Patents of Business Destruction

SnapShot writes "Over on Slate there's an opinion article on the Blackberry patent case. Here's a quote: 'It's easy to bash trolls as evil extortionists, to do so may be to miss an important lesson: Patent trolls aren't evil, but rational and predictable, akin to the mold that eventually grows on rotten meat. They're useful for understanding how the world of software patent got to where it is and what might be done to fix it.' "

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Re:I wonder how the trolls think, reading this. :)

[faloi]

I was in the military. I've been compared to worse when I wake up in the morning.

Re:I wonder how the trolls think, reading this. :)

[damsa]

Mold or patent squatters? I hope you weren't compared to patent squatters, our military deserve far better than that.

Re:I wonder how the trolls think, reading this. :)

[faloi]

I hope you weren't compared to patent squatters, our military deserve far better than that.

No... They weren't *that* mean. Besides, we could've complained to the JAG about that.

Re:I wonder how the trolls think, reading this. :)

[damsa]

I think it's an apt comparision. Mold is also beneficial. Actually, without mold you wouldn't have modern medicine, soy sauce or cheese. I don't know what I would do without cheese. Patent holding companies are not all bad. If patents were wholy owned by companies say Amazon, go gain competitive advantage, they might refuse to license to their competitors like Borders or Barnes and Noble which is in their right. However if a patent holding company were to hold these patents, all they want is license fees t

Re:I wonder how the trolls think, reading this. :)

[damsa]

Borders is a competitor to Amazon. What happened was Borders.com was set up as a seperate entity from Borders the store so people who buy books online wouldn't need to pay sales tax. The courts ruled that Borders.com and Borders for all intents and purposes was the same company. So borders.com had to change their name or partner with Amazon. Borders the store is still a seperate entity and if they wished to there is nothing stopping them from creating a BordersOnline.com under the same umbrella as Bordersto

Re:I wonder how the trolls think, reading this. :)

[HiThere]

I understand theories that say it SHOULD work as you propose. And I accept that sometimes it MAY work as you propose. (Who would hear about it?) But it's also true that it often doesn't work that way. The companies who do operate in the manner you are proposing are companies like IBM, with a real business ... and then only outside their core business.

Re:I wonder how the trolls think, reading this. :)

[damsa]

From what I read these patent holding companies do not go out and bleed the smaller companies dry. They end up asking for a nominal license fee and those that choose to fight are the ones that are bled dry. You are right, I wasn't totally serious in my response. But thereotically patent holding companies would be no different than BMI or Ascap. Not that they are the harbingers of class. But in many ways BMI and Ascap made making art a lot easier. If you want to insert music into your intro to your video gam

Re:I wonder how the trolls think, reading this. :)

[HiThere]

If I want to insert music into my catalog, I look at copyright lawsuits, and decide it's too dangerous.

Writing your own music is no protection. Courts have found that even trivial similarities are sufficient to make you liable.

But that's music copyrights, not patents. Still, the discussion had drifted into ASCAP, etc.

Re:I wonder how the trolls think, reading this. :)

[mellon]

I used to work for a company that got bled by the infamous Cadtrak. I think we had to pay something like $20k to make them go away. That was a lot of money for us - not enough to bankrupt the company, but enough to pay my salary for half a year at the time. The idea that a "company" is a thing that can be sucked dry, and that there is no moral or ethical problem with doing so, is wrong - real people are affected by these kinds of activities, and real suffering occurs as a result of these petty acts of

Re:I wonder how the trolls think, reading this. :)

[damsa]

I am trying to present an argument for patent holding companies. I am no big fan of the current patent situation but for arguments sake in the most ideal light, they can be good. Personally I would rather see NTP hold a garbage patent than a Microsoft, because MS has an incentive to kill startup companies, whereas patent squatters on the other hand do not, they have an incentive to extract royalties from companies. In your example above, would you rather have one guy kill a prospector and and sell it to ano

Re:I wonder how the trolls think, reading this. :)

[mellon]

I think that if the only way to get gold is to kill people, maybe we should try to get by without it.

The solution

[aussie_a]

I say we treat patents as if it was rotten meat. Toss it away and go have chicken instead. Now I'm just hoping chicken is freedom in this analogy, because I'm not quite sure to be honest.

Freedom Range Chicken

[Fr05t]

I'm getting a patent for Freedom Range Chicken.

Re:Freedom Range Chicken

[damsa]

Is a patent for French Fried Chicken too obvious?

Ducks.....

Re:The solution

[Slak]

Just be sure you do not "choke the chicken" too much, or you'll go blind ;)

Expect the worst

[JanneM]

I suspect economical, political and social systems are best built the same way you do strategy analysis.

Forget about maximizing the best possible outcome in the best possible world. It's not going to happen anyway, so why worry about it? Instead, focus on the worst possible outcome, and create your system so as to minimize that. Any outcome that turns out better than that pessimistic minimum is then just a happy bonus.

So, make rules for patents that discourages fluff patents and extortion (you need to deposit a substantial sum that is returned upon a successful grant, but witheld if turned down?). Make it reasonably easy to challenge patents when invalid grants have slipped through, but that discourages vapid challenges (loser pays, for example).

Re:Expect the worst

[ficken]

The problem comes when you are using hundred year old ideas - patents were a result of trying to protect innovators and exploration of progress. Now, the business of Patent Hoarding has become lucrative. Its no longer about protecting innovation. Its about sucking up as many ideas as humanly possible in order to take full advantage of capitalism.

This (IMHO) is a downfall of capitalism - businesses no longer compete by making a better product, they compete by leveraging laws and other details against any existing and would-be competitors. If you can manipulate the rules, you do not have to play as hard.

Re:Expect the worst

[JanneM]

Design the system so hoarding doesn't pay, then. That's the idea of designing for the worst case. How, in this case, I don't know - but there are any number of possible ways to discourage it. Allow no more in yearly patent royalties per licensee than the owner is earning from the technology in the patent themselves; make it legally binding to "sell" the use of the patent for a set one-time fee once the technology has become an ISO standard (that would encourage the use of standards as well) - there's many w

Re:Expect the worst

[swillden]

patents were a result of trying to protect innovators and exploration of progress

Not exactly. And it's worth understanding the purpose of patents when trying to think about how the system can be fixed.

The purpose of patents was to promote progress by encouraging inventors to publish the details of their inventions. In a world without patents, inventors had a strong motivation to keep the workings of their inventions (which were physical devices) as secret as possible, so that others couldn't duplicate them. The notion of patents was introduced to open up (the word 'patent' derives from the latin 'patere', which means "to be open", and scientific and medical communities still use the term to mean "open", or "free of obstruction") the details of inventions so that others could learn from and build on the ideas. Inventors recieve a temporary monopoly on their idea in exchange for publishing the details. The bottom line, though is that patents are supposed to primarily benefit the public, not patent holders. Any patent regime that fails that test is broken. The ideal patent structure is that which generates the greatest flow of ideas to the public, and it should be obvious that this optimization problem is one that requires constant retuning as the structure of society and the nature of research changes.

The same is true of copyright, by the way. Copyrights should primarily benefit the public, in the form of increased flow of materials into the public domain. Any benefits that accrue to copyright holders are mere byproducts of the primary goal. Like patents, copyrights require constant tuning to ensure that they're providing the maximum benefit to society. Like patents, the current copyright system does nothing of the sort.

Re:Expect the worst -- but promote the best

[stanwirth]

The purpose of patents was to promote progress by encouraging inventors to publish the details of their inventions. In a world without patents, inventors had a strong motivation to keep the workings of their inventions (which were physical devices) as secret as possible, so that others couldn't duplicate them. The notion of patents was introduced to open up ... the details of inventions so that others could learn from and build on the ideas. Inventors recieve a temporary monopoly on their idea in exchange

Re:Expect the worst

[Dausha]

"This (IMHO) is a downfall of capitalism - businesses no longer compete by making a better product, they compete by leveraging laws and other details against any existing and would-be competitors. If you can manipulate the rules, you do not have to play as hard."

No, this is an example of monopolism run amok--not capitalism. The whole premise behind patents (and copyright) is that the government grants a limited-term monopoly to encourage development of an idea. After all, once an idea is out there, it is ea

Re:Expect the worst

[Burz]

Except there is this inconvenient little detail that it is been largely the freemarket ideologues who insist on maintaiing a naive/permissive attitude toward monopolistic tendencies in the private sector. Government intervention (hence public accountability) is always portrayed as an abomination, often with maudlin undertones from an Ayn Rand novel.

Unless, of course, that intervention is by the military into the lives of millions of foreigners to secure resources for the economy at home. Then its time to wa

Re:Expect the worst

[Kirth]

This (IMHO) is a downfall of capitalism - businesses no longer compete by making a better product, they compete by leveraging laws and other details against any existing and would-be competitors. If you can manipulate the rules, you do not have to play as hard.

Monopolies are the enemy of the free market. Funny enough the same people who don't want the government to interfere with business are the same ones lobbying for governement-granted monopolies.

Re:Expect the worst

[Burz]

Tyranies are supposed to the be enemy of communism. But definitions on paper do not make something actually true.

Any society that insists a) on permitting only ONE organizing principle, and b) on turning a blind eye toward its own worse tendencies, is "cruisin for a bruisin".

Re:Expect the worst

[jafac]

It's not the downfall of Capitalism.

It's the downfall of Western Civilization, the Rule of Law, and the concept of a Constitutional Democratic Republic. As long as the right to spend money to influence the political process is equated with an essential liberty, then human greed can subvert it for it's ends, rather than the ends for which it was intended.

Isn't it ironic?

[BarryNorton]

The irony of the patent system is that while it's relatively easy to get a patent, the vast majority of the assigned patents are completely worthless.

"It's like raaaaaaaain on your wedding day..."

Fix it?

[Black Parrot]

How are you going to fix it, when the lobbyists who run the country think it's great as it is?

Re:Fix it?

[anothy]

that's a defeatist attitude. which wouldn't be a problem in itself, i guess, but i think it also happens to not be true. there's a very large number of very large companies (think Microsoft) that are calling for patent reform. they're not all saying the same thing at the moment, but it's at least obvious that not everyone the government listens to thinks the situation's fine and dandy.

Re:Fix it?

[Alsee]

there's a very large number of very large companies (think Microsoft) that are calling for patent reform

No, that's a manipulative political ploy.

They are claiming they want "patent reform" and calling for essentially procedural changes to divert any political attention and control any legislative action. By calling for "reform" themselves they create the illusion that they are on the side of fixing the patent problems. They position themselves as the "reasonable compromise" position for fixing the patent pr

There is nothing wrong with the 'patent troll'

[RembrandtX]

There is nothing wrong with the 'patent troll' that couldn't also be called 'evil' in laywers, doctors, or any other learned profession.

if by 'patent troll' the author means people who buy up neglected patents, and then enforce them, how is this bad ? Its no different than some real-estate agents who buy up crappy houses, give them the once over, and flip them for profit. One man's garbage ...

If the author means 'people who file friviolous patents', thats alread self limiting. Its either a very time intensi

Re:There is nothing wrong with the 'patent troll'

[ErroneousBee]

There is a reason Microsoft and Ebay didnt license the patents, and then just payed out on them when challenged. Its because this is just the way you have to deal with the patent system with its millions of potential infringements waiting for your lawyers attention.

You cannot build a non-trivial peice of software without falling foul of a load of something obvious - on a computer patents like one-click or the infinite subtle variations on LZ compression. So the only way to actually get anything built at a

Re:There is nothing wrong with the 'patent troll'

[RembrandtX]

Are you suggesting that instead, a private inventor who holds a patent that he cant possibly enforce due to money reasons, should just give up his rights ?

The systems isn't the problem here, its the 70+ years of people not having the ability to do proper due dillegence while declaring a patent novel.

*gasp* there are patents out there that were issued by the USPTO that infringe on other patents, simply because the people filing the 2nd patent didn't have the resources to make sure ALL of the other 7 million

Re:There is nothing wrong with the 'patent troll'

[HiThere]

Well, I *do* blame Bill Gates. Is that any consolation?

Re:RIM deserves this, they infringe

[RembrandtX]

trust me .. I don't.

of course, those patents now stand a chance of being invalidated .. as they have made the second [and final] round through the USPTO.

Stop handing out "business method" patents

[Jivha]

While patent reform may be far too complex a beast to be tackled in one comment(or even a whole post+comments), I think one place to begin must be patents granted for "business methods". From the article:

"For most of U.S. history, patents had traditionally been issued in tangible objects, like monkey wrenches. For years, the courts and the PTO took a hard line against granting patents on intangibles like software or "business methods," based perhaps on the instinct that such inventions are too abstract and might cause economic damage.

All that changed in the 1980s and '90s, when Congress concentrated patent's appellate duties in a single court--the Court of Appeals for the Federal Circuit. Over time, that court changed course on software and other questionable areas of patent, transforming the system from one that was highly conservative to one that's much more liberal."

I sincerely think we must abolish all patents on "ideas" and "methods". The whole notion of a corporation patenting a way to do business seems absurd and completely against the notion of free market competition. At the rate that we're going, pretty soon we'll have a stage where any person wanting to start a new business will need to purchase a set of licenses from corporations, not counties/states!

Another thought would be about how to resolve the multiple patent regimes around the world. As the Internet and globalization break down geographical barriers, we need a patent system(if at all) that will serve the entire world. What happens if a person in China or Brazil originally comes up with an idea for a new business? Will he need to check with the USPTO to see if it has been registered in the US? In Europe? Why? Does the USPTO check patent histories in other countries?

Everything is potentially 'Useful'

[digitaldc]

They're useful for understanding how the world of software patent got to where it is and what might be done to fix it.

Just like Viruses, Worms & Malware are useful for Anti-Virus/Spyware companies to analyze how they got to where they are, and what might be done to fix them.

Guns don't kill people...

[ezpei]

So patent trolls don't kill innovation, but the USPTO does? Or is it patent trolls don't kill innovation, but patent law does?

Nope. Blame here isn't mutually exclusive or singularly exhaustive. They're all crap.

Just like ISPs, CAN-SPAM and spammers themselves are all to blame for the 50+ messages I have to clear out of my inbox every morning.

A case study in business, law, and government...

[ursabear]

I think that the issues that are endemic to the patent system in the U.S. are really a function of the combination of business (how can we protect our hard work), law (the rule of law is sometimes very academic - how can you protect one without protecting another - what is the definition of useful), and government (constituents and lobbyists want "protection" to foster innovation - government reacts by fiddling with the law).

Throw into this mix patent squatters (think of it this way: some folks buy inte

Blackberry isn't relevant

[Anonymous Coward]

If you have read the history of the Blackberry vs. NPT case you will see that the Blackberry case isn't a "troll" case. The technology was developed and actually used in a company that went defunct because it never reached "a critical mass". Just because they still retain the patents doesn't make them trolls.

This still leaves open the question of whether the patents should have ever been issued to begin with. Software patents are asinine. Almost as asinine as being able to patent something that exists in nature.

Oh, oh!!! Great business idea! Invent a new programming language and patent it. Then when people start releasing software written in it you can sue all of them for infringement.

Re:Blackberry isn't relevant

[arkanes]

Blackberry aren't heroes in this at all. I don't know if the patents are reasonable, I haven't read them (and I find the politically convenient overturning of them after years of being upheld extremely suspicious, to say the least), but I do know that Blackberry has consistently acted in bad faith in the entire case. Coming the merest sliver short of outright falsification of evidence - in an attempt to prove prior art they gave a demonstration of older software that sent pager messages - but they modified

Re:Blackberry isn't relevant

[winwar]

"Coming the merest sliver short of outright falsification of evidence - in an attempt to prove prior art they gave a demonstration of older software that sent pager messages - but they modified the supposedly prior art software in order to get the demo to work!"

Which is why the court is hanging them out to dry. RIM was its own worst enemy. It's why the patent can be invalid according to the patent office but still enforceable as far as the court goes.

Re:Blackberry isn't relevant

[Burz]

Great business idea! Invent a new programming language and patent it. Then when people start releasing software written in it you can sue all of them for infringement.

Just when I thought C# was becoming popular on Slashdot, you go and ruin it for me. :-(

How to fix patents

[nobleheath]

Any patents registered by a company (or individual) that goes Chapter 11 or all the way to bankruptcy should automatically become public domain. If the inventor isn't good enough to make money out of it then it should be open for all.

The patent trolls that run around gobbling up defunct businesses to exploit other peoples work do nothing to help inovation - they mostly stand in the way. Patents are there to protect the inovators not the scavengers.

Re:How to fix patents

[kansas1051]

Any patents registered by a company (or individual) that goes Chapter 11 or all the way to bankruptcy should automatically become public domain. If the inventor isn't good enough to make money out of it then it should be open for all.

Oops, there goes the Wright Brothers patent for a "flying machine" (http://invention.psychology.msstate.edu/i/Wrights /WrightUSPatent/WrightPatent.html [msstate.edu]). They must have been patent trolls, and not inventors, because they didnt make a lot of money!

Predictable, yes... but like mold?

[rayd75]

I have a hard time swallowing that one... (Ewww!) Mold actually offers some benefit to the ecosystem and it tends to surface only once its meal has ceased to live. Patent holding companies, on the other hand, spring out of nowhere and gut fresh companies as soon as they start to turn a profit. Else, they lie in wait until other companies' products or services are ubiquitous and then demand huge percentages on years of sales. Sounds to me like pirates are a better comparison. Oh well, at least we can count on a decline in global warming.

Too many shyster opportunists

[TheSkepticalOptimist]

Bottom line is, this is the weakness in Capitalism. The fact that you can start up a company for the express purpose of screwing hard working or innovative people and companies out of millions in deserved money.

I know a guy that has made a fortune taking trademarks and copyrights filed locally only in Canada or the US and filing them in his name globally. If that local, Canadian or US company wants to go global, they have to pay this guy royalties for using their own name.

It may be sneaky and underhanded but its totally within the law.

Same goes for patent trolls or squatters. Come up with our buy some idea that today might seem far-fetched, keep the language ambiguous and generalized, and as soon as some other company actually makes a product with similar function or purpose a reality, jump on them and sue the pants off of them.

There are entire companies set up that buy and hold patents. Buying them off individuals and small companies and simply sitting on them, with a large team of shysters paid scouring patent applications and product releases hoping that some company might make a product that infringes on the patents they hold. These companies (contrary to what they might have you believe) are not think tanks nor do any research and development nor have any interest in making the ideas a reality. They simply sit on paper. It's entirely legal for a company to do nothing, let another company do all the work, and expect royalties or licensing fees to sell a product they actually spent time and money developing, or sue the pants off these companies. Its like corporate slavery.

Patents have been twisted and corrupted from something to protect innovators from having their ideas ripped off to one that penalizes innovators for having good ideas and spending the time and money and effort to make an idea a reality.

Patents have become a dirty word.

There needs to be changes imposed, period. Patent law needs to be rewritten, not just for software, but in all cases. This isn't happening fast enough.

Re:Too many shyster opportunists

[robertjw]

Bottom line is, this is the weakness in Capitalism.

Hold on, this isn't a weakness in Capitalism. In a pure free market there would be no patents. While the problems you discussed do exist, they are not a result of the Capitalistic system. On the contrary, they are a result of inept governments monkeying with the system.

Patents have been twisted and corrupted from something to protect innovators from having their ideas ripped off to one that penalizes innovators for having good ideas and spending th

Re:Too many shyster opportunists

[torokun]

Real estate investors often just sit on paper. Stock, bond, futures, etc., traders just sit on paper.

What function do they serve? They increase the efficiency of the market, and many other things as well.

It's much more efficient for a company to license their accidental inventions to others than to sit on them as trade secrets forever, because they don't know what to do with them.... It's much more efficient for them to sell the patents to a small holding company that will license them, for the same reas

Re:Too many shyster opportunists

[jbolden]

You are wrong here. Capitalism presupposes a government which regulates economic activity. The most obvious example being freedom of contract. Without government enforcement contracts are worthless. Patents violate anarchy and you may be using capitalism to mean anarchical-libertarianismism but there is no clear conflict here.

In particular Adam Smith addresses the standard patents of his time where industries in colonies had to pay 1/5th of their gross to the host country in exchange of unlimited use of

Re:Too many shyster opportunists

[jbolden]

Do you know who Adam Smith is? You can't argue that Capitalism disallows something that its inventor specificially included.

As for your point about choosing another mediation agent they are free to choose one and the government specifically allows that. But you are merely displacing the problem. How does the mediating agency enforce its rulings? Without an enforcement mechanism which opperates non consentually you are capable of breaking an agreement at any time.

Missed the point as usual

[Quatl]

Of course patent trolls aren't evil in the sense that they are not the cause of the problem. Software patents on the other hand are evil and unnessasary. It used to be a fundamental tenant of patent law that the purpose of protection was to encourage creation. Software creators do not apear to need this protection. For the first ~30 years they had only copywrite and the industry still managed to grow at a ridiculous rate. The current state of IP law in the US is an obcenity.

Re:And you missed the point

[HiThere]

Have you even *looked* at the requirements for a software patent? You don't need to reveal the code. You don't need to reveal the algorithm. All you need to do is have a lawyer paraphrase (in lawyerese, which NOBODY, even other lawyers, understands) what the algorithm says.

That's not "making patent" anything worth talking about. So no trade secrets will ever be revealed by these "software patents". They aren't software patents, they're merely the official grants of a temporary monopoly. I.e., the bene

Working in Pharma?

[dwandy]

From TFA:

Politically, while the idea of general patent reform is laudable, it faces inevitable opposition from industries like the pharmaceutical industry, where the patent system seems to be working. A broad-based Patent Reform Act, now in Congress, has been watered down considerably because of pharmaceutical opposition. Pharma has a point. In their industry, patent does what it should...

Really? It seems to me that all patents do in the pharmaceutical business is guarantee monopoly-type profits.
Drug companies launch ad campaigns where they try to justify their high prices (that lock people out) by stating that today's profits drive tomorrow's innovations. But if the high drug prices are simply to provide for tomorrow's R&D, then why do they show a $Billion in profit: By definition that money should either be a decrease in drug costs, or should have been spent on r&d ...else they're lying. They are in fact just like every other corporation that is making a product: No profitable company sets it's selling price based on production cost - it's set by what the market will bear. In the case of patent protected drugs that price is very high in affluent markets like the US.

So there remains a very real question: Do patents really work in the drug business? I'm not sure that they don't promote innovation, but I'm sure that they generate monopoly profits. So, while that might be taken to mean that they're working, it can also be taken to mean that some reform might not be a bad idea there either...

Re:Working in Pharma?

[dwandy]

AC says:

The whole point of a patent is to provide the patent holder with a monopoly! ... The assumption is that the overall public good benefits from the disclosure, while the inventor is permitted to benefit for the duration of the permitted monopoly.

What's your point? I think we've agreed that the current system provides a monopoly, and today that monopoly makes monopoly profits. That wasn't the question.
The question is whether or not it's justified. and whether or not we would have more or less medi

Re:Working in Pharma?

[HiThere]

Yes, but do the designers of new drugs EVER look at the patents of the old ones? If not, then nothing useful is being revealed.

I'm not totally certain about the case of drug patents (though I'm dubious), but in the case of software patents no developer ever looks at a patent. In the first place it's potentially quite dangerous legally (triples the cost if you're found to be infringing) and in the second place nothing of any use is ever revealed. Drug patents might be different, but I sure wouldn't bet on

Why the spin?

[werdna]

Patent trolls aren't evil, but rational and predictable, akin to the mold that eventually grows on rotten meat.

You really, really need to listen to yourself. This "argument" is wholly devoid of substance, and is so on its face. First of all, wtf is a patent troll, that distinguishes it (assuming he is a faceless corporation rather than a legitimate and independent inventor) from, say, a property owner or landlord? Are you willing to defend the argument with that substitution, and if so, perhaps we need

My point precisely

[werdna]

Your [sic] new here right?

No, I have been around for quite a while, and am intimately familiar with the patent system to boot. While I am willing to fight for your right to be an anonymous coward, I suggest that it is pretty poor practice to begin a posting with an ad hominem attack, anonymous or otherwise. I might be new here, but also be right. I might also be wrong. My arguments might seem to you like condescension, but they are not intended as such -- rather, they are arguments, arguments that you h

dual perspectives

[DizzyDanMD]

Interesting scenario here. Aside from the trolls and patent squatters. Let's say that you are small little codeshop and you create this great thing and BAM, some huge company takes it away. With their big money, big lawyers, and all that jazz the little codeshop cannot afford, what do you do? On the other hand, you work for huge GeeWiz megacorp and never happened to sign one of those fancy non-disclosure forms. You go out and make a small company and get a design patent, and sue the big company.

The whol

What if companies stopped filing for patents?

[eznet]

What if shareholders/investors required companies to show the ROI for their patents? It seems to me that the USPTO has allowed an inordinately high percentage of "bad" business model and software patents (meaning that they get overturned/disallowed on review). The only way to enforce a patent is through litigation, which is horrendously expensive. This is on top of the expense (and time) of actually getting a patent: Estimates for a US patent are around $15K+; patenting globally can cost >$250K. It

I don't understand

[drasfr]

Yes, one thing I don't understand.

The patents in questions are likely to be rejected. The whole object of this lawsuit are those patents.

How can the judge dismiss that? What if he awards the injunction, either forces to close or settle. One way or another. What will happen if/when the patents ARE rejected? Because the lawsuit would have been on invalid ground?

Why can't this new evidence taken into account for the lawsuit? I don't understand this law aberation. Why can't the judge either order to wait to know the result of the patent re-examination, or forces the PTO to re-examine faster and be a party in the lawsuit?

I just don't understand why this lawsuit is going on ground (patents) that are likely to be dismissed and deemed invalid. Because if I understand right, patents not valid = lawsuit not founded anymore.

Can someone explain?

Re:I don't understand

[winwar]

"I just don't understand why this lawsuit is going on ground (patents) that are likely to be dismissed and deemed invalid. Because if I understand right, patents not valid = lawsuit not founded anymore.

Can someone explain?"

No, not really :) But the validity of the patents and the court case are not one in the same. At the time of the trial the patents were/are? still in effect. The court decided it wasn't their job to invalidate them. RIM however made the very large error of misleading the court. So it is g

Re:Funny definition of useful

[critter_hunter]

Yeah, patent trolls are not evil, they're just greedy, devoid of morals and will do anything to further their ambitions

Oh wait, THAT'S LIKE THE VERY DEFINITION OF EVIL. What kind of idiot writes those articles?

Re:Funny definition of useful

[CastrTroy]

I think that what they are saying, is that although we don't like patent trolls, they are necessary to show us just how bad the patent system really is. It's kind of like saying drunk drivers are good for teaching us how unsafe our cars really are.

Re:Funny definition of useful

[ObsessiveMathsFreak]

I think it's more that the article is saying that patent trolls are not going out of their way to be evil. They were just born that way.

Re:Funny definition of useful

[greg_barton]

It's kind of like saying drunk drivers are good for teaching us how unsafe our cars really are.

But they are good for that, in the most dramatic and cruel way possible. It's just that society, in general, tends to ignore the education drunk drivers give us. We treat the symptom (drunk folks killing innocents on the highway) but we ignore the causes. (pervasive availability of alcohol, inherent danger of controlling a mass of metal at high velocities.)

And we also tacitly accept the risk and sacrifice...unti

Re:Funny definition of useful

[greg_barton]

Actually, that is a incorrect statement. If it weren't for patent trolls, the system wouldn't be broken.

Your correction is incorrect. :) That's like saying, "If there were no virus writers, Windows would be totally secure!" It's still insecure, whether folks write virii or not.
The difference is that when someone exploits the flaws we now know how to fix the system, if we're willing and able to do so.

Re:Funny definition of useful

[MaceyHW]

You can't can't expect actors in a capitalist system not to maximize their rewards. Any system design/reform has to assume that actors will do everything allowed to maximize their rewards, even things which are viewed as "evil" by everyone else.

The point of the author was pointing out that patent trolls illustrate a explotable flaw in the system, and that villifying them does nothing to solve the problem. There will always be plenty of people willing to do lucrative, legal things that others view as evi

Re:Funny definition of useful

[tomhudson]

You can't can't expect actors in a capitalist system not to maximize their rewards. Any system design/reform has to assume that actors will do everything allowed to maximize their rewards, even things which are viewed as "evil" by everyone else.

The guaranteed very best way to maximize rewards under any system of law is to corrupt the system to your benefit. The patent trolls have done that, by flooding the patent office with patents they know are bogus. Sounds evil to me.

Re:Funny definition of useful

[samkass]

Yeah, the software industry has sure suffered in the 20 years since software patents were instituted. A lot of people talk about what could be without them, but one might argue that they've worked really well if the success of the software industry is any indication.

Re:Funny definition of useful

[iserlohn]

I think the words you are looking for are "in spite of".

Re:Funny definition of useful

[Znork]

"will do anything"

Well, unfortunately, that's not quite the case. They're not doing "anything", they're following the rules.

Which makes it rather obvious that the rules create only an extra incentive for being greedy, devoid of morals and interested in nothing but furthering your ambitions.

Now, unless you'd like to classify greed, lack of morals and ambition as 'progress of science and useful arts', that puts the patent system in clear violation of the constitutional foundation upon which it rests.

Something

Re:Funny definition of useful

[tomhudson]

and by trolling, GP means, he's never actually read Slate and doesn't know that it's probably one of the highest quality edited online websites you could find, content wise

... which has nothing to do with the fact that the statement made was a piss-poor analogy ... and that this is just a "me-too article." Slate was caught with its collective pants down on the whole "patent troll" mess - we've known about it for years. So, yeah, Slate is just trolling for readers because "Blackberry" gets attention from

Re:Funny definition of useful

[Ken D]

Right, the fact that they are rational and predictable just means that they are "Lawful Evil".

Now a company like SCO just has to be Chaotic Evil. Can you predict what they are going to do next?

Re:Funny definition of useful

[tomhudson]

Now a company like SCO just has to be Chaotic Evil. Can you predict what they are going to do next?

Oh, that one's easy ... file another motion to delay things ...

SCO could give most patent trolls a few lessons. Unfortunately, this is what happens when immoral people do things. The legal system didn't envision judges who aren't ready to do a smackdown on lawyers who knowingly abuse the system, and are afraid of having their decision appealed. Where is Judge Roy Bean when you need him?

Re:Funny definition of useful

[sconeu]

Actually, I think Judge Kimball and Judge Wells have looked at the results in US v. Microsoft, and are trying to avoid what happened to Judge Jackson.

Re:Funny definition of useful

[tomhudson]

Judge Jackson got into trouble for public comments.

If Kimball and/or Wells had taken control of their courtrooms after the first sloppiness from SCO, the case would have been over by now, and the appeal half-way done as well. Oh, irght - there wouldn't have been an appeal - SCO would have been (even more) bankrupt than they are now, morally, financially, etc.

Re:Funny definition of useful

[sjames]

Consider it as a strange form of looking on the bright side as in while looking over the smoldering ruins of your car saying "At least I don't have to rotate the tires now".

Re:How to fix it?

[ajs318]

I can think of a few good places for where to start reforming the system. Demand that the inventor demonstrate a functional prototype before a patent is issued. This always used to be done {a patent could actually be annulled by destroying the only prototype}. A patent application which is not supported by a prototype is nothing but a work of science fiction. Annul any unworked patents after two years. Don't allow people to sit on patents in the hope that someone else will make use of them; force them to make use of their inventions or forfeit the privilege of a patent. Pay a bounty for evidence of prior art which could be had from the non-refundable deposit. This would encourage people to search for prior art which could be used to block patent applications. No patents on mathematics. This should be obvious.

Almost there

[hummassa]

But "annul any unworked patents after two years" == "no patents will ever be used". Because: Inventor "I" invents something, but does not have the $$$ to build the thing (I know I don't have the $$$ to build a cold fusion reactor, even if I had the knowledge to do it). The Corporate Cabal just sits down, refusing to help for two years and ta-da... the patent is annulled, now they will win the big $$$ without rewarding the inventor at all.

Re:Almost there

[marcosdumay]

Agreed. The hardest part of any patent reform (with good intent) is to differentiate the patent trolls from the small researches.

Re:Almost there

[mrgreen4242]

I always figured one way to (help) do this is increasing the fees based on the number of patents the person or company submits in a given time period, say a year.

Currently patent filing fees are anywhere form $75 to around $500, depending on the type of patent and the status of the submitting company. I say get rid of the "small entity" category, and the various types of patent applications, and go for a unified pricing structure. Everyone gets one freebie a year. The next one in $100, and the next $200, t

Re:Almost there

[marcosdumay]

The incresing prices seems to be a good idea. Even if the researcher needs more patents, he can have them. And it punishes big companies, who gain much more from current laws that small people. But notice that you are not identifying a troll, you are fighting another problem, that is big companies getting lots of low value patents to monopolize markets.

But I don't think the other two would work. A small reseacher can't know about people violating his patent because the way things work are not public. You c

Re:Almost there

[dwandy]

The Corporate Cabal just sits down, refusing to help for two years and ta-da... the patent is annulled, now they will win the big $$$ without rewarding the inventor at all.

There's enough money out there to eliminate this possibility in a very real way. The most you might see is a diminished return to the inventor if those that might pay the most are more willing to sit on the sidelines and let someone else p(l)ay.
The reality though, is that if I come up with some kind of invention that makes another obs

Re:Almost there

[dwandy]

Whether they can successfully exploit the invention or not is immaterial.

I agree - it's also impossible for any specific inventor to know in advance if their 'exploit' will be successful.

If you take away that motivation by saying that patents revert to the public domain in an extremely short timeframe if they aren't successfully exploited, more inventors will treat their inventions as simple trade secrets which are protected by law and do not revert to the public domain.

Since the odds of more than o

Re:Almost there

[AndersOSU]

That's true in the most places, where the first to file is awarded a patent, but not in the US, in theory anyways. If an inventor A can prove to the court that he invented something before inventor B came up with it completely, and demonstrably, independently of A. Inventor A still gets the patent, provided he files within a year.

See this [wikipedia.org]

Re:Almost there

[NickFortune]

The Corporate Cabal just sits down, refusing to help for two years and ta-da... the patent is annulled, now they will win the big $$$ without rewarding the inventor at all.

Nope, don't think so.

Look, suppose you're a small to medium scale venture capitalist, maybe 10 million to invest in the right project. If someone comes to you with a patent and you say "no thanks I'll wait" you're going to be competing with the multinationals, who will use control of channels and superior marketing budgets to freeze

Re:Almost there

[arkanes]

If you don't have the money to build a cold fusion reactor, you don't know that your idea works. Check out all the "free energy" crap (and some of it even manages to get patented) for some great examples of people just making shit up. The purpose of patents is to promote progress and reward society. If you can't or won't productize your patent and give society the benefit of it, then you don't need to have it - the patent protection (and the money from it) can go to someone who is actually using the patent.

Date of filing,not invention

[Flying pig]

Where the USPTO is out of whack with the rest of the world is that the US enables submarine patents by working to date of invention, not date of filing. (The European patent office allows cheap early notification of a patent to get round the potential cost issue.) Date of invention is an inducement to fraud because it is easy for Big Corp to fake or modify documents, especially as the whole idea is that these documents are secret as otherwise the patent is in the public domain. An idea originally intended to help small inventors in days when transport and communications were poor s completely obsolete today, but encourages forgers, lawyers and IP practitioners to sit on potentially patentable ideas and do nothing, hoping that someone else will do the work of putting them into practice whereupon they can establish a patent.

So yes, I agree with your proposals but they don't go far enough.

Re:Date of filing,not invention

[budgenator]

Date of invention is an inducement to fraud because it is easy for Big Corp to fake or modify documents,
Proof of the date of conception, is a bit more difficult to establish than your giving it credit for. Firstly there are cronological journalized lab books, both hand written and computerized which alows times stamping, if I have what I think is a good Idea, I can type it up on the computer, do a md5sum on the file and publish the checksum in a news paper and save it. This is almost, perfectly unforgable.

Re:How to fix it?

[sp3tt]

There is no way you're ever, ever going to stop abuse of the patent system. That is, unless you completely and totally abolish all patents in all areas. No more patents, no more USPTO, no more abuse. As any libertarian will be happy to point out, if you put a gun in someone's hands and give them the legal right to use that gun for whatever their purposes is, you're going to have a huge mess and abuse of power. That's government for you. Patents are unnecessary, morally unjustified, arbitrary and extremely p

Re:How to fix it?

[erroneus]

I definitely have to concur with the bold assertions.

I especially like the "unworked patents" issue. While I can see plenty of room for abuse with this idea, I think it's pretty obvious that people who attempt to make a living or run a business simply by owning patents on important technology should be discouraged. There are several good examples of this so I won't go into that. But it's hard to respect the notion of "I bought someone's idea and now I'm making a living from it." The notion that a though

Re:How to fix it?

[NewWorldDan]

Demand that the inventor demonstrate a functional prototype before a patent is issued
Ok, I'm down with that. Even a mostly funcitonal prototype that implements the core claims of the patent. The prototype should even be kept for the duration of the patent so that subsequent court challenges have something to compare to.

Annul any unworked patents after two years
Doesn't the functional prototype kind of invalidate this? If they must demonstarte a prototype, the patent has therefore been worked? Or is

Re:How to fix it?

[budgenator]

I've often wondered what would happen if not only were a working prototype required, but the source code to produce the working prototype should be placed in the public domain. My hunch is it would pretty well squelch most software patents.

Re:How to fix it?

[Elektroschock]

It is a matter of power. Get organised, build up a strong US movement against software patents and they will be history soon.

Note that we strongly need a Us campaign against Software Patents as the USPTO tries to export its crappy regulation to other parts of the world, see trade agreements with the Americas, see the swpat in india, australia etc.

http://lists.ffii.org/mailman/listinfo/us-parl [ffii.org]

Re:How to fix it?

[anothy]

the single biggest problem with patents in my mind is that the term has not been adjusted to keep up with the changing rate of innovation. that is, 17 years on a patent (adjusted about a decade ago to 20 years) was fine 200 years ago when we were talking about new ways to make steam trains climb mountains, but is grossly inappropriate today. patent lifetime should be, at absolute greatest, 5 years from issuance of patent; i'd say 2-3.
along with that is the problem that it's not really appropriate any more to enforce one length for all patents. even just in "computers", for example, 5 years sounds about right for new technologies in chip manufacture, but is an eternity in software design.
separate from this but related on several points is the fact that the current patent process is not transparent. that is, i can submit a patent that you have no way of knowing about - and thus knowing you're infringing - for up to a few years. that's plenty of time to build an entire business today. ideally, patents should be visible from date of filing.
i'd also agree with the common complaint on patents on mathematics, on the principle that they are naturally occurring phenomenon, not true inventions. this eliminates a good number of software patents but still leaves room for truly novel activities. having to choose all or none, i'd back the "no software patents" position, because doing real evaluations of that class of patents is hard and costly, and it's worse for innovation - at least today, if not always - to grant too many than too few.

the most important thing people need to remember, and most of the involved government seems to have forgotten, is what the point of patents are. the constitution is often silent on intent; this is one of the few cases where it actually tells us why it's doing what it's doing. patents exist explicitly to "to promote the progress of science and useful arts".
honestly, i think we need somebody with lots of free time and discretionary income to make a big fuss about this. i believe the current PTO policies are unconstitutional and violate existing Supreme Court findings (see, for example, Diamond v. Diehr, 450 U.S. 175, which excluded patents on "laws of nature, physical phenomena, and abstract ideas").

for point of reference, one of my current responsibilities is working on our company's IP portfolio. i'm quite familiar with the current rules. they're stupid, but in order to remain competitive companies are often forced (by the market, not legally) to play by them. it's unrealistic to expect companies (or individual filers) to simply "do the right thing" with regard to what they're filing, or even to have any idea how to evaluate that.

Re:How to fix it?

[Gorbag]

Consider the lifetime of the patent compared to the inventors lifetime. Inventors aren't living shorter lives, and the idea that a major breakthrouh should provide enough income for some large fraction of the inventors lifetime seems to me to be something that should not be lost.

No, the real harm are application patents - these are patents that don't describe new technology, but just the application of technology. The patents in this discussion would be in that category, as would a lot of patents that help

Re:How to fix it?

[anothy]

... the idea that a major breakthrouh should provide enough income for some large fraction of the inventors lifetime seems to me to be something that should not be lost.

ah, but that's never been the idea! at least in the US (in many other jurisdictions, too, but i can't provide exact references and wording), patents exist explicitly to "To promote the Progress of Science and useful Arts", as per the Constitution of the United States, Article I Section 8. granting monopolies on inventions for a limited time

Re:How to fix it?

[CDarklock]

I keep talking about this, but nobody listens.

http://www.darklock.com/blog?p=55 [darklock.com]

The basics: make the patent holder prove the validity of the patent when challenged, and pay for any challenge they lose. If they win, the challenger pays.

This makes it expensive to lose a patent challenge no matter which side you take, so nobody will want to lose one. A patent will be applied for only when the company feels confident it will not lose a challenge, and challenged only when the challenger feels confident that the p

Re:Don't hate the player, hate the game

[Marxist Hacker 42]

Exactly right- and when I find I'm in a game that I'm losing, I quit. When I find meat that has grown mold- I throw out the meat AND the mold. We should do something similar with the US Patent Laws.