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The Patent Mafia and What You Can Do To Break It Up
colinneagle sends this quote from an article about the ever-growing patent racket in the tech industry:
"The lawsuits are raging all across the tech world. Oracle sues Google, Yahoo sues Facebook, they counter-sue. Others threaten, others buy more patents and the circle goes round and round. Don't be fooled by the lawsuits between these tech titans though. The real cost that the patent mafia extracts from the tech world is on the smaller companies who can't afford to battle the Apples and Microsofts of the world. Their choices are far simpler. They can abandon their innovations or they can choose to pay and allow the Mafiosos to wet their beaks. Also, don't be fooled about who the real losers are here. The the real losers are you and me. ... So what do do? Here is my opinion. I would make it just as expensive for the offensive patent prosecutors. Just as the government put in the RICO act to combat organized crime, I would put a similar law in place on patents. RICO calls for treble damages. I would have treble awards of costs and legal fees. If a patent holder sues another entity for patent violation and that suit fails, the plaintiff who brought the suit should pay treble damages to the defendant. Three times what the defendant paid to defend."
RICO calls for treble damages. I would have treble awards of costs and legal fees. If a patent holder sues another entity for patent violation and that suit fails, the plaintiff who brought the suit should pay treble damages to the defendant.
I think that something far more bassic would work.
"Our two-party system is like a bowl of shit looking at itself in a mirror." - Lewis Black
I think the same should hold true for medical malpractice suites. I think that it's absurd that the physician (or his malpractice carrier) has to pay his legal fees regardless of whether he prevails or not.
Very good idea. Another problem that nobody seem to notice is that the patent system is the wrong way arround. In normal criminal cases it is up to the prosecution to prove that the defendant perpetrated a crime. Inocent until proven guilty.
The patent system works the other way around it is up to the defendant to prove that they have not violated a patent. Guilty until proven innocent.
Do not really make sense to me. How about you ?
FWIW, this is my personal opinion:
It would never happen. Today's purpose of patents is different from when the concept was created. The use today is to prevent a small or single owner nimble upstart from usurping the business of an incumbent elephant and potentially gutting the cash cow of it's shareholders.
The aforementioned incumbents would fight tooth and nail, with large campaign contributions and gifts, to prevent such a law from ever passing.
No sig. Move along - nothing to see here.
This is all not only out of control, but INSANE! This needs to be fixed somehow, but I have little faith in the American government to even understand the problem.
My wife doesn't listen to me either...
No, it's not. If I'm a small business with 25k in debt to start up and another 50k in debt to finance my new patent on my new product and then Microsoft sues me for violating their patent I can either capitulate and be out a minimum of 75k as my business disappears or fight with nearly no money to finance my operation.
Microsoft, on the other hand, can pay 5M to its lawyers to crush me.
If, somehow, I win my legal fees back I get to wait through round after round of appeals, have lost months if not years of product sales due to the injunction in place on me and have, in the meantime, defaulted on all my debts, losing my business. Yeah, not quite fair.
Just thinking about this, it might feed the patent trolls and mostly hurt small to medium sized companies.
If I'm a little guy and hold a patent that, say, Apple violates. I sue Apple and they simply say they spent a few million. It's a small amount for them but if I lose, I am bankrupt. So, it doesn't help the little guy.
So, my approach would be to "sell" my patent to a company I just formed for a couple of hundred bucks onllne and that corporate entity sues the big guy. If I win, that company has some scheme to pay me back the award. If I lose, I fold the temporary company and I'm out of pocket a few hundred bucks. Pretty close to the model used by patent trolls.
So, I can't see how this might be different...
Transfer your entities to my Planet where lawyers are shot on sight, all digital media is free, monogomy is outlawed and drinking to excess is mandatory. Bring cash!
I got to the chocolate box before you, that's why the hard ones have teeth marks.
Scenario: a "little guy" gets a patent. A "big guy" violates it. The little guy takes the big guy to court, and the big guy throws an entire legal department at the little guy, and essentially buys the result. The little guy then has to pay treble damages of the expenses of that great big huge legal department, and goes out of business because of the punitive award. As part of the punitive award as the little guy goes under, the ownership of the little guy's patent then goes to the big guy.
Want a patent held by a little guy? Willfully violate it, then bleed the little guy dry with protracted court proceedings. You'll get the patent through bankruptcy. And if the little guy doesn't defend his patent... free IP!
Think it through. "Automatic" damages means you create a system that can easily be gamed by armies of lawyers far better at manipulating the system they crafted than you, and ties the hands of the judge to prevent it.
Everybody gets what the majority deserves.
Suppose if I'm a small independent inventor with a patent, and Conglom-O misappropriates my patent. I only have kilobucks to spend on a lawyer, while Conglom-O has megabucks. Predictably, their expensive lawyers beat my bargain basement representation. Now I'm on the hook for 3 times what they paid for their defense? How is that any better for me than the abolition of patents?
Give me Classic Slashdot or give me death!
The bootlegger in China would probably lose a court case... 1/10
We REALLY need to set up single-payer legal representation, even before looking at it for medical care.
It's easy to write something that works correctly for the situation you have in mind; the challenge is to make sure that it also works correctly in all the other situations that may arise in practice. Whoever suggested the law described in the summary is, I'm sure, not a good lawyer or a good software engineer,
Why not just get rid of patents altogether, or at least software and business method patents?
This is my signature. There are many like it, but this one is mine.
for the little guy who invented something, say a more efficient engine, to sue the huge corporation that just copies their invention.
Since if he loses he gets hit with 3x the costs of the defendant's super expensive lawyers if he happens to get an idiot jury or made some technical error somewhere.
I have a simpler solution - only grant patents for things that are actually inventions. "A button which when clicked buys the product for the user using the credit card they entered previously and the shipping address they entered previously" is not an invention, for eample.
- Limit all patents to 5 years
- Abolish UI/Gesture and all software patents
- Abolish lifeform and seed patents.
head into the bed of each member of the patent mafia. Just license the technology and I'll make them an offer they can't refuse.
"You'll get nothing, and you'll like it!"
What you are proposing is simply putting a band-aid on a bullet wound.
You have (ineffectively) treated a symptom of a broken system, and as others have pointed out, left the system ripe for abuse from the privileged still.
The system needs to be rewritten from the ground up. Unfortunately this will never happen. The broken patent system is just one symptom of a far larger disease, and that is the continued concentration of wealth and power in corporations. That concentration is little different than the robber barons, or lords over feudal serfs abusing their position. Until the people put down their bread, and turn off their circuses, these abuses will continue.
Spread the word, proclaim intelligently the injustice of the current system to all who can and will hear, write your congress critters, bitch and moan if you have to as well, but stand up too, and encourage all you know to stand up as well. Otherwise eventually you will have no legs to stand on, because those have been patented or outsourced too.
Silence is a state of mime.
Oracle can't innovate into the future so they are going to be Patent Trolls.. how pitiful Ellison.
Its worse. Microsoft steals your work, you sue them, they spend 1M to crush you, and under Submitter's plan you would pay treble damages.
No, the only plan I can come up with is to sell your patent to a troll with cash reserves in exchange for something like 10% of their winnings if they successfully sue MS. Lunacy like that is where we are headed, the blood sucking lawyers will make sure of it.
In your world the big guys are even more free to abuse the little guy; now the big guys are instead free to infringe on the little guy's patents without compunction, because the little guy dare not sue for infringement. God knows the big guy will spend a lot to defeat your infringement claim...and now not only is your case hard to win, if you lose, you are completely screwed. Almost everything I see on slashdot about fixing the patent system would actually make it worse, particularly for the little guy people here so love to defend. There are certainly problems, but they take a hell of a lot more thought than you're putting in to fix them.
You appear to be proposing a
[ ] Technical
[X] Legislative
[ ] Vigilante
approach to patent reform.
Sorry, but your ideas won't work. ...
One or more of the following may apply:
Ok, I don't have the patience for this anymore. Someone else fill out the standard form.
If the little guy sues he's liable for triple damages? Which is probably a drop in the ocean for the big guy? This is meant to improve the situation how?
You've just made it profitable for big companies with on-staff lawyers to completely stop innovating. Instead, they can just see what other, smaller companies are doing, and copy it, patent or not. Because no small company will ever dare sue for patent infringement again.
1. WE declare patents null.
2. we refuse to pay for patented stuf
3. we exercise our natural right to use any stuff available for free happily disregarding any patent.
3.1. a simple citizen doing 3 should have nothing or little to fear
3.2. a startup doing 3 is surely screwed, but screw them. get a job, invest in something else, whatever but just stop whining, this is war.
3.3. a corporation doing 3 will enoy big time litigating with other corporations for the monopoly of products nobody will buy as result of 2. be my guest.
... is simply to abolish the entire patent system.
So, to get money from your 'great idea', you publish the plans/theory/math/computer code/whatever in a technical magazine, get paid for the article, and move on to your next great idea.
USMegacorp will scan the magazines, see your article, and perhaps start manufacturing your WonderWigets, but so will ForeignCorpClonersInc.
The end result is that since anybody can use your idea, no one company is going to make obscene profits, because any other company can make the same thing and under-price them (to the limits of costs-of-production).
USMegaCorp could try traditional anti-competitive techniques -- sending out physically-large individuals with metal pipes to various competing factories and saying (with an appropriate East Coast accent), "Say, Mister. That's a real nice factory you got there. Be a shame if anything was to happen to it."
But that method doesn't work well with innumerable ideas and innumerable factories -- China has a lot of real estate to cover.
The speed of innovation would increase, due to low-cost/free access to other peoples' ideas ("standing on the shoulders of giants"), and due to inventors quickly moving on to develop their next idea.
The dis-advantage of this is that rampant technological advance is not always good -- humans' power usually outstrips their wisdom and morality.
Hmmm. Okay, never mind, just leave the patent system the way it is now.
How about simply enforcing the existing law?
Namely, that patents must not be granted for ideas that are obvious to a practitioner with ordinary skill in the field.
The utter abandonment of that standard is a leading cause (although not the sole cause) of our patent mess.
The obviousness test is still the law of the land in the US. The US judicial branch has been derelict in their duty to uphold this law.
The $500 billion figure has been cited a few times, including by Drew Curtis in his astonishingly poorly-informed talk about patent trolls. The event study methodology used in the Bessen et al. study has been criticized as likely to overestimate the costs attributed to patent trolls. See Glynn S. Lunney, Jr., On the Continuing Misuse of Event Studies: The Example of Bessen and Meurer, 16 J. Intell. Prop. L. 35 (2008) (responding to similar event studies done by Bessen and Meurer when they wrote their book Patent Failure).
It seems to me back in 20th century there were people in positions of power that put service above self that passed RICO, and also other laws and programs which helped the little guy. And some them little guys used some of these benefits to become big guys. Now I don't think such could ever be passed, and what does exists is being torn down or when new laws passed it helps only the big guys. Though I was thinking back then the "big guys" would shoot it out with each other (i.e. mob battles with tommy guns), and at times little guys get caught in crossfire. Nowadays the big guys "slug it out" in the courts, and the little guys indirectly either pay more for products or earn less from their work.
mfwright@batnet.com
I believe you misinterpreted this. I believe TFA is saying that only the plaintiff, NOT the defendant, would face this liability, which would greatly reduce the volume of frivolous and downright extortionist suits. I have felt this to be the correct approach for a good while now, though was unaware and interested to know about its previous application to organized crime.
That way youd prevent huge companies to abuse small players. The patent trial could have a max amount of payment for the losing side. Lets say only 50 k U$. That way, huge corporations would be discouraged to hire an army of lawyers. Apart from bringing more fairness, that way software money wont go to lawyers. Lawyers are getting wealth as parasytes, from other people's work, and that must be stopped, if you want the society to keep evolving. Money should go to the guys who produce, not to the guys who litigate.
I believe TFA is saying that only the plaintiff, NOT the defendant, would face this liability
Okay, lets say you (an individual or small company) sue Microsoft for stealing your patent. What will then happen is that Microsoft ties you up in court long enough to force you to drop the suit (or they just win outright), and then *you* might find yourself on the hook for triple damages when they counter-sue to recover their costs. It's still the same basic tort reform idea that has been proposed for years, and won't work for the same reason. It doesn't address the fundamental problem that in the U.S., you often get as much justice as you can afford and no more, regardless of which table you sit at in the courtroom.
Please stand clear of the doors, por favor mantenganse alejado de las puertas
You're right for more than just the reason you give. TFA also fails to understand that the patent system is structured to encourage litigation and to benefit the legal profession on both sides of a patent conflict. TFA's suggestion would do nothing to change this.
Ideally software and business method patents should disappear altogether, but if one is seeking alternatives then the first goal should be to limit the audience exposed to patent litigation.
That can be done in a number of ways, one being to exclude private citizens and corporations below a certain turnover from patent liability altogether.
This would encourage the creation of many small competing businesses and would be hard for megacorps to argue against, because all politicians pay lip service to supporting small businesses. Also, the turnover cap automatically ensures that competing corps cannot grow to the size of the patent holder, so arguments against it are really quite weak.
As you point out, the incumbents would still fight tooth and nail against it, but they would be on much weaker ground than today, and most importantly, lawyers would be presented with a much reduced population of potential victims.
Note also that the many calls to limit patent duration drastically, eg. to 5 years, would have exactly the same effect of reducing the number of people exposed to patent litigation. That idea is good too, but it doesn't level the playing field as well as a turnover cap would do. Perhaps both approaches should be used together.
"The question of whether machines can think is no more interesting than [] whether submarines can swim" - Dijkstra
How about abolish the whole idea of intellectual property? Got an idea and can commercialize it first, good for you. If not to either, you lose. Most law is to avoid private violence; I don't see that as a problem here.
Which is what happens in Australia - to stop frivolous lawsuits. A very recent example - AFACT vs iiNet, costs were awarded to iiNet meaning the MAFIAA had to pay their (multimillion dollar) legal bill.
... wait, what?
What we need is a viral anti-patent system, designed to be stronger than the GPL with the intention of destroying the patent system together. Like OIN (the open invention network), but with real teeth. Here's how it would work:
0. Philosophy: intellectual monopolies are completely wrong, opposed to the scientific method, economically evil, and morally unjustified. Nobody can own an idea, and everyone stands on the shoulders of giants.
1. Create a "public patent foundation" (PPF) similar to the FSF.
2. Anyone with an invention can grant their idea (or patent) to the PPF. Anyone may license a PPF patent, royalty free, provided they are not involved in offensive patent litigation.
3. The PPF makes its patents available to anyone for the purposes of counter-suit.
No matter who you are, if you are the victim of a patent lawsuit, then (unless you fired first), the PPF will lend any of its patents to you for you to counter-sue the aggressor..
4. If the PPF wins a lawsuit, the settlement terms would include all patents of the loser being shared with the PPF.
5. The result is that the PPF would eventually hold a large majority of the patents worldwide. It would allow anyone to use these, royalty free, but would demand that users of PPF patents covenant never to sue in a patent lawsuit.
6. As a pragmatic (but non principled exception), we might exclude pharma-patents from this.
Patent reform:
1) Each patent owned by a company requires an annual fee of $50,000 starting five years after the patent is valid
- Fees are waived for the first 50 patents owned
- Fee proceeds are used to hire additional patent clerks and improve patent processing
- Fee is indexed to inflation
2) Transfer of a patent to another company incurs a one-time $50,000 transfer fee
- Fee is pro-rated based on length of time remaining on the patent
- Fee is indexed to inflation
3) A company may choose to donate a patent to the public domain and receive a tax break
- Fee is pro-rated based on length of time remaining on the patent
- Capped annually at $1 Million
- Cap is indexed to inflation
4) Patent licensing requires public disclosure of full license costs, terms, and conditions
5) Any company whose patent related gross revenue exceeds its non-patent related gross revenue will incur an additional tax
- Additional tax is a flat 15% of all patent related gross revenue
- To increase the cost of running patent shell companies
I agree that software patents are ridiculous, but this is an issue that extends to patents outside the software world.
Please stand clear of the doors, por favor mantenganse alejado de las puertas
Fees are waived for the first 50 patents owned
Fees aren't that high. Paying lawyers and technical experts to make sure you're not infringing anyone else's patents and that your patent is sufficiently described, however, cost a lot.
AC is talking about the 50k/y fee to maintain a patent, per his/her proposal, not the filing fees.
How about: the amount one party spends in legal fees must be matched at some ratio and paid to the other party, regardless of guilt, to be itemized and balanced by the end of every month.
For a 1:1 example:
Joe Blow, owner of Joe's Cups of Joe of Skid Row, OK gets sued by Joe Mamma, Inc., where Joe Mamma dumps $200K every month into lawyer fees, legal research, expert witnesses, court filings, etc... and Joe only spends $5K to retain Jimmy Shyster of Shyster, Benedict, and Arnold. Joe Blow would end up having to match 5K to Joe Mamma, Inc and Joe Mamma, Inc. would have to reimburse Joe Blow for $200K.
That fraking lawsuit had better be worth it to Joe Mamma, Inc.
Stopping the inevitable Hollywood accounting would be a major issue, of course. Would anyone like to pull that idea apart any further?
Any sufficiently advanced influence is indistinguishable from control.
The purpose of this is to prevent the bringing of groundless suits (by patent trolls). Presumably, the legitimate small business owner has not motivation to do that.
Of course, the huge patent troller can bring to bear all kinds of legal muscle to defeat a legitimate patent suit brought by a small entity, though that does not change the fact that the protection (ie. treble penalties for groundless suits) is still worthwhile. It is just a failure in a separate (though still problematic) area.
Most importantly this prevents mass law suits. If one defendant wins, then all other defendants can use that case as precedent and the punitive law suit group, companies who use the civil actions themselves as extortion and penalty, would be up for everyone's costs. So lose one case to a person who can afford a defence and all of a sudden they have lost every case and have a massive bill to pay. This allows groups of defendants to pool their resources to fight one particular case and then use that victory as precedence in their own, it allows all the defence lawyers to soak up costs for a bit knowing the other side will be paying every ones court costs.
Chaos - everything, everywhere, everywhen
The broken patent system is just one symptom of a far larger disease, and that is the continued concentration of wealth and power in corporations.
Agree but the continued concentration of wealth and power in corporations is just one symptom of a far larger disease, and that is the human greeds.
Agree? But human greed is just one symptom of a far larger disease, and that is the built-in competitiveness of biological beings.
You would likely agree with that too, but the built-in competitiveness of biological beings is just a symptom of a far larger disease, and that is shortage of resources.
Now go fix those!
Now, back to the broken patent system, consider the flip side. If you are a little inventor, you are most likely wishing some giant corps violate your patent because then armies of commission-based lawyer will help you sue the rich guys for free and you will more likely become another rich guy from suing the large corps than productizing your patent with probably little real market value. I'm not saying that's good, but that's another side of the story.
So pay the defendant 3x the defendent's amount spent on lawyers & court fees
Or pay the defendant 3x the Plantiff's amount spent on lawyers & court fees
Whichever is higher
When BigNameCorp aims to sue littleGuy out of business, if that buisness wins they get a HUGE pay day (and perhaps can hire a lawyer whom agrees to receive payment on winning)..
you'll be sure MS/Google/Apple will think twice before sending 20 lawyers after Mom & Pop
It's the COBOL conversion guy and academic hanger-on, Vivek Wadhwa, mouthing off again. He just wants to see his name in print. It's sometimes claimed he was on the faculty at Harvard (he's not, he was just an RA) and now he has some vague affiliation with Stanford he's touting.
Patents are monopolies. Years ago, they were monopolies of action. Modern software and business method patents are monopolies of action, expression, and speech.
Monopolies are expensive. They damage free markets. They always drive up the cost of goods and services. They are taxes on market places. We have forgotten that patents are monopolies. Somehow the patent lawyers have convinced us that patents are a measure of innovation. This great lie has blinded us to the fact that patents actually measure the decay and destruction of free markets.
The second lie is actually more pernicious, since it blocks our pathway forward. Patents actually belong to society, not the patent holder. Patents are restrictions imposed on EVERYBODY BUT the patent holder. Patents are voluntarily imposed on a society, by that society, for the good of the society. If a patent was the property of the patent holder, it would be worthless, since no patent holder has the ability to enforce a patent. Only society has the ability to enforce a patent.
Since patents belong to society, then they can (and ultimately must) be managed for the good of society.
Once we dispel these 2 grand deceptions, the way forward is fairly clear:
I suspect we can ultimately fix almost all our patent problems by returning the patent office to central funding. Funding the patent office from patent fees has got to be our greatest mistake.
Miles
Fees are waived for the first 50 patents owned
ACME Corp creates ACME Subsidiary #000001 through ACME Subsidiary #999999 and sells 50 patents to each Subsidiary for $1.
It's admirable that you're protecting small-business, but it's a lawyer's job to exploit loopholes like this.
I say drop the first one, otherwise no one will be able to risk suing a large company infringing their patent.
What about allowing either of the parties in a lawsuit to claim that the other is atempting to abuse it's monetary clout to 'buy' justice.
If the court agrees, the big player gets to pay the little guys costs along with their own. Even if they win!
Here is my take on it, and this applies very specifically to the mobile area.
Over a period of time the patent disputes between Google, Microsoft, Apple, Samsung, and the other big players will be settled. Whether through fees or you-use-ours-we-use-yours agreements, the battles will end. Then what we will have is a true cartel through which any outside party wishing to build and sell a legal mobile device must pass through. This could either mean very big per device license fees, obstructive licensing agreements, or outright market exclusion.
What I fear most is not the death of outside innovation in mobile but the Frankenstein chimera of a law that bought off lawmakers and lobbyists create to "reform" this problem.
This is absolutely correct for process patents. This is a requirements of the 1994 TRIPs (Trade-Related Aspects of Intellectual Property Rights) treaty. Here is the text of Article 34:
Whether this applies to software patents I am not sure (IANAL). As business process patents, it may, though it's not clear to me what the "product" would be. In any case, this is clearly the direction in which the law has been moving.
Ironically, by the way, negotiation that resulted in TRIPs was initiated by developing countries who found their economic development was being retarded by patents held by developed countries. Once the process started, however, it was hijacked by an unholy alliance of the pharmaceutical and entertainment industries. Poor countries were then effectively forced to join by developed countries, who withdrew from GATT leaving a choice between losing access to western markets and enacting onerous patent and copyright laws. Because of the impact on the cost of drugs for poor people, patents are a life-and-death issue. IP regulations, meanwhile, are expensive to implement, particularly in countries that lack the legal expertise:
Software is already fully protected by copyright. That's enough IP to motivate people to write software and to prevent people from ripping off your code..
There is no "problem" except the will on the part of a certain court- the Court Of Appeals for the Federal Circuit (CAFC), IP lawyers, corporations and IP maximalists to subvert the patent system to their personal benefit .
It's really nothing more than an agreed-upon defiance of the meaning of very clear law, society's best interests and the express wishes of the vast vast vast majority of software engineers who are allegedly the "beneficiaries" of the system.
Software patents are bad law. IP lawyers are perfectly well aware of this fact which is why they expressly exclude legal arguments and algorithms for tax avoidance from being patentable- they're not going to have done to them what they've done to us.
Either the law will change of the inevitable consequences of the law will collapse the entire system of software creation in the US and anywhere else software patents are permitted, and by collapse I mean monopolist prices accompanied by a lack of innovation, along with a defection of creative types from the field.
If you want to get activist about things, then refuse to sell software in the US. Set up a company in France or the EU and sell only into non-software patent jurisdictions.
If enough of us do that, it will be game over for the lawyers since it will then be completely indisputable that software patents are in fact retarding innovation and driving creators OUT of the US- something the US could not bear the thought of since it's so contrary to our idea of our country.
Patents are non assignable. You invent it, it's yours, for the duration of the patent. Only way they swap ownership is through your will, and cannot be left to a company. If you work for someone when you get your patent, they get a life of the patent license to use it. Any other licenses must deal with the original inventor. If you don't want to take a license at a fair and reasonable rate, you have two steps to follow. Request re-exam of the patent by submitting one set of prior art that you claim overcomes the patent. You are responsible for paying the cost of the re-exam (patent examiners don't work for free). You get one crack at this, so get your art straight before you submit. If the patent survives this, it is assumed valid for the next stage. Round two has you attempting to show that you don't infringe the patent. The plantiff indicates to the court the maximum damages they are seeking. the maximum legal budgets the two sides can each use can be no more than 10% of that amount. Sued for a million $? you can spend no more than 100K to try to fight that off. A billion? 100 million is the upper bounds.
Aside from the absurd patents, like software that need to go away completely, the fees and the total number of patents held by an organization should be linked to the number of full time, non-contract employees. The implementation would need appropriate loop holes checks, and heavy fines for trying to subvert the system.
A huge company with many workers should be allowed an appropriately large number of patents. They should also have to pay top dollar to keep them, with the price per patent going up considerably each with each new patent. A smaller company can only hold a few (bye-bye patent holding troll companies), but the fees should be in line with what a smaller company that actually -needs- patent protection to get off the ground can actually afford.
I'd also like to see published licensing rate formulas required in the patent where everyone pays using the same rate formulates when utilizing the holders patent, and the holder may not refuse to license a patent at those rates. The rate formula is part of the submitted patent application, and can be grounds for refusal of the patent.
Now decrease protection time to something reasonable like 5 years I think things might get better.
Apple defends it by putting their expensive suits on it and soon racks up $100k in legal fees, so they threaten the little guy that if he doesn't drop the suit, he could lose $300k. He can't afford to lose $300k and Apple has better lawyers.
The issue is that patent trolls have money (after all, they are in the business of making money, regardless of who it comes from), but small companies not so much (they are in the business of developing technology). If we are serious about innovation, patents do not really have a place in certain areas (software, etc). Then a large company cannot bully you into bankruptcy unless they have a better product than yours. But the system as it is is unbalanced, rigged towards the heavy players. I think that even if you are for patents, there is a case to make for a better distribution of IP - as it is right now, large companies hold most of the IP (as the patent and patent/copyright protection mechanisms are expensive), and that makes for a very flat technological landscape compared to what would be possible if medium and small companies owned a larger share of it.
As the small business, you can still continue to develop your own product even after Microsoft (for instance) infringed (not stole, my friends) on it. Once you have a finished product that has met all the qualifications of financial backers (except for the competition from Microsoft), THEN the infringement becomes an issue. It may even help with name recognition, etc. It's up to you, of course, to have a valid, non-trivial patent for which no prior art exists (going "bla-di-bla, but on a computer" then "bla-di-bla, but on a mobile device" is not going to cut it much longer(.
When the copyright term is "forever minus a day", live every day like it's the last.
$50k? You might as well prohibit small companies from holding patents in the firs place.
Sent from my ASR33 using ASCII
2) Transfer of a patent to another company incurs a one-time $50,000 transfer fee
- Fee is pro-rated based on length of time remaining on the patent
- Fee is indexed to inflation
Filing is free, but the transfer from Acme Corp to Acme 001 Inc. will cost. As well, in order to use it, Acme Corp would have to license it from Acme 001 Inc, also if 001 is the original filer to circumvent 2):
4) Patent licensing requires public disclosure of full license costs, terms, and conditions
AC should have added that anyone should be able to license the patent under the same conditions; the 50 that Acme Corp itself holds wouldn't need to be licensed so this rule would not be appicable to those 50. It can hold the core patents itself, but perhaps 50 should be 10 which would make that a lot more complicated.
When the copyright term is "forever minus a day", live every day like it's the last.
AC mentioned that the first 50 patents held would be exempt from the $50k fee. So I don't know, but I guess a company holding more than 50 would not be a small company.
So if you are a lawyer, you could work for either side and always win? If you don't win the case, you can take a percentage of the damages? Off course your contract would state that you would never participate in the losses of the case. In countries where "no cure, no pay" is allowed for lawyers (which is totally insane), this only makes matters worse.
Nae king! Nae laird! Nae yurrupiean pressedent! We willna be fooled again!
The transfer fee is only $50,000 for an eternity which is negligible. There's no need for licensing at all. Acme Corp can freely use all the patents from all its subsidiaries since there is no law stipulating that you must license a patent.
Let me illustrate it with a housing example:
-Living in my own house - legal
-Living in a stranger's house - illegal, I'll be arrested and charged with b&e
-Living in a house I paid for but under my brother's name - legal, as long as he agrees
So the rule isn't "you can't live in someone else's house" (you can't violate someone else's patent), the rule is actually "you can live in someone else's house as long as they don't call the cops". Since the law can't force Acme 001 Inc to sue Acme Corp, Acme Corp can freely "violate" Acme 001's patent holdings.
you missed:
5) Any company whose patent related gross revenue exceeds its non-patent related gross revenue will incur an additional tax
You'd also catch them on
4) Patent licensing requires public disclosure of full license costs, terms, and conditions
because
ACME Corp would have to license from ACME Subsidiary #000001 through ACME Subsidiary #999999. Once they are licensed for $1 a piece they should have a hard time in court when ACME Subsidiary #000003 sues small company for violation arguing that a license fee much larger than $1 was required/fair.
"The weirdest thing about a mind, is that every answer that you find, is the basis of a brand new cliche" -
I like that one!
Go ahead, I need something for the barbecue anyway.
Signed,
a patent engineer.
Ubi solitudinem faciunt, pacem appellant.
No, the only plan I can come up with is to sell your patent to a troll
How about just getting rid of software patents? No lawyers, no courts, can't stop innovative startups etc. Large corporations work around the patents to implement the same functionality in any case (or just ignore them if they think they can out spend and crush you). Since they fail so spectacularly in their stated aims unless we feel a need to provide jobs for lawyers it's clear they should simply not exist.
While patents may have a great deal of benefit in many of their use cases, software/process patents are an abortion that needs to be flushed down the toilet.
This "solution" is trying to patch a broken system. The only real chance is to make fundamental change in patent law. We need to explicitly remove software as a patentable item or create a more complete definition of what a patentable bit of software is. Allowing "a method of starting and stopping a running program through the use of a button or command" kind of terminology in patent law is silly and should be explicitly addressed in the law. Contact you Senator or Congressman to change the law. That is the only real answer to what is clearly a real problem.
No sigs in BETA. Beta SUCKS.
Seems there needs to be a way to create "open" patents that needs to be invented. Perhaps create a gnupatents.org?
Seems to have worked (kinda, mostly) for open source, but with licenses being what was invented (gpl license, apache license, etc.).
Uh, Linux geek since 1999.
When you "own" real estate, you pay property tax. If "Intellectual Property" is something that can be owned, then they should have to pay a tax on it.
I would set the rate of the tax to be proportional to the value that the owner feels it is worth. And any other company that wants to use that patent can get it for that price. No negotiations needed. If the company thinks they need to keep other's from using it, then they can value it in the billions of dollars, and pay the rate for that. If they think it is not worth much, they can put the value at $1 and pay the minimum. If they think it is worthless, like swinging sideways on a swingset, they will pay no taxes on it, but it then goes into the public domain.
I'm sure there are things to work out with an idea like this, but it seems to solve many problems at once. Plus, it will help balance the budget of the bankrupt government, so you might even be able to get the politicians to vote for it. How silly of me, the politicians are in the pocket of the mega-corps, so they would never do something that would hurt their masters!
-- ssoorrrryy,, dduupplleexx sswwiittcchh oonn.. -Quote found on actual fortune cookie.
The only way to have meaningful changes (be they patent reforms or anything else) is to ensure that those in the position to enact the changes have both the means and the will to do so.
Until we reach that stage, all the ideas, suggestions and discussions amount to nothing more than intellectual masturbation.
Licenses are not necessary, please see my response here.
Its worse. Microsoft steals your work, you sue them, they spend 1M to crush you, and under Submitter's plan you would pay treble damages.
I have a better solution that would solve this problem (and the general problem of $ = win that plagues the US justice system).
Make a law that states that legal costs on both sides have to be equal. If one party can prove it cannot match the legal costs, the other party will have to cover them for the duration of the trial. Naturally the loser has to pay both parties costs at the end of the day. So if microsoft sued me for example, I could prove in court that I only have $94 in my bank account and a very small income. Microsoft would have the option of spending $94 prosecuting the suit, meaning its basically a coin flip as you can barely get a lawyer to pick up the phone for that. They would also have the option of spending x millions prosecuting, but they would have to pay 2(x million)-94 to do it, and then if they won I would be liable for that amount plus damages. They would know that legal expenditure on both sides would be equal and that due to this the case is likely to be decided on it's merits so they would only persue it if they were confident of winning. Likewise if I were to sue microsoft, I could spend $94 on a 5 minute legal consult, and then represent myself. Microsoft would get about 3 seconds of work out of their lawyers for that price and therefore would be forced to either not defend themselves, settle, or pay for me to have expensive lawyers too. If microsoft were confident they would win they would pay the money, and if they did win I would be screwed. If not they would settle. This is perfect and triple damages would be unneccesary, but not excluded. It would also have the added benefit that in legitimate cases where the verdict was uncertain, a drawn out process is risky for both parties and keeping the costs down would become a priority, so it might even help with the filibustering problem in some cases.
I'll have to read it a few more times but I think I get it. Interesting idea but Im not convinced it cant be gamed against the little guys. Im also not sure it allows for a fair hearing on merits if the dispute is genuine, both for the small company and big company (giving small companies unfair advantage would be even worse than what we have now). But I do like you're line of thinking.
Another approach might be to adopt some form of SLAPP legislation (see wikipedia) which can be invoked if a plaintiff or defendant can make a reasonable case that the other party is abusing the legal process with the primary intent to harass or outspend. I havent done a lot of research but I've heard cases that SLAPP has been very successful in protecting litigants from incurring obscene legal costs. The problem, as always, is getting a legislature to act against the interests of the legal and megacorp lobbies.