How Lobby Groups Rejected the Canadian Government's Plan To Combat Patent Trolls

An anonymous reader writes Michael Geist reports that according to documents recently obtained under the Access to Information Act, the Canadian government quietly proposed a series of reforms to combat patent trolls including new prohibitions on demand letters, powers to the courts to stop patent forum shopping, and giving competition authorities the ability to deal with patent troll anti-competitive activity. The problem? Business lobby groups warned against the "unintended consequences" of patent reforms.

Comments

Probably the wrong way to fight it anyway

[meustrus]

The anti-troll measures described in TFA don't sounds to me like they would be particularly effective for most cases. Patent trolls seek out people for whom legal representation is likely to cost as much as a settlement, since those people don't have lawyers on staff and patents are a complicated and specialized field. What the measures would do is provide more opportunities for a lawyer to contest the patent letter. Since the typical targets tend to settle solely to avoid having to pay a lawyer, this will not help. What needs to happen instead is a mandatory notification in the demand letter of certain pieces of evidence which will automatically avoid patent fees if produced. I'm talking known prior art or existing license agreements, as well as other categories of potentially more complicated evidence to be created. Patent trolls thrive on the over-complication in the law, so the solution to them is to create short circuits to their lawsuits that protect 80% of the innocent without retaining a lawyer.

Re:Probably the wrong way to fight it anyway

[Theaetetus]

The problem is, what is prior art? It's highly subjective and as such, the law is complicated.

It's anything in the art that was published or available to the public prior to the filing date of the application. There's nothing subjective at all about it. The Model T is prior art for the Tesla Roadster. UNIVAC is prior art for the Macbook Pro.

What you seem to be referring to is anticipatory prior art - that is, art that includes every element of a claimed invention. But even that is not subjective - either it describes the claimed features or it doesn't.

What you really want to be referring to is "what is obvious?" And that's a little more subjective, but not as highly subjective as you think - under the current law, if no one reference describes everything in the claimed invention, nothing anticipates it or it is "new", but if a combination of references teach everything in it, then it's obvious. So, if the invention claims "A+B+C" and one piece of art teaches A+B and the the other teaches C, then A+B+C is obvious. That's not very subjective at all.

There is no reforming the current system. We need an entirely new system. As is, an inventor has basically no change to win. If he invents something, lawyers find a way to subtly change it to produce it without permission.

In other words, lawyers (or other engineers) find a way to invent around it. The public ends up with two ways to accomplish the same thing. Innovation is increased. Hooray!

Likewise, if they have something patented they again get lawyers to find a way to change it and extend that patent into perpetuity.

In other words, lawyers (or the inventor) find a way to invent around it, or come up with an improvement. The public ends up with two ways to accomplish the same thing, or a better way to accomplish the thing. Innovation is increased. Hooray!

Patents should be rare. Almost everything should be covered by short term copyright and trade secrets. Patents should only cover truly new and innovative tech. Smartphones are battery powered computers... there shouldn't be anything in them that's patentable.

What about the better batteries? What about wireless charging, fast charging, new battery management techniques that extend battery life, etc.? What about new transmission and data compression techniques that make that new smart phone able to communicate ten times faster, over ten times the distance, as the old model?

A new form of Fusion reactor? Ok... that's patent. I'd even propose that someone applying for a patent should have to get a court to approve the patent before it being granted.

But let's say we go with your suggestion... No patents since they'd be way too expensive if you have to go through an entire trial just to get exclusivity before you even start making your product. Instead, "short term copyright and trade secrets".

Well, copyright doesn't apply to that smart phone, because when your competitor makes one, they're making a new one, not copying yours. In fact, copyright only really works when you're copying the exact thing - rip a DVD of Harry Potter and you've committed copyright infringement. Film the Mockbuster production Larry Kotter, and you haven't. Dream Heights isn't an infringement of Tiny Tower. GIMP isn't an infringement of Photoshop. A Nissan Leaf isn't an infringement of a Toyota Prius. As a result, copyright doesn't work when people care about the implementation, but not the exact thing. It's fine for movies and music and books, but not for software or hardware.

So, we turn to trade secrets. Great, now you have to sign a contract with every piece of software or hardware you buy. And those contracts can last a lot longer than the limited term of a patent - they can be lifetime contracts. Don't like it, don't buy the software or hardware - but without patents, every

Re:Unintended Consquences

[Anonymous Coward]

What a cute way of saying loss of campaign financing...

Corporate donations for federal elections are prohibited by law in Canada, and individual contributions to political parties (including donations to registered candidates for a political party) are limited to $1200 per year.

That being said, Canada's current ruling party has violated campaign financing rules in the past (see: In and Out scandal.)

pdf mentions a couple of things

[raymorris]

The pdf linked in the article mentions a few points. The following is my understanding of what they said. It doesn't represent my opinion.

    The commenters generally agreed that patent trolling isn't currently a big problem in Canada. Canadian companies are affected more by US trolls, because the Canadian system already handles it pretty well. Therefore "don't fix it if it ain't broke". Any change will have good and bad consequences, and Canada doesn't need much good consequences.

Universities were given as an example of institutions which do real, valuable research and development, but don't manufacture products. They license their technology, so they are non-practicing entities. How do you legally distinguish a research institution and a company who licenses the results of that work vs a troll?

I happen to know that the vast majority of trolling is done by four companies. Hundreds of thousands of people have patents. The challenge is to target those four needles in a very large haystack. When you're targeting a needle in a haystack, and want to destroy the needle (troll) without harming the hay (inventors etc) you want to use precision tools.