Finally, a Bill To End Patent Trolling 162
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."
Why should not the loser always pay? (Score:5, Interesting)
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.
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?
Re:Still Bad Patents (Score:4, Interesting)
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)
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.
Re:Still Bad Patents (Score:5, Interesting)
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.
Good start, could be better though (Score:5, Interesting)
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)
Re:Still Bad Patents (Score:4, Interesting)
The image people have of the lone inventor, toiling for years against the odds to perfect his concept, is just utterly wrong these days. Most patents are filed on behalf of corporations, and represent the work of teams of salaried employees, who in general will not see much if any direct personal benefit from the invention, beyond the odd bonus, or maybe, if they prove able to repeat the trick, a promotion. Where's your wage slavery now?
It's not communism to assert that a large part of the knowledge and skills that enable a person to come up with a new idea are the end product of centuries of shared human endeavour, and that therefore all ideas ultimately must become public property. What kind of a world would we have if everyone kept all their ideas to themselves, and every human interaction had to be a commercial transaction? Not one I'd want to live in.
You talk of the "true and unknown market value" of a patent -- I'll give you "unknown", for sure, because the state-granted monopoly of a patent exists to guarantee an artifical scarcity of the idea and results in the patent owner being able to extract a much higher "value" from the invention than a free market would provide.
You seem to be arguing on the side of the patent trolls who are the original topic of this discussion. You can't believe it's right that some a**hole, who was probably not even remotely involved in creating the idea, but happens to have acquired the rights to a dubious patent, should be able to live off of license fees and hold to ransom companies which need to make use of the idea to make real products and employ people, robbing them of the ability to make an honest living?
The simple answer is that nobody owes anyone a living, so nobody's going to compensate people who come up with useless inventions. I hope you didn't think I was suggesting that "society" should fund the assorted crackpots and chancers who attempt to game the patent system.