[HN Gopher] US Patent Office proposes rule to make it much harde...
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       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.
        
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       (page generated 2023-06-12 23:00 UTC)