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Congress Proposes Strategy For Fighting Patent Trolls
phantomfive writes "Congressman Charles Schumer has written a piece decrying the evils of patent trolls. 'Because of the high cost of patent litigation—the average litigation defense costs a small or midsize company $1.75 million—it is often marginally cheaper for a defendant to pay up front to make the case go away. The average settlement for the same group of companies is $1.33 million....Patent trolls cost U.S. companies $29 billion in 2011 alone.' His solution? Make it easier for low quality patents to be re-examined and rejected by the patent office."
Can afford the endless rexaninations of their patents? Chuck is bought and paid for, so this won't help the little guy.
It's the only way (except for sharks in space with lasers).
"Make it easier for low quality patents to be re-examined and rejected by the patent office."
Who determines if a patent is "low quality"? A certain low quality congress critter?
Congressman, while generic, usually refers to members of the House. Schumer is a senator.
William of Ockham had no beard. The most likely explanation is that it was chewed off by squirrels every morning.
The TFA is behind a paywall so I can't read the article. Which only leaves me with a number of questions as to what he proposes and whether or not it will make things better or worse.
Could there be BSD like license, which was slightly less open.
It would forbid using any software where it is part of the code in any aggressive software patent law suits, it would allow use in passive/protective law suits.
Desired outcome would be, that as every is always running BSD code everywhere no one could enforce software patents anymore, as we're too late in the game to do everything in-house without 'free' software. If someone would be silly enough to attempt, they could be counter-suit using their own software against them.
No one else has this story?
A 25 percent Federal surtax on patent licensing fees, excluding IP barter and deals where patent licenses are bundled with de facto goods and services, would make it tougher for patent boutiques to collect.
There is an interesting line of thought in the (thank goodness overruled) patenting of natural DNA (taken from this article):
"The isolated DNA molecules before us are not found in nature," Judge Alan D. Lourie wrote. "They are obtained in the laboratory and are man-made, the product of human ingenuity."
Sounds reasonable? Until you realize that DNA is just a chain of information blocks. Then it reads: "While these words do occur in sentences in nature, they do not appear by themselves. Therefore they are man-made, therefore patentable." Off course, once the patent has been granted, it is used to attack all other sentences that contain that word. As long as patent judges utter those patently stupid verdicts, no patent system in the world can ever do good.
Nae king! Nae laird! Nae yurrupiean pressedent! We willna be fooled again!
Can't read TFA due to paywall, but does he suggest a reason why re-examining "low quality" patents is a better approach than establishing stricter eligibility criteria and a more rigorous process to weed out "low quality" patents before they're granted?
[Sir Garlon] is the marvellest knight that is now living, for he destroyeth many good knights, for he goeth invisible.
Sounds like they want more bribes, ehrm sorry, I mean "campagin contributions". Apparently the patent trolls didn't pay enough protection money...
Trivial patents, and a poor trial system are. The companies are stuffing their patent portfolios with trivial stuff like status bars, hyperlinks and swipe guestures. By cross patenting agreements they keep the small companies out of the market. If a small company has a "real" patent, it may just be that they cannot enforce it against a big player without beeing sued into the ground for violations of the trivial patents of that player. Now that people have found a way to force the big players to play by the rules by selling the patents to "non practicing enitities" aka trolls, we get a lot of propaganda against this practice. If the trials were less expensive, companies wouldn't need to yield to bogus claims, and if the patents wouldn't be handed out for uninventive shit, software developers could finally work in peace.
I have a better idea. 1) Require the patent troll to pay the defendant's legal fees up front. If the troll wins (valid patent) then the defendant pays the patent troll back. 2) Instead of damages going to the troll, make them go to the patent office. This removes the profit incentive.
Congress Proposes Strategy For Fighting Patent Trolls
And of course the term "patent trolls" as defined by congress also covers Apple, Samsung, Motorola, IBM, Google, Facebook, Intel, etc... and their favorite strategy of using crappy patents that should never have been granted or patents they are not practicing to extort smaller competitors that can't afford spend years in court fighting a patent war (hey, I'm an optimist).
Why would re-examining a patent make things better?
Either the examination (and by inference the re-examination) process is broken or it's not - the oft miss-attributed definition of madness and all that.
Surely if we accept that there are bad patents, then the solution is to change the process that grants them in the first place?
It would be nice if there were a way to limit the number of patents a company or individual was allowed to own. If companies couldn't stockpile their patents then they would be forced to limit their patents to the higher quality ones. Of course any such law would have to be written carefully to avoid the obvious loopholes companies would surely exploit.
For every post, there is an equal and opposite re-post.
the crony capitalism will now be codified.
This is dead on arrival because Schumer proposed it, and Schumer isn't exactly liked by Republicans in the House. I would be surprised if this thing makes it to law.
And even if it does, it's so full of loopholes.
The problem is not just with non-practicing entities. Apple - the rounded corners company - is probably a bigger problem than all the patent trolls put together.
Only humans can own patents (not legal persons which are now corporations.) The rights should be non transferable (as most rights should be.)
This would require employees who do the actual invention get properly taken care of instead of fired for getting too old. Sure, this would result in plenty of ass kissing of SMART people (I know that sounds too unusual, but bare with me.)
We couldn't afford to be paying CEOs so much, they'd have to give some of that up or employee #14325 (who would then be known by their first name) will go to the competition with their patent. "News" magazines would have stories of SMART people trading to other corporations for better deals, possibly akin to the stories we get on sports players and CEOs today. Maybe children would grow up wanting.... now I'm getting too hopeful.
Why shouldn't the "IP" that costs the existing system so much be tied to people instead of corporations? At least trolls would have a name and a face.
Democracy Now! - uncensored, anti-establishment news
1. Require that all patent applications must include an itemized list of research and development costs.
2. Require that all research and development costs be verified by evidence (receipts, invoices, etc.)
3. All patents are issued with a "cost to create this invention" value, verified and set by the patent office (per #1 and #2)
4. Allow ANY party in the world to buy out the patent (for the public domain) at ten times the listed cost to create.
5. In case it wasn't clear, a buy out immediately puts the patent in the public domain, for anyone to use.
- Pharma companies that spend millions of dollars to invent a drug can recoup their costs and make a profit.
- Patent troll with ridiculous obvious-activity-but-on-a-computer patent can be permanently bought out for $10
What are the drawbacks of this scheme?
Make it easier for low quality patents to be re-examined and rejected by the patent office.
How about simply enforcing the existing standard?
Patents must not be for inventions that are obvious to a person having ordinary skill in the art.
For any employees of companies that do nothing but go to court and sue other people for supposed patent violations?
The problem is that lots of small companies are running on shoestrings. Any requirement to hire a law firm to defend against a lawsuit = death. It doesn't matter if the patent gets rejected on re-examination, the small company is toast.
My last two jobs ended abruptly due to someone bringing a lawsuit. Boom see ya it's been real.
What has to happen is ending lawsuits from non-practicing entities. These companies have no skin in the game. They can't be countersued because they make nothing.
My Idea is OK let people buy patents BUT they dont get to charge but a 1/3 of what they are getting now because they do nothing, they make nothing, they provide society nothing. They get 1/3 or even less, if they are not actively using the patents ie making stuff the patent is in full force. As far as what should be and shouldn't be patented i really dont have a clue some thing that get patent make no since whatsoever like a way of doing something the something should be patented the way i dont think so much. But when its all said and done the haves will ALWAYS have more then the havenots.
Jack of all trades,master of none
Wouldn't it be nice IF we could just take a dozen recent college grads, put them in a room for a day, give them the problem, and if any of them replicate what's patented then the patent is tossed out as "obvious".... Try again as often as you like... It's only a couple of grand a day.
Dirt Cheap. Employs grads desperate for work. Focuses on voiding trivial patents.
Obviously it'll never pass congress, but...
Make it so that someone must be actively using the patent in a product, device, software, etc... If they are not they have a year to start using it in a product, device, software etc... If after the year they are not their patent should be voided. Maybe make it 2 years. But theis would make it hard for the patent only companies to operate as they don't generally make anything.
Kosh: "Understanding is a 3 edged sword, your side, their side, the Truth."
If a patent is declared invalid, the owner of the invalid patent should be obligated to pay back all royalties with interest. In addition, penalties proportional to the total revenue should be payable to the person having the patent invalidated. That way, as a patent becomes more and more significant, there is more and more incentive and reward for challenging it.
In addition, a strong presumption of validity should be dropped. The PTO should merely register the patent and it should only be nominally considered valid unless it actually survives court challenges. That way, the people interested in maintaining or challenging the patent would pay for its examination, small inventors could easily register their patents, and we wouldn't need a bloated and slow PTO.
This "solution" is not a solution at all, but a gift to large companies that can afford a full time staff to ceaselessly defend challenges to their patent portfolio from competitors. If this approach were implemented, there would be no effective means by which to discern "high quality" from "low quality" patents. Any legit inventor would need an army of lawyers to keep his/her patent. What a joke!
REAL SOLUTION:
1. Require a heighten pleading standard for patent cases. As it stands, one need only allege it has some plausible (Iqbal/Twombley) basis to believe a patent is being infringed. By heightening the pleading standard to require the specific time, date, manner and instance of infringement, essentially the same standard applicable to pleading fraud, it will be next to impossible to file formulaic boilerplate lawsuits across the country. The cost of formulating the complaints will be extremely high as some actual evidence of a particular incident of infringement will have to be alleged against each defendant in each case, and the practice will be deterred.
2. REQUIRE RIGHT TO DISPOSE/EXHAUST. In our copyright law, one cannot simply grant another the "right to sue," because such is not a right under copyright. You can only sue if you have a real ownership interest in a copyright (i.e., the substantively free ability to sell or exhaust the copyright yourself, etc.)
By simply imposing this simple rule on patents, trolls would be unable to hide behind the myriad of shell companies that make this practice profitable and possible. The "industry" would likely collapse overnight, while the interest of legit patent holders would never be harmed.
3. Looser Pays. This is simple - in a looser pay system, incentives run against bringing specious claims.
4. Direct Appeal to the Federal Circuit of all Discovery and Merits Orders of the Justices of the US Dist. Court for the Texarkana District/Divisiona. They make these cases possible. The Federal Circuit should have direct supervisory control of this court to reign it in.
5. Dual Verified Complaint Requirement. Require two (2) attorneys to sign and verify each complaint. Require one (1) of those attorneys to be admitted to practice before the USPTO, and at least one (1) of those attorneys to be admitted to the bar in the state in which at least one defendant is legally deemed to reside (no matter where suit is actually filed). In the law, this means the attorney states under oath that he has personally investigated the facts alleged and believes the available evidence constitutes probably cause to file the suit. By requiring this dual verification, no matter where suit is filed (typically in the Texarkana patent hell hole), there will have to be at least two bar associations who can now review the conduct of the lawyers responsible for the suit. The USPTO patent bar, and the bar of the home state of the defendant, have all the correct know-how and incentives to enforce rules of ethics against these attorneys and pressure the bar from other states to take reciprocal action against other attorneys involved who do not sign the complaint.
The patents in question should be crowd sourced. Basically people could sign up and say I know about technology X and then when a patent in that area comes into question the group is notified by email or rss feed or something and then those outside of the USPTO can help find prior art to discount the patent.
Only 'flamers' flame!
One of the oddities of the former Soviet Union was the arrangements they had (at least on paper) for inventors.
The default position more or less was that exploitation rights went to the state, but if the inventor got an 'inventor's certificate', it meant that s/he had a few useful rights. One of them was the right to be employed in connection with exploitation of the invention (that is, only if any use was made of it). They were eligible for housing preference and there was even an award title of 'Honored Inventor of the Soviet Union'.
Sure, whether any of that worked in reality is another question, but the concept seems interesting.
1.Make it illegal under libel laws to claim that someone is violating a patent without providing details of the actual patents (i.e. if someone claims you are violating their patents and wont say which ones, you get to sue them for libel). This will stop the kind of thing companies like Microsoft have been doing where they make nebulous patent claims without actually providing details.
2.Ban any and all patents on any part of the human genome regardless of what form the information is in (including banning patenting of any proteins that are produced by any gene found in the human body).
3.Require that any patent holder who holds a patent covering a standard that is mandated by the federal government MUST license their patents under FRAND terms to anyone wishing to implement that mandated standard. So if the government requires that all TV sets support ATSC digital TV or that TV channels must transmit ATSC digital TV signals, then holders of any patents covering ATSC digital TV must license those patents to anyone who wishes to implement ATSC digital TV in order to comply with the government regulations. (whether that be for the purpose of a receiver that can receive ATSC digital TV or for the purpose of a TV network wishing to transmit ATSC digital TV)
Or if the government mandates that cars feature airbags, then anyone holding relavent airbag patents must license them to any automaker under FRAND terms and cant use the patents to lock out competitors.
You two should suggest these ideas to your congressman. Something along those lines could work. It might actually get passed because the dems have never seen a tax they didn't like, and the repubs like ideas that could help businesses operate more efficiently, spending time providing products and services instead of fighting lawsuits. Both parties might like this.
As a small inventor myself, doing R&D and rendering those inventions as software, I wouldn't mind a system where I could declare the value at "no more than $500,000" and the fee would be proportional.
You two should suggest these ideas to your congressman. Something along those lines could work. It might actually get passed because the dems have never seen a tax they didn't like, and the repubs like ideas that could help businesses operate more efficiently, spending time providing products and services instead of fighting lawsuits. Both parties might like this.
As a small inventor myself, doing R&D and rendering those inventions as software, I wouldn't mind a system where I could declare the value at "no more than $500,000" and the fee would be proportional.
Sadly those two bolded statements you mention are pretty far from the truth. Both parties are corrupted by megacorporations (mainly owned/run by the very wealthy) to the degree that only what benefits the megacorps gets passed (whether it benefits/harms small business or individuals seems to be a minor factor). Whether it's dems passing/continuing a tax cut for the wealthy, or the repubs passing big-brother legislation that makes everyone's life more bureacratic, both parties are are not representative of small business or individuals unless they get lobbied by hard cash.
Two decades ago, I might have agreed with both your idea and the parties' signatures. Now I don't think that's the case anymore. Consequently, I don't think any of these kind of ideas will go anywhere. Our "representatives" ... aren't.
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