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Finally, a Bill To End Patent Trolling 162

Posted by timothy
from the who-will-find-the-loopholes? dept.
First time accepted submitter jellie writes "According to Ars Technica, a new bill introduced by Rep. Bob Goodlatte (R-VA), the chairman of the House Judiciary Committee, has received bipartisan support and has a real chance of passing. In a press call, lawyers from the CCIA, EFF, and Public Knowledge had universal praise for the bill, which is called the Innovation Act of 2013. The EFF has a short summary of the good and bad parts of an earlier draft of the bill. The bill will require patent holders who are filing a suit to identify the specific products and claims which are being infringed, require the loser in a suit to pay attorney's fees and costs, and force trolls to reveal anyone who has a 'financial interest' in the case, making them possibly liable for damages."
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Finally, a Bill To End Patent Trolling

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  • Still Bad Patents (Score:4, Insightful)

    by cob666 (656740) on Thursday October 24, 2013 @10:12AM (#45222967) Homepage
    As long as there are patents on software and processes, the patent trolling will never really end.
    • by MachineShedFred (621896) on Thursday October 24, 2013 @10:14AM (#45222989) Journal

      At least this makes an attempt to do away with the non-practicing entities that patent things only to sue.

      I'm sure it will still be ineffective, or just not pass both houses of Congress.

      • Re:Still Bad Patents (Score:5, Interesting)

        by Suki I (1546431) on Thursday October 24, 2013 @10:31AM (#45223245) Homepage Journal

        At least this makes an attempt to do away with the non-practicing entities that patent things only to sue.

        I'm sure it will still be ineffective, or just not pass both houses of Congress.

        What about getting the patent office to do their job to begin with? Washington keeps asking for, and getting all this power, then they never get around to doing anything with that power they said they needed.

        • by quetwo (1203948) on Thursday October 24, 2013 @10:51AM (#45223537) Homepage

          The patent office is doing their job. They are charged with recording and maintaining records of patents. When you file, you swear, under oath, that the patent you are filing does not already exist and is not already in prior practice. The people who file patents honestly do patent searches (that is why the lawyers get the big bucks) before they file the patent.

          If you file a patent of something that already exists or has already been patented, you are expected to be taken to court to have your patent invalidated. The rules are setup in a way that the courts can deal with patent issues, not a government bureaucrat sitting in an office.

          Of course that basically fails when a large company like Apple files a patent for something I invented 10 years ago. They will lawyer you into the ground instead of giving you a chance to negotiate a fair licensing model.

          But, that is how the system was setup and how the office is charged in running.

          • by Dachannien (617929) on Thursday October 24, 2013 @10:59AM (#45223641)

            In a lot of cases, the applicants/attorneys don't actually do a search, because doing a search means that if they fail to tell the Office about something they find, they could be on the hook for it later. So it's safer to be willfully blind.

            As for the USPTO, we do what we can in the time given. There's only so much searching we can do, and if we can't find and present evidence that something was already known publicly, we can't just send out rejections based on how many Slashdotters think it's obvious. Issued patents aren't perfect, but when you compare the claims that get issued with what was originally filed, you'll see just how much worse the system could be if we actually did just rubber stamp everything.

            • by HiThere (15173) <charleshixsn&earthlink,net> on Thursday October 24, 2013 @04:23PM (#45228157)

              Not saying anything you have said is wrong, but the current system is SO bad that we would be much better off without ANY patents.

              A part of the problem has to do with "obviousness". If two people are looking at a problem, it's unlikely that either will find a non-obvious solution. If 100 are looking at the problem, lots of "non-obvious" solutions will be found. If 1,000 people are looking, not only will lots of "non-obvious" solutions be found, but there will be lots of independent duplication. And patents pick an arbitrary winner, which is grossly unfair.

              The only time that patents seem to me to be justified is where there are truly significant up-front costs. Drug tests are one example. Even there, it shouldn't be possible to retire a product from the market and also prevent anyone else from making it. And yes, I know that what I'm proposing isn't perfect either. But it would be much less bad, and might well even have a net social benefit.

              • by sjames (1099)

                It seems to me that if someone independently invents the same thing, the patent should be immediately invalidated (it must not have been all that novel and non-obvious). That would at least give a patent holder pause before going in with lawyers blazing.

          • Re:Still Bad Patents (Score:4, Informative)

            by Theaetetus (590071) <theaetetus DOT slashdot AT gmail DOT com> on Thursday October 24, 2013 @11:07AM (#45223753) Homepage Journal

            The patent office is doing their job. They are charged with recording and maintaining records of patents. When you file, you swear, under oath, that the patent you are filing does not already exist and is not already in prior practice. The people who file patents honestly do patent searches (that is why the lawyers get the big bucks) before they file the patent.

            If you file a patent of something that already exists or has already been patented, you are expected to be taken to court to have your patent invalidated. The rules are setup in a way that the courts can deal with patent issues, not a government bureaucrat sitting in an office.

            But, that is how the system was setup and how the office is charged in running.

            I believe you may be confused, or may be referring to another country, such as Hong Kong. Basically, there are two systems for patents. The first is a registration-only system in which the patent office does nothing other than "record and maintain records". Hong Kong has this. Australia also has invention registrations that are separate from patents, and are merely recorded.
            The second is an examination system in which the patent office does a full search and examination of the patent application, typically (around 90% of the time in the US) rejecting the patent application initially, and leaving it to the inventor to amend and narrow the claims in response before the patent is finally allowed. The "government bureaucrats sitting in an office" in these systems are scientists and engineers. Frequently in these systems, the patent attorney does not do prior art searches, because the patent examiner is going to do his or her own search anyway and why would he or she accept ours?

            This is not to say that the examination systems are perfect, but just that the office is doing more than just recording and maintaining records.

            • Not to mention that a lot of these patents are written extremely vaguely so that it can apply to Case A when approved and then can be turned around and applied to Case B when that becomes popular and/or when the patent is sold to a patent troll.

      • by pepty (1976012)

        or just not pass both houses of Congress.

        There's always the chance that one house would nix it just to spite the other, but I'd think something like this would primarily move or stop based on the total lobbying $. The deepest pockets in tech sometimes use patent troll outfits as cutouts so they might fight the sections that cut into their privacy, but overall wouldn't Apple, Intel, Google, etc. benefit from this bill?

        • by pepty (1976012)
          oops: "Post-grant review: The bill expands an important avenue to challenge a patent's validity at the Patent Office " There's another part the deepest pockets might decide needs to be cut out of the bill.
      • At least this makes an attempt to do away with the non-practicing entities that patent things only to sue.

        There's a fine line needs to be placed between getting rid of trolls (good) and blocking the small business that is trying to shop around an idea they have trouble producing themselves (bad). For instance, if I were to come up with SuperTV, an expensive chunk of hardware that requires a 50 mil. upfront investment to produce at scale, but will sell like hotcakes, there is currently a go-to-market. I ca

    • by mi (197448) <slashdot-2012@virtual-estates.net> on Thursday October 24, 2013 @10:20AM (#45223079) Homepage

      Never then... Because smart people, who think stuff up, ought to be able to get paid for their ideas. And it should not matter, whether one decided to implement the idea himself, or to sell it to the highest bidder.

      The patent trolls with their vague (yet costly) claims are abusing the system, but there is nothing wrong with the basic premise behind the patents.

      • Never then... Because smart people, who think stuff up, ought to be able to get paid for their ideas. And it should not matter, whether one decided to implement the idea himself, or to sell it to the highest bidder.

        The patent trolls with their vague (yet costly) claims are abusing the system, but there is nothing wrong with the basic premise behind the patents.

        Sure, but not paid over and over again for years. They should get paid one time if they sell their idea, or many times if they sell a product based on that idea. There should be some rather short limits on the patent timeframes.. say 5 years. That way patents would not stifle innovation like they do today.

        • by pepty (1976012)
          We'd need to take into account that not all tech sectors move at the speed of software or Intel's tick tock. The average development time for drugs is about 8 years, with many taking up to 12.
      • by mcgrew (92797) *

        Because smart people, who think stuff up, ought to be able to get paid for their ideas.

        Thinking stuff up is easy. Implementation is what's hard.

      • I agree in principle, but in practice most ideas are not particularly useful until fully formed and vetted during the development process. Since a key point of the patent system is supposed to be that you are trading a short term monopoly for publication, it seems reasonable to expect the patent to provide a reference implementation. For physical objects a drawing has historically sufficed. For software, no such correlate exists. I think this is one of the biggest problems with software patents; the same co

        • by mi (197448)

          I think this is one of the biggest problems with software patents

          Neither the /. summary, nor TFA itself contain the word "software"... Business methods are mentioned, yes, but simply describing those (as in the patent application) would be equivalent to drawing.

          So, I'm not sure, what it is you talking about...

    • Re:Still Bad Patents (Score:4, Interesting)

      by CauseBy (3029989) on Thursday October 24, 2013 @10:23AM (#45223127)

      Agreed. The solution is to use statute to redefine "obviousness". That standard should be redefined in statute to match the common understanding of that word instead of the absurd legal definition. You know that thing about a patent not being valid if a person of ordinary skill in the art [wikipedia.org] could reproduce it? To prove that all they should have to do is put twenty programmers on the stand and if ten of them can come up with that solution, then it's invalid. Done. And after that, the troll has to pay costs.

      For instance:

      "Mr Programmer, if you wanted to make it really easy to buy a product on a webpage, what is the easiest you could possibly make it?"
      "Well, you could have a button and if you click it, then that's it, you've bought it."
      "Thank you, Mr Programmer, you just invalidated the 1-click patent. Amazon pays costs."

      The conceptual underpinning of patents is theoretically workable, but the actual real-world implementation of patents in our legal system is a travishamockery.

      • Re:Still Bad Patents (Score:5, Interesting)

        by gnasher719 (869701) on Thursday October 24, 2013 @10:40AM (#45223367)

        Agreed. The solution is to use statute to redefine "obviousness". That standard should be redefined in statute to match the common understanding of that word instead of the absurd legal definition. You know that thing about a patent not being valid if a person of ordinary skill in the art [wikipedia.org] could reproduce it? To prove that all they should have to do is put twenty programmers on the stand and if ten of them can come up with that solution, then it's invalid. Done. And after that, the troll has to pay costs.

        It's not just the obviousness. Patents should be on _how_ something is achieved, not _what_ is achieved. So there _might_ be a patent on _how_ a single click is transformed into a complete order, but I should be able to transform a single click into a complete order using a different method, without infringing on the patent.

        If I invent a method that makes the brakes in your car more effective and reduces your stopping time, I should get a patent on that method, but not a patent on making cars stop quicker. Anyone else should be free to use a different method.

        I think quite some progress has actually made in the non-obviousness department. The hypothetical person of ordinary skill in the art is only ordinarily inventive, but has an unlimited knowledge of absolutely everything that has ever been published in the field. So none of your twenty developers might figure out that something can be achieved by combining totally obscure method A with totally obscure method B, since they have never heard of either. But combining them is still not patent worthy.

        • by Talderas (1212466)

          If I invent a method that makes the brakes in your car more effective and reduces your stopping time, I should get a patent on that method, but not a patent on making cars stop quicker. Anyone else should be free to use a different method.

          I have a patent on quickly stopping your car by ramming semi trucks into it.

        • by sjames (1099)

          The whole 1-click things is obvious from end to end. What can you possibly do other than use the credit card on file, the shipping address on file, and the default shipping method? Equally obviously, you probably want to let them pick an alternate credit card, address, or shipping method.

          That's pretty much what selling something on the web is about.

          But is it really different from calling up the corner store, asking for items and the delivery boy already knows where you live and you already have arrangements

      • Agreed. The solution is to use statute to redefine "obviousness". That standard should be redefined in statute to match the common understanding of that word instead of the absurd legal definition. You know that thing about a patent not being valid if a person of ordinary skill in the art [wikipedia.org] could reproduce it? To prove that all they should have to do is put twenty programmers on the stand and if ten of them can come up with that solution, then it's invalid.

        And if the patent was filed in, say, 2003, where do you find 20 programmers who have been locked in a closet for the past decade such that their knowledge of the art is limited to what existed at the time of filing? Because everything is obvious in hindsight, if you give it sufficient time. I bet almost any Slashdotter in here could draw a spec for a simple internal combustion engine or steam engine on a napkin... so therefore those shouldn't have been patentable in the 1800s?

        • And if the patent was filed in, say, 2003, where do you find 20 programmers who have been locked in a closet for the past decade such that their knowledge of the art is limited to what existed at the time of filing? Because everything is obvious in hindsight, if you give it sufficient time. I bet almost any Slashdotter in here could draw a spec for a simple internal combustion engine or steam engine on a napkin... so therefore those shouldn't have been patentable in the 1800s?

          There are things that are obvious in hindsight - they are obvious once you see the invention. There are other things that are obvious because of the progress of things around us. I'd say a TiVo would be pretty obvious today, even if we never had seen one.

          • And if the patent was filed in, say, 2003, where do you find 20 programmers who have been locked in a closet for the past decade such that their knowledge of the art is limited to what existed at the time of filing? Because everything is obvious in hindsight, if you give it sufficient time. I bet almost any Slashdotter in here could draw a spec for a simple internal combustion engine or steam engine on a napkin... so therefore those shouldn't have been patentable in the 1800s?

            There are things that are obvious in hindsight - they are obvious once you see the invention. There are other things that are obvious because of the progress of things around us. I'd say a TiVo would be pretty obvious today, even if we never had seen one.

            So, should the patent office have rejected TiVo's patents back in the 1990s, because "at some point in the unforeseen future, this may become obvious"?

            • by sjames (1099)

              Probably, but because it was already imagined back in the days of VHS, but simply wasn't practical with that technology. The invention had to wait for real time digital video encoding to get cheap enough to make a consumer device viable.

              • Probably, but because it was already imagined back in the days of VHS, but simply wasn't practical with that technology.

                Great, now you're not using hindsight: simply find a reference from back in the days of VHS that describes everything in the TiVo patent claims, and you've invalidated them.

          • by Belial6 (794905)
            Tivo was obvious when they started designing the device. ATI as well as others were already selling devices with the same functionality. Tivo just packaged it up nicely in a consumer friendly box.
      • To prove that all they should have to do is put twenty programmers on the stand and if ten of them can come up with that solution.

        Why is that the standard of obviousness? When it comes to algorithm design, algorithms could be manifestly obvious to mathematicians and algorithm specialists but not to ordinary programmers. The obvious criterion should take into account the corporate structure, or else it will be profitable to keep a stable of uninformed programmers in the dark while they implement algorithms

    • by 91degrees (207121)
      True. I think that's a separate issue though.

      A troll could patent a semi-obvious modification to a car engine for example, and use the same business model against various engineering firms. I think there's something about the culture of software development that makes us more susceptible to patent trolling, which would explain why trolls mostly use software patents, but other industries aren't immune.
    • Exactly. You are treating the effects, not the disease itself.

    • I own a patent on the process of posting a first post about software and process patents. You now owe me $0.10.
    • As long as there are patents on software and processes, the patent trolling will never really end.

      Yes,
      One should note that the patent office may be sitting on a partial solution that is
      in effect in the bio/ medical community.

      It is obvious to try some things i.e. paperclip out of steel wire, copper wire, plastic...
      while a paperclip might be an invention making one out of a long list of things
      obvious to try is not an invention to justify an additional patent.

      Most interestingly many of the process patents are trouble because there is no
      way to know how the internals of a system work without breaching a comp

  • by mi (197448) <slashdot-2012@virtual-estates.net> on Thursday October 24, 2013 @10:15AM (#45222999) Homepage

    require the loser in a suit to pay attorney's fees and costs

    I'd argue, the loser should be on the hook for the winner's expenses by default. Currently the court may make them responsible, but the winner typically needs to specifically ask for it — and it should be the opposite. In all cases: civil and criminal (if the accused is acquitted, the prosecuting office needs to cough up).

    At least, this should apply (whether the subject is patent or not), when the losing the side is the one, that initiated the proceedings in the first place.

    force trolls to reveal anyone who has a 'financial interest' in the case, making them possibly liable for damages.

    This bit also seems generic — if such a disclosure is a good idea (and I am not sure), then why limit it to just patent cases?

    • by gr8_phk (621180)
      I'm not sure about the loser paying when the loser is the defendant. That means you can pay arbitrarily high fees to a lawyer to sue someone as long as you think you'll win. Violate a patent - be bankrupted by someones lawyer fees. OTOH this means individual inventors might be able to defend their patents against large companies easier. It really seems like a windfall for patent lawyers though. Not sure if it's good or bad.
      • by mi (197448)

        That means you can pay arbitrarily high fees to a lawyer to sue someone as long as you think you'll win.

        The "arbitrary" part can be checked by the judge. They already do that, when the winner asks for their fees to be paid by the loser. My proposal would simply eliminate the asking part (which is often costly in itself).

        Violate a patent - be bankrupted by someones lawyer fees.

        That would be a good thing. A fairly large part of humanity thinks, theft not only should bankrupt the thief, but cost them an actu

      • by geekoid (135745)

        It assumes the both side can affors equal representation, and that the patnet is reviewed and deterimned by equal parties.

        Neither of which is true.
          this will hurt inventors.

        If they want to do that; then they should have to have a panel of 13 the reviews the patent and give an opinion on who is right. At which point the parties can decide if they want to move on, before lawyers need to be involved.

        • by mi (197448)

          It assumes the both side can affors equal representation

          My proposal makes things better, than they currently are for the less-monied side. And it makes it more fair in all cases.

      • by gnasher719 (869701) on Thursday October 24, 2013 @10:49AM (#45223493)

        I'm not sure about the loser paying when the loser is the defendant. That means you can pay arbitrarily high fees to a lawyer to sue someone as long as you think you'll win.

        German method: Plaintiff asks for money, defendant offers money (less or possibly zero). Court sets cost according the the value that is in argument (the difference). That's the fees that the lawyers get! Then if defendant is ordered to pay what he offered to pay anyway, he has won the case. If its more, the percentage he is ordered to pay is the percentage of the lawyers that he pays.

        Example: You ask for $2.1 million. I offer $100,000. The court orders me to pay $120,000. We argued about two million. I was ordered to pay $20,000 = one percent beyond what I offered to pay anyway. I pay one percent of my lawyers and your lawyers, you pay 99%. And the lawyers get paid at the fixed "$2,000,000 rate" which is some small percentage of these two million.

        • by ljw1004 (764174)

          That sounds really clever. Gives both sides an incentive to be fair rather than outrageous in their demands

      • by rmstar (114746)

        I'm not sure about the loser paying when the loser is the defendant. That means you can pay arbitrarily high fees to a lawyer to sue someone as long as you think you'll win.

        What happens in places where 'loser pays' is the law (I think that's most places in Europe) is that lawyer's fees are regulated, and the loser only pays according to the regulations.

        The effect of this is that the big massive company suing the little guy may have to pay all the legal expenses of the little guy if the corp loses, but if th

    • by Dcnjoe60 (682885) on Thursday October 24, 2013 @10:35AM (#45223307)

      I'd argue, the loser should be on the hook for the winner's expenses by default. Currently the court may make them responsible, but the winner typically needs to specifically ask for it — and it should be the opposite. In all cases: civil and criminal (if the accused is acquitted, the prosecuting office needs to cough up).

      At least, this should apply (whether the subject is patent or not), when the losing the side is the one, that initiated the proceedings in the first place.

      Accept that sometimes, there really are legitimate things to be decided by the courts, where both sides have compelling positions as to why they are right. Take a dispute over breach of contract, where a court is needed to determine a vague interpretation. Are you saying that the loser should pay the winner's cost there? Or take a civil rights or harassment case? Are you saying that if you bring such a suit and you lose, you should have to pay the employer's costs, too? That would pretty much eliminate all of those suits out of fear of the plaintiff going bankrupt, would it not.

      No, it seems best, to let the court determine what is an equitable allocation of the costs based on the facts and nature of the case instead of mandating it by law. Doing that usually guarantees whoever has the most money to throw into lawyers while the case is going on will win and they will recoup those costs after the verdict is rendered. That hardly sounds like a real justice system.

      • by mi (197448)

        Are you saying that the loser should pay the winner's cost there?

        Yes, of course. You seem to suggest, that, despite the court's decision to the contrary, the loser was really in the right... That, for example, an employee bringing up a harassment case against their employer can not possibly be wrong — even if the lose their case, there must've been "something in there"...

        No, it seems best, to let the court determine what is an equitable allocation of the costs

        "Equitable allocation"? Am I conversing wi

        • by Dcnjoe60 (682885)

          Are you saying that the loser should pay the winner's cost there?

          Yes, of course. You seem to suggest, that, despite the court's decision to the contrary, the loser was really in the right... That, for example, an employee bringing up a harassment case against their employer can not possibly be wrong — even if the lose their case, there must've been "something in there"...

          No, it seems best, to let the court determine what is an equitable allocation of the costs

          "Equitable allocation"? Am I conversing with a lawyer (concerned, perhaps, that their source of income might dwindle?). Never mind...

          Yes, if you read carefully, my proposal still allows the court to decide. What would be different is the default... If currently the winner needs to explicitly ask the court to tack their expenses to the judgement (sometimes even having to file a wholly separate suit to recoup legal fees), my way this would be automatic — unless the loser presents a compelling argument against it.

          whoever has the most money to throw into lawyers while the case is going on will win

          That disparity is exactly the situation today. My proposal will, at least, help the less-monied side avoid bankruptcy if they win — which all too often is a real danger today. Worse, such guaranteed financial loss, even if you win, often forces people to give up on perfectly valid complaints — allowing various abuses to go on:

          — Yes, you have a good case, but the maximum judgement would be X, which is not going to cover the attorney fees.

          Sounds familiar?

          It would appear that you are only focusing on the frivolous suits, but if you would check, you would find that there are many, many suits where somebody who has been wronged brings suit, even if they don't have a very strong case. Often these are people who have been taken advantage of by big corporations or powerful people. Putting the burden of having to pay the legal fees of the person they are suing on top of their own legal fees if they don't win would mean most of those cases will not ever make it to

    • require the loser in a suit to pay attorney's fees and costs

      I'd argue, the loser should be on the hook for the winner's expenses by default. Currently the court may make them responsible, but the winner typically needs to specifically ask for it — and it should be the opposite. In all cases: civil and criminal (if the accused is acquitted, the prosecuting office needs to cough up).

      At least, this should apply (whether the subject is patent or not), when the losing the side is the one, that initiated the proceedings in the first place.

      force trolls to reveal anyone who has a 'financial interest' in the case, making them possibly liable for damages.

      This bit also seems generic — if such a disclosure is a good idea (and I am not sure), then why limit it to just patent cases?

      Of course, this also means that if a small inventor sues a giant company for patent infringement, all the company has to do is hire the most expensive legal team around and run up costs as much as possible, to make the possibility of a loss so terrifying for the inventor that they'll settle.

      • by mi (197448)

        Of course, this also means that if a small inventor sues a giant company for patent infringement, all the company has to do is hire the most expensive legal team around and run up costs as much as possible, to make the possibility of a loss so terrifying for the inventor that they'll settle.

        For me the danger of losing a million dollars really is not much different from losing a billion — I'll be bankrupt anyway. And the court is likely to see through the attempts to inflate the cost and rule, that I n

    • by Alomex (148003)

      I'd argue, the loser should be on the hook for the winner's expenses by default.

      There is a middle ground which comes from the Scottish system. The judge rules at the same time whether the case was reasonable, even if not proven. So the verdicts available are not guilty, not proven, and guilty.

      We could then make that, by default, "not guilty" for the other side means you have to pay their expenses and not proven means each pays their own way.

  • by sl4shd0rk (755837) on Thursday October 24, 2013 @10:15AM (#45223001)
  • by harvestsun (2948641) on Thursday October 24, 2013 @10:27AM (#45223181)
    "We made a device with curved corners first, now you can't make one, na-na-na-na-na-na!"

    Although patent trolls are bad, there are a lot bigger entities to fear with the current definitions of patentability.
  • by wbr1 (2538558) on Thursday October 24, 2013 @10:30AM (#45223231)

    Herewith, the law firm of WBR1 et. al., and its controlling interests issues a cease and desist letter to Bob Goodlatte, the EFF, and all pertaining parties.

    It is our contention that we hold a patent on the process of bill writing pertaining to patent reform, and also on the process of reviewing and lauding it online

    WBR1 would be happy to settle now for a to be determined sum before trying this case. Checks can be made payable to Shell Account #13837888 Cayman Islands Bank

  • but it will mka eit harder for smally time inventors to get protestion.

    " require the loser in a suit to pay attorney's fees and costs"
    These fucking groups should get some input form the people this impacts the most: Hint: Not large corporations.

    Loser doesn't not mean they where wrong or not infringe against. It could just mean they could afford an attorney.

    • by robot256 (1635039)

      First of all, your argument is flawed because if a small inventor tried to sue a big company, if there was no cost shifting he would go bankrupt even if he won--which is why they almost never even try. Their only way to monetize a patent is by selling it.

      Second, the point of this provision is to destroy the patent troll business model. Right now, when someone receives a patent troll extortion letter, they pay it because even if they know the claim is bullshit it will cost them more to prove it in court t

      • by irving47 (73147)

        Yeah, but a business owner that receives one of those letters is still going to fear going to court... If it were me, I'd fear the size and integrity of the trolls in question. What if the suit takes MANY months or years? I still have to pay lawyers in the meantime... When I DO come out victorious, how long will it be before a patent troll is on the up-and-up and pays the fees in question? Or will they just disappear into the night via some fakey bankruptcy or dissolution by a parent company?

  • by wjcofkc (964165) on Thursday October 24, 2013 @10:49AM (#45223511)
    Now we just need to stop issuing obvious patents like being first to market with a device that has curved corners. I don't remember the exact details, but back in the 19th century, the individual that first put an eraser on the end of a pencil had his patent application denied because all he did was put an eraser on the end of a pencil. We need a patent process that is sensible to begin with. Unfortunately, I suspect a lot of what is being submitted for patents is technologically over the heads of those issuing the patents, which is where a lot of bad patents come from. I also believe technology related patents are being intentionally written in an excessively complex and obfuscated manner to try and sneak them through. In a nutshell, we need an army of nerds in the patent office... now.
    • Now we just need to stop issuing obvious patents like being first to market with a device that has curved corners.

      You're probably talking about Samsung. I know they have this rounded corner patent for the Galaxy S3, but they are not first to the market, and their previous products copied someone else.

  • Goodlatte is a very mixed bag. Very pro strong encryption when that was highly controversial for politicians back in the 1990s. However, he also played a key role in giving us the DMCA and wrote the NET Act (No Electronic Theft Act) which made mass file sharing for no profit even between friends a felony. It'll be interesting to see how this plays out because he's like a compromise between the Republican leadership and the Tea Party. He may in fact be the only Republican who can force a majority of both sid

  • by gstoddart (321705) on Thursday October 24, 2013 @10:50AM (#45223529) Homepage

    The bill will require patent holders who are filing a suit to identify the specific products and claims which are being infringed

    I've never understood how you can file suit without explicitly listing this.

    We've heard about far too many lawsuits which vaguely reference a "set of infringing patents", and I seem to recall that (despite asserting Linux infringes) Microsoft has never actually enumerated the patents Linux is supposed to violate.

    Forcing them to disclose who has financial interest in it is a good idea, because one gets the impression a lot of these have a behind-the-scenes actor which doesn't get revealed.

    • The bill will require patent holders who are filing a suit to identify the specific products and claims which are being infringed

      I've never understood how you can file suit without explicitly listing this.

      They currently do list the patents, but not necessarily the claims or products. For example, a complaint may say that the defendant is "infringing one or more claims of US Patent No. blahblahblah through manufacture of products related to blahblahblah, including at least product name, product name, and product name." The reason for such ambiguity is because this is all pre-discovery, and if you need to examine the source code to determine if something infringes claim 2 but not claim 3, you need access to th

  • by jonwil (467024) on Thursday October 24, 2013 @11:05AM (#45223717)

    1.Require anyone who is saying "xyz is violating my patents" to disclose exactly which patents are being violated and exactly which products are violating those patents and how, regardless of whether a lawsuit is being filed or not.
    This would, for example, mean if Microsoft wants to say "Linux violates our patents" they would have to show exactly which patents they are claiming Linux is violating and which parts of Linux are violating which patents.

    2,Make it illegal to sue customers and users if the manufacturer has a license for the patents. So, for example, if a company makes a video camera that records H.264 compressed video and purchases a patent license from the patent holders of H.264, those same patent holders can't sue someone who buys that video camera and uses it. Or a patent troll suing the developer of an app because that app uses a feature that is provided by the OS (in that case they would be required to sue the operating system vendor instead)

    3.Introduce an "enforce it or loose it" rule for patents that requires patent holders to vigorously defend (either via licensing or via lawsuits) their patent or risk loosing the ability to sue those entities in the future. This would prevent the situation where patent holders go after small fish that they know they can beat, then using those wins as precedent and leverage against the big boys. This would also prevent the situation where someone holding a patent sits on the patent until the technology is more wide spread and then files lawsuits (remember what happened with LZW and GIF?)

    4.Introduce a system where anyone (even if they aren't using/violating the patent) can submit prior art to the patent office for review. The patent office would then review that prior art. If the prior art is found to be genuine and the patent is invalidated, the holder of the patent must pay the patent office money to cover the review. If the prior art is not genuine, the entity that submitted the prior art has to pay.

    Due to the costs incurred if the prior art is not genuine, there is a dis-incentive to submit frivolous or bogus prior art requests. If the fees paid are structured correctly then there would also be an incentive to properly review all prior art requests.

    and 5.Require that anyone who claims to have a patent over any part of a standard, where that standard has been mandated by the government for use in certain situations, MUST license that patent for use in implementing the standard to anyone who wishes to acquire a license (including open source software) and must license under fair terms (with a suitable legal definition of whats "fair" that is not open to influence from either party)

    • 4.Introduce a system where anyone (even if they aren't using/violating the patent) can submit prior art to the patent office for review. The patent office would then review that prior art. If the prior art is found to be genuine and the patent is invalidated, the holder of the patent must pay the patent office money to cover the review. If the prior art is not genuine, the entity that submitted the prior art has to pay.

      I like this idea, but just to avoid confusion, I don't think the word you're looking for is "genuine", but rather "invalidating". The Model T Ford is certainly "genuine" prior art for the Tesla Model S - it's prior, it's in the art, and it's certainly real. But it wouldn't show that a patent on the electric drive train or charging system was anticipated or obvious. People frequently use the term "prior art" - as in "this patent is stupid, look, I found prior art" - but what they really mean is "anticipatory

    • 1. The bill requires you to specify which products are infringing and which claims they are infringing upon. That's actually higher resolution than what you are asking for because it is down to the specific claim in the patent, rather than the patent as a whole.

      2. This is already the case, that's what those licensing agreements are for. Unless you're saying the license the producer has doesn't allow them to sell... which would just be silly. What we see now are cases where the producer doesn't have a l

  • Customer-suit exception. There's no question that one of the practices that has been seen by Congress as abusive is the tendency to use patents to go after end users of a technology rather than the company that created it. Under the Goodlatte bill as drafted, if a manufacturer and customer agree, litigation against a customer can be stayed while the patent holder and the manufacturer battle it out.

    That's a good start, but needs to go further. AFAIK this is a recent practice (some idiot judge said it was ok), but it's absurd to expect a customer to be responsible for whether or not any product they buy infringes on a patent. That's the manufacturer's responsibility. How many products do you own that could, according to some troll, infringe on "their" patents. Of course they won't go after John Doe, but it's another issue when the customer has deep pockets. This happened to a company my friend works fo

  • The bill will require patent holders who are filing a suit to identify the specific products and claims which are being infringed

    That will prevent the most egregious parts of patent racketeering, but there are still many cases where the patent(s) are disclosed and the real problem is that the patent was so broad that it should never have been granted in the first place.

    require the loser in a suit to pay attorney's fees and costs

    This could easily backfire, especially when patent trolls have an army of high

    • Let's not count our chickens before they hatch.

      Agreed. Legislatures rarely pass laws that restrict the games that lawyers can play, because so many legislators are lawyers. It's nice to have your union reps running the government.

    • by jellie (949898)

      This could easily backfire, especially when patent trolls have an army of high-paid lawyers. Just the threat of having to pay millions of dollars for the plaintiff's legal fees means that you had better have some really good representation as well. And if you lose, you end up paying all of your own legal fees as well as the army of lawyers working for the patent troll. In most cases, it would just be cheaper to settle which actually strengthens the capabilities of patent troll racketeering.

      Isn't it cheaper to settle in most cases anyway? Currently, the ones willing to fight a patent suit must have huge amounts of cash. Smaller companies don't have the resources to pay millions to defend a patent lawsuit to begin with. When Newegg.com beat that online "shopping cart" patent, did they win any money? Most of the other online retailers had settled earlier, and Avon and Victoria's Secret had lost even larger verdicts in court.

  • It'll either get killed off immediately, or loaded down with so much pork that whenever people mention the bill, everyone in earshot busts out with "It's BACOOOOOOON!"

  • Every single one of these proposed bills sounds great as long as you start by thinking about [insert outrageous patent troll story here] and think about how the provisions of the bill would have [made that situation better | kept it from happening].

    As the saying goes, "hard cases make bad law."

    Picture yourself as a stereotypical garage inventor. You had an amazing idea. You get a patent. You don't have the money to commercialize the idea.

    Unintended consequence #1: You try to find a partner to c
  • This is an awful bill from the inventor perspective. With the "loser pays" rule, trying to enforce a patent, which costs about $1 million and up, becomes even more expensive. Now, suing a big company means you may have to pay for their lawyers. Patent cases are won by patent holders about 40%to 50% of the time, so you have to risk bankruptcy to enforce a patent.

    This is worse than the previous "SHIELD act" from earlier this year. That exempted three groups from the "loser pays" scheme - the original pate

    • by dkf (304284)

      This is an awful bill from the inventor perspective. With the "loser pays" rule, trying to enforce a patent, which costs about $1 million and up, becomes even more expensive. Now, suing a big company means you may have to pay for their lawyers. Patent cases are won by patent holders about 40%to 50% of the time, so you have to risk bankruptcy to enforce a patent.

      You should realise that it is currently just as viciously horribly hard to enforce a patent right now against a large firm. The costs involved in bringing a patent suit to court are huge, so much so that it's probably the case that any large firm can poach any patent held by a small firm and get away with it, as the small guy is likely to go bankrupt before the first hearing. It's that which is part of the problem.

      The other major part is the way that the obviousness bar is too low. It should be hard to get

  • Next issue: Making software patents entirely illegal. Math is a public good.

    • Next issue: Making software patents entirely illegal. Math is a public good.

      Software isn't maths.

      Unless you agree that everything other than software is quantum physics.

  • by idontgno (624372) on Thursday October 24, 2013 @02:42PM (#45226847) Journal

    the chairman of the House Judiciary Committee, has received bipartisan support and has a real chance of passing.

    This is absolutely true, because zero is a member of the set of real numbers.

Order and simplification are the first steps toward mastery of a subject -- the actual enemy is the unknown. -- Thomas Mann

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