The Mark Cuban Chair To Eliminate Stupid Patents

l2718 writes "The Electronic Frontier Foundation announced today a large donation by Mark Cuban and Markus 'Notch' Persson to the EFF Patent Project. Notably, part of Cuban's donation is for the creation of the 'Mark Cuban Chair to Eliminate Stupid Patents' (the first holder is current staff attorney Julie Samuels). Time will tell if the new title will help her advocacy work. Cuban said, 'The current state of patents and patent litigation in this country is shameful," said Cuban, owner of the Dallas Mavericks. "Silly patent lawsuits force prices to go up while competition and innovation suffer. That's bad for consumers and bad for business. It's time to fix our broken system, and EFF can help.' Notch added, 'New games and other technological tools come from improving on old things and making them better – an iterative process that the current patent environment could shut down entirely. '"

Comments

Now a fan

[EmperorOfCanada]

Never was a fan of Mr. Cuban; now I am a huge fan. Thanks.

One of the qualifications of a patent is that it is non-obvious to a professional in that industry. That is pretty well ignored when most patents that I see litigated are 100% obvious to people well outside that area. Keyboards on a cell phone for texting. Wow that must have take a room full of geniuses working since Edison to work out that combo. Sweeping gestures on a touch surface; I bet only one person in history would have ever come up with that one. Backup sensors, never would have thought about people wondering if they would crash into something while backing up; that one is nearly as ingenious as putting rear view mirrors into cars.

Then you get the best ones where everybody on both sides agree the patent is total shit, but do you want to risk a jury not agreeing, so let's settle. RIM settled for a zillion dollars on a patent that then got thrown out.

So if I were to modify the patent system I would suggest, No software patents, you build software or you don't, only two people can hold a patent, the inventor or a company that actually builds significant quantities of the patented product. No patent holding companies. Change the patent lawsuit process. First is you name a company in a claim. Then the company has 1 year to to get your patent tossed. The patent people must complete a full review within that year and if they don't the patent is tossed. An appeal of the patent itself can be brought before a jury but in this case a jury of peers must be at least half people in that industry. Patent awards must be severely tempered by actual gains. And lastly patents need to have way shorter lives. This life must be partially based upon active product sales. So a patent would give you say 5 years to get to market. But once sales start you have another 5 years of protection. Then its out. So if apple comes up with a cool new antenna and immediately puts it into their phones they can't deny the consumer that innovation in other products until 2032 just 2017.

But if I could have any two rule changes it would be that only inventors and genuine producers can hold patents and no software patents.

Re:Now a fan

[steelfood]

Patents should be granted based (in addition to the current prior art and novel conditions) on having a working device originating from the applicant exhibiting the behavior to be patented, and some ability to purchase a product that exhibits this behavior (they don't necessarily have to be the same). The patent then covers products (which can be a component) that exhibits this behavior.

This way, software running on a general purpose CPU cannot be patented, because the behavior runs on somebody else's product (i.e. fails prior art test). Likewise, genetic modifications cannot be patented, as the organism would be a product of its parent(s), and not of the applicant. However, a novel way to insert genes is patentable (the product being the device actually performing the gene insertion). If, however, the method is actually some kind of natural process, again, it fails the prior art test.

The patent pending process would be used for patent applications that have passed all other tests but does not have a working device and/or a method of sale for said device. There would be a window between these, which could be as you suggested, five years. In fact, applications that are in this state can be transferred from entity to entity, so that the inventor has the ability to sell the patent within this window without needing to incur the cost of making a product and selling it.

Then, patents should be up for renewal after some time, at which time the only condition for granting the renewal is again, having a product exhibiting the patented behavior for sale.

No no no. Wrong target. Again.

[ciaran_o_riordan]

Why does EFF never oppose software patents as a concept?

They always want to eliminate the 10 worst software patents, but they have enough educated/informed people to know that the world isn't plagued by 10 lousy software patents. It's thickets like the 346 US patents exploited by MPEG LA.

Or the thousands of patents held by Intellectual Ventures, Apple, and Microsoft.

C'mon EFF. You have the cash and the lawyers. Give us a hand fixing the problem (legislation, court briefs) and stop trying to wipe out malaria by swatting mosquitoes! You know that doesn't work.

Step 1....

[Lumpy]

Invalidate and reject ALL software patents.

ALL of them. Computers are math, you cant patent math, therefore you cant freaking patent anything that is software.

Until they do that, they are just spinning their wheels.

Patents just change the nature of advances

[trout007]

I think that patents do not increase technological advance but only change how they are released. If patents did not exist there would always be pressure to make a better product. This would happen in smaller but quicker steps. Patents don't increase the rate of innovation. What people do is hold back releasing products until the advances are enough to get a patent. This results in larger but less frequent advances. In the modern world there is no reason for any patents. If your technological advance is sufficiently large you will gain a natural monopoly as the competition tries to catch up.

Re:Guy is no dummy

[Trepidity]

Those two statements may both be true, but they aren't strongly related. He's a billionaire because he sold a shitty website to Yahoo!, at the height of the dot-com bubble, for $6 billion. Yes, Yahoo paid him six billion dollars for a website. Not even a website that was making much money, either. They subsequently, unsurprisingly, took a huge write-down on broadcast.com's value, which collapsed to near nothing. So, Cuban got lucky in riding the bubble and cashing out before it burst.

Re:No no no. Wrong target. Again.

[ciaran_o_riordan]

> Jpeg and mpeg

Nonsense. Patents might have funded R&D in one building, but those patents blocked R&D in every other building.

In the 90s, everyone was after image and video compression, there were piles of people working on it, or wanting to work on it. Studies show that software patents caused money to be diverted *away* from R&D (toward patent defence, defensive acquisition etc.).

http://en.swpat.org/wiki/Studies_on_economics_and_innovation
http://en.swpat.org/wiki/An_Empirical_Look_at_Software_Patents

And if you want to fund researchers, just abolish software patents and suddenly you free up a few billion in application fees, maintenance fees, freedom to operate search fees, defence costs, out of court settlements, licensing fees...

Patents suck. Patent laywers suck.

[CuteSteveJobs]

> One of the qualifications of a patent is that it is non-obvious to a professional in that industry. That is pretty well ignored when most patents that I see litigated are 100% obvious to people well outside that area. Keyboards on a cell phone for texting. Wow that must have take a room full of geniuses working since Edison to work out that combo.

The law is an ass, especially the Adversarial system of law practiced in the US where lawyers dispute everything, no matter how obvious. They say "In my opinion, my client's patent is most certainly not obvious and my client has a strong case." Rules forbid lawyers from bringing weak cases "without merit", but the lawyer simply insist they believe their case is strong and the judge (also a lawyer) will agree the only way to sort it out is in court, at great expense. You can't rely on "truth" winning in the end. Court room proceedings aren't debates like you have in highschool: All you have to do is convince an ignorant jury to go with your side. Look at the Koh Samsung debacle. It's very hard to get a wrong decision reversed since Judges don't like looking stupid or making other judge's look stupid. There are some very dirty and entirely legal tactics that lawyers use to bring the juries over to their side. I can't list them here because I would be howled down. This is why it's in your interests to settle with a troll, no matter how crazy their claim. Don't expect the judge to save you: There are some very one-eyed judges out there in patent troll county.

Litigating a patent, whether you are the plaintiff or defendant costs $3M-$5M. Lawyers get paid no matter what. Even if you win, it's very unlikely the other side will be ordered to pay your full costs. You have to treat that money as a write off. You won't see it again. Some lawyers work on contingency for patent trolls, but this makes it worse for the victim because neither the plaintiff or their lawyers need to give a s*** about costs and refuse to settle. If they can fool a stupid jury they can end up owning your business, so why settle for a modest and mutually agreeable fee?

The system is so bad that the smartest thing a software developer can do is take the money and run at the first chance before someone sues you, because you can't write a program these days without infringing a hundred 'obvious' patents. As soon as you get the whiff of money around you, the trolls will come. Expect submarine patents and out right bogus ones too. Writing software is like being an OB-GYN... too risky. Find something safer.

Lawyers are opportunists, and I blame the USPTO and Congress for giving them the opportunity. Instead of looking at stupid patents, they need to go after the root cause.

Re:Guy is no dummy

[oursland]

Actually, that sounds pretty smart to me.