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Patents The Courts Government United States

Patent Trolls Are Losing More. Will America's Supreme Court Change That? (nytimes.com) 127

jespada writes: New York Times has an article warning that the Patent Appeal and Trial Board is being challenged on the basis that patents represent real property and that a government agency is not empowered to take real property.
Here's a quotes from the Times article. (Non-paywalled version here): In the five years since it began its work -- a result of the America Invents Act of 2011 -- the Patent Trial and Appeal Board has saved companies more than $2 billion in legal fees alone, according to Joshua Landau, patent counsel at the Computer and Communications Industry Association, offering an expeditious and relatively cheap avenue to challenge patents of doubtful validity. The benefits of stopping bad patents from snaking their way through the economy have been even greater. Companies no longer have to pay ransom so the threat of lawsuits over dubious royalty payments -- filed by aggressive litigants known as trolls -- will go away... But for all the benefits of culling faulty intellectual-property rights, the board is under existential threat. Next week, the Supreme Court will hear a challenge that the patent office's new procedure is unconstitutional...
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Patent Trolls Are Losing More. Will America's Supreme Court Change That?

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  • Property taxes? (Score:5, Insightful)

    by Just Some Guy ( 3352 ) <kirk+slashdot@strauser.com> on Sunday November 26, 2017 @12:13PM (#55624885) Homepage Journal
    If patents are real property, and a company testifies in court that theirs is with a billion dollars, then surely they’ve been paying property taxes on that $1B, right? Because if not, you and I are subsidizing their welfare queen asses by paying our taxes to support the court system that they are using to enforce their “property” rights.

    I don’t want to hear a damn thing from a patent holding company until they show tax returns demonstrating that they’re paying their fair share to maintain the legal system they disproportionately consume.

    • Re:Property taxes? (Score:4, Insightful)

      by dk20 ( 914954 ) on Sunday November 26, 2017 @12:30PM (#55624977)

      Exactly! Either it is property or it isnt.. While in Connecticut i had to pay property taxes on my car even, yet billion dollar "patent portfolios" are property but tax exempt?

      The worst part is exactly what you hit upon. Offshore all the profits to avoid paying taxes but sure love the legal system when it is time to sue for patent money..

    • by hwihyw ( 4763935 )

      It's called patent fees, look it up. You pay a fee for application review, pay a fee for after it is granted, pay a renewal fee every 3, 7, and 11 years. So they are paying for their court fees and then some. And if your argument is court fees, then why not just raise court fees for patent cases?

      • Re:Property taxes? (Score:5, Insightful)

        by Just Some Guy ( 3352 ) <kirk+slashdot@strauser.com> on Sunday November 26, 2017 @01:15PM (#55625169) Homepage Journal
        Court fees cover a teensy part of the government that protects those rights. I pay all sorts of fees for my home, too, but that doesn’t get me out of paying property taxes on it. As far as I can tell, this is yet another way for corporations to avoid the taxes that the rest of us have to pay.
        • Re:Property taxes? (Score:4, Interesting)

          by danheskett ( 178529 ) <danheskett@noSpam.gmail.com> on Sunday November 26, 2017 @06:06PM (#55626243)

          You are entirely wrong.

          Patents are subject to local property taxes, if a local entity wanted to tax patents, they could. The Federal government doesn't tax property - i.e. you don't pay Federal income taxes on your real property.

          Patent holders don't get money from the "value" of anything, it's a fictitious sum. The amount of your assessment is also fictitious. If a patent holder uses a patent as collateral on a loan, it becomes taxable as an "improved property", and they would pay taxes on the value of the improvement. It's much like your stapler in your home - you can say it's worth $1 million. You don't pay taxes on it as if it were actually worth $1 million, you pay taxes on as party of your property taxes as though it was worth $3, which means it's effectively taxed at nothing. If you were to go to a bank, and they give you a loan based on the stapler being worth $1 million, now it really is worth $1 million, and you would be taxed at that rate, assuming that's how your local town or city government handles non-ad varloem (improved property) taxes.

          Most towns and cities by the way don't tax things like this because it is a huge disincentive for any type of creative or research based business to do business in that area.

          Patent holders pay income taxes on income earned by patents. Like all income, it's taxed either at the individual rate of the holder, or if it's held by a business, at the corporate rate, depending on the structure. That along with fees for filing for patents, are how patents have been taxed.

    • Re:Property taxes? (Score:4, Interesting)

      by volodymyrbiryuk ( 4780959 ) on Sunday November 26, 2017 @01:18PM (#55625189)
      Also make it so that every patent being the subject of a lawsuit is reviewed thoroughly for it's validity and make the loser pay the whole cost of the lawsuit.
      • How about allowing the party being sued to challenge the validity of the patent, every single time it's used in a lawsuit. And force the patent office to actually verify the patent meets patent law before they issue the patent.
    • Re:Property taxes? (Score:5, Insightful)

      by BankRobberMBA ( 4918083 ) on Sunday November 26, 2017 @01:44PM (#55625293)

      Rather, let's hope sanity breaks out in the SCOTUS and they point out that patents are merely PROTECTIONS GRANTED by the feds. As such, they are not, and cannot ever be, real property.

      This would be a great outcome, both in terms of stopping patent trolls and in terms of eventually simplifying the patent grant/challenge system.

    • Re:Property taxes? (Score:5, Insightful)

      by Wrath0fb0b ( 302444 ) on Sunday November 26, 2017 @02:03PM (#55625363)

      I can't believe this was modded up.

      There is no general blanket tax on property in the US. A very limited form of property (real estate, and in very few States cars) are subject to tax, but that absolutely doesn't apply to any asset that has value. Think about it, do you have to declare your Playstation or 3D printer as property and pay the IRS every year?

      So they are not "surely been paying property taxes" and you won't find it on their tax returns because no part of the tax code actually says anything they have to pay anything remotely like this.

      [ FWIW, I'm not even unsympathetic to the idea that we should change the law to have such a tax, depending on lots of details. But to say "how dare they pay a tax that doesn't exist" is placing things complete backwards. ]

      • by raymorris ( 2726007 ) on Sunday November 26, 2017 @04:15PM (#55625835) Journal

        You're right, the guy complaining doesn't pay an annual tax on most of his property. In many states businesses DO pay an annual tax on objects they own, which is an expensive pain in the ass which generates little revenue compared to the expense. Individuals are MUCH better off in this regard. As a business owner, I pay annual taxes on my desk, my stapler, my printer, etc.

        The observers supporting the patent review board in this case mostly seem to be coming from the perspective of "stopping bad patents as easily as possible is good". I'd certainly agree with that!

        The issue on the other side is that the Constitution has two things to say about the matter. The federal government *Constitutionally* can't take things without due process of law (opportunity for a trial), and the seventh amendment guarantees the right to a *jury* trial for "controversies".

        This tension between the efficiency of an administrative decision by the executive branch and Constitutional right to a jury trial has been successfully overcome with respect to decisions by IRS, FCC, FAA, etc. The key is to write the law in such a way that an administrative decision (faster and cheaper) can be appealed to a court (Constitutionally required) and the court will take due notice of the administrative body's decision and the reasoning behind that decision. That way you get the best of both worlds.

        To use the IRS as an example, if a revenue or collections officer makes a decision you disagree with, you can first appeal to an separate appeals board using a Collections Due Process request. To maintain Independence, appeals employees generally aren't even allowed to talk to collections and revenue officers (with some minor exceptions). If you don't like the outcome of the appeals hearing / discussion, you can then appeal to the federal courts. The court will take notice of the IRS decision, so MOST of the time, if someone lost their argument with the Collections office and lost against with the appeals office, they have a weak argument and will lose in court. But they CAN go to court if they want to, and that preserves their rights.

          Most issues are handled fairly efficiently - even if the revenue officer is wrong, the appeals office can correct it. That in no way limits someone's right to go to court, though. A similar process is supposed to be there for patent appeals decisions. If you think the patent appeals board got it wrong, you should be able to go to court. Because the court will read the appeals board decision and if it makes sense the court will uphold it, the board decision should be a strong predictor of how a court will decide. In other words, once the board decides, it's not likely that the court will reverse it unless the board is clearly wrong. That should, and apparently does, discourage patent trolls from pursuing a court action if the board rules their patent invalid.

        Plaintiffs in this case say that the exact procedure allowed for appealing to the court doesn't meet the Constitutional imperative. They may be right. If so, the process will simply need to be adjusted to be more like the process uses to appeal IRS decisions, which has been held Constitutional.

        • As a business owner, I pay annual taxes on my desk, my stapler, my printer, etc.

          I think you misspelled "take deductions equal to the cost of my desk, stapler and printer divided over the useful life (MACRS) as documented in IRS Publication 946 [irs.gov]. See explicitly the section about how "[O]ffice machinery (such as typewriters, calculators, and copiers)" which specifies a 5-year depreciation timeline".

          Either that or your accountant is not very good.

          • First, no, it's called "business personal property tax". Businesses pay ANOTHER tax every year for owning things, such as desks and staplers. This has nothing whatsoever to do with income tax. If you've never run a business, you could be forgiven for thinking that the only taxes are income taxes and sales tax (but please don't vote if you think that); businesses pay a dozen separate kinds of taxes, filing taxes at least 12 times per year.

            > "take deductions equal to the cost of my desk, stapler and pr

        • by Altrag ( 195300 )

          There's still a bit of a difference though -- unlike real property, the patent is granted by the government. Its not something they built, found or bought themselves.

          That is, the government isn't so much taking something away as correcting a mistake they previously made in issuing the patent originally.

          • If I build a new table, I have exclusive control of that table, it's my property.
            If you catch a fish, you have exclusive control of that fish, it's your property.
            If you build a new method of mixing paint in a sealed can, you exclusive control of that method, it's your property.

            The government issues you a document recognizing your ownership of your car. The government issues a document declaring your ownership of your house. The government issues a document declaring your ownership of your invention.

            It seem

            • by Altrag ( 195300 )

              The government issues you a document recognizing your ownership of your car.

              Not that I've ever seen. The government requires you to tell them about your car, and even then only if you want to drive it on public roads. If you just buy a car from an ad and park it on your lot for eternity, the government doesn't "recognize" squat all.

              The government issues a document declaring your ownership of your house.

              Again, the government is requiring you to tell them about it so that they can tax you. If you just build a house in the middle of the forest you don't get any recognition at all.. at least until the IRS discovers it and comes for their money.

              And in bo

    • Additionally, as real property, it would be expected that violations would be a criminal offence as well as civil. Thus, the little guy would have access to criminal charges against an infringer, as a patent grants exclusive exploitation, which the infinger has taken.

      T'would be nice to see a SWAT team taking down a big corporation, rather than someone who hasen't paid parking fines, for a change :)

    • This is ignorant

      There is no Federal property tax. There isn't even really any state property tax.

      What you are talking about is local municipalities who tax real property. And yes, patents can be taxed as real-property by local municipalities, and several of them do.

      However, patents themselves do not have an instrinic value unless used as collateral for something, in which case they are taxes as non-ad valorem property as you suggest.

      Patents generate income, which are taxed, not at declared value, but at a

  • by king neckbeard ( 1801738 ) on Sunday November 26, 2017 @12:15PM (#55624893)
    I'll accept that logic as soon as they also acknowledge that "a government agency is not empowered to create real property," meaning all patents are invalid, and we can shut down the PATB due to it no longer being needed.
    • by Insanity Defense ( 1232008 ) on Sunday November 26, 2017 @12:34PM (#55624995)
      Patents are in the Constitution along with copyrights so they are legal.
      • by king neckbeard ( 1801738 ) on Sunday November 26, 2017 @12:44PM (#55625041)

        And in that same clause, the government is legally required to take eventually take them away (that's what "for limited times" means), clearly meaning that they are not property in the terms of the fifth amendment protections they are citing here.

        • by Wrath0fb0b ( 302444 ) on Sunday November 26, 2017 @02:05PM (#55625371)

          You're mistaking the copyright term (which Congress, in a monumentally bad idea, had repeatedly extended) and patent term, which has been been pretty stable in the 15-21 year range (it's 20 now).

          • No, both are constitutionally restricted to "limited times." That patent terms have not been abused does not change that constitutional limitation.

            The Constitution says the government can't take property.
            The Constitution says that patents MUST expire, and be taken from patent holders.
            Therefore, patents are not property.

            • by Anonymous Coward

              You're confusing rights and property. The right to exploit in a monopolistic way is the property, and the patent merely denotes the right. And the end of the term the right, and thus the property, vanishes, but isn't taken away as you can't take away what doesn't exist. Leaseholds work the same way, apart from how the property is created. They too can simply vanish.

        • This is historically ignorant.

          Read this for more information on why you have no idea what you are talking about:

          http://yalejreg.com/nc/ptab-pa... [yalejreg.com]

          Short version: they are property and the Executive can't take it away without due process because the founders were trying to avoid the Crown system, where the Privy Council granted and revoked patents at will.

          • The citation acted as if letters patent, covering all manner of publicly documented things in various legal jurisdictions, are inherently equivalent to the modern institution known as patents. That's absurd, and the example given was over land being legally treated like land in public documents.

            He asks the right question (It is to be believed that everyone who has hitherto spoken about “intellectual property” has been under a profound misimpression?), but assumes the wrong answer. Patents are

            • > The citation acted as if letters patent, covering all manner of publicly documented things in various legal jurisdictions, are inherently equivalent to the modern institution known as patents. That's absurd, and the example given was over land being legally treated like land in public documents.

              It is not absurd, there is a direct textual and historical note that draws the line between one and the next. The system was setup exactly to mirror and correct the letters patent system that the Privy Council

              • It is not absurd, there is a direct textual and historical note that draws the line between one and the next.

                It is totally absurd. The broader meaning of "letters patent" here effectively boils down to "public records." What continues closer to that legal tradition of patents is Mallinckrodt Pharmaceuticals' legal cocaine monopoly.

                Regarding patents, they are not property, and if there is an established process for how patents are granted and revoked, that process is, by definition, due process. If Cong

          • by dryeo ( 100693 )

            Don't be daft. We're talking about America, the country where law enforcement is funded by taking property, and not just ships (a type of property) like the founders passed laws allowing the government to confiscate but most property.
            It's simple, the government sues the property, accusing it of doing something illegal and gets to keep the property unless the property shows up in court and proves its innocence.
            Perfectly constitutional according to the Supreme Court, as it is punishing the property rather the

      • So's prohibition, but a further amendment takes it away. I'd say the 1st, 10th and 14th amendments might nullify them as such protections interfere with other's rights.
      • Patents are in the Constitution along with copyrights so they are legal.

        The Bill of Rights trumps the original Constitution, and as such patents (like copyright) are only legal to the extent that the do not violate fundamental rights.

        It has been pointed out on this forum numerous times in the past that the current IP systems (including patent law) do in fact violate fundamental rights in their implementation, including rights such as (but not limited to) the right to reasonable conduct, the right to freedom of thought (and curiosity), and (most importantly) the right to ethical

    • I'll accept that logic as soon as they also acknowledge that "a government agency is not empowered to create real property," meaning all patents are invalid, and we can shut down the PATB due to it no longer being needed.

      That is as likely to happen as posting a stop sign on the beach is likely to stop the tide coming in.

      • I'll accept that logic as soon as they also acknowledge that "a government agency is not empowered to create real property," meaning all patents are invalid, and we can shut down the PATB due to it no longer being needed.

        That is as likely to happen as posting a stop sign on the beach is likely to stop the tide coming in.

        Although... some people might think that would work. From https://en.wikiquote.org/wiki/... [wikiquote.org] :

        • Bill O'Reilly: I'll tell you why it's [religion's] not a scam. In my opinion, all right? Tide goes in, tide goes out. Never a miscommunication. You can't explain that. You can't explain why the tide goes in
        • David Silverman: Tide goes in, tide goes out?
        • O'Reilly: Yeah, see, the water — the tide comes in and it goes out, Mr. Silverman. It always comes in
        • Silverman: Maybe it's Thor up on Mount Olympus who's making the tides go in and out

        Maybe, somewhere, there's a sign posted on a beach ...

  • Yes, it will (Score:3, Interesting)

    by rsilvergun ( 571051 ) on Sunday November 26, 2017 @12:19PM (#55624911)
    We're about to get a very, very pro corporate Supreme Court. This is yet another consequence of the 2017 election.
    • Pro Corporate does not mean pro stupid patents...

      • I'm afraid it does. The patent trolls do not tend to bother large companies: large companies generally have much better lawyers already on staff, filing patents for the company, who can handle patent trolls as a matter of course. The patents filed by larger companies as a matter of course for them, and the patent suites they gather provide strong protection against smaller companies entering the business and potentially competing with the business. The result is that small companies with limited portfolios

        • Re:Yes, it will (Score:5, Insightful)

          by king neckbeard ( 1801738 ) on Sunday November 26, 2017 @12:52PM (#55625081)
          The entire reason we have any protections against trolls is completely because the big companies get sued by trolls. That's why patent apologists are always making the BS claim that patent reform is just to allow the big guys to rip off the little guys. These reforms are enough to hinder trolls, but not enough to make their massive warchests useless.
          • The problem here is that Congress was lazy.

            What they should have done is setup Patent Court, which would operate just like the Executive branch tribunal that this law created, and be just as efficient, but instead, they went with something that was easier to draft.

            Nothing inherently in the law or Constitution makes the Courts slow and expensive. In actual fact the Federal court system is pretty damn quick and efficient compared to state courts.

            If this law fails, it will just be because Congress didn't want

    • We will have a very pro corporate supreme court but that does not mean most companies want to encourage patent trolls.

    • by Anonymous Coward

      We're about to get a very, very pro corporate Supreme Court. This is yet another consequence of the 2017 election.

      No. We were going to get a very, very pro-corporate Supreme Court no matter who won. The difference is we are getting a supreme court staffed with people who are to the right on many social issues. (anti-poor, anti-homeless, anti-minority, anti-gay, anti-abortion, etc...) While there's some room for disagreement, ultimately this is pretty ridiculous once you know much about these issues.

      • by Anonymous Coward

        The Supreme Court is a joke, has been ever since Mitch McConnell perverted it, and will be until Gorsuch is gone and replaced by a Democratic pick. Every decision made where Gorsuch is the deciding vote will be a travesty of justice.

      • I already posted earlier so I can't mod this up.

      • The difference is we are getting a supreme court staffed with people who are to the right on many social issues. (anti-poor, anti-homeless, anti-minority, anti-gay, anti-abortion, etc...) While there's some room for disagreement, ultimately this is pretty ridiculous once you know much about these issues.

        All of the above are examples of political framing. The conservative party is pro-life, seeks to end poverty and homelessness by promoting prosperity, supports lawful and enforceable immigration policies, is pro traditional marriage.

    • We're about to get a very, very pro corporate Supreme Court. This is yet another consequence of the 2017 election.

      Or, more to the point, perhaps a more pro troll Court and America - patent and otherwise. Seems the President is already on board, judging from his Twitter feed.

  • Owning an invalid patent is like having a forged property deed.
    It's not worth the paper it's printed on, except for its value to a criminal.
    I suspect, and hope, the Supreme Court refuses to here the case.
    • "I want a refund!" (Score:4, Interesting)

      by tepples ( 727027 ) <tepples@NOSpAM.gmail.com> on Sunday November 26, 2017 @12:31PM (#55624985) Homepage Journal

      And even if the Supreme Court hears the case and decides in favor of the patent holder, it could decide that a refund of fees paid to the USPTO [uspto.gov] for granting an invalid patent constitutes "just compensation" pursuant to the Fifth Amendment.

      • by Altrag ( 195300 )

        Do you pay more for filing a patent and having it accepted than you do for filing and having it rejected? If the fees are the same for both cases, then the fees are not the price of the patent and the just compensation should be $0.

        • Do you pay more for filing a patent and having it accepted than you do for filing and having it rejected?

          In the linked page, the "Patent Post-Allowance Fees" section mentions "issue fee". The "Patent Maintenance Fees" mentions periodic renewal. The "Patent Petition Fees" mentions "Extension of term of patent", which applies to undue delays by the USPTO or FDA. None of these apply to denied applications.

  • by Anonymous Coward

    Since patents are granted administratively, an administrative finding that the patent was improperly granted seems fine to me.

    Article 1, Section 8 of the US Constitution: [usconstitution.net]

    The Congress shall have Power ... To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

    That doesn't even mention HOW "Congress shall" do that. "Patents" are therefore a creation of Congress, and they can regulate them as they wish.

    Of course, what do I know. The so-called "liberal" Supreme Court justices said the government can take your property and give it to another private person... [wikipedia.org]

    • Administratively = executive

      All that needs to happen is for the Courts to review the taking. Then you've respected due process and the takings clause. Congress should have created a Patent Court which just handles patent cases, and set it up in the same informal and expedited manner. Nothing in law or the Constitution makes courts slow and expensive.

      Patents are created by Congress, but issued by the Executive. The founders specifically set it up so that the Executive could revoke patents, this was a co

  • Because they expire after a prescribed time. The only real property I've ever seen disappear slid into the Skagit River recently.

    And if they are real property, then pay up that property tax.

    • by Anonymous Coward

      Leaseholds also expire.

    • The only real property I've ever seen disappear slid into the Skagit River recently.

      My wife recalls when thousands of acres blew up into the sky (having formerly been Mount St. Helens).

  • Let's for a moment accept the argument that a patent is real property. that property is created by a government agency it seems it would not be unreasonable to argue they can rescind any patent issued in error without a court order. Otherwise, any error they might make would potentially require a court to correct since they conceivably would be taking real property. I would hope SCOTUS would be loath to open that Pandora's box.
  • Not going to work (Score:5, Informative)

    by eddeye ( 85134 ) on Sunday November 26, 2017 @01:15PM (#55625175)

    I'm a lawyer. I work in this field and have been following this case. It's very unlikely to overturn PTAB trials (known as IPRs).

    The apellant's argument about "real property" is weak. The Supreme Court has held many times that patents are in essence a public right, or at most quasi-private. They haven't ruled on that question explicitly, but that's consistent with all their recent patent rulings (past 30+ years). A ruling against would also upset settled administrative law precedent in many other agencies that have nothing to do with patents. I expect a decision that's 9-0 or 8-1 in favor of PTAB. Not even close.

    The S Ct likely took this case not to overturn the law but to settle the question once and for all. Many patent holders who lose at PTAB appeal to federal court on Constitutional grounds, among other things. This case should finally put those appeals to rest and quit clogging up the lower courts.

    FWIW the best interpretation I've heard is that while the rights to exploit a patent are private property, the scope of the patent itself is a public right. That means the scope is properly subject to administrative adjudication by competent federal agencies such as PTO, while the right to exercise that patent is not. That view is entirely consistent with both the appellant's position that patents are real property (at least in part) and that PTAB trials are constitutional. However I don't expect the S Ct will adopt such a clean distinction, given their lack of expertise in this area.

    • by _Sharp'r_ ( 649297 ) <sharper&booksunderreview,com> on Sunday November 26, 2017 @01:31PM (#55625243) Homepage Journal

      Stop interrupting the sky-is-falling, woe is me, I-can-use-this-politically narratives with facts about reality and the law....

      What are you, new to /., where you think you can interject a reasonable comment or something? ;)

    • FWIW the best interpretation I've heard is that while the rights to exploit a patent are private property, the scope of the patent itself is a public right

      Is this distinction meaningful in any practical way?

      • by sjames ( 1099 )

        The distinction is quite meaningful. He's saying of course you have the right to put a fence on your own property, but should you and your neighbor have a dispute about the property line (that is, over whether or not your proposed location actually is your property), the court gets to decide.

        • You used an analogy. If you do that, you also need to show how the analogy relates to the situation (otherwise it's incomplete). How exactly do you use that distinction in an actual patent situation?
          • by sjames ( 1099 )

            It should be fairly clear. The court case this discussion is about claims that a patent is like real property. Naturally, the property lines would be all about the broadness of the patent.

            I would go one further. The court also has the power to decide if your title to land is legitimate. It does not deprive you of property if it decides you don't actually own the Brooklyn Bridge even if you did give some guy $10,000 for it.

    • by Cederic ( 9623 )

      I'm not sure 'are patents property' is even relevant.

      Lets assume that the plaintiffs are correct and that patents are 'real' property. So fucking what?

      The PTAB isn't depriving anybody of their property. They're merely highlighting that the property does not qualify for protection by the government.

      So by all means, have your patent, enjoy being able to declare it in your property portfolio. Just don't expect the government or courts to support you if you try to prevent someone else from having or using the

      • IANAL, but ... I don't see the patent as being the property. I see the original idea as being the property (if anything is). The Patent is a right granted by society on certain terms. Society can dictate those terms. To put in real property terms it may be more like you have a river or stream flowing through your property. The stream may in fact be yours while it is inside your boundaries, but the state has the right to dictate how you use the water, by setting quotas or not allowing you to divert it to th

  • Consider.

    You invent something and patent it. You want to get cash to finance your business and don't want to go after people who infringe it. So you sell it to Nathan Myhrvold's Intellectual Ventures. Now Intellectual Ventures pay you for your patent and do the licence fee collecting themselves. [wikipedia.org]

    If Intellectual Ventures didn't exist then you'd be screwed - you'd have spent money on a patent and you need money to run your business but you don't have money for lawyers to collect royalty fees.

    Now you can make a

    • If you want competition, you should be fighting AGAINST legal monopolies like patents and copyright, which give an enormous competitive advantage to powerful, established businesses.
      • Except the original justification for patents is so that the people who own the factories and printing presses have to pay the people who do the inventing or writing.

        No copyright means the publisher keeps all the money and the author gets none. No patents mean the factory owner keeps the money and the inventor gets none.

        Which used to happen in the US. E.g.

        https://www.charlesdickensinfo... [charlesdickensinfo.com]

        In January 1842 Charles Dickens and his wife, Catherine, traveled to the United States. Dickens wanted to see the sites, learn about the country and do research for a future series of articles.

        While on tour Dickens often spoke of the need for an international copyright agreement. The lack of such an agreement enabled his books to be published in the United States without his permission and without any royalties being paid.

        This situation also affected American writers like Edgar Allan Poe. Poe's works were published in England without his consent.

        Dickens first realized that he was losing income because of the lack of national in international copyright laws in 1837 when The Pickwick Papers was published in book form. At times the novel was reprinted without his permission and sometimes even imitated.

        Lobbying by people like Dickens and Poe is what created a system where the US respected the copyright of UK authors and

        • Except the original justification for patents is so that the people who own the factories and printing presses have to pay the people who do the inventing or writing.

          Patents predated industrialization, and were never to protect small entities from large competitors.

          Get rid of IP and you end up with a dystopia where no one invents anything, you've got no idea if the device you buy is genuine and the only people making money are the people who own the factories in China making the hardware.

          Nope, non-supers

    • by PPH ( 736903 )

      but you don't have money for lawyers to collect royalty fees.

      I just thought of this new thing called a contingency fee. Where a law firm agrees to defend your position in return for a piece of the potential award. Woo hoo! I'm off to the patent office!

      Intellectual Ventures (ad other IP holding companies) are more about securitizing IP. So it can be traded. And when nations' tax authorities finally wake up and realize that this IP is moving across borders* without the documentation required of other negotiable assets, the party will be over.

      *Like Apple Cupertino to

      • You can engage a lawyer to sue someone no win no fee and that's fine if you know who is infringing. However how do you find out? If I have a patent on faster superscalar instruction execution for example, I'd need buy a bunch of chips, remove the package with acid, photograph the die, and then work out out if their design is infringing. And then I'd need to go to court and fight them over it. And they'll presumably counter sue. If you're Intel or AMD you probably have people doing competitor research they c

        • by PPH ( 736903 )

          If you're Intel or AMD you probably have people doing competitor research

          Patent holding companies don't have the expertise to do this reverse engineering. They typically rely upon legitimate licensees (Intel, AMD) to do it and inform them that the patent needs to be defended. Once the patent has licensees and generates a stream of royalties, it has a known value and will attract lawyers to take the case on contingency. So why don't you sell/license your patent directly to Intel and others?

          There are a lot of worthless 'blocking patents' generated that are nothing more than obvio

    • by Altrag ( 195300 )

      That wouldn't be what most people consider a "troll" though.

      If your Intellectual Ventures example company was wanting to act like a troll, they would wait around until you go broke, buy up your patents at firesale prices after you've declared bankruptcy.. then sit on them for 5 years until somebody else has created and started selling a similar product, and after the new product has built up plenty of sales and profit, they'll file a lawsuit not only for infringing on the patent but also for "damages" due t

  • The SCOTUS has never, that I can remember, sided against Congress in altering the scope of IP law. In fact, the SCOTUS has basically told the public we're SOL if Congress does something we don't like. The "pro-IP side" is part of the general public and has no standing either to challenge Congress in defining the scope of IP protection because Article I, Section 8 is a blank check to Congress.

    • by PPH ( 736903 )

      Article I, Section 8 is a blank check to Congress.

      Strange. Because it clearly states "by securing for limited Times". That doesn't sound like a blank check to me. Also, "To promote the Progress of Science and useful Arts" sounds like a condition in that any law or regulation that can be shown to hamper "Progress" could be thrown out by the Supreme Court.

  • Why isn't there an expeditious and relatively cheap avenue to challenge patent applications of doubtful validity and prevent these patents from existing in the first place? Shouldn't patent application examiners have the benefit of hearing these challenges before making their decisions?
  • by Cutterman ( 789191 ) on Sunday November 26, 2017 @04:09PM (#55625811)

    If the patent trolls have retreated under their bridges and judges and juries are more awake about patent abuse and IP extortion then I think we all owe a great dept of thanks to pj and Groklaw - http://www.groklaw.net/ [groklaw.net]

    Way back in 2003, Darl McBride thought that his company SCO (pretending to be the defunct Santa Cruz Operation) decided on a scan to monetize Linux, through some disputed Novell IP.

    pj, a paralegal, aided by a growing cohort of assistants, tracked down and followed every slimy twist and turn of the multiple cases brought by SCO against Novell, IBM and several others. They dug up so much forgotten information, case-law and witnesses that even the lawyers admitted to using Groklaw as a source.

    Eventually it was decided that Novell did in fact own the IP in question, and "millions of lines of :copied code" turned out to be a couple of headers of no consequence.

    Finally Darl's dreams of wealth beyond belief collapsed and SCO went into bankruptcy.

    The whole saga, and SCO's ultimate ignominious collapse, was a big wake-up call for patent/IP trolls and Groklaw played no small part in it.

    Groklaw stopped in 2013 because their messenger anonymizer was forced to close, but their archives are still online.

    We owe a big dept of thanks to pj and Groklaw

    Mac

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