedom X country would get from becoming even little more rational about IP would pay for itself and be better for actual people.
That's what China has been doing for decades, and "gongkai" [1] is just one tiny part of it. While life for the average Chinese citizen has gone up - the CCP managed to lift hundreds of millions of people out of poverty - the life of most Western populations has gone down the drain as entire industries, entire towns were unable to cope with unfair competition.
The societal consequences of that will haunt us all for many years to come.
Companies are going to want to sell in one of the richest markets in the world; they can either pay for IP protection or not be granted it.
edit: I'm not suggesting these exact $ values as clearly being the correct ones, it's just an example.
Instead of doubling every year, my proposal is 5-year terms: the first is free, then $1000 for the next 5, $10k for the next 5, $100k for the next 5, etc. Feel free to adjust the actual dollar amounts, but you get the idea. Most stuff would be in the public domain after 10 years, if not 5.
Lots of people don’t know what their IP is worth, and it can change with market and tech trends.
And the damages aren’t based on the harm to the IP owner, but on the benefit to the infringer.
I could have a patent that I think is worthless, but in 10 years I discover that a multinational flat out stole the IP after an NDA meeting. What is the value that I should have declared?
My rationale is that it means that only people that are rich can own property as they can afford the taxes, and especially if the property has increased in value over time and has no or small associated cash flows. By all means tax gains on realization (though I’d argue there should be a CPI adjustment to the basis but that’s another conversation)
the moment you put an expiration date on patents due to lack of use, watch moneyed competitors sitting around waiting for your patent to expire instead of using yours to bring it to market
you could have just written about it on your blog and been the same place and been a net positive for society
I'm talking is about real inventions. Television, radio, wheeled luggage, etc.
I also think that code should be copyrighted, not patented.
Patents use to mean something else, and I can see we are talking about different things.
What is at the core of this need to steal other people's ideas? HN is supposed to respect the rule of law and western respect for innovation and collecting the fruits of your labor.
If someone won't give you a decent price, reverse engineer their work and come up with a creative alternative.
I'm not arguing that its OK to patent code or abstract ideas that are the basis for BS "catch all" patent infringement lawsuits or amazon 1-click buy nonsense. I'm talking is about real inventions. Television, radio, wheeled luggage, etc.
I also think that code should be copyrighted, but cannot be patented.
Pretty sure the original idea of patents was to protect the inventor while they brought a product to market or licensed the patent to others to improve their products.
Holding a patent without even attempting to bring the idea to market should invalidate the patent after some reasonable amount of time.
The whole system as it is today needs a hard sanity check.
It was to protect the inventor so that when they did take it to market, or license it, someone else couldn't just make a copy of the same thing and sell it for cheaper not having to recoup r&d costs.
>Holding a patent without even attempting to bring the idea to market should invalidate the patent after some reasonable amount of time.
Patents are already invalid after a certain amount of time. I'm not sure what you think a reasonable time to bring a new invention to market is, but it's not far off from what the limits on patents are already today anyway.
By the way, where do you think these patents come from? They belong to companies that couldn't succeed in the market for various reasons. They go under and they sell their assets, which in these cases include any claims that could accrue to them by the short period of exclusivity granted to them for their invention.
You're looking at 10k to file it, and then all it gives you is the ability to sue. If [insert company] violates it, you could easily be looking at 100k+ for litigation that you may or may not win.
> So if I invent something
My problem is you don't need to "invent" anything. You just need to be the first to file the paperwork (and have the cash to do so).
"[sensor] on [smartwatch, glasses, goggles, belts, chairs, whatever]" and now nobody else can do it for 20 years. Even if it's blatantly obvious that an chair can sense if you're sitting in it to turn on the tv automatically.
Would it be possible to pass a law that says you can't own a patch of land unless you develop it sufficiently for some public utility? You can't own it unless you build a house on it, or an office? What about all the rough land, that isn't close to a development yet, but is anticipated to be? If someone can tell me how a law like this has been shown to work, perhaps even in a limited case like densely populated zones, then I might be persuaded.
This is exactly how mineral rights work. The federal law says you need to do $100 worth of development on every claim every year to maintain it [1]. This is not something new.
[1] - https://www.ecfr.gov/current/title-43/subtitle-B/chapter-II/...
>You can't own it unless you build a house on it, or an office? What about all the rough land, that isn't close to a development yet, but is anticipated to be? If someone can tell me how a law like this has been shown to work, perhaps even in a limited case like densely populated zones, then I might be persuaded.
And as for this, we already have this. It's called a land value tax. A tax that discourages unproductive land use.
Thank you CloudFlare for doing your part!
If they settled the trolls would just keep coming.
If they fight the patent extortion then trolls are going to think twice before suing them, for fear of losing .
They were also getting sued regularly, by patent trolls.
They had really good lawyers, and had a basic policy, to never settle with trolls. It wasn't altruistic. They just didn't want to get bullied. I'm sure that they also went after other companies, and there was probably a lot of wheeling and dealing. That's one of the reasons that corporations like to hoard patents.
They used to require their engineers to file a couple of patents a year. I am on a patent. I got a dollar for it.
It's likely that over the lifetime of the patent, the total cost would have been more than the cost to fight it, and as the a sibling pointed out, settling begets more suits + settlements. It adds up fast.
This isn't Cloudflare being "good," it's in their best interest to fight frivolous suits.
At first I was wondering what routers existed back in 1900, then realized it was not that turn of the century. I think this is the first time I have see 'turn of the century' refer to 1999->2000.
Chicago Manual of Style has some good usage suggestions on this...
https://www.chicagomanualofstyle.org/qanda/data/faq/topics/U...
>A: Instead, write “at the beginning of the twentieth century,” or “at the end of the nineteenth century,” or “in the years around 1900.” “The turn of the century” is useful only when the context makes it obvious which turn you’re talking about.
Of course when talking routers I guess the context was clear.
https://en.wikipedia.org/wiki/American_rule_(attorney%27s_fe...
Versus https://en.wikipedia.org/wiki/English_rule_(attorney%27s_fee... in much of the rest of the world.
[1]: https://en.wikipedia.org/wiki/Octane_Fitness,_LLC_v._ICON_He....
[2]: https://www.forbes.com/sites/danielfisher/2014/04/29/patent-...
They ought to do so, if only to discourage patent trolls.
Link: https://web.archive.org/web/20140429231129/http://www.suprem...
Relevant part on page 10.
We should hold the lawyers accountable. If you as a lawyer bring egregiously bullshit cases, you should be on the hook for the costs.
So we should understand that we don't have a way to be perfect and think about where to balance the trade-offs.
We want to give people a chance to make money before they are wiped out by those that copy them but I don't think we have an interest in someone "cornering the market" indefinitely.
We could reduce their lifetime - that would cut a lot of decisions.
We could limit the amount of money a patent is allowed to return based on an estimate of what it cost to create plus a reasonable profit rather like a kickstarter campaign.
We could cancel software patents altogether.
Seems like a valiant stance but still short of what is needed something industry wide - something to invalidates this “business model” entirely
Even if the troll's claims are completely ridiculous, if you don't have a few $100k lying around for legal fees, you might not even have the option of going to trial. What do you do in such a case?
It will cover enough fees to at least give you enough insight about what is happening, if you should defend your case, if you are faulty or if you should just ignore the threat.
Also, even if our judiciary system isn’t perfect, I doubt you will find a judge that wouldn’t be comprehensive of a random being attacked by a corporation. Especially if there is no obvious malicious intent or personal benefit, you only risk some symbolic fine and the order to stop.
So, I would probably ask for judiciary advice and either ignore or comply to the troll.
Can't I short-circuit that by just selling services elsewhere?
Aren't there companies that just refuse to abide or negotiate with patent trolls, out of spite, what happens then? Can a patent troll shut down a company? At some point, wouldn't that make the news? What are the risks? What allows patent trolls to have legitimacy?
I can understand that it's mostly a scam operation to extort money to those who want them to go away, but that can't always work.
I've heard it's mostly a few courts in Texas or elsewhere. Isn't it possible to just not interact with the states where those patent trolls are?
Today we have Wikipedia and other free open databases for that.
Use Alice instead.
Using prior art is a waste of time.
The complaint is that software patents have been awarded and interpreted far too broadly, and coupled with the relatively low cost of R&D for software, have begun to stymied innovation in the same way patents intended to prevent.
But they didn't innovate and were taken over by Lotus 1-2-3 four years later.
Lotus was great, graphs and all.
Same thing happened to the Lotus, Excel was just better. Lotus didn't innovate (e.g. IBM had first ever pivot tables and they made separate spreadsheet program for it instead off improving Lotus).
Or the patent protection is contingent on limits to marketing and admin overhead
That’s a fantastic argument against software patents. I can’t believe I’ve never thought about it in that way.
The consequence of this is that the state-of-the-art in many areas of software are not in the public literature and there is no trivial way to learn it. Ubiquitous deployment in the cloud greatly limits the ability to reverse-engineer the underlying architectures, data structures, and algorithms. This is notionally the situation patents sought to avoid, but the practical unenforceability of algorithm patents has made it the default outcome regardless of whether there are patents on software.
Preserving this knowledge for the future of humanity is critical.
Don't be deluded, the patent system serves as a weapon for bigger companies to block competition. That is their only goal.
You should always be able to make your opponent's arguments at least as well as they do, as that is the first step to overcoming them.
The argument from patent proponents is that without the legal monopoly, they would rely on trade secret law instead, so they would do their best to ensure no one else understood what they do. They still do, within the confines of what disclosure is legally required to get a patent issued (I once had an engineer tell me that if he had not invented the thing being patented, he would have no idea what the patent application the lawyers wrote for it was describing), but at least there is a legal requirement.
Of course, there are important contexts where that argument is irrelevant, such as standards development. Trade secret law is no use there, because the value is in the network effects of the standard, not the invention. Yet we still have patent-riddled standards.
Look at China, and the argument of "maybe it will be bad" turns out to be wrong. I'm not saying the system is perfect, far from it, but the idea that patents are a life-saving measure is utterly false. Companies live and die in both systems, but at least in China they get to share their improvements.
The premise is that a patent is necessary to have funds for continuing innovation, but that's just not understanding what capitalism is and how pervasive it is in our society. The reason individuals need money is precisely because of capitalism redistributing money to those who have the most already, not to the ones who need it the most, not to the ones making the most progress, or not to everyone in a fair manner allowing all of us to live without worrying about that aspect (yes, there is more than enough resources creation for all of us). The patent system only furthers this uneven distribution. Innovators do not calculate the amount they might be getting from their invention before setting about and coming up with something new; that is a lie that needs to disappear.
Patents are not making the society better.
OTOH, I’ve never, not once, ever, heard of someone reading through the patent database to learn how to do a thing. I’m sure someone has done such a thing, but that’s not the norm. The patent database is where you record that you were the first to claim to have done a thing. It’s not where you meaningfully explain how.
Every month HN has a thread like this, and every month the usual suspects rant about how patents are fucked up, and there needs to be this, that, or the other. And nothing changes.
Ask your local candidates for Congress if they'll support removing patentability for software. That's how you solve this problem.
The reason patents (and copyright) have gotten so bad is a mixture of corrupt lobbying activity and a quagmire of questionable international treaties.
It only seems "suddenly" because all the behind-the-scenes activity was going on when no one was looking.
That's not how any of this works. You don't think some people have already "asked their local candidates for Congress" about this? Surely you have personally done that? If you have, then how come the problem still exists? Clearly your action of "asking your local candidate for Congress" did not solve the problem...
Actually, no, I don't think they have. Judging by the lack of ANY bills in Congress, even bills that get shitcanned by the leadership -- no, no one has.
I was going to quote the rest of your post, but it's all ignorant.
I know how the lobbying in Congress goes; I personally helped hire one of Google's DC political representatives. Do you know anything?
The way it goes is, the big pharma companies block any patent reforms. The way to get them out of the picture is to remove software from the patent system.
As for "Clearly your action of "asking your local candidate for Congress" did not solve the problem" you have some warped idea of how representative politics works. You don't just talk to someone and your wishes get magically carried out. Rather it's a sustained struggle where the enemy gets to have their say, too.
You claim that an ordinary person, such as myself, could affect real change by "calling my representative" or something silly like that. No, I can't.
> it's a sustained struggle
Sure. This I can agree with. The changing-things part, not so much.
You just keep sitting there and playing games on your console, because you wouldn't be a good spokesperson.
Never Doubt That a Small Group of Thoughtful, Committed Citizens Can Change the World; Indeed, It’s the Only Thing That Ever Has
(not really Margaret Mead, according to https://quoteinvestigator.com/2017/11/12/change-world/)
I'm sorry you feel so powerless. If you look deeper at how things actually happen, you might get more hopeful. Get well soon.
Just imagine the things you can achieve in politics with that level of sincerity!
I just don't understand why people like you feel the need to lie so much and so constantly.