[HN Gopher] US Patent Office proposes rule to make it much harde... ___________________________________________________________________ US Patent Office proposes rule to make it much harder to kill bad patents Author : berkeleyjunk Score : 209 points Date : 2023-06-12 20:55 UTC (2 hours ago) (HTM) web link (www.techdirt.com) (TXT) w3m dump (www.techdirt.com) | hodgesrm wrote: | > Basically, if a patent holder is designated as an "individual | inventor, startup" or "under-resourced innovator" then their | patents are protected from the IPR process. | | Just curious...is there a good faith argument why this change | would be good? | jcranmer wrote: | The good faith argument is that the people who are predating on | the poor, beleaguered genius inventor would be unable to avail | themselves of a low-cost-for-the-challenger-high-cost-for-the- | inventor mechanism for challenging patents. | | What makes it bad faith is that the reason the mechanism exists | is because the predators in the patent system are the | inventors, not the challengers. | tomtheelder wrote: | They did leave something _extremely_ important out here that | helps to explain the good faith argument. From the source: | | > Petitions challenging under-resourced patent owner patents | where the patentee has or is attempting to bring products to | market; | | So I'd say the good faith argument is that it's designed to | protect larger orgs from bullying actual inventors/startups by | attempting to threaten the legitimacy of their patents. The bit | about bringing products to market is supposed to exclude | trolls. More from the source: | | > Such limited resources may impact the perceived fairness of | post-grant reviews. For example, some stakeholders in response | to the RFC expressed concern that under-resourced inventors are | unable to afford the costs involved in defending patents in | post-grant review. Some stakeholders advocating for small | businesses and individual inventors urged the Office to take | into account the financial resources of a patent owner, and to | limit reviews of patents owned by under-resourced entities who | lack funding to defend challenges to their patents but who have | sought to bring their inventions to market either themselves or | through a licensee. | | So yeah basically the argument is that defending themselves in | this proceeds is too onerous for small entities. | | So I think that's the good faith argument. I'm skeptical, | though I will happily admit that I don't know much about the | uses and abuses of the patent system. | shmerl wrote: | Such an obviously corrupt idea. | semiquaver wrote: | This is a bad proposed rule that should be killed, to be sure. | But this article is missing the context about _why_ the Patent | Office claims to think this is necessary in the first place. | Patent trolls of a sort are setting up shop on the other side of | where you would normally expect them in litigation, attempting to | use the Inter Partes Review process in ways that look very much | like an abuse of the system. For example, one company opened an | IPR against a valuable patent and then offered to withdraw it for | money. It was rightly called out as a shakedown. | | https://www.jdsupra.com/legalnews/director-vidal-removes-ope... | | https://news.bloomberglaw.com/ip-law/opensky-abuse-sanctions... | | The US legal system generally requires parties to have standing | before they can make use of courts or pseudo-courts like the | PTAB. Situations like this make it clear why: when lots of money | is on the line people will try to "hack" the system in ways that | its designers didn't expect. Uniquely open processes like IPR are | vulnerable to exploitation in a way that is annoying to lawyers | compared with what they're used to, so they reflexively reach to | reimpose standing requirements. That's basically what is being | proposed here. | | Again, the above doesn't mean I think this rule change should go | forward: the IPR process and its openness are incredibly valuable | and should be retained. but it's misleading to portray this | proposed rule as arbitrary or corrupt. | Wistar wrote: | Yours is a great comment. | shmerl wrote: | Since patent trolls already "hack" the system to essentially | run a legalized protection racket, it only makes sense there | should be some counter balance to their abuse. Fewer barriers | to invalidate bad patents is such example. | | And in this case, this new proposed rule is simply pushing the | balance in patent abusers' favor, so it is corrupt because they | are pushing it for their racketeering profits. | | A better solution would be to prevent more bad patents in the | first place (like forbid software patents for example) instead | of making such kind of workarounds. But they aren't doing it | either. | paddw wrote: | The only way to fix situations like this is to make it possible | to extract heavy penalties for frivolous patent litigation. The | cost benefit analysis will always fall too much in favor of | patent trolls otherwise. | fatfingerd wrote: | I don't really get it, anyone who is a neutral party in any | kind of legal matter and takes money from an involved party for | a specific action is guilty of criminal conspiracy, no? I mean | can I citizen arrest people for other thefts in the US and | offer to split them? | semiquaver wrote: | Offering to settle is usually fine for involved parties (as | far as I understand, I'm not a lawyer). The "problem" (from | the USPTO's perspective) is that congress set up this process | so any outside party can bring an IPR case, making it | potentially profitable to pose as a public interest group | when you might actually intend to settle without invalidating | the patent. | unyttigfjelltol wrote: | It sounds like a class action in a normal court, where a lead | plaintiff legitimately can get better treatment _to a point_. | Viewed from that perspective, it 's a wonder IPR has been so | _noncontroversial_ for so long, because the rules around class | actions are extremely contentious. | jjoonathan wrote: | That's good context, thanks for sharing! | | It makes sense, but I'm leery of trusting the USPTO because | they have been saddled with (intentionally?) godawful | incentives: they must pay for all their operations using patent | fees. The more trolling they enable, the more money they get. | Based on these incentives, I would expect the USPTO to oppose | rule changes that effectively reduce trolling. | semiquaver wrote: | That's a great point. I didn't know the patent office was | _entirely_ funded by fees but that does indeed appear to be | the case. | | https://www.uspto.gov/about-us/performance-and- | planning/budg... > With full access to the | fee collection estimate to offset total spending, the USPTO | will use $32 million (net) from the combined operating | reserves (ORs) in FY 2024, resulting in a net appropriation | of $0. | bdowling wrote: | > The more trolling they enable, the more money they get. | | How do trolls pay anything to the USPTO? Usually the patents | a troll tries to assert against others are purchased from | others, often failed tech startups. (Note: People often | forget that every "bad" patent was once someone's startup | dream.) | tcbawo wrote: | It seems that bad patents would hurt less if they didn't persist | for so long. Why can't we come up with some sort of earlier | phase-out, where patents must be re-litigated or justified to | remain in effect? | henry2023 wrote: | The US is still making itself less competitive while China is | closing the tech gap at a breaking speed. I really don't | understand what they think this will accomplish. | mlinksva wrote: | There was a big discussion of the EFF post this one riffs on last | week https://news.ycombinator.com/item?id=36198329 | | Also see https://www.linuxfoundation.org/blog/stand-up-for-open- | sourc... which didn't get much discussion | https://news.ycombinator.com/item?id=36154988 | noodles_nomore wrote: | The legal system is a game that is played for profit. The ability | to sue anyone for anything is advantageous for the big dogs. So | it's imperative that as many laws as possible cover as much | seemingly innocuous human conduct as possible with the highest | stakes possible. Unrestricted expansion of intellectual property, | the ability to lay claim to arbitrary regions of the ideosphere, | makes perfect sense. | zdragnar wrote: | > Being able to sue anyone for anything is advantageous for the | big dogs | | Unless they can justify very high damages, they are predisposed | to settling out of court. When you hire top lawyers, or have a | massive legal department, you're paying _a lot_ of money. Going | to court is at best a gamble unless you have an obvious and | solid case. | | What this means is they use _threats of going to court_ wrapped | up in legalese in the hopes of getting their way out of court. | | Unfortunately, the degree to which various districts earn | reputations around being pro or anti patent means they're also | advantaged in "shopping around", so to speak, to get any case | they bring moved to a favorable court. This is the biggest | thing that they can do that your average "small dogs" have a | harder time with. | | The worst has changed in the last year: | | https://news.bloomberglaw.com/ip-law/patent-plaintiffs-scram... | | but it'd be nice to see ways to make it more difficult to game | the system by "judge shopping". | amelius wrote: | Can't we let the free market solve the problems with patents? | | Like, if the government (or anybody, really) wants an invention | to be open, they can offer the inventor/company some sum of | money, and if they accept then they will have to explain how it | works. Otherwise, it will remain a trade secret until someone | else figures it out. | bloppe wrote: | This is how trade secrets work, not patents. The main point of | a patent is to encourage inventors to divulge their secrets, by | promising them temporary exclusive rights to control their tech | in exchange for a public, detailed description of how it works. | Eventually, the patent will expire and the technology will | enter the public domain for the good of society. Without | something like patents, technology would be much more | secretive. | amelius wrote: | My point is that there is more than one way to make someone | give up their secrets. Giving someone a monopoly seems wrong, | because they will use it to block progress. | | Governments already provide funding for scientific research. | Why can't the same principle be used to "fund" the disclosure | of technological secrets? | spywaregorilla wrote: | Patents already explain how things work. The problem is | limiting other people's ability to do something that someone | claimed as their own with basically no effort. | hodgesrm wrote: | That's effectively what the patent system already does. The | "sum of money" you refer to is the market value of the monopoly | on the idea embodied in the patent. This solves the problem of | what the price should be. | amelius wrote: | It's not the same because a patent is a time-limited monopoly | on a technology. This means that patents can be used to block | the progress of other companies. | | E.g. if A patents X and some large company B wants to use X | and A refuses, then B cannot use X even if they offer | millions. | AlotOfReading wrote: | Patents exist specifically to avoid a fully free market. The | trade-off is that in return for a time-limited legal monopoly | on certain ideas and obvious derivatives, you have to publicly | disclose what it is that you own. This also serves the | practical purpose of allowing you to determine if you're | potentially infringing anyone else because you can look at the | patents. The free market approach would be no patents at all. ___________________________________________________________________ (page generated 2023-06-12 23:00 UTC)