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

[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

[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

[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.

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?

[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.

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.

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...

[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.

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)