
Big companies are stopping Congress from fixing the patent system - __Joker
http://www.vox.com/2015/4/30/8521263/patent-reform-trolls-quality
======
bnolsen
The US congress was supposed to be made up of ordinary citizens who part of
the time lived at home in their districts. ran their businesses and affairs
and occasionally went to vote on federal government issues.

What we have is a political class that only does law and politics. Most of
them look down on those of us who have to actually work and produce to make a
living. Small business individually have almost no revenue or clout compared
to these larger entities even though collectively we are the ones who
represent most of the economy (or should be representing almost all of the
economy if it's healthy).

~~~
CWuestefeld
_The US congress was supposed to be made up of ordinary citizens_

And indeed they are, and this is the heart of the problem. They're just
regular people like us, subject to the same prejudices, temptations,
motivations, etc. We shouldn't be surprised when the motivations that are
built into the system actually do something.

More concretely, we've vested incredible power with our politicians. That
makes them huge targets for those with vested interests (whether those be
corporation, special interests, foreign governments, what-have-you). The
potential reward to them for getting influence is so great that they'll invest
tremendously in trying to do so.

The idea that "public servants" don't magically become saints, but respond to
the same incentives as do the rest of us, is the core of public choice
economics [1]. There is, in fact, a fair amount of research and literature on
the topic from an academic perspective.

From where I sit, if you recognize the problem as one where we're giving the
corporations and special interests, etc., a huge potential payoff by finding
ways to co-opt governmental power, then increasing that power to try to combat
it doesn't make sense: it's just increasing the size of their potential
payoff. It sounds like silly pop-Zen, but the way to get such corruption out
of government is to limit the power of government.

[1]
[https://en.wikipedia.org/wiki/Public_choice](https://en.wikipedia.org/wiki/Public_choice)

~~~
raincom
Is there a way to come up with a better system than the exsting one. I am not
asking for the ideal system.

~~~
tech_is_amoral
I read the wiki page on public choice theory and eventually found a wiki page
for The Myth of the Rational Voter [1] where they talk about rational
irrationality [2].

The idea is that people are more likely to make irrational decisions when the
cost of that decision is low, like in voting. An irrational vote only harms
you as an individual in a very small way since the cost is distributed across
the entire population.

So, it seems to me that we should look for ways to increase the cost of
irrational decisions. I'm not sure the best way to accomplish this, but one
way would be to reduce the power that government has, thereby reducing the
impact of irrational decisions.

[https://en.wikipedia.org/wiki/The_Myth_of_the_Rational_Voter...](https://en.wikipedia.org/wiki/The_Myth_of_the_Rational_Voter#Rational_irrationality)

[https://en.wikipedia.org/wiki/Rational_irrationality](https://en.wikipedia.org/wiki/Rational_irrationality)

~~~
nostrebored
Wouldn't that make the decisions people make even less valuable? Wouldn't that
promote irrationality on a larger scale, if they're coupled as you say? Are
you arguing that there is an inflection point or are you arguing for a useless
government?

------
nfc
Wouldn't it make sense for small companies to commit their patents to a mutual
"patent fund" that would protect them in case they are sued?, are there legal
reasons why this has not been done?

An ideal version of this mechanism would work like this: once you commit a
patent to the fund you can not use it offensively in the future (to avoid
worsening the problem), but you'll be protected by the "patent fund" when
someone sues you. The sum of the patents of lots of small companies could
quickly be enough to deter most suers that are not patent trolls.

Disclaimer: I'm not american so my knowledge of the patent system is quite
superficial, perhaps a similar mechanism already exists?

~~~
jhdevos
I think when smaller companies have patents, they tend to be closely related
to their core business, and they have them precisely in order to use them
'offensively' \- or, in other words, to protect their core business from
companies that want to 'copy' them.

In principle, that is sort of what the patent system was intended for. (I
still don't agree with it, but that's another story).

~~~
e40
I don't think smaller companies can be offensive with patents, because they
don't have the money to litigate. Maybe your definition of small and mine are
different, though. I'm thinking of < $10M/yr. In that case, I don't believe a
company of that size would have the resources to go after alleged infringers.

------
throwawaykf05
Oh, I see binarybits is at it again! Just a few corrections:

1\. Android makers don't necessarily pay Microsoft for patents on things that
were invented in Windows Phone. They pay licenses for patents that relate to
either a) computers in general, or b) that you could do on mobile devices in
general. Examples include the infamous FAT patent, patents on low-level
concurrency primitives, and patents on synchronizing calendar clients. "Good"
patents? I don't know. But it's disingenuous to compare Android to Windows
Phone because a) it implies Android is licensing stuff that came later, and b)
from a product that is inferior, insinuating these patents are low quality. If
I were uncharitable, I'd say Google ordered a hit piece after all the love
Microsoft has been getting the past couple of days!

2\. The "billions of dollars spent on patents instead of hiring engineers"
argument is a red herring. Firstly, these companies _cannot_ find enough
"good" engineers to hire, which is why they're lobbying for more H1s. Is their
bar too high? Maybe. Or they may justly be concerned about allowing a "bozo
explosion". And even if they _did_ hire more engineers, they still have
billions of dollars left over. Patents are designed to be a risk to those that
would not reward inventions they practice, and reducing risk to the company is
a fine way of spending that money,

3\. Using these patents to crush future competition? These companies can more
easily crush competition by buying them up rather than suing them. A 2009
study found only a small fraction of lawsuits involve large companies suing
smaller ones:
[http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1396319](http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1396319)
\- and I would bet none of the large tech companies would risk the PR fallout.

4\. There is no "patent litigation crisis", just increased media coverage of
litigation that is more or less in line with historical rates. Less than 2% of
active patents are ever asserted and only a fraction of a percent ever make it
to trial. See studies by Mark Lemley, for instance. The "smartphone wars" were
just a drop in the bucket of all other patent litigation that happens. In fact
there were higher rates of litigation in history when major technical
developments happened:
[http://papers.ssrn.com/sol3/papers.cfm?abstract_id=](http://papers.ssrn.com/sol3/papers.cfm?abstract_id=)

~~~
chrisbennet
Good info. I have a different take on #2.

"2\. The "billions of dollars spent on patents instead of hiring engineers"
argument is a red herring. Firstly, _these companies cannot find enough "good"
engineers to hire_, which is why they're lobbying for more H1s. "

They can't find enough good engineers _at below market price_. If you could
find a good engineer if you paid 1 million dollars, than the "market price"
lies somewhere between what you are offering and 1 millions dollars i.e. the
price at which you can purchase a commodity on the market.

If I can't find enough gold at $1000 an ounce I wouldn't be correct in saying
that "I can't find gold". (The market now is ~$1200 oz.)

~~~
the_why_of_y
It is particularly interesting if you compare the average salaries between
software engineers and patent attorneys in the US.

[http://www.glassdoor.com/Salaries/us-software-engineer-
salar...](http://www.glassdoor.com/Salaries/us-software-engineer-salary-
SRCH_IL.0,2_IN1_KO3,20.htm)

[http://www.glassdoor.com/Salaries/us-patent-attorney-
salary-...](http://www.glassdoor.com/Salaries/us-patent-attorney-salary-
SRCH_IL.0,2_IN1_KO3,18.htm)

How many more "good engineers" would suddenly be found if they were offered 58
% higher compensation?

------
mhuffman
Investors, as well, have been forcing startups to feed the patent beast. Gotta
keep your tech "defensible" after all!

------
janvdberg
This is also subject in this piece with John Oliver:
[https://www.youtube.com/watch?v=3bxcc3SM_KA](https://www.youtube.com/watch?v=3bxcc3SM_KA)

~~~
throwawaykf05
I think that was more about trolls rather than big company shenanigans. In any
case there are some errors in that video that I pointed out in a previous
comment:
[https://news.ycombinator.com/item?id=9442161](https://news.ycombinator.com/item?id=9442161)

------
fixxer
Seems like the America Invents Act has created a great opportunity for a non-
profit to organize lawyers/law students with engineers for purpose of filing
briefs to dismantle the massive pile of software patents out there. I could
see it as a grass roots/crowdsourcing effort.

Does anyone know of any such org?

~~~
TheDong
The 'patents' section of stack exchange was made to do something sorta like
this. See the original blog post announcing it:
[http://blog.stackoverflow.com/2012/09/askpatents-com-a-
stack...](http://blog.stackoverflow.com/2012/09/askpatents-com-a-stack-
exchange-to-prevent-bad-patents/)

------
CodeSheikh
Either get rid of the patent system altogether. All innovations eventually do
good to the mankind. Or we need to form a patent review committee primarily
composed of people with great track records. Pick professors, company leaders
(like Elon Musk, political leaders, graduate students and average consumers.
This committee should be tasked to review all of the patents and purge the
ones that are too generic in nature. Reduce the patent age from 100 years to a
decade. Change this committee every year and their doings should be VERY
transparent. A public facing website where they publish their reviews.

~~~
ahomescu1
> Reduce the patent age from 100 years to a decade.

The duration of a patent in the US is 17 years, AFAIK.

~~~
logfromblammo
That duration was measured by a legal clock rather than a natural clock.

Because of that, since 1995, it has been 20 years from filing; prior to that
it was 20 years from filing OR 17 years from issue. That enabled "submarine
patents", wherein the applicant could intentionally delay consideration of the
application to extent the period of market exclusivity.

Design patents have a shorter term, but no one cares how long they last
because they are largely worthless, and more like trademarks than actual
patents.

------
josefresco
I was under the impression (maybe it's wrong), that good deal of US company
_value_ is tied to patents, and IP in general. Reforming the patent system
would effectively destroy, or reduce the value of these (in some cases very
large and important) patents and therefore harm businesses in the short term.
This doesn't seem like something Congress, or US lawmakers would be addressing
with gusto.

------
fu9ar
Honestly, if I was running a company that relied on IP, I'd be worried that
Congress will probably fuck it up even worse.

~~~
talmand
Well, one might say one of the goals of such a company is to get big enough to
be able to pay, er influence, Congress to fuck it up for everybody else and
leave you free to move forward.

~~~
fu9ar
If they are a publicly traded company it could be argued that lobbying
Congress for beneficial legislation would be a part of their due diligence
toward increasing stockholder value.

~~~
talmand
Yes, that could very well be true. As long as the lobbying is done in a legal
manner, which sometimes it is not. But my comment was probably more correctly
aimed at Congress than at companies.

------
pinaceae
where is the problem? which startup has been killed by patents? given that the
US has the most successful entrepreneurial system - what exactly makes this a
huge problem?

~~~
MCRed
You ask a good question. I've seen a lot of people express fear. I've seen a
lot of claims about startup being killed by patents.... but I've never seen it
happen. I've been involved in a bunch of startups over the past 30 years. I
have a patent myself and was involved in several others. I'm not aware of any
of these patents (Which are now owned by a large company) ever being asserted
(I presume that if it were at some point I'd be contacted as the inventor?
It's pretty fundamental.)

I have, however, gotten cease and desists based on trade mark. I had a name
that was of the type Adjective-Adverb. A company claimed it owned all use of
the Adverb word because they'd registered some other two word name that
included the same word. I Thought it was hilarious. They weren't even
registered in the same business area as I was operating-- yet they sent me
several 30-40 page threatening letters and "license agreement/settlement"
contracts for me to sign via FedEx. I just tossed them and laughed.

~~~
jacquesm
Your assumption that people that start start-ups are stupid is wrong. People
that start start-ups are in general smart enough to research the patent
situation around their start-up idea and will look for greener pastures if
they consider the patent situation too borked to try establishing a foot-hold
or to navigate the patent minefield.

It's not just the start-ups that you see that might be killed it's all those
that you never get to see or hear about in the first place, killed before they
ever left the drawing board.

Start-up founders are savvy enough to take patents into consideration when
they embark on a new venture, to do otherwise would be extremely foolish.

As for whether or not patents can kill companies, I've been on the receiving
side of these suits and were it not for the fact that I had a main office in a
country that is a bit more down-to-earth when it comes to legislation it would
have certainly killed the start-up I was CEO of.

