Finally, a Bill To End Patent Trolling

First time accepted submitter jellie writes "According to Ars Technica, a new bill introduced by Rep. Bob Goodlatte (R-VA), the chairman of the House Judiciary Committee, has received bipartisan support and has a real chance of passing. In a press call, lawyers from the CCIA, EFF, and Public Knowledge had universal praise for the bill, which is called the Innovation Act of 2013. The EFF has a short summary of the good and bad parts of an earlier draft of the bill. The bill will require patent holders who are filing a suit to identify the specific products and claims which are being infringed, require the loser in a suit to pay attorney's fees and costs, and force trolls to reveal anyone who has a 'financial interest' in the case, making them possibly liable for damages."

Comments

Still Bad Patents

[cob666]

As long as there are patents on software and processes, the patent trolling will never really end.

Re:Still Bad Patents

[MachineShedFred]

At least this makes an attempt to do away with the non-practicing entities that patent things only to sue.

I'm sure it will still be ineffective, or just not pass both houses of Congress.

Re:Still Bad Patents

[mi]

Never then... Because smart people, who think stuff up, ought to be able to get paid for their ideas. And it should not matter, whether one decided to implement the idea himself, or to sell it to the highest bidder.

The patent trolls with their vague (yet costly) claims are abusing the system, but there is nothing wrong with the basic premise behind the patents.

Re:Still Bad Patents

[CauseBy]

Agreed. The solution is to use statute to redefine "obviousness". That standard should be redefined in statute to match the common understanding of that word instead of the absurd legal definition. You know that thing about a patent not being valid if a person of ordinary skill in the art could reproduce it? To prove that all they should have to do is put twenty programmers on the stand and if ten of them can come up with that solution, then it's invalid. Done. And after that, the troll has to pay costs.

For instance:

"Mr Programmer, if you wanted to make it really easy to buy a product on a webpage, what is the easiest you could possibly make it?"
"Well, you could have a button and if you click it, then that's it, you've bought it."
"Thank you, Mr Programmer, you just invalidated the 1-click patent. Amazon pays costs."

The conceptual underpinning of patents is theoretically workable, but the actual real-world implementation of patents in our legal system is a travishamockery.

Re:Still Bad Patents

[Dcnjoe60]

The industry where patentability standards are currently overly lax is precisely the industry where a small-time inventor has means to produce at least the reference implementation of an invention. Namely: software.

And also to be in violation of somebody else's patent. Namely: software.

Re:Still Bad Patents

[Suki I]

At least this makes an attempt to do away with the non-practicing entities that patent things only to sue.

I'm sure it will still be ineffective, or just not pass both houses of Congress.

What about getting the patent office to do their job to begin with? Washington keeps asking for, and getting all this power, then they never get around to doing anything with that power they said they needed.

Re:Still Bad Patents

[gnasher719]

Agreed. The solution is to use statute to redefine "obviousness". That standard should be redefined in statute to match the common understanding of that word instead of the absurd legal definition. You know that thing about a patent not being valid if a person of ordinary skill in the art [wikipedia.org] could reproduce it? To prove that all they should have to do is put twenty programmers on the stand and if ten of them can come up with that solution, then it's invalid. Done. And after that, the troll has to pay costs.

It's not just the obviousness. Patents should be on _how_ something is achieved, not _what_ is achieved. So there _might_ be a patent on _how_ a single click is transformed into a complete order, but I should be able to transform a single click into a complete order using a different method, without infringing on the patent.

If I invent a method that makes the brakes in your car more effective and reduces your stopping time, I should get a patent on that method, but not a patent on making cars stop quicker. Anyone else should be free to use a different method.

I think quite some progress has actually made in the non-obviousness department. The hypothetical person of ordinary skill in the art is only ordinarily inventive, but has an unlimited knowledge of absolutely everything that has ever been published in the field. So none of your twenty developers might figure out that something can be achieved by combining totally obscure method A with totally obscure method B, since they have never heard of either. But combining them is still not patent worthy.

Re:Still Bad Patents

[quetwo]

The patent office is doing their job. They are charged with recording and maintaining records of patents. When you file, you swear, under oath, that the patent you are filing does not already exist and is not already in prior practice. The people who file patents honestly do patent searches (that is why the lawyers get the big bucks) before they file the patent.

If you file a patent of something that already exists or has already been patented, you are expected to be taken to court to have your patent invalidated. The rules are setup in a way that the courts can deal with patent issues, not a government bureaucrat sitting in an office.

Of course that basically fails when a large company like Apple files a patent for something I invented 10 years ago. They will lawyer you into the ground instead of giving you a chance to negotiate a fair licensing model.

But, that is how the system was setup and how the office is charged in running.

Re:Still Bad Patents

[91degrees]

True. I think that's a separate issue though.

A troll could patent a semi-obvious modification to a car engine for example, and use the same business model against various engineering firms. I think there's something about the culture of software development that makes us more susceptible to patent trolling, which would explain why trolls mostly use software patents, but other industries aren't immune.

Re:Still Bad Patents

[Dachannien]

In a lot of cases, the applicants/attorneys don't actually do a search, because doing a search means that if they fail to tell the Office about something they find, they could be on the hook for it later. So it's safer to be willfully blind.

As for the USPTO, we do what we can in the time given. There's only so much searching we can do, and if we can't find and present evidence that something was already known publicly, we can't just send out rejections based on how many Slashdotters think it's obvious. Issued patents aren't perfect, but when you compare the claims that get issued with what was originally filed, you'll see just how much worse the system could be if we actually did just rubber stamp everything.

Re:Still Bad Patents

[pepty]

Patents on cancer drugs that unmask cancer cells hiding from the immune system, thus allowing T-cells to recognize the cancer cells and mount an immune response.

Re:Still Bad Patents

[Theaetetus]

The patent office is doing their job. They are charged with recording and maintaining records of patents. When you file, you swear, under oath, that the patent you are filing does not already exist and is not already in prior practice. The people who file patents honestly do patent searches (that is why the lawyers get the big bucks) before they file the patent.

If you file a patent of something that already exists or has already been patented, you are expected to be taken to court to have your patent invalidated. The rules are setup in a way that the courts can deal with patent issues, not a government bureaucrat sitting in an office.

But, that is how the system was setup and how the office is charged in running.

I believe you may be confused, or may be referring to another country, such as Hong Kong. Basically, there are two systems for patents. The first is a registration-only system in which the patent office does nothing other than "record and maintain records". Hong Kong has this. Australia also has invention registrations that are separate from patents, and are merely recorded.
The second is an examination system in which the patent office does a full search and examination of the patent application, typically (around 90% of the time in the US) rejecting the patent application initially, and leaving it to the inventor to amend and narrow the claims in response before the patent is finally allowed. The "government bureaucrats sitting in an office" in these systems are scientists and engineers. Frequently in these systems, the patent attorney does not do prior art searches, because the patent examiner is going to do his or her own search anyway and why would he or she accept ours?

This is not to say that the examination systems are perfect, but just that the office is doing more than just recording and maintaining records.

Re:Still Bad Patents

[pepty]

or just not pass both houses of Congress.

There's always the chance that one house would nix it just to spite the other, but I'd think something like this would primarily move or stop based on the total lobbying $. The deepest pockets in tech sometimes use patent troll outfits as cutouts so they might fight the sections that cut into their privacy, but overall wouldn't Apple, Intel, Google, etc. benefit from this bill?

Re:Still Bad Patents

[scottme]

But you (the consumer) reap the benefits of the idea over and over for infinity years, yet want to pay only once. That's like paying once at a restaurant, and eating there for the rest of year without paying.

But the inventor, who had the idea once, should get paid each time anything that uses the idea is manufactured, sold, or consumed? That's like cooking a meal once, and expecting to eat it every day for as long as you live.

Re:Still Bad Patents

[gnupun]

But the inventor, who had the idea once, should get paid each time anything that uses the idea is manufactured, sold, or consumed?

Replying to my own post for another analogy. Imagine a mechanic repairs 5 cars having problem X in an 8 hour day. Let's say he gets paid around $25 - $50/hr ($400 / day max). Now let's say an inventor invents a device that once installed in each car eliminates or greatly reduces occurrence of problem X. Should the inventor get paid a fixed amount for solving problem X, (similar to the fixed pay of the mechanic), or should be paid per car the device is installed? It should be the latter, as he invention does the work of thousands of mechanics.

Re:Still Bad Patents

[Jason Levine]

Not to mention that a lot of these patents are written extremely vaguely so that it can apply to Case A when approved and then can be turned around and applied to Case B when that becomes popular and/or when the patent is sold to a patent troll.

Re:Still Bad Patents

[scottme]

That's like cooking a meal once, and expecting to eat it every day for as long as you live.

Is there anything wrong with that?

Nice work if you can get it, but yes, I think there certainly is something wrong with it. I do absolutely support the idea that inventors, authors, and other "knowledge workers" should be recompensed for the time and effort they put into their inventions. But I don't think it's right that people and corporations should be able, over many many years, to extract an ongoing rental that derives from a wholly artificial scarcity (i.e. from a patent on an idea or process). In my ideal world, there would be some formula to assess what is a reasonable return on a given innovation, and once the inventor has reaped that reward, the invention would pass into the public domain.

Surely the fact that we have endless debates about the rights and wrongs of patents, copyrights, and so on, is an indicator that there is some inherent problem with the way societies currently implement these concepts.

Re:Still Bad Patents

[quarrelinastraw]

To prove that all they should have to do is put twenty programmers on the stand and if ten of them can come up with that solution.

Why is that the standard of obviousness? When it comes to algorithm design, algorithms could be manifestly obvious to mathematicians and algorithm specialists but not to ordinary programmers. The obvious criterion should take into account the corporate structure, or else it will be profitable to keep a stable of uninformed programmers in the dark while they implement algorithms designed by specialists with a higher level of technical knowledge. Then any algorithm that is obvious to someone with technical knowledge will still be patentable because it's implemented by less informed programmers.

Re:Still Bad Patents

[HiThere]

Not saying anything you have said is wrong, but the current system is SO bad that we would be much better off without ANY patents.

A part of the problem has to do with "obviousness". If two people are looking at a problem, it's unlikely that either will find a non-obvious solution. If 100 are looking at the problem, lots of "non-obvious" solutions will be found. If 1,000 people are looking, not only will lots of "non-obvious" solutions be found, but there will be lots of independent duplication. And patents pick an arbitrary winner, which is grossly unfair.

The only time that patents seem to me to be justified is where there are truly significant up-front costs. Drug tests are one example. Even there, it shouldn't be possible to retire a product from the market and also prevent anyone else from making it. And yes, I know that what I'm proposing isn't perfect either. But it would be much less bad, and might well even have a net social benefit.

Re:Still Bad Patents

[scottme]

That sentiment seems like a combination of communism (inventors' work is not his own, but belongs to the public) and wage slavery (one should not derive more than X dollars wage for Y hours of work instead of the true and unknown market value of the work).

The image people have of the lone inventor, toiling for years against the odds to perfect his concept, is just utterly wrong these days. Most patents are filed on behalf of corporations, and represent the work of teams of salaried employees, who in general will not see much if any direct personal benefit from the invention, beyond the odd bonus, or maybe, if they prove able to repeat the trick, a promotion. Where's your wage slavery now?

It's not communism to assert that a large part of the knowledge and skills that enable a person to come up with a new idea are the end product of centuries of shared human endeavour, and that therefore all ideas ultimately must become public property. What kind of a world would we have if everyone kept all their ideas to themselves, and every human interaction had to be a commercial transaction? Not one I'd want to live in.

You talk of the "true and unknown market value" of a patent -- I'll give you "unknown", for sure, because the state-granted monopoly of a patent exists to guarantee an artifical scarcity of the idea and results in the patent owner being able to extract a much higher "value" from the invention than a free market would provide.

You seem to be arguing on the side of the patent trolls who are the original topic of this discussion. You can't believe it's right that some a**hole, who was probably not even remotely involved in creating the idea, but happens to have acquired the rights to a dubious patent, should be able to live off of license fees and hold to ransom companies which need to make use of the idea to make real products and employ people, robbing them of the ability to make an honest living?

Also, who is going to compensate the inventors whose inventions are not commercially successful -- 90% patents don't make money.

The simple answer is that nobody owes anyone a living, so nobody's going to compensate people who come up with useless inventions. I hope you didn't think I was suggesting that "society" should fund the assorted crackpots and chancers who attempt to game the patent system.

Re:Still Bad Patents

[sjames]

It seems to me that if someone independently invents the same thing, the patent should be immediately invalidated (it must not have been all that novel and non-obvious). That would at least give a patent holder pause before going in with lawyers blazing.

Re:Still Bad Patents

[Dachannien]

I think a better system would be one where the USPTO took an active role in managing certain aspects of litigation. Initial issuance of patents could remain similar to how it is now (although anything that can be done to improve quality is still a good thing). But during litigation, the first two things that should be done are (1) a focused PTO re-exam complete with a Request for Comments to solicit possible prior art from the public, and (2) a PTO determination of the proper scope of the claims, rather than leave this up to the push-and-pull of the plaintiff and defendant.

Why should not the loser always pay?

[mi]

require the loser in a suit to pay attorney's fees and costs

I'd argue, the loser should be on the hook for the winner's expenses by default. Currently the court may make them responsible, but the winner typically needs to specifically ask for it — and it should be the opposite. In all cases: civil and criminal (if the accused is acquitted, the prosecuting office needs to cough up).

At least, this should apply (whether the subject is patent or not), when the losing the side is the one, that initiated the proceedings in the first place.

force trolls to reveal anyone who has a 'financial interest' in the case, making them possibly liable for damages.

This bit also seems generic — if such a disclosure is a good idea (and I am not sure), then why limit it to just patent cases?

Re:Why should not the loser always pay?

[Dcnjoe60]

I'd argue, the loser should be on the hook for the winner's expenses by default. Currently the court may make them responsible, but the winner typically needs to specifically ask for it — and it should be the opposite. In all cases: civil and criminal (if the accused is acquitted, the prosecuting office needs to cough up).

At least, this should apply (whether the subject is patent or not), when the losing the side is the one, that initiated the proceedings in the first place.

Accept that sometimes, there really are legitimate things to be decided by the courts, where both sides have compelling positions as to why they are right. Take a dispute over breach of contract, where a court is needed to determine a vague interpretation. Are you saying that the loser should pay the winner's cost there? Or take a civil rights or harassment case? Are you saying that if you bring such a suit and you lose, you should have to pay the employer's costs, too? That would pretty much eliminate all of those suits out of fear of the plaintiff going bankrupt, would it not.

No, it seems best, to let the court determine what is an equitable allocation of the costs based on the facts and nature of the case instead of mandating it by law. Doing that usually guarantees whoever has the most money to throw into lawyers while the case is going on will win and they will recoup those costs after the verdict is rendered. That hardly sounds like a real justice system.

Re:Why should not the loser always pay?

[gnasher719]

I'm not sure about the loser paying when the loser is the defendant. That means you can pay arbitrarily high fees to a lawyer to sue someone as long as you think you'll win.

German method: Plaintiff asks for money, defendant offers money (less or possibly zero). Court sets cost according the the value that is in argument (the difference). That's the fees that the lawyers get! Then if defendant is ordered to pay what he offered to pay anyway, he has won the case. If its more, the percentage he is ordered to pay is the percentage of the lawyers that he pays.

Example: You ask for $2.1 million. I offer $100,000. The court orders me to pay $120,000. We argued about two million. I was ordered to pay $20,000 = one percent beyond what I offered to pay anyway. I pay one percent of my lawyers and your lawyers, you pay 99%. And the lawyers get paid at the fixed "$2,000,000 rate" which is some small percentage of these two million.

Contact your rep here

[sl4shd0rk]

http://www.house.gov/representatives/

Like ARM

[tepples]

NPEs selling their patents to practicing entities is exactly the behavior I'd want to encourage. It would at least draw a line between legit tech companies like ARM, which produce know-how in addition to patents, and companies like Lodsys, which exist solely to rest on laurels.

Still will not stop shit like...

[harvestsun]

"We made a device with curved corners first, now you can't make one, na-na-na-na-na-na!"

Although patent trolls are bad, there are a lot bigger entities to fear with the current definitions of patentability.

Cease and Desist

[wbr1]

Herewith, the law firm of WBR1 et. al., and its controlling interests issues a cease and desist letter to Bob Goodlatte, the EFF, and all pertaining parties.

It is our contention that we hold a patent on the process of bill writing pertaining to patent reform, and also on the process of reviewing and lauding it online

WBR1 would be happy to settle now for a to be determined sum before trying this case. Checks can be made payable to Shell Account #13837888 Cayman Islands Bank

Re:Good start, but...

[jmauro]

I think you have it backwards. The "trolls" need to identify what product of yours is infringing and how, not the other way around. You still don't need an actual product to file a suit with the new bill.

Re:Good start, but...

[Talderas]

A NPE can still file suit. It's just they have to bring suit over a specific infringing product and be capable of identifying said product. Do you recall a slashdot story not too long ago about a patent troll that carpet bombed small businesses with letters asking if they used a printer with a scanning feature that would use a network to send a PDF file to be email out? That would not be a valid lawsuit under the law as the troll would not be able to identify a specific product in use by the businesses they are writing letters to.

It's a good start

[wjcofkc]

Now we just need to stop issuing obvious patents like being first to market with a device that has curved corners. I don't remember the exact details, but back in the 19th century, the individual that first put an eraser on the end of a pencil had his patent application denied because all he did was put an eraser on the end of a pencil. We need a patent process that is sensible to begin with. Unfortunately, I suspect a lot of what is being submitted for patents is technologically over the heads of those issuing the patents, which is where a lot of bad patents come from. I also believe technology related patents are being intentionally written in an excessively complex and obfuscated manner to try and sneak them through. In a nutshell, we need an army of nerds in the patent office... now.

This part has always been absurd ...

[gstoddart]

The bill will require patent holders who are filing a suit to identify the specific products and claims which are being infringed

I've never understood how you can file suit without explicitly listing this.

We've heard about far too many lawsuits which vaguely reference a "set of infringing patents", and I seem to recall that (despite asserting Linux infringes) Microsoft has never actually enumerated the patents Linux is supposed to violate.

Forcing them to disclose who has financial interest in it is a good idea, because one gets the impression a lot of these have a behind-the-scenes actor which doesn't get revealed.

Good start, could be better though

[jonwil]

1.Require anyone who is saying "xyz is violating my patents" to disclose exactly which patents are being violated and exactly which products are violating those patents and how, regardless of whether a lawsuit is being filed or not.
This would, for example, mean if Microsoft wants to say "Linux violates our patents" they would have to show exactly which patents they are claiming Linux is violating and which parts of Linux are violating which patents.

2,Make it illegal to sue customers and users if the manufacturer has a license for the patents. So, for example, if a company makes a video camera that records H.264 compressed video and purchases a patent license from the patent holders of H.264, those same patent holders can't sue someone who buys that video camera and uses it. Or a patent troll suing the developer of an app because that app uses a feature that is provided by the OS (in that case they would be required to sue the operating system vendor instead)

3.Introduce an "enforce it or loose it" rule for patents that requires patent holders to vigorously defend (either via licensing or via lawsuits) their patent or risk loosing the ability to sue those entities in the future. This would prevent the situation where patent holders go after small fish that they know they can beat, then using those wins as precedent and leverage against the big boys. This would also prevent the situation where someone holding a patent sits on the patent until the technology is more wide spread and then files lawsuits (remember what happened with LZW and GIF?)

4.Introduce a system where anyone (even if they aren't using/violating the patent) can submit prior art to the patent office for review. The patent office would then review that prior art. If the prior art is found to be genuine and the patent is invalidated, the holder of the patent must pay the patent office money to cover the review. If the prior art is not genuine, the entity that submitted the prior art has to pay.

Due to the costs incurred if the prior art is not genuine, there is a dis-incentive to submit frivolous or bogus prior art requests. If the fees paid are structured correctly then there would also be an incentive to properly review all prior art requests.

and 5.Require that anyone who claims to have a patent over any part of a standard, where that standard has been mandated by the government for use in certain situations, MUST license that patent for use in implementing the standard to anyone who wishes to acquire a license (including open source software) and must license under fair terms (with a suitable legal definition of whats "fair" that is not open to influence from either party)

Stand by for unintended consequences....

[SlaveToTheGrind]

Every single one of these proposed bills sounds great as long as you start by thinking about [insert outrageous patent troll story here] and think about how the provisions of the bill would have [made that situation better | kept it from happening].

As the saying goes, "hard cases make bad law."

Picture yourself as a stereotypical garage inventor. You had an amazing idea. You get a patent. You don't have the money to commercialize the idea.

Unintended consequence #1: You try to find a partner to commercialize it. BigCo looks at your idea, flirts with you a bit, then turns you down. Next year, something suspiciously like your idea (but not 100% identical to it) floods the market. Now nobody will talk to you about partnerships because there's no real market opportunity left. You want to sue BigCo for a royalty, but you now can't find anyone to take your case because of the fee-shifting provisions. Even a slam-dunk case has a 15-20% chance of going the other way, and this isn't a slam-dunk case. BigCo's legal fees are likely to run in the $3-5MM range, and they're likely to make sure you understand how much they're spending just to make it more likely that you'll settle or go away. Feeling lucky?

Unintended consequence #2: You need money. You have a patent for a great idea, but now you can't easily monetize it. You can't readily enforce it for the reasons stated above. Companies are less likely to license it [for as much] given the reduced odds of litigation. You can't sell it [for as much], because the fee-shifting calculus has significantly impaired the potential value a buyer might experience.

Now, if your world-view is that patents are evil and should be eradicated, you may be OK with all this. But be honest about what's really happening as a result of legislation like this. Patents aren't really being eradicated -- they're being consolidated. The CCIA wants this passed? Of course they do. They're already well-positioned for patents to become a rich man's game.

"A new bill introduced by Rep. Bob Goodlatte..."

[idontgno]

the chairman of the House Judiciary Committee, has received bipartisan support and has a real chance of passing.

This is absolutely true, because zero is a member of the set of real numbers.