[HN Gopher] Delaware judge discovers hidden entity recruiting pe...
___________________________________________________________________
Delaware judge discovers hidden entity recruiting people to be
patent trolls
Author : Andrew_Russell
Score : 784 points
Date : 2022-11-07 12:05 UTC (10 hours ago)
(HTM) web link (ipde.com)
(TXT) w3m dump (ipde.com)
| btrettel wrote:
| Current USPTO patent examiner here. The most effective way to
| eliminate bad patents would be to give examiners more time, say
| double the time across the board to start. If an examiner can't
| find prior art in the little time they're given, and they have no
| other reasons to reject the application, they'll have to grant
| it. The amount of time was (basically) set in the 1970s based on
| data from the 1960s. There have been some minor increases since
| then. Several orders of magnitude more prior art exists now. And
| while search technology has improved, it hasn't become orders of
| magnitude better. So I'd argue that the workload has increased
| dramatically since the 1970s. Simply giving examiners more time
| would probably greatly reduce the grant rate, and also
| incidentally reduce examiner stress levels. Patent examination is
| a tough job, as examiners rarely get enough time to do a quality
| job, and this leads to the high stress levels.
|
| USPTO upper management is taking comments about the "robustness
| and reliability of patent rights" until February. You can leave
| your comments here:
|
| https://www.regulations.gov/document/PTO-P-2022-0025-0001
|
| Unfortunately giving examiners more time is only briefly
| addressed in this request for comments. I think the public should
| really drive home the point that the procedural changes discussed
| wouldn't be anywhere near as effective as simply giving examiners
| more time.
|
| Don't believe examiners are overworked? Take a look at this
| subreddit: https://www.reddit.com/r/patentexaminer/
|
| (Note that this comment is only my opinion, not that of the
| USPTO, US government, etc.)
| tgflynn wrote:
| It seems to me that one of the biggest problems with patents is
| that it has become possible to patent the "what" instead of the
| "how". In most cases the "what" is obvious, it's the "how"
| that's hard.
|
| An example would be the Amazon One-Click patent. That should
| never have been granted because the "what", ie. the basic idea,
| is obvious and once you have that the implementation is
| trivial.
|
| To get a patent you should at least have to describe a method
| for solving a non-trivial problem and prove that it actually
| works.
| TheRealPomax wrote:
| Except it wasn't: Amazon--like everyone else filing a patent
| --had a duty to bring the idea to market within the time
| frame that US patent law required, which they then did.
| _That_ is the how.
|
| Demanding the patent goes into the specific details on the
| "how" gets us things like "they implemented it in JS but we
| used TS so that's legally distinct, this patent doesn't apply
| to us" (ignoring how idiotic software patents are, and how
| stupidly long they are allowed to be active for) or "they
| made their machine using sheet metal and distinct PCB
| components, we used plastic and an FPGA, this patent doesn't
| apply".
|
| If you get a patent granted, and you sit on it, you lose that
| patent. If you make real the ideas/things described in your
| patent within the required time frame, your patent "kicks in"
| and you get to sue others for copying your idea, even if
| their specific realization of that idea differs from yours.
|
| Reducing for how long patents are granted, disallowing
| "tweaking-a-thing to renew the patent", and either
| drastically cutting down the duration of, or entirely
| canning, software patents, would be a nice move though.
| zerocrates wrote:
| There's no requirement that you actually implement a patent
| to keep it. The patent troll industry runs to a large
| extent on patents that aren't being practiced.
|
| You may be thinking of trademarks, which can be granted on
| the basis of an intent to use the mark in the market with a
| time limit thereafter to keep them.
| tgflynn wrote:
| "had a duty to bring the idea to market within the time
| frame that US patent law required, which they then did"
|
| Do you have a reference for that ? I've never heard of any
| such "duty". There are many patents that have never been
| implemented yet remain valid.
|
| Beyond that my point is not that they didn't show the "how"
| but that the "how" in that case was absolutely trivial and
| completely undeserving of patent protection.
| pannSun wrote:
| > Except it wasn't: Amazon--like everyone else filing a
| patent--had a duty to bring the idea to market within the
| time frame that US patent law required, which they then
| did. _That_ is the how.
|
| That's not proof of non-obviousness. And even if it were,
| it's still not a reason to allow 'what' patents (which the
| law actually _doesn 't_ allow! But they get granted
| anyway).
|
| > Demanding the patent goes into the specific details
|
| You are arguing a strawman. A patent must describe the
| invention in sufficient detail for someone skilled in its
| art to reproduce. Incidental details shouldn't be (and I
| believe aren't, _legally_. What the USPTO actually does in
| practice is a different matter) grounds for calling an
| alternate implementation non-infringing.
|
| What you're describing is a hideous perversion of the
| patent system. It allows patenting any obvious [1] idea so
| long as you are first to file [2]. Alternately, if the idea
| _is_ novel and non-obvious, it grants patent protection
| without requiring disclosure of implementation. It
| basically grants patent protection to trade secrets.
|
| [1] A test for non-obviousness: does an implementor care to
| look at your patent or reverse-engineer your
| implementation, or is a description of _what_ the invention
| does sufficient?
|
| [2] And eventually implement.
| Nevermark wrote:
| > [1] A test for non-obviousness: does an implementor
| care to look at your patent or reverse-engineer your
| implementation, or is a description of what the invention
| does sufficient?
|
| This seems like a wonderful test of obviousness to me.
|
| However, the "what" could be: "A method of reducing the
| number of online sales that are attempted but somehow
| aborted".
|
| The "solution" of having a single click to purchase, in
| the context of cached purchase info and permission, might
| not be obvious to everyone working on that problem. (Even
| though it might be obvious in hindsight - which is not a
| barrier to patentability.)
|
| That "solution" is specific enough to not block other's
| from solving the same problem (avoidance of aborted
| purchases) in via different methods.
|
| That would be the approach I would use to defend single-
| click against your test. (Not a lawyer, no special legal
| expertise, just working through the logic as I can see
| it.)
| pannSun wrote:
| > the "what" could be: "A method of reducing the number
| of online sales that are attempted but somehow aborted".
|
| That's a good point. But it does open the door to
| patenting so many things it would make business
| impossible - store layout? Ad composition? Sales timing?
| Employee treatment?
|
| Fortunately the law does not seem to have such a broad
| view of what is patentable: https://en.wikipedia.org/wiki
| /Patentable_subject_matter#Unit...
|
| The other problem is the 'could' in your hypothetical -
| as far as I know, that's not what Amazon put on the
| patent application. Probably because they knew it is not
| patentable subject matter.
| jvanderbot wrote:
| I thought "how" was the whole point. Imagine I invent an air
| conditioner that's 100x more effective or efficient based on
| a new mechanical process I invented. I damn well better be
| able to patent that "how" despite a century of prior art in
| "what".
| tgflynn wrote:
| Yes, but that's the opposite situation to many software
| patents. If air conditioners didn't yet exist you shouldn't
| be able to patent just the idea of an air conditioner
| without coming up with an effective design for one.
|
| The One Click patent would be like patenting just the idea
| of an air conditioner because once you have that idea any
| software developer worth his salt could implement it.
| ajb wrote:
| I'm not convinced that patent examiners could make good
| decisions on software given infinite time. A couple of reasons:
|
| Let's suppose you had access to all the source code in the
| world. Given a description of a patented invention, is there
| any way to find out if it is already implemented somewhere? The
| answer is _no_ , there is no decidable method for doing that.
| The proposition that there is, violates Rice's theorem. By
| contrast, in other areas, for example drug discovery, a patent
| covers chemicals of a certain class having certain
| substructures. Whether another chemical is covered is
| algorithmically decidable. Let me emphasise that: people are
| complaining about the tools to find prior are are bad, but we
| can _mathematically prove_ that perfect tools don 't exist. I'd
| suggest that the burden of proof, that sufficiently good tools
| _can exist_ , should fall on those advocating patentability of
| software.
|
| But of course, patent examiners don't even have access to all
| this code. Unlike in drug discovery, where the entire business
| relies on patents so any discoveries have been filed with the
| patent office, software companies don't _need_ patents to do
| business so the vast majority of software ideas aren 't filed
| with the patent office.
| kelseyfrog wrote:
| While I applaud your effort, arguing that software would not
| benefit, the conclusions do not transfer across domains.
| ajb wrote:
| Well, if business methods are Turing complete, it transfers
| to that domain too :-)
| xxpor wrote:
| How much time do you get today? I'm hesitant to support extra
| time because it can already take 5+ years from file to grant
| today.
| btrettel wrote:
| This question is hard to answer as the time given varies
| depending on the patent classification and seniority. For the
| application which I'll post an office action for this
| afternoon, I will be credited 22.6 hours. (I can't claim this
| is representative of what I'm working on as a whole. Looks to
| be a bit high for my current docket, but I don't know if my
| current docket is representative either.) I'm a new examiner
| and that's the most time anyone will get for one of these
| applications. A more senior "primary examiner" would only get
| about 11.6 hours according to my estimate. In that amount of
| time, try searching for and writing a 10-30+ page report on
| any non-trivial technology that you have only some
| familiarity with...
|
| For the same application, the next action I take will get
| significantly less hours. I get about 4 hours to reply to an
| amendment (if it's rejected and it usually is). That includes
| searching and writing it up. I think examiners typically
| exceed that time and have to go under time for other tasks in
| order to reply to amendments.
|
| (Again, like my other comments here, this is just my opinion,
| not that of the USPTO or US government.)
| temporallobe wrote:
| I do contracting for USPTO and have another perspective as an
| insider to their technology and internal processes (not legal),
| who works very closely with examiners and other stakeholders.
| The tools that patent examiners use is quite awful. Like many
| other government agencies, it's embedded with legacy tools that
| are extremely obtuse, difficult to use, and time consuming.
| Many of these tools are decades old, unreliable, and have
| limited capabilities. We are JUST NOW starting a shift to the
| cloud (AWS), but most of that will be a "lift and shift",
| keeping the old systems and practices in place while we figure
| out how to replace entire workflows. Basic functionality like
| searches, file transfers, data transforms, validation, content
| management, and archiving suffer from neglected maintenance or
| they're so brittle that any little disruption can take a vital
| system down, further wasting examiners' time. All of the above-
| mentioned issues are hidden time wasters that examiners have
| simply come to accept.
|
| My point is, you many not actually need more time, rather you
| may need better and more modern tools that would vastly improve
| efficiency and accuracy of examiner workflows.
| fakedang wrote:
| Is it possible to use publicly available patent office data
| to create a parallel database and tools which the PTO folks
| could use? Perhaps there is room for the development of an
| open-source collaborative effort to create a parallel data to
| fight back the trolls?
|
| Anyone else feel free to chime in!
| lordnacho wrote:
| I used a patent lawyer who said the patent had to be filed
| using a fax machine.
|
| For those who are too young, a fax machine is this arcane
| device that used to be everywhere, like a remote photocopier.
|
| Got the US patent dated 2013. Was the lawyer pulling my leg?
| BlueTemplar wrote:
| What is the issue exactly ?
|
| AFAIK email to fax (and vice-versa) converters have existed
| for a while ?
|
| I'm much more annoyed that in 2022 we are _still_ misusing
| pdf, treating it as a digital-first format rather than one
| more appropriate for archival of paper documents... (and
| with the associated "pdfs cannot be modified" myth)
| btrettel wrote:
| No, patent applications don't need to be filed via fax.
| I've heard bad things about the various USPTO websites, so
| fax might have been the guy's preference as I can see it
| being relatively simpler.
|
| (Again, like my other comments here, this is just my
| opinion, not that of the USPTO or US government.)
| MereInterest wrote:
| It wouldn't surprise me, as faxes have some really weird
| legal exceptions carved out for them. For example, a faxed
| document is considered equivalent to the original, but a
| scanned image is not. So even though a scanned image signed
| with your private key would be much more verifiable than a
| faxed copy that is transmitted without encryption and
| printed in a shared office, the law considers the fax as
| better than the scanned image.
|
| Which is all to say that it wouldn't surprise me if there
| were a legal requirement for an "original document", and if
| that requirement could only be met by physical mail or fax.
| birdman3131 wrote:
| At least in the medical world the security requirements
| of documents at rest is much higher than ones in transit.
| So you can't easily do efax because as soon as you have a
| queued pdf its at rest. (It can be done. just not
| easily.) So when everybody switches over to voip they
| usually try to keep the old fax machines going which
| faxing over voip is hit or miss.
| seeEllArr wrote:
| btrettel wrote:
| I'll agree that many of the tools are bad. I have a
| particular dislike for how slow Word is. But, I don't think
| that transitioning everything to the cloud is necessarily
| going to help. Word is slow many times _because_ it freezes
| up when syncing. And a lot of the tools are good. EAST and
| PE2E Search have a lot of great features for power searchers
| that I 'd like to see in tools outside of the USPTO. (But
| they also have a lot of annoyances.)
|
| I don't think more than 1/3 or so of my time is wasted due to
| these sorts of things. That's significant, but it won't be
| the game changer that doubling examination time would be.
|
| I don't know anything about what's happening on the backend,
| for what it's worth. I assume that it's always near
| exploding.
|
| By the way, you can find a bunch of annoying time wasters
| listed by examiners here: https://www.reddit.com/r/patentexam
| iner/comments/y9pyfx/mild...
|
| (Again, like my other comments here, this is just my opinion,
| not that of the USPTO or US government.)
| nostrebored wrote:
| But wouldn't doubling the time reduce pressure for
| innovation here?
| majormajor wrote:
| How would the examiners be able to turn "limited time"
| into incentive to create "innovation in tools" [that they
| themselves aren't the ones building]?
| mikewarot wrote:
| Improving the time/quality of examination would reduce
| the number of bad patents, and thus raise the bar for
| something to get patented, requiring MORE actual
| innovation, and less fake process based crap.
| Naracion wrote:
| Pressure for (perceived) innovation is one of the things
| that drives bad patents. Removing this pressure has
| positive consequences (in addition to the negative
| consequence of potentially novel IP not being protected
| in time--but is that actually a bad thing? I don't know).
|
| There's a parallel also in the world of academic paper
| publishing--the pressure for constantly innovating and
| publishing is a major reason for bad publications.
|
| I am speaking anecdotally, from my experience as a past
| PhD student and a current young professional in the
| research industry.
| P5fRxh5kUvp2th wrote:
| what does the cloud have to do with the tools being old and
| creaky?
|
| Is there some magic sauce that makes the search suddenly
| useful once it's sitting in AWS?
|
| I ask because I see this ALL the time. technical people
| abusing business ignorance by using initiatives to improve
| tools to "move to the cloud". Unless you're telling me the
| problem you're solving has to do with elastic demand or too
| much costs maintaining infrastructure, this does NOTHING to
| solve the actual problem.
|
| Do we imagine that suddenly this organization is going to
| start maintaining their stuff if it's sitting on AWS servers
| instead of their own?
| pclmulqdq wrote:
| "Move to the cloud" is usually an excuse for big
| organizations like the USPTO to modernize their technology
| and business processes. Business executives, for some
| reason, expect "cloud" to be more modern than "on-prem" so
| the modernization of your business processes and
| modernization of the feel of the UI goes along with a move
| to cloud.
|
| It's really dumb.
| mring33621 wrote:
| "move to the cloud" is a top strategic objective in my org
|
| I have explained why it should not be, but Mgmt does not
| care.
|
| Everyone's doing it. We NEED to do it.
|
| I believe we are in a mix of FOMO, resume-driven
| development and empire-building.
|
| Ok, I can tell that you want me to expand. Here goes:
|
| Cloud may offer:
|
| 1) improved scalability (both horizontal and vertical)
|
| 2) improved availability
|
| 3) reduced cost
|
| None of these are guaranteed and will require much
| expertise in both initial choice-making and continuing
| execution.
|
| We don't really have that expertise.
|
| Do you?
| Sohcahtoa82 wrote:
| > 3) reduced cost
|
| From what I've always heard, of all the benefits the
| cloud has, reduced cost is not one of them unless your
| compute need is exceptionally small (ie, you only need a
| few t3.* instances).
| nostrebored wrote:
| That's because nobody who cut costs feels compelled to go
| out and proselytize about it. At the start of the
| pandemic I helped dozens of customers cut their spending
| to $XX pm as they were inherently crippled during COVID
| (think travel, hospitality). My management team at AWS
| supported this effort. It was actually one of our
| strategic goals.
|
| Anti cloud zealots are having their time just like pro
| cloud zealots did. You have to understand your workloads
| and cloud offerings to see if it's right for you.
| mring33621 wrote:
| "You have to understand your workloads and cloud
| offerings to see if it's right for you."
|
| Yes
|
| This is hard to do.
| P5fRxh5kUvp2th wrote:
| how does improved scalability, improved availability, and
| reduced cost help the patent examiners make more reliable
| decisions?
|
| It doesn't, that's the point, you're adding to the same
| noise everyone else is.
| mring33621 wrote:
| You're right. It's just a random side convo that came out
| of the main thread.
| voakbasda wrote:
| > None of these are guaranteed and will require much
| expertise in both initial choice-making and continuing
| execution.
|
| I feel confident saying that the government does not have
| this expertise and never will, so this just seems like
| yet another taxpayer-funded boondoggle (aka, the status
| quo).
| bombcar wrote:
| The only benefit I've seen to "move to the cloud" without a
| full re-write is you can now double the performance of your
| cloud server without a full reinstall. Sometimes.
|
| And end up with not much gain. :( You
| pack your bags And you move to the cloud There's
| somethin' missin' here at home When you, you
| gonna move to the cloud? Into the cloud where it
| all began I'm always buyin' With the local and
| the junkies This cloud life is one big pain!
| But you, you had to move to the cloud Into the
| cloud where it all began
| gunapologist99 wrote:
| > And while search technology has improved, it hasn't become
| orders of magnitude better.
|
| Are you saying that search technologies of 2022 are _not_
| orders of magnitude better than the search technology in the
| 1970 's?
|
| Search tools in the 1970's were basically manually panning
| through microfiche. This was the time before even relational
| databases were commercially available, let alone full text
| search across thousands (or billions) of documents going back
| hundreds of years. The tech that we have now would be literally
| unbelievable to most practitioners in the 70's.
| btrettel wrote:
| To be clear, I do think that patent searching has improved.
| My point is that it hasn't kept up with the shear number of
| documents available.
|
| You have a point about the switch to computerized searches.
| Searching by examiners used to be looking through _paper_
| files, not microfiche, though. But patent search technology
| hasn 't improved appreciably since full text patent search
| was introduced in the 1990s. There have been a lot of new
| documents to search in the past 25 years alone, yet there
| have been few changes to examining time.
|
| Also, full text search is probably not as useful as you think
| for patent examination. For many technologies it's the best
| way to search, but for many others (like a lot of what I
| examine), text search is much less useful than simply
| flipping through a ton of documents, looking at the drawings.
| It's common that important details exist only in the drawings
| or are most easily spotted in the drawings. So this limits
| the improvement one gets from switching to computerized
| searches.
|
| And, there's a big advantage to paper documents that wasn't
| maintained during the switch. From what I'm told there were a
| lot of useful notes from previous examiners written on the
| patent documents. Those notes were entirely thrown out when
| the USPTO switched to computerize searches. They could have
| digitized them, but USPTO upper management isn't known for
| thinking ahead. That's a loss of a lot of institutional
| knowledge. At present there is no way for examiners to share
| margin notes, and there should be.
|
| (Again, like my other comments here, this is just my opinion,
| not that of the USPTO or US government.)
| soared wrote:
| Sounds like they're saying search tools available to
| employees at the uspto are not magnitudes better. From the
| other comment they're using decades old tools.
| TheRealPomax wrote:
| To be fair, it'd also help if it didn't cost money for
| concerned citizens to submit the proof required to demonstrate
| prior art. Because even if you give examiners twice the time,
| that's only twice the work getting done, instead of orders of
| magnitude more with the help of people who are already experts
| in a field and can't believe a patent was granted because of
| [fill in prior art here].
| dathinab wrote:
| I would also like that simple straight forward language is
| required and the typical (lets call it) claim stacking isn't
| allowed.
|
| A lot of patents would fall under obviously not palatable, or
| obviously priority art if they where written in simple to
| understand language.
|
| Also patents should not be legal if they fall under "everyone
| who looks for a solution to the problem they solve would find
| it (or something very close to it) by spending around ~100k in
| salaries on normal employees doing the research". (I choose
| 100kEUR as this is where I live roughly a more senior and two
| non qualified junior software devs working on it for half a
| year, I also choose it because it less then what fully
| invalidating a absurd patent can easily costl.) I just don't
| see a point patents for anything any arbitrary company could
| easily invent by throwing "just" 3 non highly specialized
| people at it. As many companies would do so anyway if they need
| the problem solved. Such patents don't protect innovation they
| hurt innovation. Alternatively allow patenting them, but only
| with a patent live spawn of 2 years, i.e. "grant a head start
| for the first inventor without hampering innovation in general
| too much".
| btilly wrote:
| Not associated with the USPTO, but my name is on multiple
| patents.
|
| The problem is that examiners have no real way to determine
| what is "obvious". Every new field is a gold rush, and I've
| seen multiple fields slowed down dramatically by it. Worse yet,
| those rushing to new discoveries are usually not those rushing
| to file patents. This is most clearly where the patent system
| is destructive.
|
| I would like to see a rule that it is on the issuer of the
| patent to demonstrate that not only does it seem novel, but
| their patent is on something that could have been done, and
| would have had a market, for the previous decade. To
| demonstrate non-obviousness not by someone's say-so, but by the
| fact that people failed to figure it out.
| entwife wrote:
| > And while search technology has improved, it hasn't become
| orders of magnitude better.
|
| The old "search technology" was "shoes" (boxes) of 5-20 patents
| arranged by patent classification. Patent examiners literally
| walking through the stacks of files to get the relevant shoes.
| This takes more physical time than doing a classification
| search using a computerized search tool.
|
| There were some advantages of the old system that were not
| transferred to the new search. Specifically, in the old system
| Examiners would see each other as they were walking the stacks.
| Notes could be left on the paper copies in the shoes. This
| knowledge sharing is not included in the current USPTO system.
| cryptonector wrote:
| IMO the "most effective way to eliminate bad patents would be
| to" set patent lifetimes that are industry/field specific --
| you get a number of years of patent protection that should be
| enough to yield a positive ROI in that industry/field.
|
| So pharma might get 20 years like they do today, hardware might
| get 12, software might get 8, and cryptography might get 5 (no
| one ever turns much of a profit with cryptography patents --
| the entire industry avoids them like the plague).
|
| This will greatly discourage patent trolls because they won't
| have enough years to shake people down. But it won't discourage
| legitimate patent owners, and it will encourage continuous
| innovation (so that products can keep some patent protection
| all the time).
| anovikov wrote:
| It probably creates a snowball effect because examiners
| frustrated by their inability to do quality work within
| constraints they are given, probably churn out , so lower
| qualified ones/having less options, stay on the job, resulting
| in further decrease of quality... You must be onto something.
| uranium wrote:
| Commented; thanks for the pointer.
| late2part wrote:
| It's tiring to hear people in government say all their problems
| can be solved with more people and more money.
| btrettel wrote:
| The situation here is different than in other government
| agencies. The USPTO is funded entirely by user fees, not
| taxes. In fact, the USPTO actually diverts a lot of money
| back to the federal government, so they don't even get to
| keep their own revenues.
| breck wrote:
| Friendly advice: start looking for a new job.
|
| https://longbets.org/855/
|
| https://breckyunits.com/the-intellectual-freedom-amendment.h...
| pxmpxm wrote:
| I have serious doubts that more examination time is the
| solution here - at the end of the day, the only people that
| have an incentive for completely thorough search are the people
| filing or defending themselves against the patent. And the
| people filing obviously make sure their language doesn't easily
| bring back prior art. Meanwhile you have no skin in the game at
| all.
|
| I would posit the better solution is curbing overly
| broad/abstract patent language that can be used to litigate
| anything and anywhere - and you can use patent trolls to do
| this work for you:
|
| Pretty much any NPE patent portfolio will work as a great
| benchmark for what _not_ to allow, as they go out of their way
| to acquire poorly-examined patents with the exact
| characteristics i mentioned.
| patentatt wrote:
| > And the people filing obviously make sure their language
| doesn't easily bring back prior art. Meanwhile you have no
| skin in the game at all.
|
| You'd think so, but standard operating procedure for most
| patent prosecution is to intentionally not perform a prior
| art search. If you do find something relevant, you have to
| disclose it in your IDS. So let's say you pop in a few search
| terms into google patents, and there's ten thousand hits. You
| know only a few are relevant, but you don't know which few.
| And if you don't submit the relevant reference that was on
| page 99 of those search results, your patent could be
| invalidated in litigation some day because it could be
| construed that you were hiding that reference from the
| examiner. So you might think that you should just submit all
| 10k references? Wrong again, it could look like you're trying
| to bury some super important reference in a sea of garbage.
| So by opening one browser tab and typing in a couple of
| search terms, you've essentially shot yourself in the foot
| one way or another, and any patent that ever is issued from
| your search will have a target on it's back forever. So, most
| patent attorneys will ask the client for relevant references
| to cite in the IDS and have a standard practice to not
| perform any prior art searching for prosecution purposes.
| Patent attorneys are a paranoid bunch.
| btrettel wrote:
| > I have serious doubts that more examination time is the
| solution here - at the end of the day, the only people that
| have an incentive for completely thorough search are the
| people filing or defending themselves against the patent. And
| the people filing obviously make sure their language doesn't
| easily bring back prior art. Meanwhile you have no skin in
| the game at all.
|
| While I agree with you that multiple stakeholders are
| incentivized to do thorough searches, not everyone agrees on
| that, and those stakeholders rarely ever do thorough
| searches. People aren't Homo economicus.
|
| Applicants are required by law to provide prior art on an IDS
| form. Usually that prior art is close but not close enough.
| And almost no one submits third-party prior art. I've never
| once received a third-party prior art submission.
|
| And as I said, not everyone agrees that these folks are
| incentivized to do good searches. For example, many patent
| attorneys recommend against doing patent searches for various
| reasons.
|
| > I would posit the better solution is curbing overly
| broad/abstract patent language that can be used to litigate
| anything and anywhere
|
| I strongly agree that enablement requirements should be
| higher. My understanding is that would require a change in
| the law, which would make this much harder than increasing
| examination time. And don't think that enablement rejections
| will take a lot less time than prior art rejections for
| examiners. Attorneys love to argue that sort of stuff, so
| rejections which are basically arguments are often time
| consuming. A prior art rejection can leave a lot less wiggle
| room for attorneys.
|
| (Again, like my other comments here, this is just my opinion,
| not that of the USPTO or US government.)
| joshspankit wrote:
| As someone who seems to have insight: Are the actual workings
| of the patent system (not the letter of the law, but how it's
| used esp by those with money) such that the right AI could be
| put in place to filter out the majority of bad-faith patents?
| btrettel wrote:
| The main problem is searching for prior art. There are AI
| search tools but they usually aren't good in my experience.
| It's rare that an AI search tool will return prior art that
| can be used in a rejection. Usually the prior art these tools
| find is related but not good enough. But sometimes (perhaps
| through random chance), a solid reference can be found. I
| found a 102 reference (the strongest kind) a few weeks ago
| for a recent application I worked on by using an AI search
| tool. I missed that reference earlier due to a text search I
| did missing some synonyms if I recall correctly.
|
| Don't take my word for it... here's r/patentexaminer on the
| USPTO's latest internal AI search tool: https://www.reddit.co
| m/r/patentexaminer/comments/ybbb60/is_t...
| mysterydip wrote:
| Are synonyms not built in to the search tool itself? "car"
| also finding "automobile" etc?
| btrettel wrote:
| I have no idea as these tools rarely explain how they
| work. There are a lot of AI patent search tools and I'm
| sure each of them works differently.
|
| Also, don't underestimate how difficult finding synonyms
| is. Many examiners, myself included, keep lists of search
| queries with a lot of synonyms to use later. I've been
| doing this for nearly two years now and my saved search
| queries keep growing. I don't expect this to end anytime
| soon.
|
| (Again, like my other comments here, this is just my
| opinion, not that of the USPTO or US government.)
| joshspankit wrote:
| Whether that's true of current AI or not, it's temporary.
|
| Finding prior art is inherently a "graphy" problem and
| current AI is getting better at graphy problems by the day
| (probably even by the hour). I have zero doubt that AI
| _could_ solve this problem, but am unsure whether it will
| be allowed to.
| btrettel wrote:
| I think AI searches could be much better even without an
| improvement in the technology. Probably the best AI
| patent search tool would be written by a ML engineer who
| has spent time examining a wide variety of patents. The
| current tools seem to be written by people who have only
| a cursory understanding of how patent search works, and
| that limits the usefulness.
|
| For example, the current AI search tools don't seem to
| look at patent drawings at all. This is despite the fact
| that in many technologies, the drawings are the easiest
| way to determine similarity of the technologies. The
| words used vary a lot, but the drawings are frequently
| quite similar. Existing technology could be used to make
| a big improvement here, I think, but the problem is that
| people writing AI search tools seem to go for the easiest
| approach and only look at the text.
|
| It does get more complicated than that. When I examine
| applications with flow or electrical circuits, frequently
| I'll run into circuits which are equivalent in some sense
| but arranged differently. An AI patent search tool should
| be able to handle this problem.
|
| (Again, like my other comments here, this is just my
| opinion, not that of the USPTO or US government.)
| ksec wrote:
| Hats off for even admitting you are are a patent examiner. On a
| site that is 99% against patents and all patents ( or software
| patents ) are evil.
| salawat wrote:
| Patent examiners are not the enemy, and someone needs to do
| the work regardless. I feel bad for them myself, because
| their tooling is apparently terrible. Makes me wonder if I
| should take a look into the space and see if I can come up
| with some ideas for a halfway decent set of tools.
|
| I've seen a lot of patents whose prior art could be found by
| spending a bit of quality time with a thesaurus, or a halfway
| decent index.
| btrettel wrote:
| > I feel bad for them myself, because their tooling is
| apparently terrible. Makes me wonder if I should take a
| look into the space and see if I can come up with some
| ideas for a halfway decent set of tools.
|
| The search tools are acceptable, but could be improved a
| lot. To get ideas for improvements, you should talk to
| actual examiners and try searching for patents yourself.
| Unfortunately, too frequently people who don't know much
| about how patent searching actually works propose
| "improvements" that aren't actually improvements.
|
| Case in point: https://www.priorartarchive.org/
|
| While well-intentioned, this site is doomed to mostly be
| unused by examiners. The classification search doesn't
| work. Classification search is a critical feature for
| patent examination. And the classifications are produced by
| machine learning, which usually produces poor quality
| classifications (despite loud pronouncements about how
| great machine learning is for this task).
|
| The internal search tools work mostly by keyboard, and this
| search site works mostly by mouse. Mouse is much slower in
| my experience, and this matters a lot for time-constrained
| people like patent examiners. The main advantage of the
| internal USPTO search tools is _speed_ , not anything
| fancy: https://news.ycombinator.com/item?id=30978043
|
| The documents on the "Prior Art Archive" have tons of
| broken images, too.
|
| > I've seen a lot of patents whose prior art could be found
| by spending a bit of quality time with a thesaurus, or a
| halfway decent index.
|
| Most of the time this is not the case. If it's something
| that simple, it would be easily rejected. Keep in mind that
| when the media says a patent covers X, it probably doesn't
| actually cover X. It probably covers something far more
| specific that isn't a problem for anyone.
|
| (Again, like my other comments here, this is just my
| opinion, not that of the USPTO or US government.)
| silvestrov wrote:
| I think a much more efficient method would be to make the rule
| that if a citizen finds prior art more than 5 years older than
| the filing of the patent, then the patent holder must pay $1000
| to the citizen and the patent will be invalidated.
|
| If the patent holder does not pay within 6 months, then all the
| patent holders patents since then will be invalidated.
|
| It has to function without involving the courts as they will
| bleed anybody who are no rich.
|
| This is simple, gruesome, but effective. I just can't imagine
| the politicians wanting this efficiency.
| [deleted]
| JumpCrisscross wrote:
| > _a much more efficient method would be to make the rule
| that if a citizen finds prior art more than 5 years older
| than the filing of the patent, then the patent holder must
| pay $1000 to the citizen and the patent will be invalidated_
|
| This would instantly lead to every patent being constantly
| challenged by everyone. All the time. Since you've created a
| non-judicial venue for these claims and counterclaims to be
| settled, you've also created a parallel legal profit centre.
|
| Vigilante justice is terrible not only for being gruesome,
| but also quite inefficient.
| silvestrov wrote:
| Add: When you challenge a patent you must pay $100 in fee
| which you will get back (in addition to the $1000) when and
| if the challenge succeeds.
| JumpCrisscross wrote:
| > _When you challenge a patent you must pay $100 in fee
| which you will get back (in addition to the $1000) when
| and if the challenge succeeds_
|
| This does little to change the dynamic. Paying a few
| hundred dollars to harass one's competitors, commercially
| and ideologically, is peanuts.
| thechao wrote:
| Tax patents as "property" whose maximum damages are
| proportional to the taxes paid? Give the owner of the patent
| a "grace period" and have the taxation schedule ramp up over
| the life-time of the patent. So, for instance: .1%, .5%, 1%,
| 3%, 5%, ...
| KptMarchewa wrote:
| Outsourcing of justice starts to be really popular in US I
| see.
| amelius wrote:
| What do you think about the idea of having a "challenge
| period", i.e. a time where other parties than the applicant can
| come up with solutions to the problem stated in the patent (or
| with prior art)? I bet there is an army of volunteers that
| would want to help fight illegitimate patents. Also, if
| $BIGCORP tries to file a patent application, then why can't
| $SMALL_COMPETITOR contest it during such a challenge period
| without going through a court of law?
| patentatt wrote:
| Former examiner here. Largely agree, however, you and I both
| know you can string together some hand-wavey 6-reference 103 if
| you have a gut feeling you shouldn't grant something but you
| haven't found any better prior art ;-)
| kirrent wrote:
| I hope you don't mind if I ask a few nosy questions.
|
| 1. How much time do you get given to perform a search? How
| comprehensive is searching (and how much time is given) if PCT
| or EP searches have already been performed?
|
| 2. Given existing citations (e.g. from a US PCT search), how
| long do you get to perform examination? How long do you get
| given for later reports?
|
| 3. How common is searching following amendments and how long do
| you get given?
|
| 4. How much time do you get given for further reports? 5. Do
| examiners do classification as an additional duty? If so, how
| much time do you get?
|
| 6. Have you Epoque (the EPO's search software)? If so, how does
| it compare to the tools you use?
| tracker1 wrote:
| I'm honestly of the mindset that at this point, the vast
| majority of patents, from what I've seen, don't pass the
| obviousness test. At least when it comes to process and
| software patents, which are very arguable in the first place.
|
| I do with the costs for a patent were a bit front-loaded where
| it costs even half the total amount just to (re)apply, in order
| to better pay for the review costs.
| brador wrote:
| Every patent should be automatically granted and the courts
| can sort out the winners if there is a dispute. That is the
| system we have moved to.
| pxmpxm wrote:
| Agreed, though then the cost of litigation or
| patentability-discovery need to be orders of magnitude
| lower.
|
| Blow away USPTO filing/examination process and replace it
| with straight arbitration.
| yumraj wrote:
| > the courts can sort out the winners if there is a
| dispute.
|
| This will skew the issue towards deeper pockets.
|
| whoever has more money for court battles will win the
| patent case.
|
| Is that what we want?
| cycomanic wrote:
| That's already the reality.
| PeterisP wrote:
| The purpose of the patent system is to facilitate the
| progress of the "useful arts". The existence of large
| quantities of bogus patents that need to be challenged in
| courts acts as a severe barrier of entry, hampering this
| progress - if we have a system where truly everything is
| automatically granted without review and has to be disputed
| in court, then arguably a patent system like that is a net
| negative, only hampering the progress, and thus has no
| right to exist.
| kmeisthax wrote:
| No, it absolutely shouldn't work like that. When a patent
| is granted, you can sue over it, and challenging a patent
| at that stage means spending lots of time and money
| defending against an infringement lawsuit. The entire
| patent troll business model relies on people paying to not
| be sued.
|
| The patent system was designed with the assumption that
| USPTO would do its job, and switching to an adversarial
| model for patentability would just make it easier to get
| obvious patents.
| whoopdedo wrote:
| > spending lots of time and money defending against an
| infringement lawsuit
|
| It works unfavorably the other way as well. If you have
| your patent infringed you have to spend lots of time and
| money advancing the lawsuit. More, in fact, since the
| burden of proof is on you to claim infringement. No
| matter how you slice it the end result will be the
| biggest organizations with the beefiest legal teams will
| win all the spoils of patents while independent inventors
| can only survive by attaching themselves to those
| behemoths. That's the situation that open patents were
| designed to prevent. Ideally patents should exist to
| empower inventors to be able to live off their ingenuity;
| not for the sake of rent-seekers to bully creators into
| entering a protection racket.
| iand wrote:
| Automatically grant every patent application but equally
| allow every granted patent to be challenged at no cost
| causing the patent rights to be suspended. The patent owner
| then has 5 years to prove the claims in court at their own
| cost.
| davidgay wrote:
| I think we need a name for the fallacy that a process which
| accepts nearly every application is the same as no process
| (the same comment repeatedly shows up for warrants). With
| the former, you only get things which are designed to pass
| the process. With the latter, you get everything.
| toss1 wrote:
| Right, so the players with money can simply massively
| burden the minor players, often to bankruptcy.
|
| A Patent is simply a ticket to start a lawsuit as a
| plaintiff. So just file, get your ticket, and start suing
| competitors, putting on them the burden of proving your
| patent is worthless.
|
| That is the opposite of the way it is supposed to work.
|
| Without some kind of penalty beyond the costs of patent &
| prosecution, this is massively anticompetitive.
|
| If your point was that we are, in a practical sense, close
| to this now, then yes, I agree (but that was not clear to
| me in that comment).
| blobbers wrote:
| Interesting that you view the patent as a sword.
| Depending on your view of mutually assured destruction,
| you could also view the patent as a shield.
|
| Certainly this is what I was told when I started filing
| them at my mega corp. 3K for filing, 10K bonus if granted
| and helping shield the product in case we are served. Our
| patents can be horse traded to settle a dispute. Because
| I believed in our team, product etc. it was easy to think
| we should be capable to defend ourselves; we were the
| best and that meant the stragglers would come for us
| using any means available, including patent trolling.
| salawat wrote:
| Are you the legal department? Do you know what your legal
| team does with it? Do you _really_ trust your management
| team to be good stewards?
|
| The only upside to patents as originally formulated was
| they actually traded an implementation blueprint for
| exclusivity. A worthy trade. Many patents don't even do
| that anymore, and devolve down to "draw the rest of the
| owl" tier parking lots on ideas. IP attorneys have done
| nothing to skew away from this outcome.
| toss1 wrote:
| Yes, good point!
|
| Like many weapons systems, patents can certainly serve
| defensively as well as offensively. In this case,
| defending against others using them as offensive weapons.
|
| Patents can also have some marketing value.
|
| The one thing the do NOT do is universally stop
| infringement in real time, which is what people think
| they do.
|
| If you have a new product/technology, a large company
| that wants to use it will simply go ahead and litigate it
| later. You will have a ticket to sue them. They'll have
| their defensive wall of patents, and maybe you'll make a
| deal and settle out of court. If not, you'll try to stay
| afloat and if you manage to fund the suit, in 9-15 years
| after all the appeals, maybe you get a big judgement.
|
| If it's a small or Chinese company, they'll just run with
| it, you can sue them, if you're lucky, you'll get an
| injunction to have products seized at the ports by
| customs, and you'll never collect a penny at the end
| because the company will be long dissolved. They'll have
| stolen some of your market with impunity.
|
| Medium-sized companies might actually respect a patent,
| because they are intending to stay in business, but don't
| have unlimited resources.
| kelseyfrog wrote:
| Make fees means tested and scaled to income or wealth.
| Make fees scale according to a power law. There are
| numerous ways to level the playing field. We have only to
| improve upon the current system and cannot let perfect be
| the enemy of good.
| toss1 wrote:
| What? What you are proposing has nothing to do with the
| perfect vs the good, it is a massive fantasy completely
| ignorant of how things actually work.
|
| Fees are merely a rounding error in the overall cost of
| patents, prosecuting (obtaining) them, pursuing cases
| against "violators" or defending them. The fees are in
| the $hundreds to small $thousands of dollars [0]. It
| typically costs $20,000 to $50,000 in patent lawyer fees
| to get a patent. A company I was personally involved with
| ran up over $350K in attny bills to obtain only a handful
| of patents. The fees were a rounding error.
|
| Fees for prosecuting a "violator" or defending a suit?
| Again, court fees are in the $100 range. Just the opening
| motions would be in the $20,000 range easily. And that
| does not even begin to account for the technical and
| executive time to understand and mount a defense.
|
| I've been directly involved, and one thing that is
| absolutely the opposite of scalable is the court system.
| It is massively time-consuming and money-consuming. Worse
| yet, it takes many years for any case to wind it's way
| through the system, often more than a decade.
|
| Yet, you are proposing dumping the entire issue on the
| courts and attorney system. How are you proposing to
| mitigate those costs?
|
| Seriously, not to be rude, but you should stop positing
| about stuff of which you are clearly massive ignorant (or
| actually explain how your proposed solution would
| actually work among all the factors).
|
| Sheesh
|
| [0] https://www.uspto.gov/learning-and-resources/fees-
| and-paymen...
| kelseyfrog wrote:
| Help me understand how cost scaling doesn't fix the
| problem of "players with money can simply massively
| burden the minor players, often to bankruptcy." If it
| becomes more costly for players with more money to burden
| minor players, then would they not burden minor players
| less?
| jlokier wrote:
| > Help me understand
|
| Reducing costs might help, but how would you go about
| reducing the costs?
|
| As GP points out, the most of the cost isn't government
| fees. It's paying your own _private_ lawyer or law firm,
| for their time and advice, assuming you choose to do
| that. And to the other party 's lawyer if you lose in
| litigation, perhaps.
|
| Your lawyer is a private arrangement which mostly doesn't
| involve the government. The government fees are already
| low.
|
| Given that, how does your proposal differ from "patent
| lawyers should charge much less for their time, to people
| with less money"? It's hard to imagine them voluntarily
| reducing their income by a large factor to a large number
| of people, or agreeing to take on lots of low paid work
| when they have better offers.
|
| But there are other models, e.g. no win no fee works in
| some fields.
| toss1 wrote:
| For the small players, you aren't reducing the costs
|
| This includes but is not limited to 1) the costs of the
| courts. 2) the costs of the attorneys to defend, 3) the
| costs of the technology and executives to mount a proper
| defense, 4) the opportunity cost to the small defending
| company which COULD OTHERWISE be focusing it's resources
| on something productive like a new product or support (vs
| defending a bogus lawsuit).
|
| Again, the courts do not even begin to scale - the courts
| are the opposite of scalable.
|
| The new class of enabled patent trolls may lose one case,
| but they'll win others, possibly because they've
| bankrupted their victim, and can continue to plague the
| rest of society.
|
| Moreover, the courts are massively inconsistent. Again
| anti-scaleable. The inconsistencies get worked out
| through appeals to higher courts. This literally takes
| decades and hundreds-of-thousands to millions of dollars
| per case. They do not get worked out when it is state
| cases, which is why we have already have venue shopping
| (you know about the East Texas patent scam courts,
| right?).
|
| And your so-called "solution" to charge big players
| orders of magnitudes more cannot be gamed? Simple, make a
| small company, pay the small fee, buyout later. Or
| syndicate the fees, or get rounds of investors to handle
| the fees, since the return is virtually guaranteed. Ya,
| then you change the fee structure (years later) and the
| game begins again.
|
| The fees are only a rounding error in the costs, and if
| you think exponentially higher fees cannot be gamed, I'd
| like to talk to you about a fantastic deal on an
| oceanfront property in Kansas, because you are so friggin
| gullible.
|
| No, automatically granting patents with some weird scaled
| fee structure and letting the courts sort it out is one
| of the worst ideas ever. You would literally lay waste to
| entire sectors of innovation. It would be only a few
| years before people would soon be screaming for proper
| centralized regulation and a patent office capable of
| judging obviousness and prior art; congratulations,
| you've just re-invented what the founders invented nearly
| 250 years ago.
|
| Seriously, you are making a nice demonstration of how
| ignorance of how a real system works creates the illusion
| of finding wonderous solutions.
|
| For every highly complex system problem there are a huge
| variety of simple solutions, all of them wrong. Congrats,
| you just found one.
| kelseyfrog wrote:
| Is there a way for you to interact with me without being
| insulting? I'm trying to learn something and it's getting
| in the way.
|
| If the problem isn't about increasing costs for large
| players, then what about decreasing those for small
| players?
| Nevermark wrote:
| The greatest costs are how much time you spend, your
| attorney's spend, etc. which are not arbitrary fees that
| can be increased or decreased by decree. So increase or
| decreasing fees won't improve accountability much.
|
| The basic problem is patent cases are inherently highly
| complex and specific to particulars and context, and the
| legal system is inherently inefficient and unpredictable.
|
| These are worst case legal situations for good actors,
| but the best case terrain for bad actors that can
| carefully select the battles they want!
|
| The only "simple" solution I can think of is, that a
| pattern of patent troll behavior is explicitly made
| illegal, and judgements and findings against trolls can
| puncture normal limited liability protections of
| corporations and business arrangements.
|
| Taking out the serial trolls could then be made
| profitable and repeatable for legal entrepreneurs, who
| can assemble the deep pockets, and accept the large
| risks, required.
| toss1 wrote:
| Because these questions are so obvious it seems like
| trolling, sorry for the impatience.
|
| Having run businesses, been involved with patents and the
| courts, some things are blindingly obvious. So I'll step
| back a bit.
|
| First, the courts are insanely overworked, so things take
| forever, lawsuits are insanely expensive for both sides.
| Most importantly, the entire court system is structured
| to be anti-scaleable.
|
| Even attempting to use the courts as a scaling solution
| works against the entire design. If you are sued, you
| have lost the minute you get served - defendant always
| pays, and the entire effort and costs are on you, even if
| you win. The only solution would be to redesign the
| entire court system, and since the courts are
| constitutional creations, that means literally re-
| constituting the entire country (Constitutional
| Convention, dissolve the old constitution, start from
| scratch; I can hardly think of anything more dangerous in
| today's climate).
|
| On the small business side, there is literally nothing
| that can be done.
|
| Even take a thought experiment where someone magically
| funds a bottomless supply of money to defend patent cases
| -- no small biz ever spends a penny on attorneys and
| court costs, and can always afford the best attorneys
| (nevermind that wrongly accused criminal defendants still
| need to get by with underpaid & overworked public
| defenders).
|
| This is still a massive unbearable cost for the small or
| medium sized business, simply because of the huge of
| management distraction involved in running a lawsuit. In
| a lawsuit, it is NOT just "let the attorneys handle it".
| Every case is unique, and the attorneys are handling only
| the legal issues -- they need to be educated from scratch
| on the issues in the case, and all that time and effort
| to educate the attorneys comes from the defendants. Then,
| the defendants must to sit for depositions (a whole day
| or more), which need extensive preparation, and be
| involved in preparing for trial, which just blows entire
| days or weeks out of the schedule, and so on...
|
| So, even if the external costs are 100% paid, it is still
| enormously costly. Even if you also paid every exec and
| employee involved their _entire_ fully loaded employment
| cost, it is STILL too costly, because of the opportunity
| cost. Those person-months of time are all taken from the
| company 's productive work on their products.
|
| Now, multiply this by dozens or hundreds of lawsuits on
| every patent, trying to simply sort out whether the
| patent is even valid. The overall cost to society would
| be insanely massive. Giving each patent examiner 10X the
| time (vs the simple doubling requested by the examiner's
| comment above), and doubling their pay would not even be
| a rounding error compared to the costs you would impose
| on every innovative business with such a court-based
| plan. And, the results would be worse.
|
| Part of the reason I find this annoying is that I also
| used to start from a Libertarian perspective. It is very
| attractive. But every time I started to work through how
| a Libertarian solution would _ACTUALLY_ work, I found
| that even the first-order consequences were ludicrous,
| and usually ludicrously expensive. I would up re-
| inventing the government structures that we already have.
| So, it is either naive, or a trope to sucker naive people
| into trying to tear down the institutions that society
| has already built. Of course these need to be improved,
| and they should be, but the L approach really doesn 't
| begin to work.
| toss1 wrote:
| Moreover, let's go outside your paradigm of costs, and do
| a thought experiment that assumes that it is solved. Even
| then, this would be a bad solution, because it takes too
| much time for either side.
|
| If you are a genuine inventor, and have a truly novel,
| original, valuable invention, you want the patent to
| deployed and fully enforceable as rapidly and fully as
| possible. Waiting years for multiple cases to sift their
| way through the courts only allows others to infringe for
| those years. Even if you rightly collect judgements in
| the end, those are unlikely to make up for the market
| leadership opportunity cost you lost to the infringers.
|
| If, OTOH, you are a small-medium business being sued for
| a bad patent, you also want it clearly defined that the
| patent is invalid, so you can move on. Waiting for
| multiple courts to decide only costs you more money,
| distraction, and market opportunity.
|
| What is really good for everyone is a very serious, fully
| funded, fully staffed and highly competent National
| Patent Office, which can effectively and reliably
| determine patent-ability, and is widely respected for its
| expertise. That is best for everyone because there are
| clear boundaries. It would also mean far fewer patents
| because there are a LOT of junk patents out there.
| skeeter2020 wrote:
| That's the opposite of how patents are used, amd where
| their value lies. They're no the defense your idea
| presents; they are weaponized offense, to which the only
| response is increase your own arsenal.
|
| What you're basically saying is "every country in the world
| should have nuclear weapons and then let their respective
| god(s) sort out the winners if there is a dispute"
| pixelfarmer wrote:
| The whole process has a scaling issue build in, meaning you
| would need to scale both required time and people for the
| review process as time marches on.
| btrettel wrote:
| I've thought exactly the same thing before. In my view, the
| amount of time an examiner gets should be directly tied to
| the amount of prior art needed to search. And fees should
| automatically increase as the amount of prior art increases.
| There should be an inflation component to fees as well.
|
| The USPTO seems to be doing decently over the decades in
| terms of increasing the number of examiners, though lately I
| know they've had a lot of difficulty hiring.
| Andrew_Russell wrote:
| Sorry all. Apparently I need to put Cloudflare back on the
| server. Here is the achive.org version:
|
| https://web.archive.org/web/20221107120623/https://ipde.com/...
|
| Edit: I discovered the Render.com autoscaler setting. Hopefully
| it's back now.
| webartisan wrote:
| What made you remove it?
| Andrew_Russell wrote:
| We have readers at the Delaware courthouse and, incredibly,
| the courthouse network setup blocks the site for Chrome users
| if I use Cloudflare. I tried for weeks to find a solution
| other than removing Cloudflare but nothing seemed to work,
| and I really want people from the courthouse to be able to
| read the blog!
| majke wrote:
| Worth debugging. Please email me at marek at cloudflare dot
| com
| bombcar wrote:
| Can you intercept their network and redirect it to a copy
| hosted elsewhere or on another CDN?
|
| Blocking cloudflare blocks half the internet so I presume
| there's something else going on somewhere.
| Kalium wrote:
| Generally Cloudflare is integrated as the DNS level. In
| most configurations that would prevent intercepting their
| network requests and redirecting them to a copy hosted
| elsewhere or on another CDN.
|
| Pretty much every CDN works the same way or very
| similarly.
| jason-phillips wrote:
| > the courthouse network setup blocks the site for Chrome
| users if I use Cloudflare
|
| Lovely.
|
| As my local county attorney told the court, "We will not be
| using the cloud because it is not secure," this doesn't
| surprise me. The bane of local governments strikes again.
| MichaelZuo wrote:
| Aren't they correct?
|
| I would ballpark Delaware court IT security requirements
| as similar to DoD Secret level clearance.
|
| And as far as I understand a higher security cloud
| solution is usually a custom ask and really expensive at
| any of the major providers, simply not affordable for
| smaller organizations.
| joshspankit wrote:
| "There is no cloud it's just [computers]"
|
| Since "cloud" is actually a marketing term (usually
| meaning virtualized servers), any company or department
| who says no to any mention of using the cloud is showing
| willful ignorance.
| bombcar wrote:
| If you know you don't know enough, demanding paper
| documents makes sense. It takes quite a bit of study and
| knowledge to determine that a "cloud document" cannot be
| changed or altered after submission (and by whom).
| pc86 wrote:
| Or the ability to trust subject-matter experts who know
| better than you.
| bombcar wrote:
| One thing judges know is how they can get burned by
| experts - and they know to whom the liability falls if
| something goes wrong.
| jason-phillips wrote:
| > Aren't they correct?
|
| Not in my professional estimation, unless you want to
| reduce the argument to absurdly pedantic levels.
|
| My quick response to the county government was for
| immediate effect, "The CIA uses AWS."
| MichaelZuo wrote:
| So do you know how much more expensive a solution, that
| can meet their Secret classification, is compared to
| regular AWS?
| tracker1 wrote:
| Most of the cloud providers (at least AWS/Azure) charge
| about 15-20% more for the "government" data centers. It's
| really not that much more. It's also not really much
| different, just slightly more auditing, if any difference
| at all. You also don't have to strictly be a government
| agency, you can also be a government contractor.
|
| From what I understand, the infrastructure is really,
| technically, exactly the same, but just limited to
| certain customers. It's also, generally speaking going to
| be as, or more secure than any self-managed datacenter
| connected to the internet. The transparency could
| probably be a bit better.
|
| note: used to work for a government contractor that
| received a _LOT_ of hacking effort as a target.
| christophilus wrote:
| Well, unrelated to the topic, but I'd be curious how many
| request / sec you were getting, and how many nodes Render
| autoscaled up to. I'm running a client's site on a single
| Render node right now and have been curious how it'd stand up
| to traffic spikes.
| Andrew_Russell wrote:
| I can't tell from the logs that I can see. But the site is
| all or almost all text from Render with images on AWS, and
| bandwidth topped out at "220MB" (per hour? Not sure) from
| Render this morning. It came back up as soon as I enabled
| scaling, and it only scaled to 3 nodes.
|
| It's also a Python 3 instance running Django/Wagtail/Puput,
| and all blame goes to me for poor coding. If anyone reading
| this happens to be a Wagtail & Render expert and wants some
| short contract work fixing my code, please reach out
| (arussell@shawkeller.com)!
| gregsadetsky wrote:
| I recently had an unoptimized Django site running on
| render.com with the `plan: standard` setting survive the HN
| front page with a single node. I had autoscale set to on, but
| it never needed to scale up.
|
| I don't know the requests/second, but at peak on Google
| Analytics it said that 300 people were on the site "right
| now" -- unsure of what that corresponds to. ~5-10 reqs/s
| roughly?
|
| Also note that render.com puts Cloudflare in "front" of the
| nodes automatically, which helps with some caching.
|
| (I'm unaffiliated btw, just moved to them from Heroku and
| have been happy to far)
| judge2020 wrote:
| > Google Analytics
|
| Hardly effective for gauging HN readership, given the
| abundant use of ad blockers. Based on no evidence
| whatsoever, 100x that and you should have a reliable
| estimate.
| shmerl wrote:
| So some mob decided to make a few shell companies to run patent
| protection racket. They should end up in jail.
| whoiscroberts wrote:
| The real question is who hired the entity to do the recruiting. I
| guess that can be inferred by the patents used in the trolls.
| kazinator wrote:
| > _Giving Hapless Patent Owners Just 5-10%_
|
| This seems to refer to the people who got recruited to serve as
| owners of the patents. They are not "hapless"; they are getting a
| slice of the patent trolling action.
|
| > _In short, it looks like both of these witnesses signed up to
| be the fall guys for the assertion of these patents_
|
| Unfortunately, the article doesn't hint at what that might mean.
| Obviously they are inconvenienced by having to appear in court as
| witnesses. Do they face forfeiture of the LLC income, and
| penalties? Jail?
| jl2718 wrote:
| Thought: Intellectual property should have nothing to do with
| payments to register your ideas with the government. Essentially,
| IP cases should revolve around whether an idea was "stolen",
| which is different than coming up with the same thing at a later
| date. The original intent of the patent system was to promote
| publication. There are plenty of other ways to publicize work
| now.
| [deleted]
| wellbehaved wrote:
| Patents are just inherently bad. There is no way to
| morally/ethically justify them nor to "fix" the inherently broken
| system. This is just one of those unquestioned relics from the
| past that clutches at shackling the youth for the sake of the old
| entrenched powers, and thus holds back humanity.
|
| https://reasonandliberty.com/articles/patents
| snarf21 wrote:
| Serious Question: Do you think that all software should have to
| be completely and constantly open-sourced? Do you think that
| all blueprints must be made public? Do you think that all
| recipes for food must be made public?
|
| Creation is hard and should have _some_ potential for rewards.
| I think we need software patents (especially) to be shorter
| lived and non-transferable. They can only be licensed and the
| licensing schedule should have to be public and available for
| all people at the same price. The employer can get a free
| license as part of the patent process for company use. This
| gets rid of trolls and patent farms.
| nu11ptr wrote:
| > Serious Question: Do you think that all software should
| have to be completely and constantly open-sourced? Do you
| think that all blueprints must be made public? Do you think
| that all recipes for food must be made public?
|
| No, we have copyright and trade secrets to protect those
| things. There are many forms of IP protection, but patents
| are the most questionable by far IMO, and are more likely (in
| most fields) to be a net loss rather than a net gain for
| humanity.
|
| > Creation is hard and should have some potential for
| rewards. I think we need software patents (especially) to be
| shorter lived and non-transferable. They can only be licensed
| and the licensing schedule should have to be public and
| available for all people at the same price. The employer can
| get a free license as part of the patent process for company
| use. This gets rid of trolls and patent farms.
|
| Copyright protection is sufficient for software IMO. Very few
| pieces of software are novel enough to be worthy of a patent,
| and in the few cases that are, the greater number that aren't
| outweigh the benefit to the few. When you have to try this
| hard to salvage the system, it is usually best to not try and
| salvage it.
| closeparen wrote:
| The potential for reward in creating useful software is
| _licensing the software_. It shouldn 't be in extracting
| rents from others whose own software is too similar.
| MrStonedOne wrote:
| Copyright protects software better than patents do.
| ilamont wrote:
| "Passive income" strikes again. Such schemes are not just
| clogging up courts with patent troll cases, they're responsible
| for a great deal of the spam, bogus reviews, garbage products,
| affiliate nonsense, and other online B.S. designed to trick the
| unwary and make it miserable for legitimate businesses.
| T3RMINATED wrote:
| arthurofcharn wrote:
| I just want to thank whoever tipped off the judge about these
| shenanigans. To the mole that I suspect exists within MAVEXAR,
| you have my thanks. I request that the mole copy all the hard
| drives that he/she has access to, so that the mole has leverage
| if caught. It would make a fine letter to your senator.
|
| Stay safe out there.
| tiahura wrote:
| What exactly are the shenanigans? Patents are transferable.
| Creating LLC's for a specific transaction is perfectly legal.
|
| This judge was getting awfully close to invading the attorney-
| client relationship. I would have to think hard, and review the
| law, before answering, or letting my client answer some of
| those questions.
| commitpizza wrote:
| Maybe patents is a bad idea and should be removed.
| adql wrote:
| The idea was basically "Let's give some legal protections to
| investment in research so someone can't just steal it the
| second you publish it".
|
| As it is common, the _idea_ was fine, it even somewhat worked
| in few places, but applying it everywhere turned out to be
| silly. We have medical companies changing an atom here in there
| to make "same" but legally distinct drugs, and software people
| patenting half a day of work of someone as some "invention"
| (and my favourite [1], "playing with cat using a laser
| pointer").
|
| It failed as a system decades ago and if anything it became
| blockage to innovation (gotta check thousands of patents, they
| might be too similar!).
|
| More than that, it is peanuts in cost for corporation but
| significant one for a single "inventor" so majority of it lies
| in hands of corporations that would do that R&D anyway.
|
| The protection it provides was also supposed to encourage
| publishing the science (as opposed to just lock up your trade
| secrets and never show it to the world) but frankly long patent
| interval makes it a bit pointless, competition can just invent
| "same/similar legally distinct process in many situation and
| only people getting richer by patents are lawyers, not
| "inventors".
|
| I start to think laws should have "best by" date, and be re-
| evaulated after 10 or 20 years whether they served a purpose
| well and still serve it...
|
| [1] Method of exercising a cat
| https://patents.google.com/patent/US5443036A/en
| ksidudwbw wrote:
| Patents should be coupled to the product. The patent is hidden
| and considered in draft mode until a working product matching
| the patent completely is created and submitted to the patent
| office to check if it matches the patent.
|
| If you are working as an inventor it's your own responsibility
| to market and sell your ideas and create appropriate contracts
| when selling your inventions to someone.
|
| A patent has to go through several layers and areas of concern
| before finally being approved. The entire approval process must
| be documented and publically available.
| tracker1 wrote:
| So, does this mean that ARM can't have patents?
| ksidudwbw wrote:
| That all connects to a working end implementation, which
| can be presented to the patent process. ARM would need to
| contractually secure themselves on their own untill an
| implementation can be presented though
| bheadmaster wrote:
| Software patents, at the very least.
|
| https://endsoftwarepatents.org/
| commitpizza wrote:
| I don't really see the difference, why just software?
| jeltz wrote:
| For me the reason is that I cannot say I understand other
| industries well enough. But I understand software well
| enough to say that parents there are harmful. Many of them
| are too generic and trivial and hinders innovation.
| speeder wrote:
| The purpose of patents, is incentive companies to share
| their secrets.
|
| For example, Coca-Cola never patended their formula. So you
| might think: I can copy it and sell my own right? Well,
| yes, legally yes, if you ever found their formula, somehow.
| They been successful for more than a hundred years now in
| hiding that formula.
|
| Thing is, software patents allowed people to actually
| patent ideas, concepts, stuff that is obvious and don't
| need sharing, for example: "ghost racer" is a patented
| concept, for a while any game that wanted to display to the
| player his past run by showing a slightly different copy of
| himself so he can compare, had to pay patent royalty. But
| the concept is obvious, it is simple, it is there, nobody
| used a ludicrous amount of money and time to invent it.
|
| This is different than the patent for Michael Jackson dance
| moves that requires specialized devices, he patented
| physical objects that required time and money to make, they
| had a non-trivial purpose on his dance and he had to work
| to create them to make his dance moves possible. And now
| that he is gone, the awesome stage tricks he invented can
| keep existing, because he wrote detailed patents explaining
| how to repeat his feats.
| BlueTemplar wrote:
| It's only "obvious" after the fact, and was clearly not
| obvious to the patents office, or the patent wouldn't
| have been granted.
|
| As for the "no effort" claim, reminds me of the :
|
| Henry Ford vs Charles Steinmetz' (of General Electric)
| invoice for fixing a generator : "Making chalk mark
| [showing where the issue is], $1. Knowing where to make
| mark, $9,999."
| bryanlarsen wrote:
| > stuff that is obvious
|
| Stuff that is obvious cannot be patented, according to
| the law. The problem is the system's implementation of
| the law.
|
| Software shouldn't be patentable because math isn't
| patentable.
| tremon wrote:
| Software implementations require trade-offs. An
| implementation of an algorithm can be memory-hard or
| memory-efficient, single-threaded or multi-threaded,
| generic or optimized for a particular processor,
| constant-time or low-latency. But no implementation can
| be all of those at the same time.
|
| To create a solution within the constraints given is what
| engineering is all about, and requires expert domain
| knowledge and creative thought. Software isn't just math,
| it operates on real processors with real limitations. I'm
| not arguing that software patents should be valid, but
| the "software is just math" argument is too weak to carry
| much weight.
| rhn_mk1 wrote:
| I think you need a better argument than that.
|
| Is physics patentable? Everything in the real world
| eventually depends on physics. Yet despite the
| unpatentability of physics, patents built on physical
| properties of the world exist as well. Why should
| mathematics and software be different?
| commitpizza wrote:
| Software doesn't need to be obvious and could need the
| sharing aspect of it. I am thinking of all the new ML
| models that are up and coming for example. Not only do
| you require some advanced software but also a lot of
| hardware capabilities.
|
| I don't really buy your argument since the same could be
| said for obvious stuff in the physical world as well.
|
| I still think I am leaning towards companies keeping
| their secrets if patents is the only solution we can
| bring to the table.
| rhn_mk1 wrote:
| Thankfully, the ghost racer patent is expired by now:
|
| https://web.archive.org/web/20210824042808/https://www.ga
| mas...
|
| That doesn't make it any more deserving of a patent.
| hulitu wrote:
| > They been successful for more than a hundred years now
| in hiding that formula.
|
| This is a legend. Coca Cola is just water with sugar. The
| "formula" tastes different in every country. And today's
| coca cola is not the same like yesterday, so they shall
| fill a patent every other year in every country.
| thorin wrote:
| It doesn't taste that different in every country (I've
| had it in most continents and quite a few countries). For
| whatever reason I still massively prefer regular coke to
| most of the other mainstream suppliers. I do like some
| small batch niche cokes though. Strangely as a kid I
| drank loads of diet pepsi, but I never drink diet soda
| now, and I probably only have 1 or 2 cans of coke/month
| on average.
| rocqua wrote:
| Because the bar for 'invention' is even lower in current
| software patent law than for current physical engineering
| patent law.
|
| In general, the software world sees plenty of innovation,
| and would continue to see that innovation without patents.
| Besides, software is much closer to mathematics. The idea
| that e.g. long-division is patentable is ridiculous, but if
| you write "long-division, but on a computer" the only thing
| that prevents a patent is how glaringly obvious the prior-
| art is.
| [deleted]
| bell-cot wrote:
| Software patents, "better paperclips", and a lot of other
| "lawyers get rich, bureaucracies get bigger, little people get
| screwed patents? - YES.
|
| (Some sort of IP protection or reward system is still needed
| for _real_ inventions - where it takes serious money,
| expertise, time, etc. to achieve something major.)
|
| But maybe a better moral would be that shell corporations (&
| lawyers playing shell games with them) should be outlawed.
| bdw5204 wrote:
| Generally speaking, most "real inventions" are independently
| invented by multiple people and aren't successful until
| somebody figures out how to market them. For example, video
| games were invented in the 1950s and Tennis for Two[0] was
| basically Pong in 1958 (a bunch of people had already written
| tic tak toe, checkers and/or chess). The Magnavox Odyssey
| (likely the first console) was released around 2 months
| before Pong (according to Wikipedia) but it was Pong that
| popularized gaming and made it mainstream. Calculus was
| independently invented by both Newton and Liebnitz but there
| was also a Japanese calculus called wasan from the same
| period invented by Seki Takakazu based on a different
| foundation. The telephone was also independently invented by
| several people around the same time but Alexander Graham Bell
| got the credit because he was the first person to get it to
| the patent office.
|
| There are endless examples of this because ideas are not
| scarce and there are typically multiple intelligent people
| who have the same idea. All patents do is allow somebody who
| fails to successfully execute an idea to weaponize the legal
| system to extort money out of people who do successfully
| execute "their" idea.
|
| That's not even getting into how the US Supreme Court allows
| GMO seed companies to patent plants and sue farmers for
| patent infringement because the neighboring farm's GMO seeds
| cross-pollinated with their seeds. In Bowman v. Monsanto, the
| US Supreme Court actually ruled that farmers can't plant
| their own seeds (when this cross pollination happens) without
| paying the patent trolls at Monsanto! Patents are simply
| corrupt, innovation stifling monopolies the entire way down
| and should be completely abolished and banned from ever
| coming back via constitutional amendment.
|
| (Current copyright terms are excessive but copyright itself
| along the lines of the US Copyright Act of 1790 is reasonable
| as a tool to encourage creative works and copyright abolition
| would likely be even worse than the status quo's century long
| copyright terms. Likewise, trademarks are also legitimate as
| a fraud prevention tool. They shouldn't be conflated with
| patents as they are in the concept of IP.)
|
| [0]: https://en.wikipedia.org/wiki/Tennis_for_Two
| waterhouse wrote:
| I've always found Wikipedia's "List of multiple
| discoveries" article fascinating. So many, many scientific
| principles and inventions that I know about, and it turns
| out there were others I've never heard of who also figured
| them out.
| https://en.wikipedia.org/wiki/List_of_multiple_discoveries
| pixelfarmer wrote:
| Copyright was not introduced by authors, it was introduced
| by the people who print books, or at least some of them. In
| Germany books and booklets were dirt cheap, which allowed
| broad access to all kinds of works and consequently
| knowledge to spread. Then came copyright, and guess what
| happened: It wasn't exactly the authors who got richer, and
| neither the biggest bunch of the guys who printed all these
| things saw any of the benefits, either. It was a net loss
| for the society, because some greedy idiots couldn't get
| enough.
|
| Trademark also has a good few issues, aside of being abused
| to the point where it becomes obviously stupid (like
| trademarking colors, common words and similar idiocies). It
| also cannot prevent counterfeits, which is more a game of
| whack-a-mole than anything else.
| ClumsyPilot wrote:
| > But maybe a better moral would be that shell corporations
| (& lawyers playing shell games with them) should be outlawed.
|
| Shell companies have done more damage to the world than most
| tyrants ever could - enabling tax evasion, escaping
| responsibility for substandard construction (you close the
| company after completing contruction of a house) or for
| decommissioning toxic assets like exhausted mines or oil
| rigs. They are uaed to obscure land ownership.
| kasey_junk wrote:
| Most of those aren't shell companies by the common
| definition of a shell company.
|
| Usually people talking about shell companies are referring
| to companies with no business interests at all or if they
| are bring expansive only contracts/ip agreements. A
| construction company is doing actual business. Land owned
| in a corporation has an actual asset etc.
|
| Most startups start as shell companies, you sort of can't
| create a corporation without being one for some amount of
| time.
|
| So I'm ok with the idea of corporate ownership reform but I
| think you'd need to get more specific than "shell companies
| == bad"
| newaccount74 wrote:
| Anonymous companies are bad.
|
| I think you could fix a lot of the issues by requiring
| that all companies must be recorded in a public registry
| that includes contact information, owner and executive
| names, as well as a list of actual physical locations
| where the company operates (if any -- online businesses
| don't need to have a physical location).
| kasey_junk wrote:
| You'd need a federal level legislation to achieve that
| (and perhaps a constitutional amendment).
|
| The states decide the information requirements in their
| jurisdictions and many have vested interests in not
| changing them (particularly Delaware where this case is).
| mikeyouse wrote:
| This is called a beneficial ownership registry and Biden
| signed the most recent NDAA which actually included a
| rule to create this. FinCen is developing the framework
| now and we should have much more transparency pretty
| soon;
|
| https://www.fincen.gov/news/news-releases/fact-sheet-
| benefic...
| bell-cot wrote:
| IANAL, and was not proposing specific legislation. I used
| "shell company" in colloquial sense - a token / minimal /
| empty legal organization, used by lawyers & their ilk for
| what most honest & reasonable non-lawyers would see as
| duplicitous or malicious purposes.
| kasey_junk wrote:
| The corporations in this case a) hold assets and b)
| provide liability limits. That is the basis of all
| corporations.
|
| So we'd need to get specific about which practice is
| duplicitous. Is it the treatment of IP as an asset? The
| transferability of patents ? Limited liability of patent
| defense?
|
| I am no expert in any of those things but I bet there is
| value in each and bad unintended consequences of each.
|
| If I described to a lay person that there was a hacker
| website frequented by lots and lots of people with an
| active forum community, you'd likely get at least some of
| them to suggest banning it...
| ClumsyPilot wrote:
| > The corporations in this case a) hold assets and b)
| provide liability limits. That is the basis of all
| corporations.
|
| Surely the basis of all corporations is to trade and to
| undertake usefull economic activity.
|
| We spesifically don't want them to limit liability where
| profit is made upfront, owners take off with the money,
| and there is no-one left to pay the costs.
| salawat wrote:
| >If I described to a lay person that there was a hacker
| website frequented by lots and lots of people with an
| active forum community, you'd likely get at least some of
| them to suggest banning it...
|
| Different things. In this case you have a pathological
| outcome in the process. "Free real estate" as it were
| because you've got an organizational structuring that is
| essentially censure proof by the Court _unless you pierce
| the corporate veil_.
|
| Remember, corporations are suffered to exist as a
| courtesy, and a means to distribute risk, but our Court
| system is very much tuned to "there is a person, get them
| in here now, and lets get this sorted."
|
| If the Court has to choose between being ineffectual and
| exploitable, and piercing the veil in order to get to the
| bottom of duplicitous behavior, one can only hope the
| Judge will settle in and push the issue.
| commitpizza wrote:
| But real inventions can occur in software too? Inventions
| that takes serious money, expertise and so on.
|
| Some examples:
|
| - Rust memory management
|
| - New models in machine learning that enables amazing results
|
| - Protocols
| dbfx wrote:
| I'm skeptical rust memory management is such a big
| invention by them and would bet some money the ownership
| model already existed before in papers at the very least.
| And even if not just imagine having to pay Dahl or Alan Kay
| to implement OO in your language, which was by every
| possible metric more innovative than rust's memory
| management.
|
| Even if it would have stopped java from being a thing it's
| just not worth it.
| anonymous_sorry wrote:
| Those things got invented anyway though, without being
| patented. The right question, in my opinion, is whether
| there are important software innovations that would have
| been significantly delayed, or kept secret, or never
| discovered at all, if software patents weren't a thing.
|
| And if so, do they outweigh legal costs and chilling
| effects of patent trolling, and the inefficiencies of
| people having to engineer around patented ideas.
|
| Intellectual property is a fairly artificial concept.
| It's quite "big government" when you think about it -
| government grants a monopoly on the application of an
| _idea_. It is only worth preserving if it makes the
| country richer.
| anonymous_sorry wrote:
| But is there broader benefit to a legal system that enables
| the inventor to enforce time-limited monopolies on them?
|
| Rust's memory management was invented without any such
| incentive, and the world is richer for it.
| bombolo wrote:
| Sure they can happen, but in general they require a much
| lower investment to be done, and are easy to reinvent.
|
| Once I had an idea while sitting on the toilet, about how
| to use past log data to pre-emptively scale up, when the
| peak hour is about to come.
|
| I had the idea just randomly sitting on the toilet for a
| few minutes... it was already patented.
| asah wrote:
| This cuts both ways: it's also easy to "surround"
| software patents with new innovations that are required
| to be competitive in the marketplace. Then both parties
| cross-license and you're good. Yes the lawyers get paid
| but the cost is pretty low compared with software
| engineers, and the societal benefit is that these
| innovative move into the public domain.
| commitpizza wrote:
| I don't understand your point, do you mean that this
| cannot happen in other fields?
|
| I imagine that this is the case for most stuff in the
| world. Ideas are not usually unique but it's the great
| execution of the idea that present the real challange.
| oneoff786 wrote:
| Sounds to me like all of that would be better off public or
| as a trade secret.
| nonrandomstring wrote:
| Tradition has held that these are ideas, not inventions,
| and thus obtain value precisely because they can and should
| be freely shared (which is the ultimate aim of patents
| anyway).
|
| Ideas may also require intellectual labour. But one may not
| receive the protection of the government for them to give
| temporary advantage over competitors. Ideas are a
| collaborative venture, protocols being the very epitome of
| this - since a "protocol of one" is a bit like a birthday
| party for one... a bit sad and pointless.
|
| If one wants to make money, by all means invest time in
| pursuing patentable inventions, but do not presume that
| mere ideas (most of which are "nothing new under the sun")
| should be afforded the same protection.
|
| The problem we have today is that the patent system is
| derelict. The goalposts have shifted to allow almost all
| and any silly idea to obtain a patent and the system itself
| is weaponised for extraction. It has not shown any will to
| reform, so abolition may be its ultimate fate.
| themitigating wrote:
| Isn't an invention just an implementation of an idea. I
| also don't understand why many accepy patents except for
| software
| nonrandomstring wrote:
| The problem here is your use of the word "just".
|
| Consider the _idea_ of "going to the moon" versus the
| _implementation_ of Project Apollo.
| abduhl wrote:
| The idea of going to the moon is not patentable. The
| implementation of Project Apollo may be patentable.
| abduhl wrote:
| I'm interested in what "traditions" you're talking about
| here? Honestly, it is not even clear to me what you're
| talking about when you say "these" in your sentence.
| Certainly tradition hasn't held that Rust memory
| management is an idea and therefore not patentable. Same
| with new models in ML? Maybe there is some tradition for
| protocols, but even those are generally patentable but
| required to be licensed via FRAND.
|
| Your post seems to entirely misunderstand the patent
| system. "But one may not receive the protection of the
| government for [ideas] to give temporary advantage over
| competitors." This is just flat out wrong. The purpose of
| a patent is literally to receive the protection of the
| government for your ideas in order to give you a
| temporary advantage over your competitors via a
| government granted monopoly on an idea. The bargain
| that's struck is that the patent owner gives the details
| of their patented idea to the world so that anyone can
| eventually practice it or build off of it in exchange for
| a limited exclusionary protection in commerce.
| nonrandomstring wrote:
| I'm sorry I can do nothing more to help with your
| misunderstanding of my good faith post. Please do the
| necessary research with regard to the history and purpose
| of designs and patents law.
| abduhl wrote:
| So you have no examples or explanations for what
| "traditions" you're talking about where ideas are not
| inventions or vice versa.
| nonrandomstring wrote:
| > So you have no examples or explanations for what
| "traditions"
|
| I have plenty. Now, I do not wish to be rude Abduhl, but
| I find your "question" a little disingenuous, and your
| expectation that I act as your personal tutor on well
| documented matters a tad entitled. This isn't my full-
| time job, and I come here mainly to look for interesting
| and unusual viewpoints. Have you done even the most
| cursory research into the history of patents as I
| indicated? Do you need some reference material or links
| to get started?
|
| How about reading some lecture notes and essays (some of
| the finest on the formation of copyright, patent and
| trademarks) on the site of Havard law professor Lawrence
| Lessig [1]
|
| [1] https://www.lessig.org/
| BlueTemplar wrote:
| Pretty sure that it's not for ideas, but for specific
| implementations of ideas, patents being criticized as
| abusive when they are not specific enough ?
|
| One example I saw just today :
|
| Thomas Savery getting a patent on "make, imitate, use or
| exercise any vessells or engines for raiseing [sic] water
| or occasioning motion to any sort of mill works by the
| impellent force of fire,", which I assume subordinated
| Thomas Newcomen during the patent's duration = all of his
| life to Savery, despite Newcomen's engine being much more
| advanced & commercially successful... (at least he didn't
| end up destitute, like some of the previous steam engine
| inventors !)
|
| https://technicshistory.com/2021/05/05/the-pumping-
| engine/
| abduhl wrote:
| This seems to be splitting hairs on what an "idea" is. Is
| a patent on the use of water heated into steam to drive
| an engine different from the idea to use steam to drive
| an engine? I don't really see where you draw the line
| here, and the idea to use steam to drive an engine was
| definitely new at the time so why shouldn't it be
| patentable? And also note that your linked story does not
| implicate the US patent system (which addresses the
| problem you've identified: your patent only lasts for 17
| years, not for your or your competitor's life) but seems
| to be reliant on the British patent system as it was in
| the late 1600s.
|
| You can argue that the patent system in the US is
| partially broken because of how broadly patents are
| granted nowadays, but that does not support the GP's
| contention that there is some kind of distinct line that
| can be drawn between an idea and an invention, which is
| why the patent system is what it is now. And, again, your
| own link underscores how far we've come in understanding
| that unlimited monopolies on technologies/ideas are bad
| and how limiting patents durationally can help with that.
| Note that one of the requirements for a patent to issue
| is called "enablement" which basically means that your
| patent MUST describe the invention with sufficient
| particularity that a person with ordinary skill in the
| art could make and use your invention.
| BlueTemplar wrote:
| lol, after your last phrase I'm confused about what we
| are even arguing ?
|
| (Also, I don't think that in that case the patent expired
| because its holder died, more likely it came to a term
| (after being renewed ?) after 35 years (which I agree is
| a tad long), otherwise my source wouldn't have put it in
| this way ?)
| Akronymus wrote:
| Which would you count the olds elevator as?
|
| https://youtu.be/-fu03F-Iah8
| ajsnigrutin wrote:
| The idea behind them is solid... the time limits are absurd,
| especially for trivial stuff.
|
| So, to solve the triviality, the patents shouldn't be worth
| more than it would take for a competitor to reinvent the end
| result - so if we're talking about a truly advanced chemical
| process, sure, takes time and reasearch and people and
| experiments... definitely worth millions. In contrast, pressing
| pageDown and in result moving one (full) page down (instead of
| moving a screen-height) should be practically worthless, since
| it'd take someone just a few hours to reimplement. Valuing
| would be hard but still better than nothing.
|
| The other is the time limits.. especially in software, a year
| is a lot of time, really a lot... and 20 years is way too much.
| BlueTemplar wrote:
| But that's not how invention works : what about advances that
| seem trivial after the fact... yet nobody has thought of for
| centuries, despite all the "ingredients" being available ?
| pixelfarmer wrote:
| What about patents are non-transferable and only valid, if
| the issuer actually makes use of them? The moment you let
| them rot in a drawer, you invalidate the patent. That would
| disable companies whose sole purpose is to "troll" others
| with patents they aquired from whomever, and it would also
| disable companies from inventing something just to block
| off this path to competitors, while never making use of it
| itself to press more money out of customers with the "old
| garbage".
|
| I mean the marketing blabla behind patents is always the
| little inventor who found something incredible but will be
| eaten by the large corps, right? Which means they should be
| interested in actually creating a product out of it to make
| money, and the patent gives them a "safety" period before
| the big corps stomp the little guy to the curb. Or ...
| maybe this whole thing was a pure marketing ploy and
| patents have been misused in all kinds of ways in the 19th
| century already?
| BlueTemplar wrote:
| I give one example of 18th century misuse (or rather, too
| broad of a patent granted) in a parallel thread :
|
| https://news.ycombinator.com/item?id=33505728
|
| Some decades later, however the (much less broad ?)
| patents over steam engines able to produce circular
| motion, seem to have forced Watt to differentiate and
| improve his "2nd engine" so much that it could be
| differentiated enough from the other patents :
|
| https://technicshistory.com/2021/10/10/the-steam-
| revolution/
|
| Note also that Watt was bad at business, and only owned
| 1/3rd of "his" patents.
|
| Our post-modern issues seem to me to instead stem first
| from :
|
| - it being too easy to shelter liability (and tax fraud
| !) behind complex company trees
|
| - a failure of antitrust and lack of goal/duration-
| limited companies allowing companies to grow waaaay too
| big to the point where they have enough power to heavily
| weigh on governments (note though that Watt had already
| managed to convince the British government to give a 25
| year extension on "his" "1rst" steam engine)
| [deleted]
| w0mbat wrote:
| When Scooby-Doo took the mask off the troll, he was just the old
| caretaker, Nathan Myhrvold.
| CoastalCoder wrote:
| Can someone explain the significance of the court's inquiry?
|
| I understand how it's _interesting_ to see how one NPE structures
| it 's relationships. But aside from the mail drop / physical
| location shenanigans, I can't tell if there's any _legal_
| significance to this information.
| Andrew_Russell wrote:
| I'm the author. It's actually kind of hard to say at this
| stage, and the judge suggested amicus briefing to help the
| Court figure out what to make of all this.
| jrmg wrote:
| The article says "All they had to do was become the owners of
| a patent assertion entity, and accept the "liabilities" that
| come along with that."
|
| Can you say more what this means? What were the risks these
| people were (I would guess unknowingly) accepting in return
| for their 5-10% if things went 'well'?
| Andrew_Russell wrote:
| They seemed unsure at the hearing of what exactly they had
| signed up for.
|
| Certainly, their LLCs could be subject to attorneys fees if
| the Court awards fees (which it generally only does in
| exceptional cases) or for sanctions based on attorney
| behavior.
|
| However, normally, only their LLCs would be liable rather
| than the owners personally--unless they fail to observe the
| corporate formalities.
| MrStonedOne wrote:
| Cthulhu_ wrote:
| Fingers crossed that the court just says "this reeks too much
| like a scam to me" and summons the real owner of these patents
| instead of the mailbox / shell companies, under threat of
| dissolving the shell companies.
| CoastalCoder wrote:
| I still don't understand what the scam would be in this case.
|
| IANAL, but I wouldn't think "this seems sus" to be a
| sufficient justification for a court to compel discovery
| without a clear relevance to the issues before it.
| NotYourLawyer wrote:
| The hook for compelling discovery is probably standing.
| That is, if you're not the "real" patent owner (for
| whatever definition of "real" the judge likes) then you
| might lack constitutional standing to bring suit for
| infringement.
| b800h wrote:
| Well presumably if there is a significant penalty for
| making a false patent assertion, then placing the assertion
| in the hands of a very small company would simply bankrupt
| that company in the case of the penalty coming due, and the
| real owner wouldn't be liable.
|
| So essentially the scam removes liability from the
| (dubious) patent owner - it removes the downside to
| (allegedly) abusing the law, and subverts the intent of the
| legislation.
| AnimalMuppet wrote:
| I suspect it's something like this: Company A owns some
| patents that it wants to troll with. They get entities B
| through Z to buy the patents and troll, with the contract
| saying that A gets a chunk of the winnings if they win. If
| they lose, B through Z are on the hook for expenses. So A
| gets to hide, first of all, and second gets insulated
| against financial losses, and third doesn't get tainted by
| a bunch of adverse legal rulings. (That is, think about how
| Prenda Law got tainted. If they came after you, you weren't
| going to settle, because you knew it was garbage. Well, in
| this setup, if B through F have been shown to be bogus, and
| G is suing you, you may settle rather than fight, because
| you don't realize it's all part of the same bogus
| collection of junk.)
|
| As I said, that's what I suspect. The actual scam may be
| different.
| mattficke wrote:
| The substantive issue the judge is interested in is whether
| they made false statements in their court filings. The
| attorneys seem to be misleading the court about the true
| owner of the patents, and who the attorneys actually
| represent.
| williamcotton wrote:
| It is too easy for people to hide behind corporate entities and
| to the detriment of public accountability.
| tracker1 wrote:
| Unfortunately, anything short of a constitutional amendment
| explicitly stating that corporations and other collective
| entities do not have $list_of_rights that one may possess as an
| individual would be very difficult to keep in practice. Of
| course, this also would have to be limited to collective
| representation, not a group of people in person (such as at a
| physical protest). It could be very messy at this point.
|
| And it all sucks. I think tethering legislation to making
| corporations exempt from income taxes, and refactoring taxation
| on profits and loans secured against corporate ownership might
| be the only way to get it through.
| brnt wrote:
| This avatar-like use of Legal persons is undesirable, fully
| agree. A major component in international money laundering and
| criminal enterprises is discovering whose avatar $some_co or
| $my_foundation belong to. Small jurisdictions, mine included
| unfortunately, are easy targets for friends-of-friends-of-
| friends to allow such hidden ownership, and the international
| community should forbid it both at home and abroad.
| pj_mukh wrote:
| "Judge Connolly made very clear that, in cases before him, it is
| not truthful to represent that a post office box is a "principle
| place of business" of an entity. "
|
| "Uh Oh!" - Every Remote business owner.
| delfinom wrote:
| Said remote business owners can declare their home office or
| whatever as principle place of business. That is different from
| a mailing address.
| pj_mukh wrote:
| By remote business I don't mean "that one guy who is a
| contractor LLC",
|
| I mean a 50 person team with no office (i.e the new COVID
| standard). Yes, you could use the "CEO's house", but then
| he's gotta actually live for a significant amount of time
| there and receive mail for the company?
|
| None of this really makes sense, and the laws (or
| interpretations) have not been updated.
| oogali wrote:
| No, I believe you're conflating the principal place of
| activity with the registered agent -- they do not have to
| be the same.
|
| The registered agent is responsible for getting served,
| receiving legal mail, and other government correspondence
| on behalf of the company and forwarding it along in a
| timely manner.
|
| This is different than a mailing address because a process
| server or government employee must be able to physically
| walk into the premises of either the principal place of
| activity or registered agent, deliver the
| notice/correspondence/etc. to someone, and record who they
| handed it off to at what time.
| pj_mukh wrote:
| Either way, when a judge demands a physical "principal
| place of business", we can't answer "the cloud". When
| that's the actual answer.
|
| "mailing address because a process server or government
| employee must be able to physically walk into the
| premises"
|
| Yea, that would be the CEO's house if their spouse is
| home, maybe.
| oogali wrote:
| Or an actual registered agent.
|
| Again, the registered agent does not have to be the
| address of any of the principals of the business. But it
| must be a place that is open during standard business
| hours and accept process notices or legal correspondence
| upon behalf of the business.
|
| https://www.legalzoom.com/articles/what-is-a-registered-
| agen...
| pj_mukh wrote:
| Yes, and again, a business with a PO Box and a registered
| agent will be deemed "sketchy" by this judge, and more
| generally by the judicial system and in some cases the
| IRS as well.
|
| I realize a lot of business do this, and have survived
| fine, but that's not the point I'm making.
| markdown wrote:
| > but then he's gotta actually live for a significant
| amount of time there and receive mail for the company?
|
| Ummm... yes? Unless you're running a fly by night
| operation, why wouldn't the CEO make himself available to
| the world at a physical address?
| oogali wrote:
| I think you're now conflating the principal place of
| business activity with a mailing address.
|
| The principal place of business has to be an address
| where actual business activity takes place. That
| establishes your business nexus and which states/agencies
| have jurisdiction over your business.
|
| It doesn't matter if it seems "fine" to put down a
| virtual address in the principal location field, it's not
| sketchy -- it's simply not allowed. The state can revoke
| your business registration for doing so. (And if you look
| at the terms and conditions for your bank and/or credit
| cards, they can close your accounts for doing so as well)
|
| In the context of business formation, it is entirely
| legal for a business to have three different addresses
| for the _three_ different address roles (principal place
| of activity, mailing address, and registered agent)
| provided those are real addresses.
|
| Every secretary of state (or division of corporations, if
| it's called that in your target state) that handles
| business formation allows for this. Sometimes the
| principal location is public data, sometimes it's not.
| The registered agent is _always_ public data.
|
| The original comment I responded to was in regards to
| your stated requirement of the CEO receiving mail for the
| company -- that is the role of a mailing address. The
| address to where the business can be served notices,
| subpoenas, etc, that is the role of the registered agent
| address. In the context of a remote-first business, you
| can choose to put your home address here or you can put
| in legal substitutes.
|
| With regards to your last comment, the judicial system
| uses your principal address for determining jurisdiction
| and your registered agent address for delivering notices.
| If you are providing a virtual address when they go
| looking for any of these two address roles, you have
| screwed the pooch.
|
| In the new context you've raised regarding tax
| authorities such as the IRS, when you are filling out
| said registration paperwork or change of address forms,
| you are explicitly asked to give the physical address
| where your records are kept which introduces a fourth
| address role -- that again does not have to be your
| house, but it does need to be a real, legal place.
| brightball wrote:
| That's what UPS Store boxes are for. They can sign for your
| packages too...
| zippergz wrote:
| No, this is exactly what they are talking about. A UPS store
| box is not a "principal place of business." Yes, lots of
| people do it. Yes, you will probably get away with it. But it
| is not complying with the law, and this is the practice the
| judge was speaking of.
| brightball wrote:
| I know. Ultimately, the reason to use one is if you're
| largely working out of a house and you're goal is to avoid
| putting your home address on your business.
|
| While I get what the judge is going for here, there's
| nothing about renting an office space somewhere that makes
| a patent more valid.
|
| If anything, the contracts that allow the parent company to
| take 90-95% of the income should also entitle them to the
| same level of liability and that should have nothing to do
| with the shell company address. As soon as that is
| addressed, hopefully by law, all of this stuff goes away
| very quickly.
| cycomanic wrote:
| I find the framing of the conversation around problems with the
| patent system to largely be about patent trolls quite
| disingenuous.
|
| This might sound controversial, but patent trolls are pretty much
| the only way for a "small inventor" to monetize a patent (note
| not invention). If say IBM violates your patent an individual or
| even a moderate startup or company has absolutely no chance of
| defending it, because IBM will either drown you in litigation
| cost or if you also do business find 10 other patents in their
| portfolio that you violate and force you to cross licence.
|
| By framing the issues to be about patent trolls means that the
| big companies just want to have their cake and eat it too. They
| want to keep out newcomers without any risk to their own
| business.
|
| That doesn't mean I am pro patent trolls, but I just am not
| convinced that the patent system fullfills any value. Patents are
| written so broad that they are essentially meaningless.
| [deleted]
| kmacdough wrote:
| Definitely the patent system has some issues. It certainly
| offers way too many protections with far too few checks. But
| there seem to be some strong assumptions here.
|
| > patent trolls are pretty much the only way for a "small
| inventor" to monetize a patent
|
| In the current system, yes, but in general no. The outcome is
| tied to the "litigation costs" precisely because the patent
| office is underequipped, leaving the burden of investigation on
| individuals. Strengthening the authority, and actively
| prosecuting and penalizing patent troll behavior increases both
| cost & risk, while cutting income. Your investigative authority
| doesn't need to be perfect - just better - to significantly
| change trolling economics.
|
| > because IBM will either drown you in litigation cost ...
|
| IBM is one of the longest standing patent troll companies and
| these are cookie cutter patent troll tactics. Good anti-troll
| legislation dilutes this by strengthening the investigations.
| thewebcount wrote:
| If you're suing IBM, maybe. But I don't see how the majority of
| patent trolls that seem to be suing small businesses for things
| like using a printer, scanner, fax combo they bought at Office
| Depot is helping anyone out.
| yieldcrv wrote:
| Its about identifying symptoms, not being an apologist
|
| okay so you're living paycheck to paycheck and took the risk
| of filing your patent with the attorney for $10,000 and
| arguing with the patent office a couple times for another
| $10,000
|
| now you need to monetize it and other people did the thing
| you described after you described it
|
| everyone on the internet says "hm you should have launched a
| startup using more capital and more risk, doing that one
| specific thing, otherwise you are just a troll!"
|
| yeah ok. convincing argument
| alistairSH wrote:
| The argument is that society would be better off the the
| inventor licensed (or sold outright) to a company that will
| actually use the patent. Instead of to a NPE that exists
| only to sue.
|
| If an inventor just wants to sit on a patent and not
| produce anything based on it, they should be forced to
| (eventually, though I have no idea what timeframe would be
| optimal) release their rights.
| yieldcrv wrote:
| That's an ok argument but you know why that doesn't
| happen right?
|
| Companies get defensive at the mere suggestion of paying
| anything, NPE streamlines the process
| jmugan wrote:
| The small inventor is supposed to monetize a patent by building
| something useful for society. That's the whole deal. The patent
| itself shouldn't have value beyond protecting that path.
| newaccount74 wrote:
| I think the story of "small inventor makes big contribution" is
| very misleading. If an invention is small enough that someone
| can make it without spending significant resources, it is
| probably obvious enough that you shouldn't be allowed to patent
| it, because it is more likely other people incidentally have
| the same idea than they are "stealing" it.
|
| The only scenario where patents make sense is when a research
| group spends significant resources to invent something, and
| then publishes the invention with all the necessary
| documentation to make use of the invention, then they should be
| rewarded with licensing fees for their contribution, so they
| can continue and hopefully make more inventions.
|
| Edit: When I say research group I'm not just thinking of non-
| profit universities. A research group could also be a group
| within a for-profit company that develops something, a for-
| profit institute, a joint industry working group, etc.
| balderdash wrote:
| That's probably true in the aggregate (as I'd posit most
| advances are incremental and become more expensive as you run
| up against diminishing returns to investment with legacy
| technologies). However, I think it discounts breakthrough
| tech/new technology fields and new applications. Not to
| mention many things that are consumer focused ( beanie
| babies, spanks, super soakers etc)
| munk-a wrote:
| I think that's one way to view invention but the classic way
| it's been viewed in America is that if you found a novel way
| to put a sponge on the end of a dowel and manage to market it
| you should have protections to exclusively make your good for
| a while - there has always been, for me at least, a very
| strong romanticization of folks inventing things in their
| garage and making a few hundred thousand dollars off of them.
| kmacdough wrote:
| While many contributions do require significant tools &
| investment, there are still plenty of sectors where
| individuals can make massive contributions. For example Ben
| Choi leveraged mostly public knowledge and a few thousand $
| to develop a low-cost neural prosthetic in high school.
| Having been to enough hackathons, this caliber of project,
| though uncommon is also not rare. The surface area for
| innovation is so huge, and the flexibility afforded by
| individuals/small groups is so significant that major
| breakthroughs continue to be made without backing.
|
| Many of these inventions could be readily transformed into
| significant business ventures but, without patent protection,
| would be easily beat out by companies with the resources to
| build out manufacturing nearly instantly.
| cycomanic wrote:
| Sure I somewhat agree with you. However my argument applies
| just as much if you exchange sole inventor with research
| group. The funny thing is "protecting the small inventor" is
| often stated as the purpose of the patent system, while in
| reality it is largely the big incumbents that are protected
| bjornsing wrote:
| > If an invention is small enough that someone can make it
| without spending significant resources, it is probably
| obvious enough that you shouldn't be allowed to patent it,
| because it is more likely other people incidentally have the
| same idea than they are "stealing" it.
|
| The resources spent on an invention is typically a terrible
| measure of novelty or inventive step.
|
| But I agree, patent law should to a greater extent protect
| the investment that goes into realizing an invention, and
| less the invention itself. For example I think it's absurd
| that you can patent stuff that you have no intention of
| building or offering for sale.
| headhasthoughts wrote:
| In your proposed world, shouldn't we simply get rid of
| patents entirely?
|
| The person who made the flash freezer, for example, was just
| one person. If he couldn't protect his patent, despite
| definitively changing the face of global food preparation,
| why should IBM have any intellectual property?
| newaccount74 wrote:
| I don't know if abolishing patents altogether would improve
| innovation. But I'm pretty sure that patents on obvious
| things hinder innovation, rather than help it.
|
| I'm not familiar with the invention of flash freezing. Did
| the inventor just patent the idea of freezing food fast?
| That sounds like a pretty obvious idea that should not be
| patentable. Why give someone a monopoly on quick freezing?
|
| Or did the inventor patent a non-obvious mechanical device
| that is capable of quickly freezing food? Giving the
| inventor a short term monopoly on that device in exchange
| for publishing the blueprints sounds like a reasonable
| deal.
| pclmulqdq wrote:
| What is obvious?
|
| In the case of flash freezing, hasn't the market shown
| that the idea of quickly freezing food (to preserve the
| food without producing large ice crystals) was novel when
| he invented it? We have been able to freeze food for
| hundreds of years, and nobody was doing it that way until
| 1924. That sounds like a non-obvious novel idea to me.
| kmacdough wrote:
| Yeah, there's a lot of bad patents, especially in the
| tech sphere, where the patent office & judges lack
| expertise to evaluate both what's in use and what's
| obvious. E.g. when someone almost successfully patented
| the concept of a e-"shopping cart" after it was in
| widespread use (also it's painfully obvious).
|
| Sources: https://arstechnica.com/tech-policy/2013/01/how-
| newegg-crush...
| GuardianCaveman wrote:
| I wanted to know too. It seems he was inspired by fish
| being naturally preserved in the arctic by wind and cold
| and how it was still tasted good later.
|
| "After years of work on his own process, Birdseye invented
| a system that packed dressed fish, meat, or vegetables into
| waxed-cardboard cartons, which were flash-frozen under high
| pressure"
| pclmulqdq wrote:
| The point of patents isn't just to protect you from theft.
| It's to grant you a monopoly on the invention in exchange for
| publishing details about it (thereby allowing others to build
| on your invention). Trade secrets law protects you against
| theft. Multiple people having the same idea doesn't actually
| mean anything - the person who makes the public disclosures
| of its existence is the one who gets the patent.
|
| No, you don't necessarily need to spend a lot of resources or
| even have a "research group" to invent something completely
| novel, and the price of research is actually a lot lower than
| you think if you aren't hiring people. For example, you can
| make a new silicon chip to prove that your new circuit works
| for under $10,000. A new electronic device of some other kind
| is only a few thousand. Software (for the few remaining
| fields where you can get a software patent) is pretty much
| free to develop.
| AlbertCory wrote:
| There are several errors in your analysis, while it IS accurate
| that "suing IBM" is difficult for a small inventor.
|
| First, patent trolls have a very simple business model (and I
| heard this from a former troll):
|
| - Don't even sue the real easy marks, the ones who will just
| write a check for $50,000 to make you go away. Just threatening
| them is enough.
|
| - Sue the slighter harder targets. For these, you have to
| actually file a suit. They will settle with you, and you'll
| demand more than $50K because they made you work a little.
|
| - (This step is optional) Sue the real hard targets, like
| Google, who will file an IPR (inter-partes reexamination) to
| try to invalidate your patent. Again, many times you'll end up
| with a settlement out of this.
|
| - (also optional): go to trial, and hope for a gigantic jury
| verdict. Buy a lottery ticket, in other words.
|
| Now your statement "Patents are written so broad that they are
| essentially meaningless." is nonsense. "So broad" means that
| they apply to lots of products, and the jury just has to decide
| one of the claims applies to yours.
|
| So, your "small inventor" might get some money by selling to
| the patent troll, but it might not be from defeating IBM, and
| it won't be 100% of the money.
| cycomanic wrote:
| I don't understand how anything you wrote invalidates my
| argument. Yes, the inventor does not get the full settlement
| amount, but some money is still better than a lot of debt
| that they might end up with if going after IBM themselves.
|
| Regarding the broadness of patents, my point is they don't
| advance technology or the sciences (the oft stated goal of
| patents), because they try to cover everything without
| revealing anything (a goal given to me by several patent
| attorneys in the patenting process). So what is their
| purpose?
| AlbertCory wrote:
| > I don't understand how anything you wrote invalidates my
| argument. Yes, the inventor does not get the full
| settlement amount, but some money is still better than a
| lot of debt that they might end up with if going after IBM
| themselves.
|
| As I agreed. However, you're wrong that a troll necessarily
| goes after the infringer you know about, and in fact they
| may not even bother.
|
| Secondly, "broadness" is a term of art in patents. It
| doesn't mean what you think it does. It doesn't mean
| "advancing technology." It means the scope of things
| covered by the claims.
| duxup wrote:
| Outside of the liability passed to the smaller entities, what
| would the advantage of this structure be legally?
| DannyBee wrote:
| I mean, given the cost of litigation, and the inability to get
| counter-judgement (IE attorneys fees), this is already enough
| "reason".
|
| These are litigation funding exercises, so the goal is
| protection of the "investors".
|
| But you'd also get things like protection against discovery
| (the smaller entity has nothing to give you), etc.
|
| This is the sort of thing where they go too far, and end up in
| jail despite thinking they're just good at playing the system.
| (see, e.g., prenda law)
| NotYourLawyer wrote:
| Prenda is exactly what this brought to mind for me too. Maybe
| popehat will do a deep dive on this stuff.
| Andrew_Russell wrote:
| I've been thinking about this a bit since the hearing, and here
| are some ideas:
|
| - If lawyers for a defendant are going to settle (we generally
| prefer not to), we often want a portfolio license -- a "go
| away" license. By splitting up the patents among entities and
| keeping itself hidden, an entity like MAVEXAR can keep filing
| serial suits against the same targets and can keep receiving
| more expensive "global" settlements.
|
| - It dodges liability for attorneys fees, since the entities
| have little or no money, and may decrease the chances of a fee
| award generally.
|
| - It means that the entity with the patent has little or no
| discoverable information, decreasing the cost of suit because
| there is nothing to produce. Lawyers for that entity can also
| take stronger discovery positions because there is no concern
| about about responsive discovery.
| bombcar wrote:
| At a minimum they're doing a form of "liability insurance" by
| foisting 100% of the liability for 5% of the profits on a food
| truck owner.
|
| That changes things beyond just liability - it also makes it
| appear judgement proof. And the dollar amounts indicate that
| companies may just settle because there's nothing to win by a
| counter suit.
| TheAdamist wrote:
| Makes me wonder if instead of settling it would be cheaper to
| buy the patent, knowing that the patent "owner" is only
| getting 5-10% of a settlement.
|
| Presumably theres some contract with the patent "owner"
| preventing that, but maybe that would show they aren't really
| in control of the patent.
| duxup wrote:
| "Dude you made 11k from this and now you're in court. Judge
| is pissed, you might be in over your head. Sell me the
| patents for 10k, and we all can move on."
| bombcar wrote:
| There almost certainly is, which is part of the reason the
| judge is poking this - "ownership" includes control and if
| they aren't really in control they're not really the patent
| 'owner' and that could change things.
|
| Also judges in general don't like people being "clever".
| hulitu wrote:
| In some countries this is called organized crime. In this case
| it is like drug dealers and cartels: they get the drug dealer
| but the cartel continues to operate.
| tracker1 wrote:
| A few RICO cases could bring a lot of light to this space,
| but could be career suicide.
| [deleted]
| heloitsme22 wrote:
| Hi I'm just trying this thing out
| system2 wrote:
| Try typing something meaningful next time.
| drannex wrote:
| I'll take a very unlike myself opinion in this - I'll support
| patent trolls, but only if their exploits are increased by a
| thousand fold and punishes the entire patent system for being
| incredibly inept, antiquated, and against any and all forms of
| innovation. We need serious and far ranging complete patent
| reform (or revolution) and if deliberate brute-force use of the
| horrendous laws and regulations that have allowed those entities
| to proliferate over the last several decades finally forces
| changes, then bring on more of them.
|
| Short term they are horrendous, long term we may need them to
| force positive changes that benefit and are on the side of small-
| time inventors and problem solvers, and not the mega-corporations
| (patent trolls with massive capital).
|
| tl;dr: Patent trolls are bad, the patent system that enables them
| is bad, we need to force massive patent reform.
| AlbertCory wrote:
| > we need to force massive patent reform
|
| Exactly. How will that happen?
|
| My answer: you get some congressman or senator to introduce a
| bill, and then you apply all the influence you can muster to
| get it passed. And there _will_ be opposition.
| headsoup wrote:
| I like this judge. More of them please. Reminds me of judge Otis
| T. Wright (https://floridaiptrends.com/2013/03/12/prenda-law-
| meet-judge...)
| kochb wrote:
| Nominated Delaware DA by George W. Bush. Recommended to
| Delaware District Court by Senators Coons and Carper. Appointed
| by Trump. Confirmation approved by voice vote (which generally
| means no Senator expressed the desire to register opposition in
| a recorded vote).
|
| You know officials are doing something right when they can
| secure broad support like that.
| pc86 wrote:
| It's pretty common for judges, especially at lower levels, to
| have broad bi-partisan support. Lots of politicians are
| lawyers, and if you're well regarded by the local/state Bar
| Associations, you're going to have lots of friends and
| colleagues on both sides of the aisle. Until you start ruling
| on very high-profile cases, or if you have a lot of partisan
| scholarship, you're unlikely to alienate the folks confirming
| you so it largely comes down to what the opinion of you is at
| the Bar.
|
| This is actually why you've started to see people nominated
| for high level federal posts and even SCOTUS without a lot of
| divisive scholarship, because they're intentionally staying
| away from these issues to try to maximize career growth.
| kochb wrote:
| I agree that judicial candidates draw bipartisan support
| more often than most would realize, but you might be
| overstating how often this happens. In our current
| political era, Connolly falls into a minority.
|
| https://crsreports.congress.gov/product/pdf/R/R45622
|
| See pages 30-33:
|
| > during the Trump presidency, with 81.0% of district court
| nominees confirmed by roll call vote
|
| > During the Trump presidency, in contrast to the two
| immediately preceding presidencies, only 15 (10.6%) of 141
| district court nominees confirmed by roll call vote
| received zero nay votes at the time of confirmation. A
| plurality of nominees (36, or 25.5%, of 141) received more
| than 40 nay votes when confirmed by the Senate, while
| another 20 nominees, or 14.2%, received 31 to 40 nay votes
| at the time of confirmation.
| AlbertCory wrote:
| I'm a patent agent and I worked in Google's Patent Litigation
| department. This is a slight hyperbole, but only slight: I can
| bust any software patent. I found the prior art that prevented
| Google Maps from being shut down in Germany:
|
| https://www.themarysue.com/google-maps-facing-german-ban/
|
| @btrettel is right that examiners need more time, but that would
| mean the PTO would have to hire a lot more of them. A better
| solution is just to change patentable subject matter to
| (effectively) exclude computer software. Congress will have to do
| this since the courts and PTO are unwilling or unable.
|
| As for @blobbers below: patents are _not_ a shield against
| trolls. They 're only a shield against your competitors who
| actually build things. Trolls don't want your patents; they only
| want your money.
|
| Lastly, as for the tools: I was told, 10-12 years ago, that when
| it was suggested that examiners use Google as well as their
| mandated tools, the union objected that this would be more work
| and they'd have to be paid more. Perhaps this is no longer true,
| and I know that the conscientious ones always did.
| YetAnotherNick wrote:
| In general exclude enforcing patents where another
| implementation doesn't directly decrease the patantee's
| revenue. And most of the software falls in this category. Most
| of the patents used by the trolls don't even have implantation,
| let alone revenue.
| pclmulqdq wrote:
| What are your thoughts on _Alice_? I thought that precluded
| most software patents from being valid. It is a fairly recent
| precedent, though, so the common knowledge about software
| patents is still very much about the pre-Alice world.
| AlbertCory wrote:
| > What are your thoughts on Alice?
|
| SCOTUS keeps slapping down the CAFC, and the CAFC just keeps
| weaseling their way out of it. It will take clear legislative
| direction to slay this dragon once and for all.
| pclmulqdq wrote:
| Personally, I was looking forward to American Axle, but
| they didn't want to hear that one.
| AlbertCory wrote:
| Wow. Complicated. It wasn't about software, though. Maybe
| that's what they're waiting for.
|
| https://www.bakerbotts.com/thought-
| leadership/publications/2...
| mountainriver wrote:
| Exactly, patents on software are just insane and
| anticompetitive. I can't really think of a single good reason
| to have them.
|
| This is tech, it's a race, everyone playing already knows that.
| All parents do is slow innovation or in some cases stop it
| entirely
| AlexanderTheGr8 wrote:
| I agree how today's parents slow innovation in their children
| or in some cases stop it directly \s
| kag0 wrote:
| > change patentable subject matter to (effectively) exclude
| computer software
|
| I don't necessarily disagree with you, but what makes software
| unique in that it would be effectively excluded by changes
| while other subject matter (presumably) wouldn't be affected?
| erik_seaberg wrote:
| We're still in the first decades of the profession. You
| should get a patent for describing a solution that would have
| gone unknown for twenty-ish years, not a land grab on the
| easy problems we haven't looked at yet (or weren't worth
| writing down).
| riskable wrote:
| > what makes software unique in that it would be effectively
| excluded
|
| I can answer this:
|
| 1) Because software is already covered by copyright.
|
| 2) Because any given idea or concept in software can be
| implemented an infinite number of novel ways. Patents _only_
| cover _specific implementations_ of an idea... Not the idea
| itself.
|
| Let's use Amazon's One Click patent as an example: How many
| different ways do you think that could be coded/handled? How
| many different programming languages could be used to make it
| work?
|
| If the One Click patent was actually specific enough to not
| be a broad concept (as required by patent law) it would
| include the _actual code_ that makes it work. That 's the
| software equivalent to an engineer's blueprint. However, if
| you look at the patent claims
| (https://patents.google.com/patent/US5960411A/en) you can see
| that _every single claim_ is just generic nonsense (e.g.
| "The method of claim 11 wherein the client system and server
| system communicate via the Internet.").
|
| Even if you add all the claims together and examine the
| patent as a whole you still get nothing but a broad concept
| on the _idea_ of clicking once to place an order. Repeat
| after me: _PATENTS ONLY COVER SPECIFIC IMPLEMENTATIONS OF
| IDEAS_ , not the ideas themselves. Which is exactly what
| every single software patent that exists defines: Nothing
| more than a broad concept.
|
| You _could_ require that patents provide the actual code that
| makes them work but _then they 'd be worthless_ because any
| given bit of code can be implemented an infinite number of
| ways. It would be trivial to change a for loop to a while
| loop or wrap things in functions or even something as simple
| as _using a different programming language_. Any of those
| things and more would get around a patent on a specific
| implementation of software, aka "code".
| AlbertCory wrote:
| What @riskable said.
|
| The list of "patentable subject matter" ("101" to insiders)
| is a legislative decision, i.e. a political one. The Congress
| doesn't need an ironclad reason, but there are plenty. The
| Constitution just says:
|
| _Congress shall have power... 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._
|
| It's simply a matter of Congress using its power to decide
| that the "useful art" of software does not need patent
| protection.
|
| Pure mathematical formulas are already excluded from
| patentability.
|
| And now yet another election is happening where Congressional
| and Senatorial candidates are not asked to support or oppose
| this proposal.
|
| _This is how it 's going to happen, if it ever does. A bill
| gets introduced, the Establishment runs op-eds against it,
| and the battle is joined._
| DueDilligence wrote:
| .. I now fear for the judges life.
| system2 wrote:
| This is not Brazil. They do not kill judges in the street.
| nu11ptr wrote:
| Street killings are for amateurs. This is the USA. Here they
| take them out Epstein style...complete with cameras that
| malfunction and a client list that disappears. After that,
| they involve the media to ensure it is sold as a "suicide".
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