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Taking the Battle Against Patent Trolls To the Public
First time accepted submitter presspass writes "A group of technology and retail groups is beginning a national ad campaign targeting so-called patent trolls. The Internet Association, National Restaurant Association, National Retail Federation and Food Marketing Institute Patent trolls — a term known more among geeks than the general public — are about to be the target of a national ad campaign. Beginning Friday, a group of retail trade organizations is launching a radio and print campaign in 17 states. They want to raise awareness of a problem they say is draining resources from business and raising prices for consumers."
True! It's the patent system that needs to be fixed! Maybe limit the number of years a patent holder can keep a patent without using it in an actual application!
Of course they are trolls. The definition of patent troll is clear cut:
a) Owns a patent
b) Didn't do the work personally
c) Doesn't make products using the patent.
20% is more than high enough when it comes to parasites.
And patent trolling doesn't just cost resources. It reduces options and choices the public get.
The summary makes it sound like those groups are the trolls, rather than the associations beginning the campaign against trolls.
The Constitutional rationale for patents is not monetisation, that's why:
[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.
Now please inform us as to how patent trolls promote the progress of science and/or useful arts.
...
(Warning--Spoiler ahead:) They don't.
Il n'y a pas de Planet B.
So inventors without resources to develop that invention are out of luck?
Inventors are out of luck RIGHT NOW. Patent is just a piece of paper that gives you right to sue someone, but to sue someone big/important you need >$100K for lawyer fees.
Who logs in to gdm? Not I, said the duck.
Making the thing described in the patent is not a requirement, neither is being the original inventor. Selling and buying exclusive rights isn't unique to patents.
In addition, the clause I quoted above speaks of "securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries"; so, if you please, also tell us how it provides justification for buying, selling, or otherwise assigning these rights to someone other than the originator.
Il n'y a pas de Planet B.
Didn't take the "you can't do anything about it so just bend over already" shills very long to show up, did it?
Il n'y a pas de Planet B.
The level of scrutiny that applies to patent legislation is the "rational basis" test. That is the lowest level of scrutiny that the Supreme Court applies. Basically, if the government can show that the legislation is rationally related to the purpose (promotion of the progress of the science and useful arts), it is within the scope of power enumerated in the constitution.
Article 1 Section 8 "empowers Congress to determine the intellectual property regimes that, overall, in that body’s judgment, will serve the ends of the Clause." (Golan v. Holder, 565 U.S. ____, and Eldred v. Ashcroft 537 U.S. at 222).
Congress isn't required to keep its copyright and patent legislation within what *you* think promotes the progress of the science and useful arts.
Good idea. Let's brainstorm on this a little!
How about requiring the applicant to submit a plan to monetize the patent either: a) as part of the initial patent application; or b) as a follow-up to an approved patent application before the patent is granted? I'm talking about some kind of business plan or letter of intent to sell a manifestation of the patent, not simply waiting for someone for the patent-holder to sue or license the patent to. Then if the patent-holder doesn't follow through with the business idea within a certain time period, the patent is revoked.
Article 1 Section 8 "empowers Congress to determine the intellectual property regimes that, overall, in that body’s judgment, will serve the ends of the Clause." (Golan v. Holder, 565 U.S. ____, and Eldred v. Ashcroft 537 U.S. at 222).
Well put.
Patent infringement on their patent on ad campaigns against patent trolls!
If you accept that mathematics is not patentable then
you must accept that computer programs are not patentable.
Regardless of what lawyers would like to believe; computers are machines
that read and utter mathematical expressions.
This particular patent problem is just another denial of scientific fact!
You should be able to patent a process that contains a computer
program but the program itself is out of bounds.
so there!
If the only way to monetise the invention is to sell it to a patent troll then it does not deserve any money.
The only way a patent troll makes money is if someone willing to actually make the thing has the same (usually pretty obvious) idea so the original 'invention' offered zero value to society.
Said as someone with a few patents ( http://www.patentmaps.com/inventor/Jocelyn_M_Earl_1.html )
http://rareformnewmedia.com/
Can you say DCMA? Can you say takedown? I knew you could.
Why is Snark Required?
Any thoughts on how the following rule would help the patent system?:
Make patents non transferable.
Now if you are working for a company, or with someone, patenet ownership can be split how ever initially agreed on (I'm a 5% owner of a patent from a pervious job), but this stops a single company, with no product, history, or karma backing it, from buying up bunched of patents and suing major companies trying to sell their product.
What makes you think inventors who "don't have the mental and financial stamina to sue a big corporation for patent infringement" are going to get a good deal out of a patent troll company? They have the same characteristics as other corporations, except they're run by even more shady individuals than average.
The way the patent system is currently run makes it extremely hard for anyone but an expensive patent attorney to navigate too. Your fantasy inventor here is unlikely to get their patent in the first place. Instead it's big corporations who have the resources to file so many garbage patents that the rest of the world is bogged down navigating them, including the small scale inventors. Odds are the mythical lone wolf inventor will be sued into oblivion rather than sue someone else successfully.
Congress has quite clearly failed.
The other 80% was Apple.
Perhaps, but the question Zontar asked was how the clause provides justification for the current patent regime.
The language used in patent applications is extremely hard to decode. The idea that people might be mining for innovation by reading patents has to clear that hurdle. They need to make sense of that mess with less work than developing the same idea from scratch.
Back when patents were disclosing major technical advances, there was some evidence people were doing that. I re-read Portraits in Silicon lately. One of the recurring themes among early computer researchers was the idea that they'd get a patent on some very fundamental and non-obvious technology. Could you reinvent the transistor faster than you could read about it its construction? Probably not.
But lately, there's a lot more evidence that people are concurrently discovering obvious advances that someone patented instead of that sort of thing. And even those old fundamental patents turn out to be not such a big deal after all. The actual history of the transistor shows the concurrent development of its ideas as being really inevitable.
Concurrent discovery is far more likely than unique innovation. The patent system is burdening what turns out to be one of the most common situations seen in scientific advancement: that the next step to build on any innovation will be co-discovered by multiple researchers in parallel. This happens far more often than the fantasy of the lone inventor working in isolation to create something no one else thought of before.
I hold the patent trolling patent, so I'm going to sue the ass of every last patent troll.
This is mostly an argument for raising the bar on the non-obviousness requirement.
However, even if concurrent discovery is common, that may only be because of the concurrent incentive to discovery. Any of the hard-working, innovative, inventors could come up with the invention. Each is being spurred on by the promise of the exclusive right waiting at the end of the tunnel. Just because one gets to the patent office before the other doesn't mean that the patent didn't provide the incentive to do the work.
In general, I agree that the patent system is broken and creates perverse incentives that undermine the intent of the system. Nevertheless, allow me to play devil's advocate here.
Developing a technology requires an investment of time and money and possibly other resources. That investment may result in an invention that is useful for the investor, or it might not pan out at all.
Patent trolls provide a marketplace for inventions patents that the inventor may not be able to use but that might have value to others. The existence of this marketplace reduces the risk of investing in R&D because some of the "failures" might be valued by the troll marketplace.
Reduced risk possibly spurs more investment in R&D. More R&D investment likely promotes the progress of science and the useful arts.
You don't sell that product and you're not into fighting lawsuits, so without selling to a "patent troll", you can neither implement your invention nor monetize your invention.
First, the logic in your example is fallacious. "You don't sell that product" may a true statement, but there's nothing preventing you from selling the product other than your own unwillingness to do so. Your conclusion that "you can neither implement your invention nor monetize your invention" is false. "You're not into fighting lawsuits" is irrelevant since an improvement to a product does not give you the ability to sue someone making that product.
Second, a patent troll wouldn't buy your hypothetical patent. Patent trolls are only interested in filing lawsuits to take money away from those who actually make and sell products. Your hypothetical couldn't be used to sue the maker of the existing product, so it would be useless to a patent troll (unless, of course, you patented some aspect of an existing product, in which case you are also a patent troll).
Not totally true. The troll sees a product someone created but didn't patent and patents it himself.
Now why wouldn't someone patent an invention? Cost, time, hassle. Not everyone has the deep pockets to do it. And along comes the troll. If the law said that the troll could be sued if it could be found the product was already in production, that would be a welcome change.
Wuddooeyeno? IITYWYBMAD? Like nuts? eclecticallyincorrect.com
Of course they are trolls. The definition of patent troll is clear cut:
a) Owns a patent
b) Didn't do the work personally
c) Doesn't make products using the patent.
d) Lives under a bridge
e) Eats billygoats
The mind conceives, the body achieves, the spirit manifests.
Examine harder. The US has absurdly low thresholds for utility and prior use.
You seem to regard science as some kind of dodge... or hustle.
Congress has quite clearly failed.
Not really, thry're still in office and not in prison, they have their own non-Obabacare health plan for life, they're richer than sin considering their government paychecks, they have no term limits so they can continue this BS until they die with no legal repurcussions, how is that failure?
If you mean watching out for their voters interests rather than the special interests, reducing pork barrel politics to zero, limiting terms to two, divesting themselves of Swiss and Vatican secret bank accounts, then yes, they have failed and failed miserably.
The mind conceives, the body achieves, the spirit manifests.
How do you know that "the only way a patent troll makes money is if someone willing to actually make the thing has the same idea"? Patents are published, so the person willing to implement the invention could have just read the published patent and decided they want to make it.
Most crap I've seen is intentionally written to be as confusing, obtuse and useless as possible. The last thing they want is competition or anyone in the patent office to understand what "circular transportation facilitation device" really means.
That is one of the mechanisms that patents promote the progress of science and useful arts: the public gives the inventor an exclusive right (which they can assign or licence), and the inventor gives the public his/her knowledge. It's a trade.
What is actually happening in the real world companies doing all the work implementing obvious aggregations of technology without any external help and getting randomly dinged by speculators who didn't do any of the "fucking work". Obvious ideas should be worthless instead USTPO has turned them into goldmines.
"Trolls" has a narrow definition and to be quite honest, I'm not entirely convinced there's any principled reform that eliminates so-called "trolls" while allowing manufacturers to sue the pants off each other, still less one that would be effective.
A better question though is whether patents are actually necessary, or rather, whether a monopoly is the best way to encourage publication of inventions.
You are not alone. This is not normal. None of this is normal.
but to sue someone big/important you need >$100K for lawyer fees.
And to litigate successfully, you need a hundred times as much (if not more). Ask Aureal.
Well there you have it. The exception to the "it takes one to know one" rule that proves the rule.
Guns don't kill people; Physics kills people! - John Lithgow as Dick Solomon on Third Rock From The Sun
Yeah. I still don't think you get what a patent troll does, or more accurately, doesn't do. The problem as stated is the product won't get to market. Your solution? Sell it to someone who won't take it market! Surely, now that I've pointed out the problem with your reasoning you will understand it and stop claiming that patent trolls solve a problem that couldn't otherwise be solved.Right? I mean unless of course that you are, yourself, a troll of some sort or another.
Guns don't kill people; Physics kills people! - John Lithgow as Dick Solomon on Third Rock From The Sun
the rest of the world is bogged down navigating them
Yet at the same time we're incentivized not to navigate (research) the existing patents by the willful infringement rules. Not only does it make a mockery of the patent system as an avenue for "disclosure," but you're trapped between the rock of due diligence and the hard place of triple damages.
.: Semper Absurda
Do you think the moderation would be any different if I had logged in
Yes, when you're logged in your comments start at Normal: 2.
.: Semper Absurda
they're richer than sin considering their government paychecks
No way, man. $174,000 is hardly "richer than sin."
They are richer than sin, but it's because they constantly accept bribes (under various euphemisms) and rotate out to highly lucrative private sector positions bribing other politicians.
.: Semper Absurda
d) Lives under a bridge
"In the Bay Area, they're placing their truss in the bridge troll"
Free Martian Whores!
Wikipedia disagrees with you. I'll take wikipedia's word before I'll take an AC's word.
Free Martian Whores!
When its far too expensive to fight for a patent and far easer and less costly to settle it the major problem not who owns the patents. There should be justice no matter how much money you have because if you have no money you get NO Justice in the United States and thats a fact.
Jack of all trades,master of none
> If you accept that mathematics is not patentable then you must accept that computer programs are not patentable.
Ok. But since UK and USA courts have upheld patents on math, this mantra doesn't get us as far as people think.
* http://en.swpat.org/wiki/Software_is_math#Some_judges_say_math_is_patentable
We need laws to exclude software from patentability. Like what New Zealand did last week (but with a bit of work we can write a better text).
Here's a page I'm in the process of writing:
* http://en.swpat.org/wiki/How_to_write_a_law_banning_software_patents
Expert in software patents or patent law? Contribute to the ESP wiki!
Seems to me there's an easy fix. In order to hold a patent, you must demonstrably make, sell, support or otherwise profit from whatever the patent is for*. That incentivizes patent owners to use them for more than bargaining chips, and discourages people from hoovering up patents with only the intent to troll.
* 'Profit' does not include litigation.
~Knowledge is knowing that a tomato is a fruit, but Wisdom is knowing not to put it in a fruit salad.
Only if you choose to check the box adding the extra point.
Time is what keeps everything from happening all at once.
Drawing the line between obvious and less obvious may only be possible in a historical context. If you break down innovation into small enough pieces, each step always seems obvious given everything that came before. That's how the world advances: with a series of small steps that build into larger works. It's rare you can give someone an exclusive right to any one of those next steps without blocking some inevitable advance forward that comes next.
If there such a thing as non-obvious advances--the rich history of co-discovery suggest there might not be--the only people who are really qualified to make that call are the competitors of the person submitting the patent. Someone working at the patent office certainly can't do it successfully. You can't say what's obvious to a skilled worker in a field without having those skills yourself.
The only industry where it's clear the patent is motivating research that otherwise might not happen is in drug manufacturing. Next steps there take so many resources that it's not clear they would happen without the exclusive profit motive. But there we're only talking only about big company jobs; there are no small inventors to protect in that field.
Both the US and the UK have laws that prohibits software patent. In the US the special court setup to deal with patents suits just decided it didn't agree with the law and has chosen to ignore it, the US patent office has since started accepting more and more software patents. The supreme court has indicated they would overturn the lower patent court's decision to ignore the ban on software patents, but so far no software patent case has gone all the way to supreme court.
If there's a law, and you interpret it as saying X, and the courts that are trying people interpret it as saying Y, then in all senses that matter, Y is the law.
I mean, I agree that the law prohibits software patents. But my opinion doesn't stop software developers from receiving fines and injunctions.
Until the US Supreme Court takes a software patent and throws it out the window, software patents are real and we need a law. It's also not certain that the Supreme Court would do what we hope. They could rule that some software patents are invalid and others valid, and maybe their distinction would be substantial or maybe it would be reduced to nothing by patent lawyers drafting their applications a little differently.
We probably agree on these points, I'm just less optimistic about the courts doing what we're hoping they'll do.
Expert in software patents or patent law? Contribute to the ESP wiki!
Poor Thinking:
Example
Idea for a product that requires 20 million to begin production yet offers billions in potential profits. The only problem is, I don't have the 5 million to build the factory, the 15 million for payroll and other business expenses plus the 5 million for the marketing to reach the target market. No patent gets filed, I don't make any money and the idea doesn't ever reach anyone else.
So sorry mr poor but although you had a great idea that could have saves millions of lives, you didn't have the money to patent it. Because of this, I'm sorry but you don't qualify for heaven - Pulls lever and drops you straight to hell for eternity.
Mod me up/Mod me down: I wont frown as I've no crown
You're so naÃve.
What the trolls do is circle you until yo're (financially) dead and then buy all your patents for cheap. From your bank, because at that point "your" assets ain't yours anymore.
I'm not sure big Pharm is really a good example of an industry where patents are beneficial to society... There's a lot of patent abuse and absurdity in those industries too.
Is it that big of a difference between patenting something as new because it's "on a phone", vs "with a time release"?
Its time to do like New Zealand. Software in NZ can't' be patented, only their product that is a commercial software (eg. Word processor) can have a patent. Algorithms cannot be patented.
Leslie Satenstein Montreal Quebec Canada
Patent trolls are EXTORTIONIST. They threaten you with a patent that you probably are NOT infringing on but the court fight to prove it will cost twice what they are asking to settle.
The key part of that quote for me is "by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." Looks like the broken part of the system is allowing rights holders to sell their rights to another who acts as Author or Inventor, rather than simply licensing the use of the tech.
Lets call it "the war against patent trolls" - that seems accepted phraseology these days.
Patent trolls are EXTORTIONIST. They threaten you with a patent that you probably are NOT infringing on but the court fight to prove it will cost twice what they are asking to settle.
Easy to fix. Expose them and deny further patents, forever.
The mind conceives, the body achieves, the spirit manifests.