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Comment by drzaiusapelord | Hacker News Reader

This is a fairly bad ruling. Patents should be thought of as invalid by default, especially considering the rubber stamp methodology used by the USPTO. None of this is addressing how trivial it is to get trivial patents, then use them for monetary gain against those who actually build things.

70 year olds making tech policy is just scary. This is a major boon to "troll" companies and probably sets back any reform movement several years if not decades.

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The presumption of validity is ingrained in the patent system. Otherwise, what would a patent grant mean?

I've been involved with my own patents and other patents long enough to see the patent office become relatively less rigorous than when I first started patenting things.

The response could be to weaken the meaning of a patent grant. Maybe the answer is for the government to offer a bounty to overturn grants of patents. But that implies the patent office would be any better at filtering challenges to patents than they are at filtering applications.

>Otherwise, what would a patent grant mean?

Exactly what it is: a government protected idea untested by the courts. If its still untested, it should be assumed invalid. I don't see what's wrong with that.

If there is ever a bounty system, it should be via a 3rd party mediator, not the very same USPTO that gives out invalid patents, many often with trivial prior-art or questionable logic like appending "on a touchscreen device," to an ancient computer science concept.

> Exactly what it is: a government protected idea untested by the courts. If its still untested, it should be assumed invalid. I don't see what's wrong with that.

On that assumption, why bother having the USPTO at all? If something "untested by the courts" is invalid, you're effectively appealing to the court as the arbiter of all innovation.

However, the court system is not equipped to be evaluating innovation claims, either in terms of time or expertise. I suspect the outcome would be worse.

>why bother having the USPTO at all?

Because 18th century economic theory dictated a patent process because back then information moved so slowly it was easy to copy a design and market it as your own with consumers unaware that it was a copy. How this remotely connects to software in the information age is beyond me. I don't see a need for the USPTO at all, outside of trademark protection.

It's a barrier to entry. Even if the court assumes the patent is invalid without the USPTO it would be easy to bring unlimited trivial nuisance suits with a clear incentive for 3rd party's to settle. It also acts as a clear timestamp.

The USPTO patent being assumed invalid is simply to avoid spamming patents until something gets though.

Relevant: http://patentlyo.com/patent/2014/06/proper-presumption-valid... ("According to Justice Breyer’s concurrence, joined by Justices Scalia and Alito, the presumption of validity only provides protection against factual elements of an invalidity challenge. That concurrence, and the Supreme Court’s recent opinion in Nautilus, Inc. v. Biosig Instruments, Inc., suggest that the presumption of validity has no application to purely legal bases for invalidity.")

Assumption of validity isn't the only path. In Australia there is no assumption of validity; the court essentially re-examines the patent when a suit is brought. This doesn't necessarily increase costs/time either, the Federal Court (has patent jurisdiction in Australia) exercises pretty decent case management to ensure that frivolous suits are quickly dealt with.

The USPTO is far from perfect, and examiners make bad calls sometimes... but it is by no means trivial to get a trivial patent issued. And the idea of a presumption of invalidity (as opposed to, say, no presumption one way or the other) is so ludicrous that it doesn't bear response.

It seems reasonable for courts to avoid injunctions or punitive damages for periods prior to a patent being tested in court. Calling this invalid or no presumption is more or less the same concept.

No, it isn't. The presumption goes to how hard it is to assert a patent in court.

That's a good thing in this case. Start with 100 junk patents to the USPTO > one gets though.

Now take that one and threaten a company. Company says the is a BS patent. Take company to court demand injunction + damages. Company responds it's invalid!

Q: Does the court force an injunction anyway?

If it does there is huge incentives to settle even if it’s a BS patent.

Of course it is not trivial to get a patent application threw, but that is the reason, big corporations have highly paid lawyers for that. The whole thing is a shadow-industry of it's own (starting at the patent office, that earns money by issuing patents).

The patent office doesn't get to keep lots of the fees it takes in.

> it is by no means trivial to get a trivial patent issued

Actually, it's pretty easy. Here's how you do it:

1. File the application.

2. Wait for it to be rejected. The rejection will have a point-by-point explanation of why the patent was rejected. (i.e. the patent office is required by law to do your homework for you.)

3. Tweak the application so that the objections raised by the examiner are no longer valid, and re-file.

4. Repeat as necessary.

I have personally used this method successfully three times, and it only took two iterations all three times. The third time I used it on an intentionally bogus patent (http://www.google.com/patents/US20030133714) just to see if it would work. It did.

Like I said, examiners do make mistakes sometimes. For what it's worth though, your claims look pretty lengthy.

> examiners do make mistakes sometimes

That is true, but it misses the point. Apart from the occasional honest mistake, there is a system of perverse incentives that results in the reliable and predictable issuing of bogus patents even when examiners do their jobs well.

> your claims look pretty lengthy.

You must not have read many patents. I have one independent claim and six dependent claims, each with a single minor tweak on the independent claim. That's well below average.

I mean your independent is lengthy. I don't care how many dependents you have if we're talking about the breadth of the patent.

It's about 220 words. I don't have time to do a survey, but I think that's not unusual.

But you're still missing the point: this is an intentionally bogus patent. It's essentially a patent on a perpetual motion machine that I prosecuted simply to test the theory that one can patent anything by using the method I described. The length of the claim is irrelevant.

It's not irrelevant. It's not the examiner's job to figure out if your invention works (although if it clearly doesn't, they might notice). It's his job to find out if it's new and non-obvious relative to the prior art.

Yes, you can hide the ball from the examiner. But if your claim is so lengthy that it'll never be infringed (not to say yours is quite that bad) then what's the harm in allowing it to issue?

> It's not the examiner's job to figure out if your invention works

Yes, it is:

http://www.uspto.gov/web/offices/pac/mpep/s2107.html#d0e1986...

See section II "WHOLLY INOPERATIVE INVENTIONS; “INCREDIBLE” UTILITY"

> Yes, you can hide the ball from the examiner.

My ball was not very well hidden. If my invention worked it would let you communicate faster than the speed of light. I would expect any competent patent examiner to be familiar with the basic laws of physics.

Some examiners are easier to hide the ball from than others. But if your claim can never be infringed under the laws of physics, who cares if you have that claim issued in a patent?

I care, because it is indicative of the lack of care that the PTO takes when making these decisions. I have four other patents which, in retrospect, also should not have been issued, and God only knows how many bogus patents have been issued to other people. Even if 99% of them are harmless that doesn't undo the real damage done by the rest.

In a perfect world, there would be enough funding for examiners to spent a month examining every application that comes in. In the real world, I worry a lot more about overbroad claims being issued than silly, but extremely narrow claims being issued.

I completely agree. I'm not holding up my patent as an example of the problem, merely as a data point to support my claim that getting a patent that does not meet statutory requirements (of utility and enablement in my case) is easy.

You've got one lengthy means plus function independent claim. That is typically a poor claim. Means plus function severely limit claims despite sounding very broad.

Yes, of course it's a poor claim. The whole patent is bogus. That's the whole point.

I mean poor in terms of how good it is to assert against someone. You can easily get a really narrow useless patent, but that doesn't cause any problems.

That's true. But you can also get a really broad bogus patent. I happened not to do that, but many others have, and that does cause problems.

The point is just that the actual bar for getting a patent -- any patent -- is very low if you know how to play the game.

From my experience it's quite easy to get a patent issued if you have enough lawyers on staff. I have been at brainstorming sessions at a big company where we came up with around 10 ideas within an hour and often at least one of them ended up being a patent.

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